Emory Corporate Governance and Accountability Review

Why Google May Be in the Right: An Analyses of Political Discrimination in the Workplace
Katharine Pickle Katharine Pickle is a second-year student at Emory University School of Law. Katie is originally from San Diego, CA, and received her Bachelor’s Degree from the University of Virginia. She is in the transactional law certificate program at Emory, and currently interns remotely for a general practice firm in Birmingham.

Introduction

The Civil Rights Era may be decades in the past, but in an increasingly diversified America, discrimination in the workplace remains a central issue. Title VII of the Civil Rights Act (1964) makes it unlawful for employers “to fail or refuse to hire or to discharge any individual…because of race, color, religion, sex, or national origin.” 1 42 U.S.C. §§ 2000e-2(a)(1). The statute says nothing about discrimination based on political affiliation. Because the federal government is quiet on the issue of political discrimination in the workplace, some states have passed laws outlawing this type of employment discrimination. 2 Donna Ballman, Can You Be Fired For Your Political Beliefs and Activities? Maybe, Huffington Post (Feb. 4, 2016, 5:56 PM), https://www.huffingtonpost.com/donna-ballman/can-you-be-fired-for-your_b_9154066.html. California is among these states; it has one of the most comprehensive anti-political discrimination schemes in the country. 3 Alexander Hertel-Fernandez & Paul Segunda, Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United, 64 UCLA L. Rev. Disc. 2, 14 (2016).

It is in California that Google is now defending a suit based on alleged political discrimination brought under the aforementioned statute. 4 Camila Domonoske, James Damore Sues Google, Alleging Discrimination Against Conservative White Men, NPR (Jan. 9, 2018, 9:36 AM), https://www.npr.org/sections/thetwo-way/2018/01/09/576682765/james-damore-sues-google-alleging-discrimination-against-conservative-white-men. Former Google employee James Damore filed suit against the company, alleging he was mistreated throughout his time at Google and ultimately fired due to the company’s pervasive discrimination against conservative white males. 5Id.

While on the surface any type of discrimination in the workplace feels inherently wrong, perhaps companies, like Google, have a good reason for firing individuals like Damore, and should be allowed to do so based on political affiliation. The country has rapidly become politically polarized along party lines, and this polarization may have a negative effect on workplace efficiency. More broadly, anti-discrimination laws are in tension with First Amendment freedom of association.

This essay explores the validity of laws banning political discrimination in the workplace, particularly the California Labor Code, and explores the traditional arguments against these laws in the context of the current political environment. The Google-Damore lawsuit serves as a helpful lens through which to view the potential issues with anti-political discrimination laws, and to better understand the reasons employers might have for choosing to politically discriminate.

I. Background on Political Discrimination Laws

Because federal law is largely silent on the issue of political discrimination, whether an employer may discriminate against an employee based on political affiliation is primarily a state-by-state question. 6 Ballman, supra note 2. Intuitively, many view freedom of speech in the workplace as a First Amendment issue, but it is important to note the free speech protections from the First Amendment do not apply to private employers and individual speech may be restricted in the private workplace. 7Id. While political speech and activities are not explicitly protected by Title VII of the Civil Rights Act (1964), there are some federal protections in place. 8Id.

For example, the National Labor Relations Act (NLRA) restricts the kinds of political speech that employers can ban. 9Id. Employers can prohibit general political discussion and campaigning, but cannot prevent discussions relating to workplace conditions; for instance, if an employee were to specifically express her opinion on why a particular candidate would be better for her and her co-workers because of that candidate’s ability to improve their work environment, she cannot be fired for that discussion. 10Id. Additionally, though employers can prohibit employees from wearing apparel or accessories advertising a particular candidate (ie. campaign buttons), employers cannot prohibit employees from displaying union insignia. 11Id. Thus, if an employee were to don a “[Union] for Hillary” button, that speech would be permissible. 12Id.

However, even with these protections in place, federal law on political discrimination is rather sparse, and employers have broad discretion. The Supreme Court’s decision in Citizens United v. FEC confirmed employers’ rights in the political speech arena, giving corporations new avenues through which to politically engage workers. 13 Hertel-Fernandez & Segunda, supra note 3, at 4; See generally Citizens United v. FEC, 558 U.S. 310 (2010). Companies are allowed, for example, to require employees to attend political events for certain candidates. 14Id.

To fill the holes in federal law, many states have stepped in and provided protection from political discrimination for citizens. California has the most comprehensive approach to protecting its workers from political discrimination. 15 Hertel-Fernandez & Segunda, supra note 3, at 14. Chapter 5 of the California Labor Code addresses employment discrimination based on political affiliation, and Sections 1101 and 1102 are particularly important. 16 Cal. Lab. Code §1101–1102. Section 1101 states “no employer shall make, adopt, or enforce any rule, regulation, or policy forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office” or “controlling or directing political activities or affiliations of employees.” 17 Cal. Lab. Code §1101(a)–(b). Section 1102 states “[n]o employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” 18 Cal. Lab. Code §1102.

James Damore’s complaint for discrimination is partly based on the allegation that Google violated Sections 1101 and 1102 of the California Labor Code. 19 Complaint at 1, James Damore and David Gudeman v. Google, LLC, (Cal. 2018) (No. 18CV321529), available at https://techcrunch.com/2018/01/08/james-damore-just-filed-a-class-action-lawsuit-against-google-saying-it-discriminates-against-white-male-conservatives/.

II. Facts of the Damore Lawsuit

Damore’s complaint against Google is a pending class-action suit, and includes former Google employee David Gudeman as a plaintiff and potentially others; though, this analysis will focus primarily on Damore. 20Id. Damore claims that Google discriminated against him based on his “perceived conservative views,” “male gender,” and “Caucasian race.” 21 Complaint at 2, Damore and Gudeman v. Google. While his race and gender claims are interesting in their own right, it is his political discrimination claim that is central to this essay.

The complaint alleges that “Google employees who expressed views deviating from the majority at Google on political subjects raised in the workplace…were/are singled out, mistreated, and systematically punished and terminated from Google.” 22Id. Damore accuses Google of “open hostility for conservative thought.” 23Id. He alleges that he and other employees sharing his political views were “ostracized, belittled, and punished.” 24 Complaint at 3, Damore and Gudeman v. Google. Damore says this included being laughed at, personally insulted and attacked. 25 Domonoske, supra note 4. The complaint alleges that these employment practices created “an ideological echo chamber, a protected, distorted bubble of groupthink.” 26 Complaint at 3, Damore and Gudeman v. Google. On a press tour denouncing the company, Damore compared being a conservative at Google to “being gay in the 1950’s.” 27 Connie Loizos, James Damore just filed a class action lawsuit against Google, saying it discriminates against white male conservatives, TechCrunch (Jan. 8, 2018) https://techcrunch.com/2018/01/08/james-damore-just-filed-a-class-action-lawsuit-against-google-saying-it-discriminates-against-white-male-conservatives/.

Google says it fired Damore because of a memo he wrote criticizing diversity efforts at the company. 28 Domonoske, supra note 4. Damore submitted the memo to Google HR offering it as feedback; Google left the comments section of the memo open for other employees to respond. 29 Complaint at 10, Damore and Gudeman v. Google. In the memo, Damore said that women were biologically less suited for challenging tech jobs, and Google’s effort to achieve more race and gender diversity in hiring was discriminatory. 30 Domonoske, supra note 4. In response to the memo, Damore received threats from his coworkers. 31 Complaint at 12, Damore and Gudeman v. Google.

Google stated this memo violated its code of conduct and advanced “harmful gender stereotypes in [the] workplace.” 32 Loizos, supra note 27. This explanation insinuates that political discrimination was not in play at all in Damore’s firing; but Damore suspects otherwise. The memo also discussed the differences in political ideologies between leftist liberals and rightist conservatives, suggesting that Google had a liberal bias, and argued that striking a balance between the two ideologies is what would be best for society. 33 Complaint at 8, Damore and Gudeman v. Google.

The complaint accuses Google of failing to protect Donald Trump supporters from workplace harassment, promoting the blacklisting of conservatives, and allowing employees to intimidate conservatives with threats of termination. 34Id. at 25, 28, and 37. It also contains 80 pages of “anti-conservative” and “anti-Caucasian” postings made on a variety of platforms by other Google employees. 35 Domonoske, supra note 4. An example of an “anti-conservative” posting included in the complaint is a Kermit tea meme reading, “I think all of Trump’s supporters are deplorable for backing an openly racist candidate, but that’s none of my business.” 36Id.

Google takes the stance that it did not fire Damore based on his political views. 37Id. However, even if the court finds that Google terminated Damore solely on the contents of his memo, without regard for any other views he expressed in the workplace or was known to hold, there remains a solid case that Google did in fact fire Damore because of his political views. The memo was a form of political expression, and though Google paints the memo as focusing only on gender bias, it also contained commentary on liberal and conservative politics in general. Additionally, Damore’s views on gender could arguably be qualified as political views, regardless of whether they are generally accepted. Furthermore, since the lawsuit is a pending class-action, and notes other instances of political discrimination unrelated to Damore, it is certainly conceivable that Google politically discriminated, and continues to discriminate, against its employees.

Assuming that the court finds Google guilty of political discrimination in the workplace, the key question is whether state or federal law should restrict companies like Google from politically discriminating against employees, or whether these types of laws are unfair to American companies who may have a reasonable basis or, indeed, a First Amendment right to do so.

III. In Defense of Political Discrimination

Though it is difficult to accept the idea that any kind of discrimination should be allowable, political discrimination is unique. By definition, when Americans vote for a candidate or express a policy preference, they are “discriminating” against the opposite political stance. There is something about an individual’s political affiliation that society does not find as sacred as an individual’s race, gender, or sexual orientation; perhaps because people can choose their political party, but they cannot choose the latter. While it is considered socially unacceptable to openly insult a person’s race, people vigorously insult each other’s politics on a regular basis; and not only in private settings—barbs exchanged between Republicans and Democrats are nationally televised daily.

Due to the difference between an individual’s political affiliation and other characteristics, like race and gender, it makes sense that political discrimination would be treated differently by the law than other kinds of discrimination. A variety of arguments exist decrying laws that hinder employers’ discretion in hiring and firing employees. These traditional arguments are against all types of anti-discrimination laws, but they are more convincing if applied to anti-political discrimination laws, like Sections 1101 and 1102 of the California Labor Code. The arguments become more powerful when considered in light of the current American political environment, in which there is extreme animosity between the political parties. Furthermore, there are possible exceptions to the anti-political discrimination Sections of the California Labor Code, and it is not outlandish to imagine that an additional exception might be made for extremely divisive political conduct.

A. Property Rights

A common argument against anti-discrimination laws is that they are in violation of businesses’ property rights. 38 Walter E. Block & Javier Portillo, Anti-Discrimination Laws: Undermining Our Rights, 109 J. of Bus. Ethics 209, 212 (August 2012). This argument is typically advanced by those on the right of the political spectrum, particularly in the libertarian camp. It frames the issue of employment discrimination in terms of Lockean rights, the idea being that a business is the private property of its owner, and as such he should be able to do with his business what he likes. 39Id. at 210.

It is true that working for a privately held business is not a right. 40Id. at 213. Employees can discriminate amongst employers when deciding for whom to work, but employers cannot discriminate to the same extent when hiring. There is something that feels wrong about the government telling an employer how to best run her business, because laws that limit an employer’s freedom in this way also tell her how to best spend her money. 41Id. at 212.

Corporations that offer jobs are offering up private property, and employers put significant amounts of time and money into developing and establishing corporations. 42Id. The common analogy is comparing corporations to personal homes. 43Id. If the employer had instead invested his time and money into building a home, he could invite in whomever he pleased and exclude others, based on whatever criteria he so desired. 44Id.

Of course, businesses are not homes, and there are greater consequences to a job offer than a dinner party invitation. This line of reasoning is too broad; it suggests that an employer should be able to discriminate on any basis he chooses. 45Id. at 209. However broad the arguments may be, it is interesting to consider the property rights arguments and home analogy within the context of political discrimination. While society would judge the exclusion of a particular race from a home as outright moral corruption, ethical lines would likely be blurred if the group being excluded were right-wing extremists or radical socialists.

B. Freedom of Association

Another prevalent argument against anti-discrimination laws is that they violate a business’s freedom of association. 46 James D. Nelson, The Freedom of Business Association, 115 Colum. L. Rev. 461, 461–513 (March 2015). Proponents of this theory identify that there is an associational asymmetry in interpretations of the First Amendment between for-profit businesses and non-profit organizations. 47Id. at 461. Non-profits receive stronger constitutional protections in the area of freedom of association than do commercial entities; i.e. the Boy Scouts can resist anti-discrimination laws while Wal-Mart cannot. 48Id. at 469; E.g. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).

Critics raise two main objections to associational asymmetry. 49Id. at 468. One objection is that it can be difficult to identify which organizations are, in the words of the Supreme Court, “expressive,” and which are commercial. 50Id.; E.g. Roberts v. United States Jaycees, 468 U.S. 609 (1984) (O’Connor, S., concurring) The issue, critics argue, is that even those corporations that seem unequivocally commercial in nature have an expressive component. 51Id. Wal-Mart, for example, is a quintessential multi-billion dollar corporation, but Wal-Mart also has expressive values that it embraces; until recently, Wal-Mart refused to sell emergency contraceptives in its stores. 52Id. at 470.

A company’s core values may sometimes conflict with a potential employee’s personal characteristics, including political affiliation. A company thus might have a legitimate interest in choosing not to associate with individuals whose political beliefs are grossly out of line with the company’s core values.

The second primary objection is that associational asymmetry is plainly unfair. 53Id. at 472. Critics subscribing to this view hone in on the voluntary nature of commercial association. 54Id. at 473. Commercial organizations are formed by the free choice of individuals, and employees who join these firms do so on a voluntary contractual basis. 55Id. Regardless of potential costs, employees are free to exit commercial organizations and join others as they choose. 56Id. In this way, employers and employees are freely choosing to associate with each other in furtherance of a common enterprise, not so different from members of a club. 57Id. If the goal of a club was, say, to elect a Republican, it would likely want to exclude outspoken Democrats from membership. If the goal of a corporation were the same, why should it not be able to exclude Democrats as well, in furtherance of this goal?

C. Rational Discrimination

Employers are rational individuals, and some scholars argue that discrimination is a means to an end of economic, rational decision-making. 58 Block and Portillo, supra note 38, at 213. When hiring, employers associate certain characteristics with certain outcomes, from their past experiences with people. 59Id. at 214. Some types of employees will benefit them economically, and some will not. 60Id. Critics of anti-discrimination laws argue that these regulations prohibit employers from engaging in rational decision-making, and restrict employers from making cost-effective decisions. 61Id.

The notion is that employers are guided by the “invisible hand” of economics in making hiring decisions. 62Id. In other words, employers acting in their own self-interest will hire employees if the benefits of hiring the employees outweigh the costs. 63Id. This is the case whether employers are allowed to discriminate or not. 64Id. Even if an employer were prejudiced against a certain type of employee, the employer would still hire that employee if hiring him will increase productivity for the business and make the business more competitive in the free market. 65Id. at 215.

Unfortunately, this theory does not perfectly reflect the realities of the American free market. There are employers out there who would irrationally persist discriminating against employees despite negative effects on productivity and profit. However, the idea of a cost-benefit analysis is not irrelevant in analyzing the validity of anti-discrimination laws. Imagine a Democrat employer, whose business would be more productive if all employees shared the same political views, because there would not be as many disruptions or as much animosity in the workplace. If this employer were considering hiring a Republican as an employee, he would weigh the workplace productivity costs of hiring that employee against the benefits of the employee’s talents and overall value.

Even if this cost-benefit analysis would not turn out rationally every time, there are conceivable scenarios in which the costs of hiring the employee would outweigh the benefits, based solely on the employee’s political affiliation. It seems fair that the employer should at least have the option of electing not to hire the employee based on his political party, if this is in fact the economically rational decision.

The legitimacy of a rational discrimination argument is much greater with regard to political discrimination than other kinds of discrimination. Potential costs of hiring a member of the opposite political party are far more comprehensible, especially considering the extreme polarization of the American political parties in the modern age.

IV. Considering These Arguments in the Context of the Modern Political Environment

Now, more than ever, there is tangible animosity between the political right and left that may justify an employer discriminating against an employee on one side or the other. In fact, the two major parties are less alike today than at any point in the last century. 66The Parties on the Eve of the 2016 Election: Two Coalitions Moving Further Apart, Pew Res. Ctr. (Sep. 13, 2016) http://www.people-press.org/2016/09/13/the-parties-on-the-eve-of-the-2016-election-two-coalitions-moving-further-apart/. Party hostility has increased, and Democrats and Republicans have grown from merely disagreeing with each other to viewing the opposite faction as a threat to America. 67Political Polarization in the American Public, Pew Res. Ctr. (Jun. 12, 2014) http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/. A recent study found that 27% of Democrats and 36% of Republicans believe that the other party is “a threat to the nation’s well-being.” 68Id. That is a rather serious accusation, considering other perceived threats to the nation’s well-being include ISIS, global climate change, and cyberattacks. 69Globally, People Point to ISIS and Climate Change as Leading Security Threats, Pew Res. Ctr. (Aug. 1, 2017) http://www.pewglobal.org/2017/08/01/globally-people-point-to-isis-and-climate-change-as-leading-security-threats/.

Many Democrats and Republicans view the opposite party in extremely negative terms. 70Political Polarization, supra note 67. A Pew Research Center study found that 38% of Democrats and 43% of Republicans think that their rivals are “very unfavorable.” 71Id. In the same study, 55% of Democrats said Republicans make them feel afraid, and 49% of Republicans said the same about Democrats. 72Partisanship and Political Animosity in 2016, Pew Res. Ctr. (June 22, 2016) http://www.people-press.org/2016/06/22/partisanship-and-political-animosity-in-2016/. Additionally, 47% of Democrats and 46% of Republicans said members of the opposite party make them feel angry. 73Id. Furthermore, the study reported that each of the parties used terms like immoral, dishonest, and close-minded to describe the opposite party. 74Id.

The parties disagree to such an extent that many Democrats and Republicans would like to keep the other out of their lives. 75Political Polarization, supra note 67. Liberals and Conservatives would rather live around people by whom similar views are expressed, would prefer to have friends who have the same political views, and welcome into their families people with the same political views. 76Id. Based on these findings, it is not a far jump to presume that people would prefer to work around individuals sharing the same political views.

These studies suggest that companies might have plausible reasons for wanting to politically discriminate against potential employees in this extremely polarized political environment. One can easily imagine a hostile workplace, in which employees have reservations about communicating with each other or working together because they are on opposite sides of the political spectrum. Insults might be openly exchanged, employees might not trust each other, and could feel afraid of or angry at one another based solely on political affiliation.

The private property, freedom of association, and rational discrimination arguments are each bolstered by the reality of party polarization. Companies invest private property, time and money, into employees, and an employer should not be forced to invest its private property in an employee who may harbor animosity toward the employer because of his political affiliation. A person would not invite another into his home if he knew that person believed he was immoral, dishonest, or close-minded. A company should be free from associating with employees whose political views are not in line with the company’s core values, and with America’s political parties being less alike than they have been in the last century, such an employee could prove divisive and hinder the company’s goals. There are significant potential costs a company might incur from hiring an employee with polar opposite political views; such an employee could impact productivity, workplace morale, and relationships with clients. Discriminating against such an employee could be a rational economic decision.

It is somewhat easier to imagine political discrimination by employers on the hiring side, because the notion that an employer could fire an otherwise capable employee based solely on that employee’s political affiliation seems more unfair. Imagine that an employer did not realize that an employee was a Democrat until five years after hiring him, and that until that time the employee had performed his job perfectly; but, upon the discovery of his political affiliation, the employer terminated him.

Although this scenario sets off moral warning bells, there are conceivable situations in which an employee might be fired because of his political affiliation. Courts have held that the sections of the California Labor Code dealing with anti-political discrimination do have exceptions. For example, the California Supreme Court held in Lockheed Aircraft Corp. v. Superior Court of Los Angeles County that the language “politics” and “political” in the statute imply orderly conduct of government, and thus the legislature clearly did not mean the statute to protect groups plotting the overthrow of the government. 77 Lockheed Aircraft Corp. v. Superior Court of L.A. Cty., 28 Cal. 2d 481, 485 (1946). Though the court said this type of action was, by definition, not political, one can imagine more commonly accepted political activities that might be equally as disruptive and concerning in the workplace.

An employee might be very unruly at work, make others uncomfortable with his outspoken political views, or alienate clients. Such is the case with James Damore and Google. Although he may have been engaged in “political activity,” this type of behavior may not be what the legislature intended to protect when it passed Sections 1101 and 1102 of the California Labor Code.

V. Problems with Allowing Political Discrimination

It remains that discrimination has a negative connotation, despite the argument that political discrimination is distinct from other kinds of discrimination. People are prone to associate discrimination of any kind with unfairness and prejudice, and are wary of powerful individuals and entities, like corporations, having any capacity to discriminate. There are a number of robust arguments against allowing private employers to discriminate against their employees on the basis of political affiliation.

A. Political Party as a Proxy

One issue with allowing employers to politically discriminate is that an employer might state an employee’s political preference as the reason for not hiring him or terminating him, as a disguise for the employer’s true reasoning. America’s political parties are not only divided on ideology, they are also made up of different percentages of races, genders, religions, economic classes, etc. 78 Steven Shepherd, Study: Political parties transformed by racial, religious changes, Politico (Sep. 9, 2017, 6:05 AM) https://www.politico.com/story/2017/09/06/political-parties-religion-race-242322. Like the shift in party polarization over the past decade, diversity in the political parties has changed as well. 79Id. One study found that only 29% of the Democratic party identifies as white Christians, as opposed to nearly 75% of the Republican party. 80Id. Overall, the Democratic party has changed more drastically than the Republican party, with the percentage of white Christians in the Democratic party dropping over 20% in the last decade. 81Id. Although, only 57% of young Republicans between the ages of 18-29 identify as white Christians, as compared to 84% of Republican seniors. 82Id. More than half of women, 54%, identify as Democrats, while 51% of men identify as Republicans. 83Party Affiliation Among Voters: 1992–2016, Pew Res. Ctr. (Sep. 13, 2016) http://www.people-press.org/2016/09/13/2-party-affiliation-among-voters-1992-2016/. Democrats have held a consistent advantage among women for the past several years. 84Id.

The concern is that because certain races, genders, and other characteristics are concentrated more in one party or the other, companies could take advantage of legal political discrimination to avoid Title VII of the Civil Rights Act (1964) and illegally discriminate based on race, or sex, etc. A company could assert that it is firing a Hispanic Democrat to preserve its conservative values, for example, but what it could be doing in reality is attempting to preserve its Caucasian-ness.

This is no doubt a troubling concern. However, if it were entirely legal to politically discriminate, companies would not get away with this behavior so easily. In court, a company would have to present sufficient evidence that it truly fired an employee based on political affiliation rather than race, gender, or some other characteristic, and the employee would have to present sufficient evidence that the reverse is true. If political discrimination was legal, that would not mean that companies using it as a justification could do so completely without review. The standard of proof that a company fired an employee based on political affiliation would have to be high in order to balance out concerns about politics as a proxy. Although this concern is valid for protecting employees’ rights, it does not necessarily outweigh the benefits to employers of allowing political discrimination, considering that employees would still have a remedy in court.

B. Fluidity Between Parties and the Broad Political Spectrum

Another issue with allowing political discrimination is that individuals may freely change their political preferences. Because someone is a Republican today does not mean that they will be a Republican tomorrow. According to a 2017 survey, over a 15-month period that included the 2016 election cycle, about 10% of Republicans and Democrats “defected” from their party to the opposing party. 85Party Identification is ‘Sticky,’ but About 10% Switched Parties Over the Past Year, Pew Res. Ctr. (May 17, 2017) http://www.people-press.org/2017/05/17/partisan-identification-is-sticky-but-about-10-switched-parties-over-the-past-year/.

There is an element of apparent unfairness in allowing companies to discriminate against employees based on a characteristic that could easily change. This notion is especially troubling on the hiring side, when companies have little idea whether a potential employee will exhibit his political preferences to the same degree over the course of his employment.

However, this statistic is not high enough to be of any substantial concern. Nearly 80% of both Republicans and Democrats consistently identify with or lean towards the same party. 86Id. Moreover, companies discriminate against potential employees on possibly fleeting traits on a regular basis. In a recent survey of 2000 bosses conducted by Classes & Careers, 33% said that they knew within the first 90 seconds of an interview whether they will hire the interviewee, and that 93% of the impact comes from an interviewee’s voice, confidence, dress, and actions compared to only 7% impact from what they actually say. 87 Jörgen Sundberg, How Interviewers Know When to Hire You in 90 Seconds, Undercover Recruiter (2014) https://theundercoverrecruiter.com/infographic-how-interviewers-know-when-hire-you-90-seconds/. Considering the nature of interviews as expressed in these statistics, it is not outrageous that an employer might discriminate against an employee based on a political preference, even if that political preference might change; employers discriminate against much less.

In addition to the possibility that individuals will change parties, the political spectrum in America is extremely broad. There are several individuals who are less politically engaged, or do not identify with either major party and classify themselves as independents; in 2014, 39% of the American public identified as independent. 885 facts about America’s political independents, Pew Res. Ctr. (Jul. 5, 2016) http://www.pewresearch.org/fact-tank/2016/07/05/5-facts-about-americas-political-independents/. To discriminate against these individuals based on political affiliation may seem unfair, since political party membership is not a strong part of their identities and may be unlikely to affect their workplace performance in any way.

However, if political discrimination were legal, it would likely not affect these individuals. If an individual’s political preferences were not strong and he was not politically active, he would be unlikely to cause disruptions in the workplace as a result of his political views and would probably not incur substantial costs to the company.

But, there remains the possibility that the political affiliations of those who are less politically engaged or independent might negatively affect employers, and employers should maintain the discretion to be able to politically discriminate against these individuals if their views do present an issue. Furthermore, most of these so-called independents actually lean toward one party or the other, so their views very well might clash with that of potential employers. 89Id.

C. Avoiding a Monoculture

It is the position of some that if all companies were to act like Google and terminate employees based on political affiliation, then some companies would become completely dominated by one party or the other. 90 David French, Google’s discrimination against conservatives is just the beginning for corporate America, Dallas News (Jan. 11, 2018) https://www.dallasnews.com/opinion/commentary/2018/01/11/googles-discrimination-conservatives-just-beginning-corporate-america. The concern is that certain types of companies, for example tech companies like Google, would discriminate categorically, so that entire industries would be transformed into Republican or Democrat monopolies. 91Id. If this were to happen, some believe that industries would come to lack innovation and fall behind because of the negative effects of a political “monoculture.” 92Id.

Diversity is unquestionably an important value of American industry, as a wealth of different creative ideas helps companies grow and thrive. However, allowing political discrimination would not necessarily mean that companies would become completely dominated by one ideology of the other. In theory, employers would only politically discriminate against employees who have the potential to cause major problems for the company because of their political beliefs and would incur significant costs to the company. An employer would still hire an employee in the opposing political party if the benefits of hiring that employee outweighed the costs. Some Democrats and Republicans would not cause issues as a result of their political views and would prove valuable employees regardless of the dominant political affiliation within a company. With the ability to politically discriminate, companies might actually foster productivity and innovation, because they could remove employees or refuse to hire employees who would hinder the workplace environment and cause tension, as did Damore at Google.

VI. Analysis of the Damore-Google Case from an Anti-Discrimination Perspective

If Google fired Damore based solely on his political affiliation, the company likely did violate Sections 1101 and 1102 of the California Labor Code. Damore engaged in political activity by writing his memo, and if Google terminated him because of this political activity or attempted to control his political activity in any way, the company violated Section 1101. 93 Complaint at 52, Damore and Gudeman v. Google. Google violated Section 1102 if it threatened Damore with discharge because of his political activity. 94Id. at 53.

However, this essay takes the position that, because of the arguments against anti-political discrimination laws made above, Sections 1101 and 1102 of the California Labor Code should be held unconstitutional. Or, at least the court should interpret these statutes narrowly so not all political activity is protected, in following with Title VII of the Civil Rights Act (1964). Instead of arguing that it terminated Damore for some reason other than his political affiliation, Google should be able to accept that it politically discriminated against Damore and argue that it did so on a reasonably basis. In a toxic, polarized political environment, Google had the right to terminate Damore to maintain the sanctity of its business and workplace.

Assuming the accusations in Damore’s complaint are true, his charges of animosity and turmoil in the workplace actually support the proposition that Google rightly terminated Damore because of his political affiliation. Damore’s political views caused the type of negative effects among other employees at Google that companies should have the opportunity to stop and prevent.

Damore claims that he was “ostracized, belittled, and punished” as well as laughed at, personally insulted, and attacked by Google and his co-workers. 95Id. at 3; Domonoske, supra note 4. He accuses Google and his co-workers of workplace harassment and blacklisting. 96Id. at 25, 28, and 37. In the modern polarized political environment, it is not difficult to imagine that Damore’s claims could be true. If he is a strong Republican and his co-workers are strong Democrats, this type of behavior would be expected from individuals who view each other as very unfavorable and threats to the nation’s well-being.

This description does not match one of a productive workplace. Damore’s work ethic may have been negatively affected by this alleged treatment, and his co-workers may not have been performing at their full potential because they were distracted by Damore’s political views. This alleged tension suggests that Damore and his co-workers may not have worked well together, and their feelings toward one another may have negatively affected the productivity of Google as a whole. Even if the effects on the overall efficiency of the workplace were marginal, it is easy to see how this kind of political animosity could create a workplace that is not producing at its full potential.

Additionally, Damore’s own conduct was potentially divisive. His memo contained subject matter that could have incited his co-workers. Damore’s comments about women were insulting and could have greatly offended his female co-workers. If his memo is considered political activity, this type of political activity could have negatively impacted the workplace environment and escalated tensions among co-workers.

Turning to the traditional arguments against anti-discrimination laws, it is evident why Google would desire to avoid this type of behavior by politically discriminating against employees like Damore.

Maintaining Damore would not have been a wise use of Google’s private property. The government cannot force Google to allocate its time and money to Damore, whose behavior was negatively affecting the company. To use the common private property argument analogy, Damore’s superiors at Google would likely not invite an individual into their home who makes offensive comments, after putting time and money into building a safe, welcoming environment. A person would not share his private property with someone who insults that property; as Damore did with Google, through his comments about the hostile work environment and his insults about company practices.

Google should have the freedom to not associate with Damore in furtherance of company goals, under the First Amendment. Similar to the example about Wal-Mart and emergency contraceptives, if Google has company values that, as Damore suggests, are primarily on the left of the political spectrum, they should be able to maintain those values and associate with employees who share those values. One of Damore’s central complaints about Google in his memo is that the company focuses too much on diversity in hiring. 97 Domonoske, supra note 4. Diversity in the workplace is a core value of the Democratic party. 98The 2016 Democratic Party Platform, Democrats.org, https://www.democrats.org/party-platform. If diversity in the workplace is a value that Google desires to advance, and Damore’s political views do not coincide with this value, Google should be able to terminate Damore so that he does not hinder the company’s goals.

Google could have rationally discriminated against Damore if the costs of maintaining him as an employee outweighed the benefits. Damore’s memo had extreme negative effects on the workplace if his claims are true. His co-workers were hostile toward him, and likely less productive as a result. Additionally, the controversial political views Damore expressed in his memo could harm Google’s reputation as a whole, if word got out to the public that Google was hiring and maintaining employees with such divisive views. These costs very well may have outweighed the benefits of any contributions Damore was making to the company.

Google responded to Damore’s claim by stating that he was fired for violating the company’s code of conduct and promoting offensive gender stereotypes. 99 Loizos, supra note 27. Google asserted this reasoning behind firing Damore as a defense, claiming that his termination was not related to his political affiliation. It is true that Damore’s views are not common political views. Neither major political party would embrace gender stereotypes like those Damore expressed as party tenants.

In this way, though not as extreme, Damore’s views are not unlike the government overthrow views discussed in the Lockheed case. 100 See generally Lockheed Aircraft Corp., supra note 77. Both viewpoints are outliers in the political arena and perhaps, as the court held in Lockheed and Google suggests about Damore’s conduct, not rightly classified as political views at all. The court in Lockheed held that such political activity was not protected under Section 1101 of the California Labor Code. Damore was not planning to overthrow the government, but his conduct was certainly divisive in the workplace, extremely disruptive, and if properly classified as political activity, arguably out of the ordinary. A court could find that political activity like Damore’s was not meant to be protected under Sections 1101 and 1102 of California Labor Code, and that Google thus had the right to terminate him based on his memo.

The Damore-Google dispute presents a particularly interesting example because arguments against anti-discrimination laws are generally made by individuals on the political right but, in this scenario, the employer who has incentives to politically discriminate is liberal, and the employee politically discriminated against is conservative. This reversal of the expected roles demonstrates that potential advantages of political discrimination apply to employers on both sides of the aisle.

Conclusion

There are valid reasons to be concerned about allowing employers to politically discriminate. It is uncomfortable to consider the idea in the context of American culture, which has always focused on the expansion of citizens’ rights. However, the arguments against allowing political discrimination in the workplace may be outweighed by the potential benefits to employers of being able to politically discriminate. This could especially prove true in an extremely politically polarized environment where tensions between the two major parties are at an all-time high.

Though Google argues that it did not terminate Damore based on his political affiliation, the company should be able to accept that it did so, and justify the decision based on the traditional arguments against anti-discrimination laws, the potential room for exceptions to Sections 1101 and 1102 of the California Labor Code, and the current polarized political environment.

Footnotes

1 42 U.S.C. §§ 2000e-2(a)(1).

2 Donna Ballman, Can You Be Fired For Your Political Beliefs and Activities? Maybe, Huffington Post (Feb. 4, 2016, 5:56 PM), https://www.huffingtonpost.com/donna-ballman/can-you-be-fired-for-your_b_9154066.html.

3 Alexander Hertel-Fernandez & Paul Segunda, Citizens Coerced: A Legislative Fix for Workplace Political Intimidation Post-Citizens United, 64 UCLA L. Rev. Disc. 2, 14 (2016).

4 Camila Domonoske, James Damore Sues Google, Alleging Discrimination Against Conservative White Men, NPR (Jan. 9, 2018, 9:36 AM), https://www.npr.org/sections/thetwo-way/2018/01/09/576682765/james-damore-sues-google-alleging-discrimination-against-conservative-white-men.

5Id.

6 Ballman, supra note 2.

7Id.

8Id.

9Id.

10Id.

11Id.

12Id.

13 Hertel-Fernandez & Segunda, supra note 3, at 4; See generally Citizens United v. FEC, 558 U.S. 310 (2010).

14Id.

15 Hertel-Fernandez & Segunda, supra note 3, at 14.

16 Cal. Lab. Code §1101–1102.

17 Cal. Lab. Code §1101(a)–(b).

18 Cal. Lab. Code §1102.

19 Complaint at 1, James Damore and David Gudeman v. Google, LLC, (Cal. 2018) (No. 18CV321529), available at https://techcrunch.com/2018/01/08/james-damore-just-filed-a-class-action-lawsuit-against-google-saying-it-discriminates-against-white-male-conservatives/.

20Id.

21 Complaint at 2, Damore and Gudeman v. Google.

22Id.

23Id.

24 Complaint at 3, Damore and Gudeman v. Google.

25 Domonoske, supra note 4.

26 Complaint at 3, Damore and Gudeman v. Google.

27 Connie Loizos, James Damore just filed a class action lawsuit against Google, saying it discriminates against white male conservatives, TechCrunch (Jan. 8, 2018) https://techcrunch.com/2018/01/08/james-damore-just-filed-a-class-action-lawsuit-against-google-saying-it-discriminates-against-white-male-conservatives/.

28 Domonoske, supra note 4.

29 Complaint at 10, Damore and Gudeman v. Google.

30 Domonoske, supra note 4.

31 Complaint at 12, Damore and Gudeman v. Google.

32 Loizos, supra note 27.

33 Complaint at 8, Damore and Gudeman v. Google.

34Id. at 25, 28, and 37.

35 Domonoske, supra note 4.

36Id.

37Id.

38 Walter E. Block & Javier Portillo, Anti-Discrimination Laws: Undermining Our Rights, 109 J. of Bus. Ethics 209, 212 (August 2012).

39Id. at 210.

40Id. at 213.

41Id. at 212.

42Id.

43Id.

44Id.

45Id. at 209.

46 James D. Nelson, The Freedom of Business Association, 115 Colum. L. Rev. 461, 461–513 (March 2015).

47Id. at 461.

48Id. at 469; E.g. Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).

49Id. at 468.

50Id.; E.g. Roberts v. United States Jaycees, 468 U.S. 609 (1984) (O’Connor, S., concurring)

51Id.

52Id. at 470.

53Id. at 472.

54Id. at 473.

55Id.

56Id.

57Id.

58 Block and Portillo, supra note 38, at 213.

59Id. at 214.

60Id.

61Id.

62Id.

63Id.

64Id.

65Id. at 215.

66The Parties on the Eve of the 2016 Election: Two Coalitions Moving Further Apart, Pew Res. Ctr. (Sep. 13, 2016) http://www.people-press.org/2016/09/13/the-parties-on-the-eve-of-the-2016-election-two-coalitions-moving-further-apart/.

67Political Polarization in the American Public, Pew Res. Ctr. (Jun. 12, 2014) http://www.people-press.org/2014/06/12/political-polarization-in-the-american-public/.

68Id.

69Globally, People Point to ISIS and Climate Change as Leading Security Threats, Pew Res. Ctr. (Aug. 1, 2017) http://www.pewglobal.org/2017/08/01/globally-people-point-to-isis-and-climate-change-as-leading-security-threats/.

70Political Polarization, supra note 67.

71Id.

72Partisanship and Political Animosity in 2016, Pew Res. Ctr. (June 22, 2016) http://www.people-press.org/2016/06/22/partisanship-and-political-animosity-in-2016/.

73Id.

74Id.

75Political Polarization, supra note 67.

76Id.

77 Lockheed Aircraft Corp. v. Superior Court of L.A. Cty., 28 Cal. 2d 481, 485 (1946).

78 Steven Shepherd, Study: Political parties transformed by racial, religious changes, Politico (Sep. 9, 2017, 6:05 AM) https://www.politico.com/story/2017/09/06/political-parties-religion-race-242322.

79Id.

80Id.

81Id.

82Id.

83Party Affiliation Among Voters: 1992–2016, Pew Res. Ctr. (Sep. 13, 2016) http://www.people-press.org/2016/09/13/2-party-affiliation-among-voters-1992-2016/.

84Id.

85Party Identification is ‘Sticky,’ but About 10% Switched Parties Over the Past Year, Pew Res. Ctr. (May 17, 2017) http://www.people-press.org/2017/05/17/partisan-identification-is-sticky-but-about-10-switched-parties-over-the-past-year/.

86Id.

87 Jörgen Sundberg, How Interviewers Know When to Hire You in 90 Seconds, Undercover Recruiter (2014) https://theundercoverrecruiter.com/infographic-how-interviewers-know-when-hire-you-90-seconds/.

885 facts about America’s political independents, Pew Res. Ctr. (Jul. 5, 2016) http://www.pewresearch.org/fact-tank/2016/07/05/5-facts-about-americas-political-independents/.

89Id.

90 David French, Google’s discrimination against conservatives is just the beginning for corporate America, Dallas News (Jan. 11, 2018) https://www.dallasnews.com/opinion/commentary/2018/01/11/googles-discrimination-conservatives-just-beginning-corporate-america.

91Id.

92Id.

93 Complaint at 52, Damore and Gudeman v. Google.

94Id. at 53.

95Id. at 3; Domonoske, supra note 4.

96Id. at 25, 28, and 37.

97 Domonoske, supra note 4.

98The 2016 Democratic Party Platform, Democrats.org, https://www.democrats.org/party-platform.

99 Loizos, supra note 27.

100 See generally Lockheed Aircraft Corp., supra note 77.

Katharine Pickle is a second-year student at Emory University School of Law. Katie is originally from San Diego, CA, and received her Bachelor’s Degree from the University of Virginia. She is in the transactional law certificate program at Emory, and currently interns remotely for a general practice firm in Birmingham.