Google Can't Dodge Class Action Alleging Bias Against Conservative Job Applicants

Defining a class of politically conservative job applicants who were allegedly discriminated against by Google won't be easy, but the court isn't ready to find it's impossible.
Justin Sullivan/Getty Images

Google can't avoid a class action complaint alleging that it discriminates against job applicants based on gender, race and political affiliation, a California judge ruled Friday.

The dispute began after software engineer James Damore was fired by Google in August 2017 in relation to a memo he wrote expressing, in part, his view that the gender gap in the technology industry is likely due to biological differences between men and women.

Damore, along with ex-Googler David Gudeman, in January 2018 filed a class action lawsuit against the tech giant. They claim the company is an ideological echo chamber and it "singled out, mistreated and systematically punished and terminated" employees who disagreed with the majority view about "diversity," "bias sensitivity" and "social justice."

They later amended their complaint to add as plaintiffs two men who were rejected for jobs at Google, Stephen McPherson and Michael Burns, and another employee who ultimately voluntarily dismissed his claims. 

The National Labor Relations Board reviewed the matter and found in early 2018 that Google didn't violate federal labor law in firing Damore. It concluded the company terminated him because of unprotected discriminatory statements and not for offering critical feedback of Google's policies and programs. 

Damore and Gudeman in November agreed to arbitrate their claims against Google, which left in open court only the claims from McPherson and Burns that they were passed over for jobs because Google unlawfully prioritizes hiring women and certain minorities to the detriment of male, white and Asian applicants and discriminates against politically conservative applicants.

Google in January asked the court to toss the political bias claims, arguing that the remaining plaintiffs "utterly failed" to plead valid class claims for alleged discrimination against conservative-leaning applicants. Specifically, the company argued that the plaintiffs didn't address how potential class members would be identified and challenged the efficacy and appropriateness of either sorting through millions of applications or allowing class members to self-identify. 

In a tentative ruling, Santa Clara County Superior Court judge Brian Walsh acknowledges that the court "has doubts regarding the viability of the putative Political Subclass," but isn't prepared to find the requirements for class certification can't be satisfied.

"Ultimately, it will be plaintiffs’ burden to show that certification of the Political Subclass is appropriate," writes Walsh. "The Court anticipates that this will not be an easy burden to satisfy; however, the pleadings do not establish that there is no reasonable possibility it can be met." 

Google also brought a motion on the pleadings as to Burn's claim that the company discriminates against Asian job applicants. Google argues Burns identified himself as white in his complaint to the Department of Fair Employment and Housing and claimed he was discriminated against because of his race, but didn't allege any discrimination against Asian applicants and therefore failed to exhaust his administrative remedies. 

Walsh isn't convinced. "Here, there is no dispute that Burns’ administrative complaint specifies the act of alleged discrimination at issue: racial discrimination in hiring," Walsh writes in the tentative ruling. "[W]hile Burns’s administrative complaint described his own race as 'white' or 'Caucasian,' his allegations of discrimination against Asian job applicants arise from the same theory as his allegations of discrimination against white applicants like himself, and are thus sufficiently 'like' and 'reasonably related to' his DFEH claims to satisfy the exhaustion requirement."