James Damore is gone from Google. But he will not soon be forgotten. He’s joined with a conservative lawyer to bring a class action against the company, accusing it of discriminating against conservatives, Caucasians and men.
The lawsuit, just filed in a California court, certainly offers evidence that things were uncomfortable for conservatives at Google. And especially, that they were uncomfortable for James Damore after he wrote a memo suggesting that before Google went all-out trying to achieve gender parity in its teams, it needed to be open to the possibility that the reason there were fewer women at the firm is that fewer women were interested in coding. (Or at least, in coding with the single-minded, nay, obsessive, fervor necessary to become an engineer at one of the top tech companies in the world.)
That much seems quite clear. But it’s less clear that Damore has a strong legal claim.
I understand why conservative employees were aggrieved. Internal communications cited in the lawsuit paint a picture of an unhealthy political monoculture in which many employees seem unable to handle any challenge to their political views. I personally would find it extremely unsettling to work in such a place, and I am a right-leaning libertarian who has spent most of my working life in an industry that skews left by about 90 percent.
But these internal communications have been stripped of context. Were they part of a larger conversation in which these comments seem more reasonable? What percentage did these constitute of internal communications about politics? At a huge company, there will be, at any given moment, some number of idiots suggesting things that are illegal, immoral or merely egregiously dumb. That doesn’t mean that those things were corporate policy, or even that they were particularly problematic for conservatives. When Google presents its side of the case, the abuses suggested by the lawsuit may turn out to be considerably less exciting -- or a court may find that however unhappy conservatives were made by them, they do not rise to a legally actionable level.
Google, for its part, says that it is eager to defend the lawsuit. But lawyers always announce that they have a sterling case that is certain to prevail, even if they know they are doomed. And unless they can present strong evidence that there were legions of conservatives happily frolicking away on their internal message boards while enjoying the esteem of their colleagues and the adulation of their managers, there is no way that this suit ends well for Google. If the company and its lawyers think otherwise, they are guilty of a sin known to the media as “reading your own press releases,” and to drug policy experts as being “high on your own supply.”
There are expensive, time-consuming, exasperating lawsuits, and then there are radioactive lawsuits that poison everyone who comes within a mile of them. And this lawsuit almost certainly falls into the latter category.
Damore and his co-plaintiffs, for example, can count on future prospective employers looking at this suit and deciding that they’d rather hire, well, almost anyone else. It doesn’t matter how righteous your claim; for obvious reasons, employers do not like litigious employees, and they will go out of their way to avoid hiring those people.
But ironically, Damore probably has the least to lose from this case. If he had been fired quietly, even in a case of clear political discrimination, then he would have very good reason to keep his head down, find another job, and gripe to his friends over the occasional beer. But Googlers leaked his memo to the media, and then management fired him in a very public and humiliating way that was bound to make it very hard for him to get another job. By doing so, they ensured that he would have little reason not to sue the firm, if he could find a lawyer to take the case -- and also ensured that there would probably be a number of angry conservative lawyers interested in taking the case.
That was stupid, because Google has an immense amount to lose, even if a court ultimately vindicates its corporate culture. The company’s internal systems, featuring an immense array of internal employee communications, will be ripped open to scrutiny. If I were a Google executive, I wouldn’t want to bet that employees haven’t said much worse things in emails and on message boards than those featured in the lawsuit. Things that are plainly, inarguably, expensively illegal.
But I also wouldn’t want even milder utterances to turn up as testimony in a lawsuit. Because every nasty comment and intemperate remark about Republicans or white males or conservative Christians is going to get broadcast to the public when this case goes to trial. And as you may have noticed, those folks are half the country.
Perhaps Google thinks its market position is so strong that it doesn’t have to worry about piddly things like whether its employees spend a great deal of time using internal systems to slander half the company’s American customer base. What are you going to do, use another search engine?
But this is too narrow an analysis. For one thing, there are quite a lot of conservative small-business owners, and small business is the lifeblood of the kinds of ads that Google sells. The company will be hurt if those business owners get serious about taking their advertising elsewhere, especially if conservatives pursue a secondary boycott, targeting companies that advertise with Google.
To be sure, boycotts are rarely all that effective. But most boycotts involve minor matters of policy. This is about tribal identity. Google fired a conservative for writing a rather anodyne memo. If it turns out that the company was at the same time tolerating truly vicious conservative bashing in its internal systems—well, no one wants to give their hard-earned money to people or companies that are violently bigoted against them.
Perhaps even more importantly, conservatives vote. They elect legislators and public officials whose actions can deeply affect Google’s business. In general, Google has gotten much friendlier treatment from American regulators than from the EU or China. But American government is currently heavily dominated by Republicans who are unlikely to want to be nice to a powerful corporation whose internal communications suggest that it views advancing a progressive agenda, and bashing conservatives, as part of its corporate mission.
Google is not very vulnerable to the normal risks of a lawsuit: expense and internal disruption. The company is so rich that it can bear endless discovery and lawyer’s fees without really noticing. This may be giving executives a false sense of security as they contemplate defending this suit.
But Google’s very wealth and power mean it is even more vulnerable than usual to the political and economic pressure that such a lawsuit will bring. To a first approximation, every single conservative in America will learn about every single bigoted thing that a Googler has said about conservatives. If I were a Google executive, I would be willing to devote a considerable portion of the company’s riches to paying off Damore before this thing ever gets within shouting distance of a courtroom.
The question is whether Google even has that option. This lawsuit is obviously at least as much about making a point as it is about making money. The plaintiffs may well be happier humiliating Google than accepting a big settlement, or going to trial and winning a big judgment. And if necessary, they will have no shortage of donors eager to help finance the cost of making that point.
This is one reason public corporations have historically tried to keep politics out of their business. It is internally divisive, and it paints a giant target on your back for your political enemies. Whatever small gains you may get, from internal bonding among like-minded employees, or external rewards from like-minded politicians, are almost never worth the blowback.
This is a lesson that Silicon Valley hasn’t had to learn yet, because it is so rich, and so new, that these sorts of concerns haven’t really registered. Presumably that’s why Google managers complacently allowed a corporate culture to grow up that at the very least tolerates some degree of progressive militancy at work, and quite possibly encourages more than a little of it. That was incredibly short-sighted. And if Silicon Valley doesn’t realize this, it is about to get belatedly hit by that realization, good and hard.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Megan McArdle is a Bloomberg View columnist. She wrote for the Daily Beast, Newsweek, the Atlantic and the Economist and founded the blog Asymmetrical Information. She is the author of “The Up Side of Down: Why Failing Well Is the Key to Success.”
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