SIO111: Andrew Breaks Down the James Damore Google Lawsuit!

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:29 Thomas: Hello and welcome to Serious Inquiries Only. This is episode 111. Cool, cool number. And I'm your host Thomas Smith. You can decide if I'm cool or not. Anyway, this episode is certainly cool because I've got Andrew Torrez over from Opening Arguments. I know you know him. We all know him, he's great. He's everyone's favorite Harvard Law grad. And he's got some fierce competition, you know, like Ted Cruz, Ben Shapiro, a lot of tough competition in that category. But he's here to break down the James Damore lawsuit against Google. It is vital information. I'm so glad he's coming on the show to break it down. I don't want to spoil anything, but So let's hop on over.

0:01:19 Thomas: Andrew, so glad to have you back on the mothership here, how are you doing?

0:01:25 Andrew: I am great. Like I said, I love I love coming back to I always remember where I came from. So it says, oh, oh.

0:01:31 Thomas: Yeah, remember your roots, but now as you come back, you're kind of, kind of too big for your britches, and you're a little superior to everybody around here, but that's, that's okay, that is bound to happen, when you go back to your hometown, you are like, hey, college boy, you went off to the big time, yeah, that kind of thing, maybe that's just me, oh,

0:01:40 Andrew: Oh, ho, ho. Oh. You wound me. I actually live in the hometown that I grew up in. So I'm the exact opposite of that.

0:01:55 Thomas: Well, did you get a lot of crap from people when you came back from Harvard Law? Hey, Harvard Law. Ooh, too smart for everybody around here, Harvard law. Did you get any of that? No?

0:02:04 Andrew: No, I- No.

0:02:05 Thomas: No 80s movie heckling from anybody? Yeah, okay.

0:02:07 Andrew: I came back, I actually, uh, I reconnected with with friends in the neighborhood that, um, like we were kind of friends in middle school and then we were much closer as as adults than uh than we were as uh as middle school kids so

0:02:20 Thomas: Well, fine. I guess you have a perfect story. All right. Well, I didn't do the same thing.

0:02:25 Andrew: I try not to go doc Hollywood is what I'm saying, so

0:02:28 Thomas: Yeah. Yeah. Um, so the, but in all seriousness, we need to talk about a very serious issue, which is discrimination against white men. Uh, finally someone is standing up saying I've had enough. Uh. So this, this is, uh, we're going to find out just how, uh. Hard white men have it at Google. Um. According to the complaint filed by one James Damore, who I've heard on the show, Joe, uh, who said some really weird stuff and it was a fun time was had by all. So go back and check that out if you haven't heard it.

0:03:01 Andrew: So That's, that is truly amazing. And seriously, if, if, if Google's lawyers do not have your show transcribed and, and use it, I am I am 100 percent serious. Like when I am again, typically this is something that comes up when you're deposing an expert witness. But but Damore is a is a public figure. And if if they don't have a transcript of that and are prepared to use it in their in in in his deposition, I would be I'm I am I would be shocked if they do.

0:03:14 Thomas: That would be funny.

0:03:39 Andrew: I would do it.

0:03:33 Thomas: No way. Wow. He did a lot of interviews though. I

0:03:41 Andrew: Yeah. But most of the interviews he did were were sycophantic garbage interviews. Right. Like yours was one of the only hostile ones.

0:03:41 Thomas: Mean, do you think they just track it all down? Yeah.

0:03:49 Andrew: I'm serious. And I'm going to.

0:03:49 Thomas: What's it like being a hero for free speech? Uh, yeah, that, wow. I saw, I should expect a call from Mr. Google is what you're saying.

0:03:52 Andrew: Right. Yeah. Yeah. Yeah. Google is.

0:04:00 Thomas: Yeah. Well, I guess they can just, it's public record or something or other, so they can just do it and they don't have to talk to me. Darn. That'd be funny if they did though. Well that's interesting. That makes my day. I really hope that's true. I would be, I would be thrilled. That would be fun. But in all seriousness though, I do want to, I want to toss a bone to the centrist, you know, people here and say that, and you can correct me if if I'm wrong, if it were true that James Damore was fired for being white, then he would have a case that's bad, it violates the Civil Rights Act, etc. Right?

0:04:02 Andrew: Yeah. Yep.

0:04:35 Andrew: Absolutely. And let's let's go one step further. California is one of those jurisdictions. We've talked about this before with the interpretation of the UNRUH Act and the longstanding precedent that prohibits ladies nights. Right. Right. If he were fired for being male or for being a white male, any of those things like that, that would, in fact, be give rise to a cause of action in the state of California. In other words, it is prohibited to use race or gender as a as a characteristic in hiring and firing, even if you're not a member of the protected class.

0:04:50 Thomas: Right? Oh, okay. Right. And that's what I have said in recent times to the people who want to get rid of the Civil Rights Act because it just benefits minorities or something. It's like, well, if you get fired for being white, guess what you're going to use to try to get some relief. So very interesting. So with that in mind, as some other framing for this lawsuit we're going to get into, someone named Geoffrey Miller, I happened to catch this on my Twitter timeline. I don't know who this is, but just to give people an idea, here are some people who follow Geoffrey Miller: Evolutionary Psych professor, Bill Kristol, Dave Rubin, Sam Harris, Christina Hoff Summers, Michael Schirmer, and others. So that's who followed this guy. He tweeted, just to keep this in mind as we go forward, the most important lawsuit in modern American history by James Damore against the most powerful company that has ever existed, Google, about whether it can keep imposing its political agenda on the world. So yeah, it's kind of worth reading. So just, just to keep that framing in mind.

0:05:24 Andrew: Yeah. Yep. It And, and, and I, uh, I tweeted at him, uh, so, Professor Miller, you want to rank the following lawsuits in order of importance to me, um, and, you know, and I included on their Brown versus Board of Education, Loving versus Virginia, which challenged Virginia's rules prohibiting, uh, miscegenation, interracial marriage, um, and, and it was kind of funny, but like, I, I, I want to stop for a second, I, I know, like, you know, we get the SJW. But like, I want you to think about the mentality of somebody that can write with a straight face, and, and, and the people who follow him, who did not pull him aside and go, "Jeff, buddy, like," let's tone down the hyperbole machine a little bit. That think imagined discrimination against a white dude is more important than the actual legacy of actual discrimination against African-Americans in modern American history.

0:06:26 Thomas: Right. Mm-hmm. Right.

0:07:18 Andrew: Right. Because he said.

0:07:19 Thomas: Like even if they did discriminate against this one guy like even so

0:07:21 Andrew: Right. Yeah. Even if even if 100 percent were correct, the idea that if Google had a nefarious right. Assume all of this is correct. The idea that this lawsuit is more important than Brown versus Board of Education is is offensive. I mean, really, really is offensive to me.

0:07:23 Thomas: Yeah Well, Absolutely. And I think this might stem from a misunderstanding of the law, because even it if everything in this were true, it would just be relief for one employee, you know's, that they fired. It's not, and it's, oh yeah, and his class and like, it's not going to undo all of what they think Google is doing when they hide search results and all this other crap. Like it's like, even if everything in the suit were true it's It's not even close to what he's saying it is. Now, there's one more introduction to this lawsuit, and this is by famed legal scholar Jordan B. Peterson, and we know he never gets anything wrong about the law. Here's his shine on this is, James Damore and his lawyers deliver a damning document. Read it and weep, boys.

0:07:47 Andrew: Well, and and his class. Don't don't forget the class action.

0:08:14 Andrew: Yes.

0:08:25 Thomas: So with that in mind, how do you find this complaint, Andrew, to take us through it?

0:08:30 Andrew: I. So I think, I mean, I, I tweeted out from the OA account, uh, you know, we don't have time to fully analyze this, so here you go, and then I just, you know, tweeted a screen full of laughter. Um, it, I, I want to be, so I want to do the same thing you did, right? I want, want to try and, uh, give as much credit, uh, as, as we possibly can, uh, to the other side of of the argument. Um, I, as we go into the specific counts, else There is another thing that is preposterous and indefensible, and I've quipped that the lawyers associated with this, you know, that this complaint will be introduced at their disbarment proceedings.

0:09:13 Andrew: I don't think they're going to get disbarred, okay? Not The least of which is lawyers don't get disbarred for screwing up the law. You don't even get sanctions for it so long as you, you have a good faith basis for arguing that the law should be different than it is. Right. And we want we want to encourage liberal pleading as as much as possible. But but the fact that this is pled as a class action is preposterous.

0:09:12 Thomas: Oh, wow! Okay, okay. Okay, I had seen some people saying that and I wanted to withhold that until you confirmed it. That, that's awesome. So tell us why that's preposterous.

0:09:50 Andrew: If if. Assumes we're going to assume for the sake for of argument that the underlying causes of action are reasonable, okay? They're not. We're going to get to that. But what a class action is, is it says when plaintiffs are so numerous that it is impractical for them all to sue individually, then what you can do is maintain a suit as a class. And you have one or a small number of limited class representatives who then represent that entire group of people that it's just not practical to to bring into the courtroom all at once. And so the classic scenario of a class action are in antitrust complaints, right?

0:10:38 Andrew: It's where a, this happens all the time. Let's say there's a certain chocolate bar that says it's eight ounces in weight and everybody buys the chocolate bar, you know, tens of millions of people buy the chocolate bar and they pay a dollar for it. And as it turns out, it's 7.8 ounces in weight, right. Right. So you get screwed out of your. Yeah. You get screwed out of the point two ounces of chocolate that you thought you bought.

0:10:58 Thomas: I want my extra chocolate. And

0:11:04 Andrew: Right. You relied on

0:11:04 Thomas: Basically everybody who bought it had that same same thing happened.

0:11:07 Andrew: Exactly. And they would all, what would happen in that situation is you would get some sort of rebate for the value of the two tenths of an ounce of chocolate were screwed out. That's paradigmatically how a class works in practical terms. It's governed by by rule 23 of the federal rules of civil procedure. And so what that means is in order to certify and move forward as a class, you have to prove a whole bunch of things, okay? You have to prove, number one, that you've defined the class adequately. Number two, what's called ascertainability, which that is we can figure out who's in the class. Number three, numerosity, That is, that it meets the requirement of we can't bring in 10 million people who bought chocolate bars into the courtroom. But, you know, if there are only 20 or 30 people, that's not sufficiently numerous. Just name them individually.

0:11:19 Thomas: Right. Right, okay.

0:12:03 Andrew: Number four, commonality. This is really, really important. That is that that the issues to be litigated are, have more in common among the class rather than are idiosyncratic to the class members, right? That overlaps with the requirement of typicality, right? Which is that The person who is the class representative is typical of the people who are in his class. Number six, adequacy, right? That is that the class representatives fully represent all of the interests of everyone in the class. And then there are some statutory requirements you have to show, at least one, that either A, separate adjudication is likely to create inconsistent rulings, B, that declaratory or injunctive relief is appropriate based on the defendant's acts with respect to the class generally, or C, and this is the usual area in which it comes up because you'll see some overlap with the prior requirements, that common questions of fact and law predominate over individual questions and that a class action is superior to individual actions.

0:13:16 Andrew: So all that is the sort of technical how I go about, because I litigate these kinds of cases, how I go about, uh, challenging class actions in in court. And this is almost, I mean, in fact I think in 10 years it will be used in law schools as a textbook example of how you can't bring a class action, right? Like, because James Demore is not typical of the class. So here's how they define the class, okay? This is from the complaint itself. Now, now I'm reading from what they've said.

0:13:15 Thomas: Okay, right. Yeah, and I'm curious, is it conservative white males or something? Okay.

0:13:47 Andrew: Yeah. Plaintiffs bring this individual and class action on behalf of themselves and on behalf of, and now this is the ascertainability and adequate definition requirements, of a class and subclasses defined as all employees of Google discriminated against, one, due to their perceived conservative political views by Google in California at any time period beginning four years ago prior to the filing of this complaint through the date of trial in this action. That's the political class period. Two, due to their male gender by Google in California at any time, blah, blah, blah. That's their gender class period, or three, due to their Caucasian race by Google in California any time during the period and with one year prior to the filing of this campaign. That's race class period. I, you to assume that those classes exist, right? Google is going to tell you that they do not. And Google is gonna have a very, very good argument.

0:14:39 Thomas: Well, wait, which classes don't exist?

0:14:41 Andrew: I'm sorry. Sorry, Google is going to say the number of people in each of these classes is zero. Right.

0:14:42 Thomas: Sorry, what do you mean when you say they don't exists? I mean, oh, okay, yeah.

0:14:50 Andrew: And and and they're going to have a really good reason for doing so, because if they were discriminating, they're gonna say certainly for for two and for three. Right, if they those folks would have already had preexisting legal claim, particularly that

0:15:17 Thomas: So would they already have to have pre-existing legal claims, or this complaint would have to outline all these like different facts that support more discrimination than just these people?

0:15:28 Andrew: For the first level of inquiry. Remember, what we're trying to figure out is you want to bring this as a class action. So who is it that you say you represent? Do they really exist? Right. So suppose I want to break. I'm Alex Jones's lawyer, and I say I want to bring my class action on behalf of the tens of millions of people who are the victim of lizard people take over, you know, over that. Right? Like the court is going to be like, um, that's not a class of tens of millions of people, that's a class of no one, because there aren't any lizard people and you're a crazy person, right? So the first level of inquiry is going to be, is there a class out there of whites and men and white men and conservatives that Google has discriminated against

0:15:39 Thomas: Yeah. Yeah. Well, My question was just, if, let's hypothetically, again, always trying to grant their premises, like if there were, what would, what data would we have that would prove that, or would they would have in this complaint that would proof that?

0:16:14 Andrew: Right um So the answer to that is nothing, um, but it doesn't have to be stated. In fairness to them, it doesn't have to be stated in the complaint, right? Like there's all sorts of, you know, salacious stuff from internal memos that that's appended in this complaint that that supposedly shows internal hostility towards conservative political viewpoints at Google, uh, but but at the end of the the day, the ascertainability and numerosity requirements require that you actually show who they are, right? And again, you know, look, you don't have to, you know, let's go back to our candy bar example, right? Like I don't have to produce a list of everybody that's bought the candy bar, but what I can do is I can say, yeah, you know, look, they shipped out 10 million candy bars over this time period to, you know, all of these stores.

And so that means, you know, that, and then, and here, by the way, is an affidavit from a store owner who says, yeah, no, I sold off all the candy bars that were on my shelf. Right. And that's going to be enough. Right? It's not, you don't make the Rule 23 requirements such that it's impossible for anybody to maintain a class action. You do it so that it meets the purposes that were set forth in the law, right? And one of them is it actually has to be better to handle this as a class than to let people litigate their cases individually.

0:16:28 Thomas: Oh, OK. Yeah.

0:17:48 Andrew: And think about that in kind of rule of law terms, right? Like in the abstract, if you were to talk to the Founding Fathers and say, do you want somebody else to litigate your lawsuit on your behalf, you know, in rural, agrarian, pre-technological, pre mass communication United States, like, I think the Founding Fathers would be like, no, no, no, like the the the core notion of this republic that we're building is, you know, you're responsible for your own claims, right? Like you lose something when somebody else is litigating them on your behalf, so that threshold question is, is this really something that we should be here on a class basis, and this

0:18:26 Thomas: Right. And to an expert's eye, this is laughable that you would do a class action. Okay.

0:18:31 Andrew: Is laughable it's laughable, and

0:18:33 Thomas: You know, right.

0:18:33 Andrew: Then even suppose, suppose you got over that. Suppose you say that there are hundreds, of because that's what you really have to be. Right. Like the dividing line is, you know, you can find cases one way or the other, but you're really talking about hundreds of people is what you need at minimum to to to maintain A class. Right.

0:18:52 Thomas: Yeah. Well, and, and they can't be violations of UNRWA, right? So it's hundreds of people that are what, like what's being done.

0:18:59 Andrew: Yeah, exactly right, that that fit into the very narrow fact pattern that applied to James Demore here, right, um, So now let's assume, again, clearly contrary to what I think a court is going to do, but let's presume that at a Rule 23 certification hearing, you're able to show that there are hundreds of white or male or politically conservative Google employees who have been discriminated against in the past four years.

0:19:09 Thomas: Wow.

0:19:28 Thomas: Quick question. Does it have to be all those things?

0:19:29 Andrew: No, it's three separate subclasses.

0:19:33 Thomas: Separate ones.

0:19:33 Andrew: But collectively, you've got to get into triple digits, right? That's where you're aiming. And by the way, Google has several thousand employees in California, but they don't have a million. I mean, we're talking about a substantial fraction of their workforce and it is the classes are defined as California over the past four years. So it just the numbers aren't going to be there. That's the easiest thing. And again, that's not the most politically sexy thing here. But it's the easiest thing that as a lawyer.

0:19:33 Thomas: OK. Right, right.

0:20:07 Thomas: Yeah, it's just it's got to be that. That that's the one of the most that is that the most incompetent thing about this lawsuit? Pretty much right off the bat.

0:20:19 Andrew: Yeah. I mean, it's it's tied with I mean all of the class claims are are incompetent and wrong, and clearly, and I don't, because, because the lawyer here and the law firm is an established, albeit Republican, heavily conservative law firm. And there's nothing wrong with that. It smacks of somebody that knows that what they're doing is a publicity stunt.

0:20:21 Thomas: Yeah. Yeah. Yeah.

0:20:43 Andrew: Right. You cannot raise this as a class claim and think you have even a one percent chance of ever getting this certified as a Class Action. Because even if you got the class, now you have to prove that James Damore, the dude who wrote a manifesto and circulated it at work, is representative, is typical of the other members of the class. Right. And if I'm the other members of the class, remember, we talked about this. I'm going to look at suppose I'm actually a conservative political white male who I believe I was discriminated against by Google in fire. No, no, no. Like this dude does not represent me like.

0:20:54 Thomas: Yeah. Yeah. Yeah. Okay. Oh, yeah. Because because he has such easier ground for termination than I might if I think that I was just fired for my political views. Right.

0:21:33 Andrew: Right. Exactly right. I do not want to be to be saddled because even if you think there are hundreds of these employees, most of them did not write manifestos while they were at work. You know, so it's it's so those are the class claims. I mean, I think I think we've kind of hit that enough.

0:21:46 Thomas: To be. Yeah. Yeah. Yeah. Okay.

0:21:54 Andrew: Right, Damore.

0:21:54 Thomas: But let's pretend, so, so right off the bat, what they should have done is just, if this were a legitimate thing and not a publicity stunt, it would have been just Demore yeah, he was wrongfully terminated or something, right? That's what it would've been, okay.

0:22:03 Andrew: Yeah, correct. There are 10 causes of action that are alleged in this complaint. Counts one to two are the California Labor Code sections 1101 and 1102. And we're going to talk about that because, again, in fairness, those are the two. If you if you asked me if if if James Damore came to me and said, you know, I want you, Andrew, to represent me in my lawsuit against Google and I were inclined to take it. Number one, I'm not inclined to Take It Right. I don't I need to sleep at night and and I I don't I don't need that kind of case.

But but if a friend of mine, you know, politically conservative friend of mind said, you know what, I do want to take this and his money's as good as anybody's and brought an individual complaint alleging only counts one and two, the sections 1101 and 1102 of the California Labor Code, I wouldn't call that I wouldn'T be cracking the jokes that I'm cracking in this case. Right. I think you're I think you're wrong. And we're going to get to that. But California Labor Code 1101 says, no employer shall make, adopt, or enforce any rule, regulation, or policy, A, forbidding or preventing employees from engaging in or participating in politics or becoming candidates for public office. Us.

0:22:34 Thomas: Yeah okay fair enough, well

0:23:26 Andrew: B, controlling or directing or tending to control or direct the political activities or affiliations of employees. That's count one. And 1102 says, no 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 a line of political action or political activity, it absolutely You can see a case on face. Now let me tell you the ways in which these, uh, cases get applied. Is I work for Hobby Lobby and Hobby Lobby sends out a thing that says, hey, all of our employees are expected to donate to so-and-so's political campaign, right?

0:23:27 Thomas: All right. Hmm. Okay.

0:23:55 Thomas: Okay. So those seem plausible. I could see a case for that.

0:24:21 Thomas: Hmm.

0:24:22 Andrew: And I happen to be, uh, you know, a liberal working for a very, very conservative, uh, company. And, and I, sitting there going, uh, I don't want to donate to this. And now my supervisor, uh, looks at and comes back to me and says, you know, Andrew, like, like, we're all trying to be team players here. We're all going to the Roy Moore rally tomorrow, so we want you to come along. And I'm forced to be in a position where my job is on the line if I don't participate in a political activity that my company wants me to participate in, okay?

0:24:22 Thomas: Yeah. Okay.

0:25:02 Andrew: That's the application of these provisions, provisions. And, uh, and when you read the cases, and I've read a dozen of these cases, um, those are the the the cases that you see coming up time and time again. So and so gets fired because they were spotted at a rally for Kamala Harris in California, right? Like, it is, it is the the notion that, uh, you are being retaliated against for the expression of your political beliefs in your, your private time, in a way that is the company trying to enforce top-down its political views on you individually. And the real distinction here, the reason why I think these claims don't stand up is because, is the distinction between political ideology as a protected class writ writ large, right? Which it isn't. And political activities narrowly construed as things like donating to candidates, running for office, going to rallies, that sort of things.

0:25:58 Thomas: Okay. Okay. OK, so so it sounds like the law applies to more formal, limited expressions of politics or participation in politics, not like opinions. Is that what you're saying?

0:26:20 Andrew: Sure, right. Because now let's spin this out, right, when we say a protected class, when we a certain class is not protected under the law. Let's use this as an analog to what we talked about on opening arguments with the question of whether Title VII of the Civil Rights Act of 1964 applies to sexual orientation as well as sex, right? And the argument being made by the side that says that it doesn't apply is it literally, and this is word for word as we've talked about on the show, an employer can say, I'm going to fire you for being gay, right? It is now, if you're not a part of that class, then the employer is free to take that into consideration in making hiring and firing decisions.

0:26:25 Thomas: OK.

0:27:11 Andrew: And so the question is, can your employer say, I'm gonna fire you because you're a republican? Because what we want to have have here is, you know, we we have an office there. Everybody kind of gets along. We're all Democrats and you're Republican and we want to fire you. And I think the answer to that has to be regardless of the other way around. Right. Even if this is Hobby Lobby.

0:27:39 Thomas: Yeah.

0:27:39 Andrew: Right, everybody in this company is a Republican and we want to fire you because you're a Democrat. I think the answer to that under the sort of ordinary free market rules is yeah, right. Like that, that, that You're

0:27:49 Thomas: Yeah, well, and certainly it's a libertarian like James Damore would certainly want that to be OK to be able to fire someone. Way. You shouldn't, if you're a strong libertarian, he's an intensely strong libertarian, you would not want your company to have to keep your employment when they don't agree with you politically, right?

0:27:51 Andrew: Right. It It Right.

0:28:08 Andrew: And, and, and, yeah, and remember, like, you and I modify that, right? We say, yeah, look, the general libertarian rule applies when we're talking about at-will contracts, and all of these are at-well contracts, that your employer can fire you for any reason, they can fire because they don't like right, like, you and I are employers, right? And if, if, if, yeah, Natalie, who, by the way Yeah, Natalie and Brian They're fantastic, they're amazing, but if we decided we didn't like Brian, we have fire Brian tomorrow, right? Like, that's that's the way it goes. Uh, nobody can force you

0:28:23 Thomas: Brian, listen up. Oh, wait, Brian doesn't edit my show. Yeah. If he forgets to put on deodorant one day, yeah, he is fired.

0:28:44 Andrew: Right, that's that's the libertarian paradise that we live in. And God, I can't imagine how, how he's going to edit this episode anyway, um

0:28:49 Thomas: Well, I just said you didn't hear but he doesn't edit my show. So it was kind of funny that we're talking to nobody, but that's okay. Maybe he listens. So, but now I'm confused because since we're not talking UNRUH and we don't seem to be talking Civil Rights Act, do the protected class things even come into play for just this code you're talking about?

0:28:50 Andrew: Oh, Yeah. Yeah. And And they, they come into play analytically, that that's why that's what I'm trying to sort of draw the distinction here, because, uh, because, again, right, remember, we're talking about, you know, broad principles. This says no employer shall make any policy that controls or directs the political activities or affiliations of employees, right? That's in 1101. So, you know, you can see how it kind of fits if you just want to apply it word for word. And again, you know, we want to be as fair as possible.

But in application, the reason that you don't want to have, and the reason the statute hasn't been interpreted as applying broadly to political affiliation, is because you immediately find yourself in unresolvable conflicts, right? Right. My political affiliation is that I am a, I'm a fundamentalist. My political and religious affiliation is I'm a fundamentalist Christian and arch core right-wing conservative. And I believe in the dictates in the New Testament that says I shall not suffer a woman to teach over a man. So this means that I'm going to complain loudly every time I have a female supervisor or every time a woman speaks up in one of our, you know, conference meetings,

0:29:14 Thomas: Okay. Hmm. Huh. Yeah. Right.

0:30:35 Andrew: Right? Right. Like it. You have to be able at that point because you have a supervening duty to a protected class, non-discrimination duty against, you know, discriminating on the basis of gender. But now you would have an irresolvable conflict. Right. You'd be like, well, I'm sorry. His political belief is that women are inferior and stupid and we can't fire him for that. Like, it couldn't possibly work.

0:30:54 Thomas: Yeah, so you're saying that's why it's been narrowed to just being like actual, like voting or, or, uh, or like particip fundraising or you're saying, so it's very narrow.

0:31:08 Andrew: Right. Right, because everything is a political ideology, right? Like, I mean, start talking about your political ideology and, you know, you'd be amazed at how wide-ranging that is, right. So, yeah,

0:31:14 Thomas: Yeah. Yeah, so just to ask a clarifying question, I don't want to get too caught up in the details, but I, I do want to make sure I understand this. If so, so, it seems like it's, and I've said this on Twitter, so I'm glad it's it's true. I didn't know there was any doubt, but you can just fire somebody for being a Republican, right? But it sounds like if you fired them specifically for like supporting a Republican candidate, then maybe no. Is that what this sounds like?

0:31:41 Andrew: Right, yeah. That's exactly right. And look, there's a real reason that we want to do that, right Right. Like so if, for example, this happens all the time. Right. If if if Hobby Lobby were to hire me. Right. I imagine that the H.R. chair, you know, when I'm doing my interviews would say, you know, Andrew, like we're pretty conservative company.

0:31:52 Thomas: Okay.

0:32:14 Andrew: Like, you Know, I did it again. You know, suppose I want to apply, you Know, to be a cashier at Chick-fil-A. Right. Like all of these things, they might try and dissuade me. And then I say, you know what? No, I'm willing. I'm happy to do that. I're happy to suck it up. And then eventually, if if they want to say, You know what, like, we just we're gonna we're going to go our separate ways. We no longer, you know, like to have you as the face of Chick-fil-A in the window because, you know, too many people associate you with opening arguments and opening arguments is a lefty show. And and we don't want that image in our company. They're within their

0:32:12 Thomas: We're a family kind of Company here. Totally, fine.

0:32:54 Andrew: Rights to do that. But what but what they can't do is they can'T say, oh, yeah, no, it's perfectly fine for you to be a Democrat. We're going to hire you. But you got to give money to Republican candidates. You can't give money to Democratic candidates. You can'T go out, you can'T exercise.

0:32:55 Thomas: Okay. Ah, Okay. So That's So It's Is it more in the company directing politics rather than punishing political action, or is it both? Oh,

0:33:16 Andrew: That's exactly what it is, right? It is because One of the things that happens all the time in these kinds of companies, and it happens, again, in fairness, I don't have numbers. I have anecdotal examples of both left leaning companies and law firms bundling together political contributions for Democratic candidates and right leaning companies and law firm's bundling altogether contributions for Republican candidates. You know, this was tangentially. I mean, this is the law that, you know, Dinesh D'Souza managed to break, which is which is really hard to do.

Do um but but companies will uh because you have hard campaign limits right of of of hard money that is being donated they will often bundle together contributions in the name of their employees uh sometimes it really comes from their employees and sometimes it's just the CEO of a company is like, no, no, I want to give two hundred thousand dollars in hard money to X person, so I'm I'm going to launder it through my employees. Right. That's the problem that these laws were meant were put in place to solve. Right? These laws were not put in place to say, employers are going to lose this aspect of controlling their business.

And I and again, I want to I just want to go back to the fundamental, you know, libertarian uh inconsistency here. It is in my view we have drawn a perfectly defensible position, right, which is to say by and large the libertarian model should prevail unless there's a compelling social need to intervene in that libertarian mode, right, and that's what you see in standard civil rights statutes. Right, if we just let the market work, we notice that um all of a a sudden majority white areas start putting up no coloreds allowed signs.

0:33:18 Thomas: Okay. Yeah. Okay. Right.

0:35:14 Andrew: And we think that's horrible to have in a And so to make sure that doesn't happen, we interfere with the freedom of the business owner a little bit to put up that sign in order to reach this much greater good against a historically discriminated against minority. In my view, that makes total sense. I don't know how you can have the position that says I don't want to intervene to protect historically discriminated minorities, but I do want to intervened to say Google cannot have as part of its corporate culture that it's a lefty firm. I I I struggle.

I like, I just don't even conceptually understand. Love to get James back on the show and have you ask him like so is it okay for Hobby Lobby to be a righty organization? Everybody knows Hobby Lobby is a right wing company. They they represented again, this is the preposterous part, but like they represented before the United States Supreme Court that the company has religious beliefs that forbid the use of contraceptives. Right. Right. So if a company can have that kind of identity and conservatives are fine with it, I just don't know how you can say

0:35:24 Thomas: Yeah. Right. Yeah. Yeah. Wow. Wow.

0:36:23 Andrew: Can't have a lefty identity unless all you truly care about is cheerleading for your own team. And, you know, that's I think where we are.

0:36:28 Thomas: Yeah. Especially when these people are libertarians, like it'd be one thing if they were like, you know, some other persuasion, but it's so, that's what blows my mind is that they're arguing exactly against what they usually are arguing about. So does this cover, just to try to summarize where we are, does this covered 1101, 1102 pretty well? Is there a meaningful difference between those or that we pretty much covers it, yeah.

0:36:49 Andrew: Yep. Yeah, no, it's I would. Yeah. The same analysis

0:36:55 Thomas: So to sum up that it wasn't prima facie ridiculous, but you would need way different facts than what are demonstrated in the in the case. Is that right in the complaint?

0:36:55 Andrew: Applies to me.

0:37:06 Andrew: Yeah. And you would need, in my view, not political ideology, but political activity. The

0:37:07 Thomas: Okay. Don't

0:37:38 Andrew: Status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. And again, you will notice political orientation, yeah, does not appear in that list. All of those complaints, and count seven doesn't explicitly mention the FEHA, but it's contingent upon it. All of those complaints literally have nothing to do with the political argument. Right, they require you to prove gender and and and race discrimination, and I I mean, I don't think we need to even uh entertain that. Like, that that that's so obviously hasn't happened. Right, even even the folks who are at a boy, right, Geoffrey Miller, if we got him in here, I I think would concede that Google is not discriminating in its hiring against white men. He

0:37:46 Thomas: See politics on there? Yeah, yeah, yeah.

0:38:27 Andrew: Would say, it's created this corporate culture that is suppressing conservative political thought. And that argument does not apply to the overwhelming majority of this complaint. So it's not even worth going through 338 individually.

0:38:42 Thomas: Well, OK, well, I was the only thing I would ask is I did see somebody say like, oh, it defines diversity is not Asian or white. Is that anything that would be considered discrimination? Discrimination?

0:38:53 Andrew: Would it be considered?

0:38:55 Thomas: I

0:38:55 Andrew: But again, remember that that there's the distinction that.

0:38:58 Thomas: Mean, that has nothing to do with his case, but yeah,

0:39:00 Andrew: Right. And and the reason there is because California, as we've talked about, has a history of interpreting your right to relief separate from the justification for the underlying classes. So, in other words, I see no tension between saying, hey, the classes that we want to protect are on the basis of race is, you know, are non whites because, duh. And that does not, in my view, and I think the view of any judge in California, that's not going to count as a classification on the bases of race. Right. Like because there's two things are distinct. We're saying our goal is to protect this group of people or these groups of people. And the way in which we're going to do it is by mandating X kind of behavior. Makes sense.

0:39:53 Thomas: Not as clear on that. When would that border into, as we acknowledged at the beginning of this recording, when would that cross the line into racism against white people?

0:40:06 Andrew: You'd have to show an actual disparate impact, right? Like you would have to show like white people are making less than persons of Color at Google or that white people don't get promoted as quickly as persons of color, that white people tend to occupy, you know, the less desirable job. I mean, it would be the reverse of all of the ways in which you tend to show systematic discrimination against members Members who are part of the protected class. And look, if that were the case, right, like if Google said, you know, if there were if there were situations where Google said like, gosh, Thomas, we really love your work here. But, you know, we're not. Yeah, we're not, we're not promoting any more white guys. I agree with you.

0:40:16 Thomas: Right. Okay.

0:40:45 Thomas: You're you're white. Sorry. Yeah. Yeah,

0:40:50 Andrew: Right. Absolutely. Bring the lawsuit. There's no evidence of that.

0:40:51 Thomas: Exactly. So but but in according to the facts in this complaint, when they mention that, are they just saying Google is trying to hire more non-white, non-Asian people? Is that the context that they were?

0:41:05 Andrew: Exactly. It is in the context of the diversity. And it just does not, in my view, it does not match up with the the pleading requirements for those particular causes of action, because you have to show that you have discriminated against the individual on whose

0:41:22 Thomas: Well, I was going to say, yeah, like if if That was true, it would be, we would be hearing from someone who didn't get hired by Google, right? Okay.

0:41:24 Andrew: Behalf you were suing. Right. Exactly. Exactly right. Or or didn't get promoted. Right. Like It is, you know, and look, like, it, this, this goes back to why Damore is not, is not a good class representative. If Demore's allegation is that he was fired for being white, that would meet the, the standard too, right? Like it can be hiring, firing, promotion, job conditions, all of those things, but but James Demore doesn't think he was hired for being why, I would love to ask him that question, right? But but, but as far as I can tell,

0:41:31 Thomas: Yeah. Yeah.

0:41:55 Thomas: So go ahead, sorry. Right well here's okay so this is, I can gauge the, the devil's advocate, uh, from the, the bullshit responses I've gotten on Twitter, which is the closest people are coming, because it seems to me a knock down easy argument that, uh, he wasn't fired for being white because there were other white people who were, who didn't share his political views, who weren't. So the variable is political views, right? I mean, isn't that pretty clear? Like, it's not as though they fired all white people. They fired him for his political views. But the only counter I'm seeing, and I know this is bullshit, but I'm wondering if you can clarify it in a good way. The only counter I'm seeing is, well, if he were black, they wouldn't have fired him for this. They're like, that's what people are saying to me on Twitter, it's

0:42:46 Andrew: And I don't, I mean, that's just not, so, right.

0:42:54 Thomas: Not an actionable thing, right?

0:42:57 Andrew: I mean you've kind of got me at a loss for words here. That's not how you, constructing hypothetical counterfactuals is not how you go about proving your claim, right? And the way in which you would do that, I means, how would you even prove that as an argument, right? Like, if, because, because presumably, right, there is a, a contradiction, right? Like, so, Thomas Sowell, right, well-known African-American conservative, um, under the first subclass, the idea is Thomas Sowell would be fired by Google, right? So if that's the case, then, uh, and and you need that to be the case in order to make your claims in counts one and two, then that's fatally defective to that response for counts three through

0:43:05 Thomas: Yeah so

0:43:44 Andrew: The rest of the complaint.

0:43:44 Thomas: You would need you would needs like, you, I guess you would like a black person to have written this same ish manifesto and not gotten fired, and then you could prove that they just fire white conservatives, is that what it would be okay

0:43:58 Andrew: Yeah, no, that that would show discrimination on the basis of race. Right. And again, think about that in an ordinary employment context, right, like that, typically what happens is, right, African-American person gets fired, they, they bring the lawsuit alleging wrongful and discriminatory discharge. The burden shifts to the company to offer, for, uh, justification, and the company says, no, no, we didn't fire, uh, Thomas because he was, uh, black, we fired him because he's been late six times in a 12-month period, and then the burden shifts back to Thomas, who would, would then produce records to go, yeah, look, like Here's A dozen White guys right everybody clocks in five minutes late, here's a dozen white guys, that's all I ever did.

And the white guys didn't get fired, and I did. And then the burden would shift back to the employer to offer a non-pretextual justification for the distinction there. And they would have a really tough time doing so in that situation. So, yeah, if if James Damore has examples of black conservatives at Google who have risen to prominence, that's what you would need in order to prove that counterfactual. And if you don't, then then what that said, look, that that doesn't that's not fatal to your lawsuit. But what it means is that these yahoos who are tweeting at you shouldn't be confident in making the statement, oh, well, if he was black, he wouldn't have been fired. Right. Well, you don't know that. Right.

0:44:02 Thomas: Yeah but everybody's late Right. Yeah. Right. Right, right. Right?

0:44:56 Thomas: Right? Yeah. Yeah, it's I see a lot of people trying to combine politics and race into like one thing in this, like, oh, white conservatives are okay. But you know, the black liberals are sorry, they're firing white conservatives, and they're keeping liberals of color, you know that kind of thing, like combining the two traits. And it's, it doesn't really work that way, right? Right. You can't if you're firing him because of political views, which we've established is entirely legal as long as it's not some action that, you know, they were making him take or he's or they're making the liberals take. If you're hiring him just because of critical views, you don't need the race part. It doesn't you haven't established that.

0:45:31 Andrew: And. Right, right. Yeah, that's exactly right.

0:46:08 Thomas: It's like they're using the correlation of, well, people of color tend to be liberal and white or something. I don't. It's really weird.

0:46:14 Andrew: Yeah. But You need it. What they're trying to do is they're trying to piggyback on the fact that it's impermissible to discriminate on the basis of race to say, oh, well, if it's impermissible to discriminate against white people, it's impermissible to discriminate against conservatives. And that's just not true.

0:46:19 Thomas: Yeah.

0:46:28 Thomas: OK. Okay. So now I get that clarification. I think I understand it. So, so that's helpful is, is I like when we can change the facts to say, okay, if the if facts were this way, then this charge would make sense, but they're not even close to that. I Think that's a, that's an helpful way of illustrating it.

0:46:32 Andrew: Yeah. Yeah. Yep. There's only one more because count 10 is declaratory relief on the on the previous counts so that that that's not a separate uh count. Count nine alleges a violation of uh Section 17200 of the Business and Professional Code, which is a provision that applies to unfair competition, which is defined, this is the direct quote, "as used in this chapter, unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising." You see this pled a lot in consumer protection cases. Right. It's a very, very strong false advertising statute. I don't, I mean, I don't even see how it's connected up here in the lawsuit.

I mean, we can turn to the specific allegations that are raised by Demore's lawyers, but like on face, I, I, I don't see how it applies, um, and and the section uh only has three paragraphs in it, um, after the reiteration of the previous paragraphs it says, "Google's violations of the California Labor Code one and two and California statutory and common law and other provisions as described above in the causes of action listed in this complaint all constitute unlawful and unfair business practices pursuant to this section." And then it's ongoing. So in other words, by its own terms, which are not very clear, this count nine is contingent upon count one, and counts one and two being correct. It says that if there is a violation of the labor code, then that is an unfair or deceptive trade practice. But

0:46:51 Thomas: Okay. Huh?

0:47:45 Thomas: That's weird.

0:48:32 Thomas: Huh.

0:48:32 Andrew: There's nothing freestanding here that gives him an additional leg to stand on with respect to these allegations. And there you go. That's the lawsuit.

0:48:38 Thomas: Well, that's weird, Really? Oh, okay. Well, I guess what I want to ask is, and once again, I really do want to try to be fair as much as possible to the other side. I do see in this a lot of screenshots, and by the way, it's pretty clearly what was meant to do was try to expose a bunch of people because names are not redacted. This is just, you know, his revenge, probably sending a bunch of Twitter assholes to harass these people. But anyway, names not redacted. We've got a bunch Of examples of people, sometimes, you know, sometimes Google employees, sometimes higher up in Google, saying things like here's a quote, uh, you know, that there are certain alternative views, including different political views, which I do not want people to feel safe to share here. My tolerance ends at my friend's terror.

0:49:27 Thomas: You can believe that women or minorities are unqualified all you like. I can't stop you, but if you say it out loud, then you deserve what's coming to you. Yes, this is silencing. I intend to silence these views. They are violently offensive. Take your false equivalence and your fake symmetry and shove them hard up where the sun doesn't shine. So that's a quote, I guess, like an email to not to James, but to the other person in the lawsuit. What are we to make of that? That. I mean, is there any case for like, could there have been some sort of harassment that maybe Google allowed? Or I mean is, do you see anything in those facts?

0:50:02 Andrew: Mm-hmm, and again, you want to parse out the reasons, right? So at the core of the allegation, um, if you create, uh, an environment in which you have failed to treat somebody with the requisite standard of care, right, then you can bring a a negligence lawsuit against, uh, against the company for for doing so, imagine, right? Like, um, I'm thinking of like kind of sustained humiliation of somebody, like in, you know, Stephen King's Carrie. Right. You know, like if if you've got somebody at work and like supervisors, it's a white male, not a member of any protected class.

0:50:36 Thomas: Right. They're hazing or something. Yeah.

0:50:44 Andrew: I'm sorry.

0:50:45 Thomas: Like, like someone's getting hazed all the time or something?

0:50:47 Andrew: Yeah, exactly right. And and they have created working conditions that fall below the level of care that an employer owes to their employee, then that would certainly, you know, give rise to a cause of action. And look, I could even see that in the political context. Right. Like if if if again, let's let's let's do it the other way around. I get hired by Hobby Lobby. I go and I say, hey, look, like I'm a Democrat.

And they say, yeah, we know you're a Democrat as long as you're willing to work in this, you know, conservative company. You know, we're we're going to go along. Well, then, you Know, there's some things that I've got to suck up at this conservative company, right? Like it they're going To be an awful lot of, you Know, Trump signs going around.

They're going going to be an awful lot of people when they're sending around, you know, the office email that that says, hey, are we all bringing in cupcakes for for for, you know, Thomas's birthday next Friday is going to, you know, might have little graphics at the end that that are, you know, conservative memes or whatever.

0:51:45 Andrew: And and so on the one hand, if I'm the employee in that situation, probably I'm not going to go on the offensive in that environment. But look, if I had people deliberately targeting me, right? If I say nothing and they say nothing, and it's a kind of, you know, live and let live, it's really, really hard for me to see where that's a cause of action. If these people are targeting me and I can't get my work done, and I've sent back emails where I say, look, you now, Sally, we're just going to have to agree to disagree about Donald Trump. I need to get my work done. Can you can you stop sending me, you know, 30,000 emails a day with, you know, Pepe the Frog on it or whatever? And they don't then. OK, right. And look, and I would want somebody to be able to bring a lawsuit in that case where they are, you know, being harassed in a way that prevents them from getting their job done. But but again, and I don't know anything about the other guy in the lawsuit. I don't know if you do.

0:52:40 Thomas: No, I don't know anything other than the things I'm seeing in this complaint.

0:52:43 Andrew: Yeah. In In Damore's case, that's not remotely what happened. Right. He waded into a discussion board and came in with his conservative opinions. And he's unhappy that his conservative opinions weren't well received. And I don't to me, that is so different than, you know, plucking things out of context and saying, you You know, it was not like he was highlighted for, you know, targeted for ridicule. This is somebody who wanted to participate in the discussion but didn't like how the discussion went, which, by the way, is where I think almost all of these, you know, conservative First Amendment guys wind up is what they're really unhappy with is that their positions weren't, you know, accepted or treated with sufficient respect, not that not that they were prevented from speaking. But, you know, that's my take on it.

0:53:36 Thomas: Hmm. Okay. Well, so, I have two questions. A, is is the complaint even structured properly to where that's the charges that are being filed? Uh, I do see workplace harassment as one of the charges listed, so like, is that, that, um, complaint, alleged properly? And then, like, what would you need to have? Like, what level of behavior, I Guess? And why, why doesn't this rise to that level?

0:53:53 Andrew: And the answer is, yes, it's pled properly as an FEHA violation and what you need. And so it suffers from the fundamental defect that you are conflating in this lawsuit. Lawsuit, not you, that Damore's lawyers are conflating in this lawsuit political ideology with race or gender, right? So yes,

0:54:13 Thomas: Yeah, yeah. Okay, so didn't they didn't allege, I'm being harassed, and this is an unpleasant environment. They, they alleged alleged I'm being harassed because I'm a certain protected class or something. Okay. So

0:54:31 Andrew: The harassment claims fall under the FEHA. They do not fall under the California Labor Code. Because remember, the California Labor Code is a narrower application, right? It says that the employer cannot make a policy directing your political activities, And they cannot attempt to coerce or influence your political activities. Got

0:54:34 Thomas: Ah, okay.

0:54:54 Thomas: Well, I guess I'm trying to, I'm separating, and maybe this is because I's not really directly working from the complaint. Like maybe that's why, uh, you know, you, you keep going back to that. I'm, I just trying to give them the benefit of the doubt of like, okay, let's say he, it doesn't really matter that he was a conservative, uh, except that that was the reason they were harassing him, what would you do? Like if, if you were just James Damore, a conservative who was harassed out of a company, what would he file? Like what, what kind of complaint would he fail? What I'm trying to say is not under the idea that he's a protected class, like not under that, just like I was mistreated at work is what I'm trying to to say, like hazed and yeah

0:55:35 Andrew: It. So I just I just wanted to be clear, because you said the complaint has allegations about harassment. That's true. That'S count four. And that harassment is specifically in the context. Yeah, is contingent upon.

0:55:36 Thomas: Right okay is dependent on it being a protected. Okay, very very good clarification, okay.

0:55:51 Andrew: Right. So what would you do if you were just harassed out of the company? You would bring the negligence suit that I that I talked about. You would say, look, I was treated in a way. And to be honest, in my view, this is what a white guy and I say this is a white man. Like, this is what a white guy ought to have to prove, right? I was treated in a way that is unconscionable for any company to treat any person, right.

0:56:17 Andrew: I'm not asking for special privileges. I am not saying I deserve to be looked at in any particular way for any particular thing. I'm saying nobody who works for anybody should have to suffer through X, right? And that's what you would have to show. Anything more than that, again, just, you know, think about, play out the logic. You're saying, I want special treatment because of some other situation.

And again, you and I don't have a problem with this from a liberal consistency perspective because we think there are things that ought to qualify for special treatment under the law, right, membership in a historically discriminated against class of people, um, but the idea that you think having a conservative political viewpoint qualifies you for special treatment is, you know, a level of snowflakedom that that it's astonishing to me to see, and it is doubly astonishing to see otherwise intelligent people, you know, like Geoffrey Miller, I assume Geoffrey Miller is not an idiot, right, but but to But to not just say, wow, I'm with you, but viscerally, I am so with you that I'm going to say something that is too stupid for an educated person to have put into print, like, that's amazing, right? And I'm

0:56:00 Thomas: Okay right right yeah

0:57:32 Andrew: Curious. I really am interested to know. I would love to be able to have an honest conversation with one of these guys. You specialize in that, so maybe you can make this happen. But to have a conversation with someone like that, I would really love to have that conversation. About what's going through your head? Do you really think that we're purging conservatives from companies, white male conservatives from companies in the United States? Are you really thinking that we are going to have a kind of apartheid situation in this country? What is it? Because I can't figure it out.

0:57:41 Thomas: Yeah so just to tie up that question then, a, it wasn't, the complaint wasn't there, uh, like just the the broad harassment thing that wasn't there. Right.

0:58:13 Andrew: Correct, yeah. The complaint doesn't allege that kind of right.

0:58:16 Thomas: And then be, even if it did, yeah, good.

0:58:16 Andrew: And I should say that, yeah, it would have to be, that in order for it to be relevant under the complaint, And all of these activities that are alleged to be harassing would have to be harassing on the basis of race or gender. Right. So for, for it to be exactly right for it, to be relevant to this complaint.

0:58:32 Thomas: For it to be relevant to the FEH, whatever it was. Yeah. Okay. To this complaint. Okay, but In a hypothetical other complaint, let's say that he alleged the negligence that you're talking about, do you think these facts would even rise to that level? Right.

0:58:39 Andrew: So yeah, no, because everything I see, and again, I, I want to be clear. There's only so many like exhibit B, you know, scrolling through conservative memes that, or, and liberal, and actually, most of these are liberal memes. Right. Like so. And and most of them are, you know, the kind of stuff that I see on my Facebook page and I kind of roll my eyes about. Right? So, like, for example, there's a there's a little puffin thing here that says, I do think we could stand to alienate fewer conservatives. But sometimes this is intended to mean, quote, tolerate views and actions that harm or disenfranchise minorities and, quote. No, thanks.

0:58:57 Thomas: Right.

0:59:31 Andrew: Like, that's real hard. There's The there's The thinking velociraptor one, you've seen that meme before, and there's a thinking velociraptor that says, "Do you ever wish you were a corporation or a fetus so Republicans would finally treat you like a human being?" You know, I

0:59:32 Thomas: That's not harassment, yeah. So What You're saying is it would be pretty snowflakey to consider that harassment, kind of

0:59:49 Andrew: I think it would require a pretty thin skin to have that, and if I had, you know, look, I, I've told the story on Opening Arguments, I clerked for the most, most conservative judge, it was, I mean, legitimately a conservative, uh, on the Maryland Supreme Court, the Maryland Court of Appeals, and he hired me because, uh, the judge, this is long, you, time ago, uh, and the judge liked to hire lefty clerks, uh, because, and he liked to hire clerks who would challenge his His viewpoint, yeah, exactly.

1:00:19 Andrew: Right, and he would have me Come in and, you know, air things out, and I would air my position, and at the end of the day he'd be like, "I've heard you." You now go write the opinion the way I told you to write the opinion.

1:00:17 Thomas: Keep himself honest or Yeah Boy a different time Huh Right Right.

1:00:31 Andrew: And I went and did my job. And if and and the judge was not this is an error. The judge was Not he didn't have a computer, let alone email. So he would not have been the type to forward, little internet memes. But you know, he used to tease, to tease me in other ways, right, like he would come out to my desk because I was on Westlaw, I like to access the cases electronically, which I still do to this day, and he liked to have the books in his hands And he would deliberately, he was a game he would play over the course of my clerkship where he would deliberately cite 18th century opinion, like he would look for old cases that would force me to Go into the library

1:00:59 Thomas: Me. Right. Yeah, that's

1:01:15 Andrew: And get the books and would Come out and make fun of me for any of you, like, "Yeah, I made you go get the book." Right. Like, and it look, is there a way that I could have characterized that, you know, analogously to what DeMora's argue? You could do that. Right. But it certainly was.

1:01:16 Thomas: Funny. But that would be pretty snowflakey.

1:01:32 Andrew: It would be very snowflake. That's I think a good that's that's how I would summarize it.

1:01:35 Thomas: So. So closing thoughts. Is this the most important lawsuit in modern American history? And is this a damning document for Google? What are your overall impressions?

1:01:46 Andrew: I, to me, what this document shows is that on Google's internal freewheeling political boards, most people that work for Google in California are liberal. And the idea that that is a bombshell is kind of weird to me. So I don't think it's harmful to Google in any way. I think the only people that are motivated by this are, you know, the traditional right wing outrage machine. And I think most of the lawsuit is the utter garbage that we've talked about. Some of it is going to survive. Right. Because it's fact specific.

1:02:01 Thomas: Right. Wow. Now. Now, oh, really? Okay, I was just going to ask, give us a very tangible prediction. And what I would be most disappointed in is I really hope it's not the kind of thing where it's like, okay, big company has a billion dollars, a billion, has bazillions of dollars. So they just pay off a settlement because whatever. Like, do you anticipate that? What do you think will happen?

1:02:27 Andrew: Yeah.

1:02:47 Andrew: It depends. And the reason it depends is because now that you have alleged this in a class context, it makes it harder to settle. Class action settlements must be approved by the court. And And the reason they must be approved by the court is to prevent, you know, corruption, right?

1:02:56 Thomas: Oh, interesting.

1:03:05 Andrew: Like, yeah, the lawyers and the named representatives get everything, and you've now foreclosed on all of the class relief. So this is not the typical case, right, this is Not the Ann Coulter lawsuit, right where you think, I'm going to bring this, it's got political value, and who knows, maybe I'll get some money at the end of the day as a result of it because they'll pay me off. And I think the reason for that is because James Damore, and as far as I can tell his lawyers, right, and that's just from Googling his lawyers activities at the Dhillon Law Group. Remember, this is the guy who went home and typed up the manifesto and brought it into work and shared it with everybody, right? Like, he's a true believer in an ideologue. So I think they want to fight these issues. I think they're going to litigate these issues. I don't

1:03:04 Thomas: Where the lawyers just kind of get everything and then everybody else gets, yeah. Yeah.

1:03:58 Thomas: Wait,

1:03:58 Andrew: Know. I have to assume that the plaintiffs

1:03:59 Thomas: You think, who do you mean they? Like they would like, oh, okay.

1:04:03 Andrew: Want to litIGATE these issues, I think it's going to be a challenge to settle it, and I don't think the typical thing that you want me not to predict is likely to happen.

1:04:10 Thomas: Well, what about the, the, the defects you talked about

1:04:12 Andrew: What

1:04:12 Thomas: With the class action? I mean, it doesn't just get thrown out because of that. What happens?

1:04:16 Andrew: You do is you move to dismiss and enforce summary judgment in the alternative, and what you're likely to get is a partial ruling, right? So you're unlikely to get some of the claims thrown out and or summarily dismissed, but some of The Others, they may retain and allow you to—yeah.

1:04:36 Thomas: So the class part doesn't kind of, I would think that would be fundamental to it. Like if it's not a class, an appropriate class action, that wouldn't just eliminate the whole thing?

1:04:41 Andrew: Yeah. Because remember, the lawsuit is brought by James Damore individually and on behalf of the classes. So what you have is you have a Rule 23 class certification hearing. And again, in which order sort of depends upon what the lawyers do. And probably because there are so many claims that will technically survive on pleading, they'll probably move to have the a class certification hearing first. But the downside of that is you're entitled to some discovery in connection with the class hearings. So, you know, all of that is kind of inside baseball on how lawyers, you know, defend lawsuits. But what I suspect is going to happen is you have a class certification hearing, class will be denied, all of the class allegations out of this lawsuit will will drop out.

1:04:53 Thomas: Okay, okay, right,

1:05:42 Andrew: And some of the allegations that are just not remotely defensible and not supported by any kind of specific allegations in the complaint will also drop out on the face of it. You know, you you you may retain counts one and two and may retain a couple of the FEHA allegations because, right, this is the same, you trespassed onto my lawn, right? Like if he's alleging that they terminated him because he's white, may be entitled to some discovery. But once the discovery is done, then, you know, then you're at the point where you're like, OK, there's nothing else left to get and there's no evidence whatsoever that we discriminated against this guy because he was white.

And then those claim those counts will be dismissed out on what will be adjudicated on on summary judgment. Right. So but but look, this isn't going to be a super costly lawsuit for Google. Right? Google has billions of dollars. Like it's I don't think that this is going to fall under the like it's going to settle and get swept under the rug. Google can afford to defend it. And Damore really, really wants to litigate. I don't think he's going to be happy with the outcome, but but I think it's going to go forward.

1:06:09 Thomas: Okay.

1:06:47 Thomas: Oh, good. Oh wow, okay and then nothing will happen because it's an absurd lawsuit? Is that okay? Well, thank you so much for the breakdown. That was exhaustive. I think it was, we have our biases and you have your bias in that you're an actual lawyer who doesn't write bullshit lawsuits but still, I mean, mean, I, I really did want to try to be fair to like how the facts could be different to where it would make sense. And I, again, to the center Lords, if there's actual discrimination against white people that then, yeah, I mean, you, you have to have your day in court, allege that, you know, a similarly situated black employee wasn't fired, but you were fired, you know? Yeah. I'm not against that.

1:07:00 Andrew: Correct. Yep.

1:07:35 Andrew: And and And to, and to the people on our side, right? Like, you have to bite the bullet and say a company can fire you for being a Democrat or for being a socialist or what. Right. Like, it, it, it, to me, you know, there, there is, you know, that potential contradiction on our side as well, like if you want robust protection for, you know, the socialist working at, uh, you know, at Hobby Lobby, then, you know, then you, you stand in a more difficult position laughing at this lawsuit but fortunately you and I don't stand in that position. Oh,

1:07:44 Thomas: Right. Yeah. Right enough. Fair enough. Right, right. All right. Thanks so so much for the breakdown. Really detailed. That was awesome. Really, thanks for doing that extra work and coming back to Serious and Queers Only to educate us all on this.

1:08:20 Andrew: Thanks for having me back to the mothership. I, I love it. I would do it anytime.

1:08:23 Thomas: And obviously, everyone should go check out Opening Arguments if you aren't already. I'm sure you are.

1:08:52 Thomas: All right, well, there you have it. I think that was a great breakdown and I really did, and Andrew did as well, take pains to entertain different hypotheticals and to point out that this lawsuit is horribly written regardless. Like, even if you took everything, all the facts to be true about James Damore, it's still terrible. And then you can go the other way and say, like, well, even if wrote a good lawsuit, would it succeed on the merit? And then we could, we played with, like, what would the facts have to be? For it to succeed in the right way. And it's still, I mean, it's just a pile of nothing because you don't actually have discrimination, sort of actionable discrimination. In this case, it's an overreaction, people. I really do want to ask these libertarians.

1:09:38 Thomas: Do you want the government to require that I keep people employed that I don't want to keep employed? Is that what you want to require? Because I think as we laid out in the episode, my view is no, unless it's being used to discriminate against people of a certain race, gender, or any other protected class. Now, if these libertarians want to add politics to that list of protected classes and expand the power of the government, if these libertarian's want to do that, we could talk about it. I don't really want to because politics Politics isn't like an inherent characteristic of a person, you know, and it's not something I, I think that in a society like ours and an evolved society, we should be required to get along with other races and other ethnicities and other religions.

1:10:32 Thomas: We should be required to do such a thing, uh, in a, in a way that's at least collegial and not violent and not, you know, disgusting and racist and all that. We should be required to do that when it comes to politics. I don't know that that's necessarily where I would want us to be. I don't know that I would want Hobby Lobby to not be able to have a conservative company and then Google or whoever you want to say to not have more of a liberal culture and to have anyone who is fired because of their politics to be able sue. I mean, it's not the craziest thing. It's not how our current legal system works. So, if you're wanting that to happen, you would need to change the law and to pretend that this lawsuit is justified and Google is quaking in its boots.

1:11:17 Thomas: I don't think they are because this is largely a steaming pile, as we've seen. So that's how I feel on it. I'm not heartbroken that politics isn't a protected class, But if that's something these libertarians want to expand, they want to give the government more power, I guess, you know, more power to them. So thanks for listening. Thanks again to Andrew. Uh, looking forward to speaking to you on Thursday. I haven't decided what I'm talking about yet, but there's always, you never know what will come up. Uh, thanks for the supporters over at SeriousPod.com slash support, and I'll see you on Thursday.