Judge allows suit by conservative job applicants against Google to move forward

SAN JOSE -- A Santa Clara County judge on Friday allowed to proceed a proposed class action that argues Alphabet Inc.-owned Google openly discriminates against white, male conservatives.

Despite concerns that the proposed class is "unascertainable and unmanageable," Superior Court Judge Brian C. Walsh ruled it is possible to identify a group of job applicant plaintiffs allegedly denied positions at Google because they were not a "cultural fit."

While original plaintiff James Damore exited the lawsuit in favor of arbitration, other plaintiffs argue they were not offered jobs at the Mountain View-based company because of their political beliefs.

Damore was fired in August last year after publishing a memo criticizing Google's diversity and gender inclusion efforts. He argued "distributions of traits between men and women may in part explain why we don't have 50% representation of women in tech and leadership," and suggested "non-discriminatory ways to reduce the gender gap."

"I'm not sure I share [the plaintiffs'] opinion about how easy it will be to define the class, but this is the beginning," Walsh said. "The main point here is that it's too early in this case to cut them off."

The complaint accuses Google of violating two California labor codes, workplace discrimination due to gender or race, disparate impact discrimination due to gender or race, workplace harassment, retaliation and other claims.

The central issue over the defense's attempt to kill parts of the lawsuit at the hearing Friday, according to Walsh, was whether job applicants who were allegedly denied positions at Google because of their conservative beliefs can be considered a "political subclass."

Defense attorney Zachary P. Hutton of Paul Hastings LLP argued it would be impossible to determine members of the proposed class because plaintiffs refuse to define "conservative" and that the term is "subject to different interpretations."

The task is further complicated because there are "no personnel references that identify political affiliation," he added.

"Imagine an applicant who served in the military, voted for [Barack] Obama, and then voted for [President Donald] Trump," Hutton said. "There are millions that fit that description. Are they a part of the class?"

Google attorneys did not dispute that hiring managers inquire about political beliefs.

Plaintiffs' attorney Harmeet K. Dhillon said the issue the defense characterized as an insurmountable obstacle is one the "courts have been able to grapple with" in other civil rights cases. The judge should not entertain arguments such as "a class of all women is too broad" or that a "class of all people of a race is too broad," she argued.

Named plaintiff Stephen McPherson claimed his job application to Google was rejected because hiring managers determined he would not be a "cultural fit" at the company as a white, male conservative. Damore et al. v. Google LLC, 18-CV321529 (Santa Clara County Super. Ct., filed Jan. 8, 2018).

Hutton also claimed identifying the proposed class would be "unmanageable" because of practical discovery issues.

The judge agreed that the matter might be "insurmountable" and that "many of the sources of information Google contends cannot be manageably searched ... are likely not within [its] possession" in his tentative ruling.

Google did not immediately respond to requests for comment.

Dhillon responded that Google has "systematic practices directed toward searching the internet for information about job applicants, collecting that information, and then using tags to identify it."

Walsh called the plaintiffs' claim of a proposed class of job applicants allegedly denied positions at Google because of their political affiliations a "novel theory" and one he cannot dismiss before both sides engage in discovery.

"This is not a commentary on whether or not there is discrimination at Google," he said.