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Political Discrimination Might Actually Be A Thing

I: The Theoretical Basis of Antidiscrimination Law

Antidiscrimination law, whether at the state or Federal level, rests upon two conceptual pedestals.

The first big concept is that certain activities (housing, public business accommodations, and employment) have particularly important effects on the ability of all people to fully participate in the commercial environment upon which all persons in the country rely for vital services. This therefore implicates the ability of people to be truly equal to one another in a nation that purports to hold individual equality as one of its high ideals; it also implicates the ability of people to survive in a largely capitalist economy.

The second is that it is the role of the applicable legislature to identify subject matter areas in which discrimination has occurred historically, and to then intervene and place antidiscrimination protections to prevent such discrimination from occurring in the future. Different legislatures identify different reasons that have been historically common enough to require legal intervention, though at minimum every jurisdiction in the United States recognizes the Federally-recognized categories of race, national origin, skin color, sex, religion, and age over 40. All states and the Federal government also recognize disability discrimination, which has a much more elaborate rubric to determine when discrimination occurs, beyond the scope of this essay.

Discrimination, in turn, is identified in a two-prong test. It consists of an adverse action within the commercially sensitive activity motivated by the victim’s membership in a protected class. In housing cases, the adverse action is most often a refusal to let (that is, rent) residential premises. In accommodation cases, it’s most often a refusal to sell or serve. And in employment cases, it can be any sort of adverse employment action, though termination of employment is both the most severe and most common of these. After the adverse action has been identified, it is for the plaintiff to prove that the defendant was substantially (though not wholly) motivated by the adversely-affected person’s membership within a protected class.

When a provider of a regulated activity (housing, employment, public accommodation) engages in discrimination against an individual based on that individual’s membership in a protected class, lawyers use the shorthand of “invidious” to describe this discrimination. For purposes of this essay, “invidious” discrimination is intended to be co-extensive with “actionable” discrimination, meaning the sort of activity which a court is legislatively authorized to remedy.1

I suppose there’s an interesting theoretical argument from a libertarian perspective about whether these concepts are consistent with the notion of a limited government that respects private property and contractual rights. But the fact of the matter is, nearly everyone implicitly goes along with this. And whether you like it or not, it is the law.

 

II: California’s Anti-Discrimination Law, Including Political Protections

California, famously, has among the largest categories of protected classes in the area of employment law. Specifically, California Government Code § 12940(a), part of the Fair Employment and Housing Act (FEHA), calls out the categories of “race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status” as bases upon which invidious discrimination might occur. Certain of these (e.g., “genetic information”) are not historically prevalent, at least under that label, but the California Legislature in its wisdom has determined that some combination of discrimination on that basis under other guises has occurred and that future discrimination on that basis under whatever label is likely to occur in the future absent legal intervention.

Also unusually among the several states, California protects certain political activities of employees. California Labor Code § 1101 provides, in full:

No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.

Further, Labor Code § 1102 provides:

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 line of political action or political activity.

Keep this in mind, because it’s going to be the crux upon which much of the rest of this essay turns. For now, notice that political activity and political affiliation is not listed as a protected class in Government Code section 12940. Political activity is protected from adverse employment action in California strictly by these two sections of the Labor Code, not the flagship anti-discrimination law of FEHA.

Among the most active areas of Legislative amendment of existing statutes is the anti-retaliation statute immediately following this, Labor Code § 1102.5. Employment lawyers in California have been quick to realize the breadth and power of this law, and the Legislature appears to revisit this law every other year or so, always expanding the scope of its protections. Since January 1, 2016, the law provides, in part:

(a) An employer, or any person acting on behalf of the employer, shall not make, adopt, or enforce any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, to a person with authority over the employee, or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

(c) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

Political Discrimination Might Actually Be A Thing

The actual whiteboard in my office used during my attempts to diagram Labor Code § 1102.5(a). Grammarians, recoil in horror.

I know these are confusingly-written, but trust me, this is not word salad. It is remarkably inartful drafting,2 but substantial dissection and diagramming of these three sentences (there are more provisions than these, but they’re the ones we’ll be most concerned with here) does call out that, as applicable here, an employer may not impose an adverse employment action on its employee who refuses to go along with a violation of law. The precise wording of constitutes a “refusal to go along with” and “violation of law” in the statue may well be important to the way you consider the law.

Finally, be aware that in California there is a common-law cause of action for wrongful termination in violation of public policy. This is sometimes called the Tameny tort after the case of Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 172. The concept of Tameny is that if the plaintiff can show an adverse employment action (like termination) was contrary to an important, already-articulated policy of the state of California, that is actionable. The articulation of the policy is typically found in a statute or a regulation.

 

III: The Saga of James Damore

James Damore, a younger3 white male who identifies as politically conservative, was employed as a software engineer by Google. It appears to be the case that Google fosters an online discussion community within its employment ranks, and that it has an internal culture of tolerating lengthy and freewheeling discussions on a large variety of subjects and points of view that appear to have very little to do with the work that Google does.

Apparently, the culture was such that participants in these forae were considered “rankless” and open criticism of actions or policies of managers, executives, and the company as a whole was at least tolerated. The thought, I suspect, was that this would provide an insight into how the people doing the hands-on work of the company were thinking, boost morale, and serve as an outlet from which improvement might be crafted. In one of these forums, Damore purported to address issues of gender imbalance in Google’s hiring practices and its internal culture. He posted a rather long essay.

Therein, Damore recited and analyzed data suggesting that there were subtle biological differences between male and female physiology resulting in small variations between the sexes for propensities and preferences to different kinds of intellectual subject matter, that might partially account for this. Damore emphasized several times in his essay that the differences were slight and the physiology of women left ample opportunity for aptitude and excellence. He also purported at all times to be approaching the subject in a constructive fashion and with an eye towards increasing gender balance.4 There was also overt criticism of Google’s diversity and anti-discrimination training efforts, and accusations that the prevailing culture was hostile to people of politically conservative ideology, with Damore going so far as to call the prevailing political atmosphere at Google an “echo chamber” of liberal ideas.

In any event, the essay was not perceived as constructive criticism of Google’s culture and diversity training efforts. Large numbers of Google employees understood it to boil down to “men are better at math and coding than women,” and they grew outraged at Damore for circulating it. In the manner of these things, that caused Damore to respond defensively and to double down, which in turn caused his internal critics to double down in response. Somehow, some of this internal argumentation got leaked out to a hungry Silicon Valley press, turning the item into industry-wide gossip and from there, into international news. After the matter had “gone viral” in the general public forum, Google fired Damore.

And that’s how Damore came to the next phase of his career, as a right-wing free speech martyr.

 

IV: Damore Files Suit

On January 8, 2018, Damore, represented by Harmeet K. Dhillon, Esq. of San Francisco, filed suit for a violation of what are actually a fairly standard set of causes of action. I have filed suit on behalf of my own clients on every cause of action articulated in Ms. Dhillon’s complaint, though not based on facts quite like Damore’s, and I have defended at least a majority of such claims filed against others of my clients as well. If Damore had been my client, this is pretty much the complaint I would have written.5

With the exception of an overly long introductory narrative. That’s not really my style; I don’t write a lawsuit to tell a story in the pleadings if I can avoid it, because the pleadings are used back against the case regardless of whether the contents of the pleadings are “operative” or not.

And with the exception of phrases like “Gender Class Period” and “Race Class Period.” I think that’s confusing, because a “period” in the context alleged here refers to a period of time, but Damore’s counsel appears to refer to the “Race Class” and the “Race Class Period” as the same thing.

And with the exception that I am not really sure that there is going to be a good class action suit here, knowing as I do that the majority of workers at Google are white males, and knowing as I do that claiming that you’re at some sort of a disadvantage anywhere and in any context because you’re a white male is a really hard sell. And knowing that a lot of the language in the exhibits that sounds a little bit inflammatory if you’re a white dude with a reverse-discrimination chip on your shoulder is pretty easily explained away as ordinary sorts of outreach and diversity efforts, perhaps inartfully-worded by people who aren’t HR professionals or employment counsel. It is possible to reverse discriminate. McDonald v. Santa Fe Trail Transportation Co. (1976) 427 U.S. 273. It’s just going to be a tough thing to prove most of the time, tougher even than the already-tough case of discrimination. Especially in a jurisdiction like Santa Clara County.6

Let’s drill down into the (in my opinion, too-specific) allegations for a moment here. Beginning with a meeting led by an executive and an H.R. officer, both of whom are women:

Political Discrimination Might Actually Be A Thing

Moving on, we see this is another grievance aired by Damore:

Political Discrimination Might Actually Be A Thing

And then after a lengthy rephrasing of Damore’s famous memo7 we get:

Political Discrimination Might Actually Be A Thing

There’s a lot more stories like this in this general vein. While Damore is intelligent, no doubt took contemporaneous or near-contemporaneous notes, and obviously concerned about these issues, I have to wonder just how literally we should take these characterizations of what was said in the meetings or whether what was actually said referred to “goals” or “outreach efforts.” The complaint also alleges that there are “illegal quota schemes” for hiring, promotion, and staffing management positions. I’m not entirely sure that a quota scheme per se is really what was going on, again if there are “goals” rather than requirements.

Because, you see, those sorts of things are entirely permissible. Private companies may engage in voluntary affirmative action programs. United Steelworkers of America v. Weber (1979) 443 U.S. 193. Nor, under California law, is an employer required to be blind to or ignore the demographics of its workforce and may permissibly take action to ensure balance and diversity within that workforce. Bolin v. San Bernardino City Unified School District (1984) 155 Cal.App.3d 759. While according to Damore this was phrased strongly and with generous use of popular buzzwords, what’s substantively described seems to me to at least plausibly fit within the guidelines permitted by Bolin’s interpretation of California anti-discrimination law.

More simply put, reaching out to women and minority groups is not invidious discrimination. Affirmative action is not invidious discrimination. Damore appears to be laying the groundwork to argue that these cases be overturned.

The one place I have some sympathy for Damore is when he received this e-mail from another employee, not someone who outranked him or had any sort of authority over him as far as I can tell, but I do have to conclude that this employee was out of line in expressing his disapproval of Damore’s memo:

Political Discrimination Might Actually Be A Thing

According to the complaint, Damore did complain about this to HR, and HR did nothing. I don’t know anyone in Google HR or counsel for Google, but I’m reasonably certain that this did not result in a non-response from any sane HR department. That same HR department, though, would not be telling another employee, including the complainant, what it did. It would say “We’ve received your complaint and are taking appropriate action” or words to that effect. The out-of-line author of this e-mail also has privacy rights.

But frankly, I don’t believe for a second that HR got something like this and didn’t tell Mr. Hidalgo to knock it off.  I would have, no matter how obnoxious I found Damore personally. And I wouldn’t have filed a complaint on just that anyway.

So, no, this is pretty much not the complaint I’d have written. Then again, I’d not have written a complaint on behalf of Damore at all.

 

V: Political Discrimination

Here’s the most interesting part. Damore became persona non grata at his own workplace before he was fired. He expressed a point of view that was very unpopular with his co-workers, and accordingly became unpopular with them. That’s not something I think is legally actionable. Google has no duty to tell its employees to be tolerant of unpopular political opinions, especially when they do implicate pro-diversity recruitment and promotion policies of the company.

The question is whether Google can punish Damore (and his named and unnamed colleagues) for what he says is expressing his political opinion and what Google says is creating a hostile workplace environment and thus discriminating against other employees. Damore wrote his memo under the cloak of discussing a scientific, social, and political issue.

In other sections, a different named employee and still other unnamed employees are described as having expressed right-of-center political opinions in various ways at Google and then punished for them. Some of these, taken at face value, look like they might be company-imposed discipline after learning of an employee’s political ideas:

Political Discrimination Might Actually Be A Thing This is not discipline, and therefore not actionable. It is disapproval of the statement, though perhaps not as severe as the final paragraph suggests.

I’d not have alleged that the breadth of political protection that Labor Code  §§ 1101-1102 provides encompasses things like this. Now, for the record, I happen to think that Labor Code  §§ 1101-1102 are not particularly good ideas in today’s political and commercial environment. I would prefer the Legislature repeal them. But they are the law.

As I read them, these statutes clearly protect off-duty, off-site political activity. They protect running for political office. They protect registration with a particular partisan preference. But I don’t think they necessarily protect an on-duty or otherwise work-associated expression of a political opinion. Very debatably, Google’s fostering of a workplace culture where there is an unmoderated forum for talking about whatever you want, including politics, creates a contractual expectation of this as a benefit of employment. But the plaintiffs didn’t sue for breach of that contract. That’s my read of 1102 protecting “political action or political activity,” and 1101 protecting “political activities or affiliations.”

There is precious little case law interpreting these statutes, though, and mining the grand total of nine (9) reported appellate cases in which purported violation of these rights was addressed in any meaningful way yields nothing particularly illuminating. So we’re back to interpreting the raw text of the statute. Conservative originalists will find themselves unhappy here. 1101-1102 were passed in 1937, and have remained on the books, unamended, ever since. It’s pretty likely that the “political activity” that the population in general, and their framers specifically, were thinking about was union organization and not much else. It’s we more flexible contemporary textualists who have to confront the fact that the plaintiff does have room to maneuver: is an attempt at persuading someone to look at an issue the way you do a form of “political activity”?

 

VI: Why I Wouldn’t Have Taken James Damore’s Case

I wouldn’t have taken on Damore as a client in the first place. An employee at Google would have been within the reasonable range of interpretation to look past all the weasel words in his screed and seen it for what it really was: an argument that men tend to be better at coding than women and Google ought to just admit that instead of making poor conservative James Damore sit through boring diversity training. He has Manly Coding to do! Maybe that really, legitimately, wasn’t Damore’s intent. But it would be a reasonable for a female coder at Google to react to it that way, and very evidently a lot of Google employees did react to it that way. Mutatis mutandis for the co-plaintiff.

Had Damore come into my office with that story to sell to a jury, I’d have been, “Yeah, no. Hard pass.” Indeed, there’s a pretty good argument that Google had to fire him if he was creating such an internal uproar. And that’s before this all became public and tarnished the reputation of the company. I think “casting the company into disrepute with our customers” is also a pretty good reason to terminate someone. I say this was a righteous termination, not a wrongful one.

But, Damore found a lawyer. And he and his lawyer been making the rounds of conservative media; I noticed them on the Tucker Carlson show Tuesday night. So they’re going for it. And I admire her willingness to go into uncharted waters interpreting 1101 and 1102 even as I’m hoping she winds up losing because she’s going to make dispensing any sort of advice to an employer in California extraordinarily difficult if she prevails.

It’s pretty rare when I say that I hope the law interprets a legal protection given to an employee narrowly. But that’s what has to happen here. If Damore’s memo and the other stuff all really is protected conduct, and other Google employees were complaining that doing that stuff created a hostile workplace environment, Google was damned no matter what it did. The cleanest legal solution is to say that expression of a political opinion is not “political activity” as contemplated by these statutes and the creation of a hostile workplace environment is not legally protected by anything.

 

Image by feliperivera Political Discrimination Might Actually Be A Thing

  1. The very precise legal definition of “actionable” discrimination is narrower than that, because of issues of jurisdiction and pre-filing administrative requirements and a few other matters. But for purposes of an explainer aimed at the intelligent layman, equating the two definitions is reasonably accurate. []
  2. One of my pet projects is working on a more easily-understood restatement of this statute which I intend to submit to my state legislators after having had several cases, one on appeal, turn on teasing out the finer points of the many disjunctive and conjunctive clauses of these sentences. Not done yet but I’m hopeful that when I am, the entire employment bar in the state of California will thank me for my efforts. []
  3. By “younger” I mean “under 40 years of age,” because that’s the legal demarcation for age discrimination. []
  4. The scientific studies Damore pointed to were the subject of substantial criticism within the relevant academic communities in which they had originally been circulated, and some of the authors of some of the scholarship Damore cited themselves had issued objections and cautions to the way Damore used their findings. Whether this constitutes pseudo-science or science that was misused by a non-specialist is a matter I will leave for others to debate. []
  5. A quibble in paragraph 12 — Google is identified as an LLC in the caption but a corporation in this paragraph. In fact, it is a Delaware Limited Liability Company with its principal place of business in Mountain View, California. []
  6. Or, more likely, the Northern District of California, since this case appears to meet the criteria for diversity jurisdiction and it seems likely that Google will remove the case there. I assume that Damore’s counsel is not so dim as to have failed to have anticipated this. []
  7. Attached as exhibit A, and as we commonly say in depositions, “the document speaks for itself” so again I have a drafting quibble with the actual plaintiff’s lawyer, because I’d have maybe included allegations about the drafting and forum the memo was circulated in, but I wouldn’t have restated the memo itself, acting under the belief that the judge has the ability to read. []

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Pseudonymous. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Lives in Southern California (for now). Former Editor-in-Chief of Ordinary Times. Homebrewer. Atheist. Likes: respectful and intelligent dialogue, good wine, the Green Bay Packers, and long romantic walks on the beach. Dislikes: mass-produced barley pop, magical thinking, ketchup, and insincere people. If you follow him on Twitter at @burtlikko you may be disappointed.

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211 thoughts on “Political Discrimination Might Actually Be A Thing

  1. It seems strange that expression of political opinion is not political activity. Political expression is certainly protected from interference by the state. As you note above, the purpose of anti-discrimination law is to protect against certain private actions which would render people unable to participate as civic equals. The central cases being employment (or deprivation of it) and accommodation (or the likewise deprivation of such). To put it crudely, if the state can’t punish you for it, people can’t fire you for it. Now you could be libertarian and and deny this latter claim. But consistency requires that either you apply anti-discrimination law to everything that is protected from state interference or you reject anti-discrimination law.

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    • I think you are wrong here. The issue about the Labor Code provisions cited by Burt is where they are active.

      Damore’s suit contends that political speech AT the workplace is protected and employers can’t terminate based on it.

      Burt and I read the Labor Code as protecting work that occurs off site and out of work time. If Damore got in hot water for something he wrote or said to a private group from the comfort of his own home, I would think the Labor Code applies. The issue is whether Google is going to rue the day by allowing a free wheeling discussion site.

      As pointed out below, Damore’s contention makes employment law contradictory and impossible to give advice on in California.

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      • Leave aside the labour code provisions. Instead look to the purported justification of anti-discrimination law.

        The first big concept is that certain activities (housing, public business accommodations, and employment) have particularly important effects on the ability of all people to fully participate in the commercial environment upon which all persons in the country rely for vital services. This therefore implicates the ability of people to be truly equal to one another in a nation that purports to hold individual equality as one of its high ideals; it also implicates the ability of people to survive in a largely capitalist economy.

        Now there is a question as to which things if any ought to be protected by anti-discrimination law given that the concern is about the equal ability of people to fully participate in the commercial environment is being thought of as being constitutive of equal citizenship. A relatively obvious answer here is that if the state cannot penalise people for their skin colour or sexual orientation, neither can the capacity to participate in the commercial environment be compromised because of people’s skin colour or sexual orientation. If we accept this principle, then given that the state cannot penalise people because of their political expression, their capacity to participate in the commercial environment cannot be compromised because of political expression.

        Now, it may be that the law as it stands does not protect political expression to this extent, but relishing that it does is basically hyuk hyuk-ing at the unjust treatment of your political opponents. The question is not just what the law says, but what it ought to say.

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        • Is political opinion sufficiently akin to skin color, ancestry, sex, etc. as to require that sort of protection? Of the delineated protected classes, I suspect it’s most similar to “religion.” Both religion and political affinity are based on some sort of normative mental process, both are not objectively verifiable, and both manifest in statements of belief and various kinds of activity that would not normally be expected to be relevant to vocational performance. But, as a matter of the scope of the positive law, no legislature has protected political affinity the same way it has protected religion. Cal. Labor Code 1101-1102 is about as far as any legislature has gone, and it did it in 1937 before there were robust protections for union advocacy at the Federal level, with union organization specifically in mind. We don’t have to be limited to that (and indeed, California courts have not been, even in the limited experience of adjudication of these sections of the Code) but if it’s a normative question about what the state of the law should be, I find it hard to say that political affinity is an “immutable characteristic” the way race or sex are, or even an “immutable characteristic” the way religion is.

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      • At what point did things go from being a discussion of physiological differences between genders to a political discussion at work?

        If I start a technical discussion about, say, climate models, and others turn it into a furball about denialism and political action, why do I get fired for political speech at work?

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        • I don’t think you would get terminated in your hypothetical. At least not justly in my opinion.

          California (and the United States) determined that equality means the full ability to participate in economic/commercial and civil life regardless of your traits/background. California goes farthest but gender as been part of the Civil Rights Act since it was signed into legislation in 1964. This isn’t shining new stuff we are talking about.

          Damore decided to go against this in about the most foot-in-mouth way imaginable.

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          • That doesn’t really address my point. Or rather, it suggests that a person who starts a discussion by looking at an interpretation of research can be canned because they are inarticulate? This strikes me as a pretty fine line to be dancing around, not a wide bright line that Damore leaped across.

            I mean, if CA was an At Will state, I wouldn’t even pretend to care about this, but CA has some complex law regarding firing, and to be honest, I think Google has a degree of liability here for allowing the whole thing to get away from them (and I’m still very curious as to what Google did about the fact that something on an internal forum meant for internal discussions got leaked – the whole thing could have been quietly managed had it stayed in house, instead of giving Google a black eye and a public lawsuit).

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  2. Anti-Discrimination Law is one of the many areas where I disagree with libertarians most severely and strongly. Jason K can tell you about this.

    Many but not all and especially many young libertarians seem to take on strong contrarian streaks. They can also sound quite pompous in my view in their defenses of property rights above all and freedom of association above all.

    Jason k tries to stress hard that libertarianism is not comparable to racism. So do many conservatives but then there are lots of libertarians and conservatives who seemingly can’t resist making racist arguments especially regarding genetics. If this is just to be contradictory against liberals, it is immature and distasteful. If it is sincerely held belief, it is disgusting.

    I also read the Labor Code as protecting off work activity. I don’t know how it can be any other way without ripping apart Government Code 12940(a). Suppose X Corp hires someone who turned out to be a Holocaust denier. The Holocaust denier won’t shut up (especially around employees he thinks are Jewish) about how the Holocaust never happened and couldn’t have happened. He also likes to ask Jewish employees about whether they are related to various figures in finance and media.

    If Damore prevails, the law becomes an unworkable contradictory mess that protects the Jewish employees and Holocaust denying employees.

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    • Many but not all and especially many young libertarians seem to take on strong contrarian streaks. They can also sound quite pompous in my view in their defenses of property rights above all and freedom of association above all.

      Not everyone who disagrees with you is trying to be contrarian. Some people just disagree with you.

      More importantly, this whole conception of critiquing people’s views on rights as being “above all” is deeply flawed, as is the idea that rights should be constrained when they come into contact with other rights. Rights are supposed to be absolute or near absolute; that’s what makes them rights and not privileges or entitlements. Rights are not just the things that the government lets you do so long as you don’t take them too far. There are pretty clear lines as to when the expression of rights cross over the line into unprotected areas. And those unprotected areas almost always involve cases where the behavior has become divorced from the expression of the right.

      You are right, though, that a lot of conservatives and libertarians have a naive understanding of the history and efficacy of discrimination and civil rights law.

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      • The naive understanding is because the purest form of conservatism or libertarianism really hits a hard spot with the efficacy of discrimination. The belief seems to be that you can have a government that doesn’t discriminate but allow for discrimination in the private sphere. History shows that things really don’t work out that way. When the majority group or the most powerful group desires discrimination, they are usually able to get the government to go along with this. This means that they idea that you can have government non-discrimination but allow for private discrimination is fairly ludicrous.

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        • LeeEsq: The belief seems to be that you can have a government that doesn’t discriminate but allow for discrimination in the private sphere.

          Well, clearly, y’all have won. Here’s a conservative/libertarian or whatever (trollertarian, imo) arguing that yes, the private sphere can discriminate, and that is wrong, and the government should remedy that wrong. Congrats!.

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          • The question isn’t can some types of discrimination be prohibited. That battle is, for all practical purposes, over. The questions are about how broadly should we define discrimination and on what basis can/should discrimination be prohibited.

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            • My point is that some people believe that the government should not discriminate but private actors should be allowed to. They believe you can have a non-racist, sexist, homophobic government even if society is riddled with bigotry in the non-state sphere. I’m not sure if that is true.

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        • Government has to get involved in preventing discrimination one way or another. It either deals with it by addressing those who want to discriminate, or it has to manage interactions between those who want to and those who don’t. Because history has shown that those who want to prefer to not be doing it alone & will pressure others by whatever means possible to join in the discrimination.

          I would prefer for government to just keep the bigots isolated & prevent them from annoying decent folk, but I also understand history enough to know that such an approach would never have worked back then, there were too many with too much power, and it would have been a constant game of whack-a-mole. So we have what we have.

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  3. An employee at Google would have been within the reasonable range of interpretation to look past all the weasel words in his screed and seen it for what it really was: an argument that men tend to be better at coding than women and Google ought to just admit that instead of making poor conservative James Damore sit through boring diversity training. He has Manly Coding to do!

    At first read, I found this characterization to be a bit odd, but then I recovered my normal cynicism and it immediately made sense. I have no way of knowing that it’s not an accurate characterization of Damore, but it is certainly an uncharitable one.

    There are two ways of approaching these topics. You can be the kind of person who really does care about diversity and equal opportunity (either pro or con) or you can be the kind of person who really does think it is important to be the kind of person who appears to care about diversity and equal opportunity. I don’t know which category Damore falls into, but Google has done it’s best to announce itself as a member of the latter. It makes perfect sense why Google would do that. It makes less sense why so many people want to let Google get away with that.

    I don’t have anything approaching sympathy for Damore. He either fell for a very poorly disguised trap or he purposefully walked into that trap so that he could conspicuously limp around and complain about how we was injured in the trap. At the same time, I recognize that Google was absolutely setting a trap. By that I mean that it’s fine just to say, “we are a technology company and we care about doing our job better, but we are also a giant publicly traded company with public relation and human resource liabilities, so keep your half-cocked opinions to yourself during work hours and on work systems.” But once you go through with the whole charade of setting up “an online discussion community within its employment ranks” that has “an internal culture of tolerating lengthy and freewheeling discussions on a large variety of subjects and points of view that appear to have very little to do with the work that Google does,” it’s a little bit odd to then freak out when someone does the thing that the forum was set up to do. Unless of course the forum was set up more to create the illusion of lengthy and freewheeling discussion than to facilitate the real thing.

    I am beginning to detect a pattern.

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    • “Unless of course the forum was set up more to create the illusion of lengthy and freewheeling discussion than to facilitate the real thing.”

      Of course it was. How could anyone NOT think it wasn’t a echo chamber? His views are in the minority of employee opinions, so by definition, the forum is going to be an echo chamber of certain political/social positions. What really matters is how those in the forum react to “an opposing view”. They reacted immaturely and with hostility. “How could he think that”? That’s typical behavior, and in today’s culture, heresy.

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        • HR had nothing to do with it…

          The company set us this forum, and given the type of employee, the bubble was a foreseeable outcome, and the hostility of “views contrary to right thinking people”….

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          • I should have been clearer – not so much a theory of the HR department, but a theory of managing humans.

            Give them a forum, tell them it’s a freewheeling space for debate, let someone drop some wrongthink, let the rightthinkers claim that they’re hurt, scared, feel unsafe or whatever because of exposure to said Bad Opinion, then purge.

            I’d say repeat as necessary, but you only really need to do it once to get the point across without actually saying that wrongthink is unacceptable and having to defend that decision (let alone defend rightthink).

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          • Right, but to very briefly restate my analogy to Ordinary Times below, isn’t that an inherent risk of having an unmoderated, or lightly moderated, forum in the first place? There’s going to be a majority view and a minority view no matter what and no matter where.

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            • Yep. The real question is whether people in the minority view will be stupid enough to post their real opinions on a site where the majority will view them as racist/nazi/homphobic/child killing/baby murdering/devil incarnate.

              We just had a rollout of the new companies “vision” statement. In the course of talking about innovation, the CEO talked about an effort to eliminate customers paying us by manual check, which never gets here in time to be cash for year end. “We held up our bargain by delivering X to you customer, now you hold up your end and pay us.” Do you think I was stupid enough to stand up and ask “so that means we’re not holding back vendor invoices to OUR subcontractors to manage cash flow” anymore then are we?

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    • Of course the interpretation I describe is uncharitable. “Uncharitable” does not necessarily equal “unreasonable.” The question I ask myself, in the capacity of an employment litigator, relates to the reasonability of the emotional response a reader has. If a lot of people have that same emotional response, that’s evidence that the response is reasonable — to ignore that is to set yourself up for the trap of having to argue that a large majority of Google’s employees are unreasonable people. You can argue that, I guess, but I sure wouldn’t want to.

      We have certain norms that prevail here and that the editorial board works to reinforce and maintain. (And we bigly appreciate community support on that!) One of those norms is charitable interpretation. And one of the reasons we all look to this site as a haven for a healthy exchange of ideas is precisely that in most of the online world, charitable interpretation of opposing points of view is not a norm. As much as we might like to wish it were so, it’s not realistic to expect that Google’s employee forum is going to have the same norms as prevail at Ordinary Times.

      And even here, we have had struggles, community debates and controversies, and difficult unpleasant decisions to make about individuals who not only express unpopular points of view, but somehow seem to find ways to express those points of view in very unpleasant ways seemingly intentionally crafted to adhere right on the edge of respectability. Unpoliced against, that sort of thing erodes the norms of a community after a while so that the edges of respectability get pushed back to embrace what formerly would have been condemned. There simply is no way to draw a bright line between “tolerance for an unpopular opinion” and “policing the norms of the community.” Reflecting on my stint as EIC, I think I was too tolerant of such things.

      As for what the Google forum was really set up to do, I don’t think the corporate masters of Google give too much of a damn what their employees’ political preferences are, at least beyond the level of “irritation.” What they’ve attempted is an experiment of creating something akin to an open forum on the theory that it will generate discussion about how their company, their products, and their ways of doing business, might be improved. Ostensibly, Damore was actually trying to do that. There’s plenty of reason to be skeptical that his intentions were quite as pure as he publicly claims; even here the support and defense for him can be described as, at best, “lukewarm.”

      So, someone has to make a call sometime when someone is trying to stealth in something that violates the norms of the community. Faced with a whole lot of employee condemnation of the memo and, it would seem, no editorial board governing that forum, it fell to Google’s HR folks to step in and be the shot-caller. What matters in the law is not whether they made the precisely and absolutely correct call. What matters is if they made a reasonable one, and absolutely, “protecting the company from civil liability” is a perfectly valid objective to consider when debating whether the company’s action was reasonable or not.

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      • I don’t think their incorporation creates diversity here. Even if they tried, I think a motion for remand is likely to be successful in this case. How does CCP 395.5 not apply here? Google’s principal place of business is Mountain View. How can they get out of Santa Clara Superior Court?

        I think even the most corporate friendly Supremes would balk at letting a Delaware incorporation create diversity in litigation.

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        • No question that Google is “present and doing business” in California.

          But CCP 395.5 doesn’t apply in District Court because it’s a state procedural law. You can’t Erie doctrine it in. Your better argument is that it is a citizen of California under 28 USC 1332(c)(1). Given that the Mountain View campus is the entity’s unquestioned “nerve center,” yeah, I think you might just pull off a remand. See Co-Efficient Energy Systems v. CSL Industries, Inc. (9th Cir. 1987) 812 F.2d 556, 558.

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          • “Might just pull off a remand” is way underselling it.

            There is no argument that Google’s principal place of business is in CA. Hertz Corp. v. Friend, 559 U.S. 77, 93 (2010) (“In practice it should normally be the place where the corporation maintains its headquarters–provided that the headquarters is the actual center of direction, control, and coordination, i.e., the ‘nerve center,'”). A lawyer seeking to remove this case, IMO, would be at risk of sanctions (especially if they contested remand).

            I know this isn’t the real point of this thread, but I’m too much of a federal civil proceduralist to let it go.

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            • I concede the point.

              How fast are cases getting to trial in Santa Clara these days? Assume a demurrer, a class discovery phase, a certification motion, a merits discovery phase, an MSJ, and then a month-long jury trial (because they can). When does that trial commence in Santa Clara?

              In L.A. Superior, file that today you’re looking at 2020 or maybe even early 2021. But I don’t know how things are tracking in the Bay Area courts.

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              • Well, this one’s political and high profile. Three years seems reasonable, maybe even on the short end so long as there isn’t anything that creates an appeal (e.g. sustained demurrers).

                Santa Clara isn’t the dysfunction of Mosk, but state court litigation is no one’s idea of a sprint.

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      • What matters in the law is not whether they made the precisely and absolutely correct call. What matters is if they made a reasonable one, and absolutely, “protecting the company from civil liability” is a perfectly valid objective to consider when debating whether the company’s action was reasonable or not.

        This is true as far as it goes but I think the focus on that standard suffers from a bit of a litigator’s bias. Enforcement agencies have a real impact on how HR/employers react to various incidents and complaints. California it seems has some unusual anti-discrimination law but DOJ, EEOC, and state ancillaries are constantly issuing guidance and other opinions and forcing settlements based on their interpretations of these laws. I would posit that the enforcement environment has as much of, if not a bigger role, in how companies react and set policy than what a plurality of staff think is or isn’t reasonable (with the Damor situation we know some group complained but we have no idea how representative they are).

        Now I don’t know what, if anything, the relevant California agencies have said about this but we have seen recent episodes where radical interpretations of existing law have created all kinds of cascading effects. The most notable is the on campus insanity around Title IX. You don’t have to have a lot of sympathy for Damor to be concerned about the government putting fingers on the scales for employers to fire people for wrongthink (I say this as someone who definitely would not support something like the California statute). What HR thinks is reasonable isn’t happening in a vacuum.

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      • As for what the Google forum was really set up to do, I don’t think the corporate masters of Google give too much of a damn what their employees’ political preferences are, at least beyond the level of “irritation.”

        Their own words give a different impression (https://www.recode.net/2017/10/16/16479486/youtube-susan-wojcicki-james-damore-google-memo-diversity-gender-kara-swisher-podcast):

        YouTube CEO Susan Wojcicki was on vacation when Silicon Valley suddenly plunged into a bitter debate over sexism…

        Wojcicki, who was part of the team at Google that decided to fire Damore, recalled talking about it over dinner with her children, to whom she had always tried to promote diversity and equality.

        “The first question they had about it [was], ‘Is that true?’” Wojcicki said on the latest Recode Decode, hosted by Kara Swisher. “That really, really surprised me, because here I am — I’ve spent so much time, so much of my career, to try to overcome stereotypes, and then here was this letter that was somehow convincing my kids and many other women in the industry, and men in the industry, convincing them that they were less capable. That really upset me.”

        Maybe, this is what you mean by irritation, but I’m not sure that description quite captures the sentiment. The title of that article is “… why the Google memo author had to be fired.” The emphasis on had is mine and that was the point of my comment. Damore’s real sin was that he wrote something that made people ask uncomfortable questions. And I’m not trying to defend Damore. Of course he had to be fired. And yes, he should have known better than to fall into the trap. As I said in my original comment, my issue is not with firing with Damore. My issue is bothering with the pretense in the first place.

        Why maintain the illusion? And that’s not a rhetorical question. Figure it the answer and these things will start to make a lot more sense.

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          • Apologies if it wasn’t clear, but my comments are not focused on the legal explanation parts of the post. I defer to your opinion on that completely and I appreciate the work in breaking it down.

            The area where I take slight exception is the point where you say that you wouldn’t take Damore’s case and try to tie it to the merits of the case rather than your personal feelings. I guess this is where I am being uncharitable, but I don’t think that I’d have to run through too many alternate scenarios to find one where a company’s employees would have a reasonable and negative emotional response to something and you would take the case of the person who wrote it. Suppose there was a company full of actually racist people with a bunch of implicitly racist policies and one of the employees called it out and in the process hurt a whole bunch of people’s feelings? My guess is that you’d feel a little different about that case. And honestly, I think that you should.

            And that’s the same problem that I have with Google. It’s easy enough just to own up to the fact that you’re running a corporate environment, where certain speech norms will be enforced and certain topics and opinions cannot be freely expressed. We’d all get a little closer to where we want to be and where we should be on these issues, if we just owned up to our biases up front.

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            • I don’t pretend to not have opinions, though I hope that at least in my addressing the legal merits I’m evenhanded about the merits. I’m unabashed in my belief that 1101-1102 are obsolete at best and should be repealed, but I think I’ve given them a fair reading when I say they are properly limited to protecting off-work political activity.

              You betcha I’d feel differently about a company full of bigots who then felt uncomfortable when the one person spoke out against bigotry. A difference there is the bigots are pretty likely to have been on the wrong side of the law and if that affected an employment decision, it’d be an easy call for the objector to claim “refusal to go along with an illegal policy” under 1102.5.

              And to your point, that is also a much more aesthetically pleasing scenario.

              Damore doesn’t seem to be that guy. For the reasons I stated in the OP, it doesn’t look to me like Google’s policies and practices are illegal: they look to me like outreach efforts, which have black-letter legal sanction. I can charitably credit Damore with not understanding that outreach is legally sanctioned and credit his claim that many of his co-workers got a little bit enthusiastic in how they described it. But that doesn’t make him right on the merits, it just pushes some good faith in his direction.

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  4. While the email to Damore might have been unfortunate, Damore doesn’t help his own case. Every media appearance I have seen him in makes me think that his M.O. is “what is the most abrasive and asshole way I can find to express myself? Let me do that!!”

    This is a tendency I see in lots of libertarians and conservatives young and youngish men. It is not appealing.

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      • One of the other bits of evidence I didn’t pull for the post includes a Google employee musing that it’s not unexpected that a significant number of the company’s employees, selected for their technical expertise, would lack strong social skills.

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            • Not a tech geek. I know a few people who work for Google or google affiliated companies. They are all women. Two of them are on the tech side.

              That being said even my best friends consider me quirky/eccentric/sometimes or often ornery and not always following social convention. I have a Bohemian streak and can also be deeply introverted yet confrontational at the same time.

              But I can still figure out. Maybe writing something like this at work is a bad idea. Not that I agree with Damore’s claims anyway.

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              • Sure, when they feel safe expressing themselves, most people are. If they don’t feel safe…

                Also, age and experience count for a lot. The older and more experienced one gets, the fewer fvcks one has to give. That’s the contrast I see a lot at work.

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                • One of the brightest people I knew at Bell Labs once said — and bright at the Labs was saying something — “Labs folks are remarkably normal once you get them somewhere where they’re not worrying about saying something dorky.”

                  The Bell Labs Club — a blanket organization that handed out money to groups of people organizing a specific club — funded an amazing array of activities/hobbies. From memory off the top of my head, the folk music performance club, the jazz band, the cinema club (the Friday night movies were eclectic, to say the least), the juggling club, the ski club, the canoe club, the bicycle club, multiple softball/volleyball/bowling leagues, the miniature railroad club (the amazing layout in the basement at Holmdel had started out when the Labs was still in Manhattan — it must have cost a fortune to relocate), the beer brewing club…. Granted, the closest thing I ever saw to an actual fistfight breaking out at a bowling league was over some aspect of the physics of laser diodes.

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            • I feel like that misses an important dynamic about which tech geeks do what, though.

              I know plenty of tech people (graduated from a top engineering school). Some of my friends are painfully awkward, and some are friendly and outgoing but still very geeky.

              Of the outgoing people, some work for Google and other big recognizable companies, and others work for small companies I’ve never heard of.

              Of the painfully awkward people, none of them works for a company I’ve ever heard of outside the context of their employment.

              I strongly suspect that social skills are unevenly distributed within the tech field, and that Google is one of the winners.

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            • Honestly, I have significant trauma from social isolation and bullying. It’s a big problem for me, even after all these decades. I can do “social stuff.” I want to do social stuff. The rewards are amazing, but sometimes it grinds me down until I’m literally suicidal.

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              • Same here. I’ve learned to not let it control my life (living with 500 other men on a ship at sea* learns one a great many ways to overcome it), but being social, or making sure I’m heard and taken seriously… man it just runs me right down and I need time to recover from it.

                *You’d think on a ship it’d be hard to find alone time, but if you don’t mind small spaces, it can be done.

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      • The Social Justice faction and Bernie Bros on the Left seem to be the same even though we might be in more agreement with them.

        QFT!

        There are some I hear on the news in interviews, or on FB, who have either never learned how to win converts to the cause, or just do not care about that. They annoy the hell out of me, especially when I agree with them.

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  5. An employee at Google would have been within the reasonable range of interpretation to look past all the weasel words in his screed and seen it for what it really was: an argument that men tend to be better at coding than women and Google ought to just admit that instead of making poor conservative James Damore sit through boring diversity training.

    I’m going to second somewhat in that I think this characterization is more than a little unfair. I read the whole essay when it was published. There are pieces of it I disagree with but I think that disagreement should be expressed on the merits and what Damore said, not based on some psychic reading of what he really meant.* The reaction tends to support some of the criticisms Damore made about how inane these policies can be.

    Fundamentally though I agree that it’s a bad idea to put a statute like California’s on the books. It sets the stage for terrible litigation and makes it impossible to know what can and can’t be tolerated. Even if that wasn’t the intent when enacted I can see how a law like that would drive our political culture of total war, where private entities are deputized to be the enforcers of the cultural norms desired by policymakers. There is a very narrow set of immutable characteristics where our country’s history justifies some rules but expanding it to something like political action will only make the current (IMO) overreach worse.

    *I would never, ever recommend doing what Damore did no matter what Google’s culture supposedly is/was. Employers are not your friends and HR departments are for the defense of the company, not the benefit of the employee.

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    • You can argue it shouldn’t be read that way, but it’s much harder to argue that it wasn’t read that way over and over again. Maybe the fact that it was read that way even proves James Damore right about society, or the culture within Google. I just don’t think he’s going to win the suit just because he’s right in some absolute sense.

      Also, I think relying on people to read things charitably often means relying on a trust that simply isn’t there. Perhaps this is another downside of living in a “low trust/low collaboration” environment. On the other hand, it seems like there are other instances where Mr Damore has behaved in a fashion that might tend to degrade that sort of trust.

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      • I think there is a non-zero chance Damor was hoping for this result and as I said above, when you’re provocative in the workplace you’re always taking a risk. I also don’t think he should win it because I think a victory would more likely than not make the situation he’s complaining about worse.

        What I think we should be doing is minimizing the extent to which we have knee jerk reactions about offense and using emotional reactions as justification for depriving people of their livelihoods. Damor is going to be just fine, but there are a lot of people out there who wouldn’t, and at least parts of our culture seem hellbent on turning everything into some kind of personal affront. For clarity, I include the right wing ‘you stand during the national anthem or you’re al-qaeda sympathizing scum’ crowd among them.

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      • You can argue it shouldn’t be read that way, but it’s much harder to argue that it wasn’t read that way over and over again.

        By Damore’s supporters as well as his detractors.

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    • , do you think it would be a mis-characterization to interpret the following statements as an argument that whites are better at coding and leadership than blacks and Google ought to just admit it?

      I’m simply stating that the distribution of preferences and abilities of [blacks] and [whites] differ in part due to biological causes and that these differences may explain why we don’t see equal representation of [blacks] in tech and leadership.

      Philosophically, I don’t think we should do arbitrary social engineering of tech just to make it appealing to equal portions of both [blacks] and [whites].

      The harm of Google’s biases:
      * Hiring practices which can effectively lower the bar for [black] candidates by decreasing the false negative rate.

      We’re told by senior leadership that what we’re doing is both the morally and economically correct thing to do, but without evidence this is just veiled left ideology that can irreparably harm Google.

      We have extensive government and Google programs, fields of study, and legal and social norms to protect [blacks], but when a [white] complains about a racial issue issue affecting [whites], he’s labelled as a [racist] and a whiner. Nearly every difference between [blacks] and [whites] is interpreted as a form of [blacks’] oppression.

      Suggestions:

      Be open about the science of human nature.
      * Once we acknowledge that not all [racial] differences are socially constructed or due to discrimination, we open our eyes to a more accurate view of the human condition which is necessary if we actually want to solve problems.

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        • Whether race and sex are identical is relevant to the *accuracy* of Damore’s claim but it’s not relevant to what the claim actually is. If Damore is not claiming that men are better at tech/leadership than women, simply substituting race for gender in his screed should produce a document that does not claim whites are better at tech/leadership than blacks. Does it produce such a document?

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          • Whether race and sex are identical is relevant to the *accuracy* of Damore’s claim but it’s not relevant to what the claim actually is.

            I have no idea what the above means. As best I can tell the rest of your comment suffers from the same phallacy as the original.

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            • The original claim: Damore says men are better at tech than women.

              Your claim: No he doesn’t.

              My claim: If he doesn’t, then a simple substitution of race for gender should not produce a document that says blacks are better at tech than whites.

              Your claim: You’re assuming race and gender are identical.

              My claim: No, I’m substituting race as an exercise make it clear what Damore is saying about gender. I’m not arguing about whether Damore’s conclusion is correct, I’m trying to understand what you think Damore’s conclusion even is if it is not the original claim.

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              • I haven’t read it since the initial controversy but I would boil his main argument down to something like:

                ‘Every discrepancy in the number of men and women in coding/technology should not automatically be assumed to be a result of sexism just because there are times where it has been and times where it still is.’

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                • This is what a lot of people want Damore to be saying, but read the first sentence I quoted:

                  I’m simply stating that the distribution of preferences and abilities of [blacks] and [whites] differ in part due to biological causes and that these differences may explain why we don’t see equal representation of [blacks] in tech and leadership.

                  If you take out the qualifiers, the underlying thesis is that women have worse abilities in tech and leadership than men due to biological causes. This is his core point, which he returns to at the conclusion of the memo. In the middle argues that diversity outreach does harm to Google because it lets in worse applicants.

                  How is this at all inconsistent with the interpretation Burt proposed in the post?

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                  • You lost me at ‘If you take out the qualifiers’ and ‘underlying thesis’. I suppose yes, if you ignore parts of the post and look for some amorphous underlying message that’s in fact contrary to the things he plainly says it can mean whatever you want it to mean.

                    As I said before, none of it struck me as beyond the pale of normal discussion (your reference to the diversity program baffles me since people have been making that argument about affirmative action programs of any kind for decades and even if you disagree theres nothing about it thats ipso facto racist). It was dumb to post something controversial/critical of his employer on a company message board and I don’t think he should win his lawsuit for other reasons I’ve articulated so I don’t really understand what we’re debating. I don’t think the post was inherently offensive. Others obviously disagree. Cherry picking quotes and editing them for an analogy about race that doesn’t add up or make sense in context isn’t going to change my view.

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  6. This is not discipline, and therefore not actionable. It is disapproval of the statement, though perhaps not as severe as the final paragraph suggests.

    This is the only place where I, as a layperson on the jury, would disagree with you.

    A letter from HR warning you of behavior is always ‘something’. As a former manager, *anytime* I put something in writing directed towards an employee regarding their behavior, it was always for the purpose of creating a paper trail so that, if necessary, further adverse action towards that employee could be justified.
    (You want someone to stop doing something without making a ‘thing’ about it, you speak to them face to face)

    Eta – it would also be different if this were a more generally stated wider disseminated call from HR to knock it off.)

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    • Was coming to say this. Everything else said seems entirely plausible.

      A lot of the arguments I see being made in Mr Damore’s favor seem to boil down to, “He got a raw deal, and Google didn’t handle this very well.”

      Which seems to be true, even given my profound lack of sympathy for him. But I don’t think the standard is that Google not make any missteps.

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      • Bear in mind, the employee who got what the complaint characterizes as a “scolding,” and what Google will characterize as “non-disciplinary feedback,” was not Damore himself.

        Otherwise, sure, there’s an argument that “non-disciplinary feedback” is indeed setting the table for future discipline and therefore is akin to a warning, which would be disciplinary.

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        • Fair enough, but isn’t he trying to set up himself in some sort of class (i.e. a class in class action) and trying to demostrate a pattern of behavior (on the part of google) towards class-mates?

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          • Yes, that’s exactly correct. Else there would be no reason for Damore to allege something that happened to a(n unnamed) third party. But he proposes that this third party is a fellow member of the same class of people — those who express a particular generalized political point of view — who are allegedly systematically discriminated against by the evil liberals who run and staff Google.

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            • To me, the wrinkle doesn’t matter, in the sense that I believe that HR sending an email to someone individually is always part of that individual’s permanent record – regardless of what that company says.

              (Now their could be an exception, which I have seen, where the organization will have a written record of counseling, but has a standard process to destroy & purge that record if the individual has ‘good behavior’ for some fixed period of time)

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              • It’s a fair cop, and an argument that I have used myself on behalf of clients, and resisted on behalf of other clients.

                Similarly, a “lateral transfer” may actually be a “demotion.” But it might also actually be a bona fide “lateral transfer.” We need more information to know which is which. So too with the “guidance.”

                I say it’s not disciplinary on its own because nothing tangibly bad happened to the employee because of it. Should it be used to buttress discipline in the future, yeah, I’d probably change my mind about that.

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  7. Also, as the comment thread has already demonstrated, there’s going to be many levels of (anti-)^N takes about this – many of which are nonetheless correct.

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  8. Discovery is going to be something else.

    I rather expect that a number of things on the part of Google will be found that will have internet commenters chewing for days and days and days.

    Odds that something will surface that is so bad that it will have Burt leaving a comment that says “never put anything in an email and/or memo that you wouldn’t want read to a jury”? I’m going to say pretty good. Better than even.

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    • I can project out a few steps of what will happen in the litigation.

      Google’s first formal response will be to remove the case to Federal Court. There’s diversity, as I indicate in a footnote.

      If Damore and his co-plaintiff have signed arbitration agreements as part of their employment, Google will request a stipulation to remove the matter from court entirely and resolve the matter in arbitration. The plaintiff’s will resist this to the extent she can, and there may be a motion to compel that arbitration if she does. If there is an arbitration agreement at all, the court will be strongly pre-disposed to favor granting that motion. (I’ve no idea if there is an arbitration agreement or not.)

      After that, Google will file a FRCP 12(b)(6) motion to dismiss the matter, which will at least include the concepts I’ve outlined above — Damore & Friends’ uncharitable characterizations aside, the purported “race discrimination” and “sex discrimination” are actually permissible outreach programs and thus not illegal; the “political discrimination” claims are not unlimited but a) really only reach extracurricular political activity or union organization, and b) even if they do reach into intra-company communication must nevertheless be balanced against the competing legal imperative of a discrimination and harassment free workplace. These are pretty obvious substantive arguments on the merits, and if successful would eviscerate the logic behind the plaintiffs’ claims.

      Assuming the case survives the 12(b)(6) motion, the plaintiffs have made class allegations. Which means the first phase of discovery will be aimed at determining whether the case should be given class status, and if so how the nuts and bolts of that class status should proceed. So what happens then is a mining of the various in-house forae and some sort of mechanism for privacy-protecting an examination of the HR response to other kinds of expressions of political activity and/or efforts to get more minorities and women in various levels of the workforce (depending on what survives the 12(b)(6) practice). This will be aimed at challenging how many people really were affected by the purportedly unlawful practice and, critically, how similar their claims are to one another. It’s really, really hard to have a class action workplace harassment case because harassment, if it is happening at all, is very individualized in application and therefore very individualized in effect. So that means that each of those claims needs to be litigated one by one because they differ from one another in some vital respect (say, amount of damages) that it’s not practical to take a few cases and say “This is typical for a very large number of people.” (“Very large” is not an exact amount, but the default begins at 75 and from there varies based on the particulars of the case, in the good and sensible discretion of the judge.)

      After that, there’s generally competing motions about what this discovery has revealed, in which case the plaintiff will argue that there ought to be a class and the defendant will argue that litigating the claims of non-parties is not appropriate in this matter. The defense has the advantage here, based on the nature of the claims. Class actions are good ways of dealing with products liability or consumer rights issues — if the bank that issued your credit card miscalculates your interest, it’s likely doing that for thousands of other customers the exact same way and the amount of overcharge on interest can be readily determined. “We disapprove of what you said and will encourage people to also disapprove of you,” however, is something that seems really likely to be very different in application on a case-by-case basis even if there is a uniform policy.

      In most cases, the case resolves at this point — if certification is granted, it resolves for a larger class settlement; if it is denied, the named plaintiffs settle out. Here, though, Damore has an axe to grind and a political career to cultivate. (As does his lawyer, I suspect, based on how I saw her conducting herself on TV.) So that mitigates against settlement after the class certification motion. So then we get into the discovery on the formal merits — whether Google actually did violate the law and how badly-damaged the plaintiff really was because of it.

      Bear in mind, at this point we’re probably in about early 2020, with an anticipated trial date of late 2020 or early 2021.

      Towards the end of that process, Google brings another motion to dismiss, this one based on an examination of the evidence and application of that evidence to the law, called a summary judgment motion. Basically, Google argues, “Here’s the evidence, and here’s the law, and when you put them together, there’s just no way the plaintiff can ever win.” The plaintiff responds, in essence, “Nuh-uh! Here’s how I can win!” and the court decides if the plaintiff has a path to victory. This is the #1 reason why Google wants to be in Federal court, because the standards for such a motion are more favorable to the defendant in Federal District Court under the FRCP than in a California Superior Court under the California Code of Civil Procedure.

      If the plaintiff’s case survives this, then there’s a trial. And now we get to the #2 reason why Google wants to be in Federal court — the juries are different. In the Superior Court, the jury would be a twelve-pack drawn exclusively from Santa Clara County. In District Court, the jury would be a six-pack drawn from the entire Northern District. This tends to produce more “conservative” results, with “conservative” not defined as pro-Trump but rather as “skeptical of people asking the court to transfer money.” In other jurisdictions, Federal court is thought to be more “liberal” (defined roughly as “pro-plaintiff”) than the state courts, but this is California and in particular, this is a Bay Area county. Federal court is going to yield, on average, a better jury for a big company like Google than Santa Clara Superior will.

      So if the rubber goes all the way, the plaintiff has to take a lot of tricks along the way, not all of which are going to be with cards he’s anxious to play. Getting a good verdict out of a jury in this sort of a scenario is kind of like shooting the moon in hearts or getting a grand slam in bridge. Yes, it happens, and it might be done here. But it’s very easy to see such an attempt failing.

      Query if the nascent political aspirants on the plaintiff’s side of the bar here will mind that particularly much.

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      • So if the rubber goes all the way, the plaintiff has to take a lot of tricks along the way, not all of which are going to be with cards he’s anxious to play. Getting a good verdict out of a jury in this sort of a scenario is kind of like shooting the moon in hearts or getting a grand slam in bridge. Yes, it happens, and it might be done here. But it’s very easy to see such an attempt failing.

        I’m thinking that the *REAL* court is public opinion and to win there, all they need is to release the evidence that they get as part of discovery.

        At what point in the process does Google have to hand over memos and emails and whatnot?

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        • Google is not going to turn over any discovery without a protective order.

          But presuming he gets to stay in the courts, Google will probably need to produce discovery in a year or two.

          I’m still amused how you think these things will always go badly for the left. Do you expect the right-wing techies to rise up in rebellion?

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            • 1. Trump got elected while still losing the popular vote by 3 million. He got elected on a freak victory and you are treating it like Nixon in 1972 and Reagan in 1984 because I still think you are suspiciously sympathetic to right-wingers. Are you going to start going into the whole “Well if you take away California and Washington dance that George Turner does?”

              2. Trump’s unpopularity caused the Republicans to nearly lose their control of the House of Delegates in Virginia in 2017 (only Gerry-mandering saved them) and Trump is hugely unpopular.

              3. If things keep up, 2018 could be a banner year for the Democrats.

              The problem with arguing with you Jaybird is that you refuse to acknowledge any evidence or fact that goes against the point you want to make. Yes Trump won. Yes there are lots of people who go whole hog into his resentments. But you seem to buy whole hog into Fox News fantasies of American demographics and nothing can shake this from you.

              As far as I can tell, there could be a Democratic superwave in both 2018 and 2020 and you would still be talking about secret America wanting to rebel from liberals.

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              • Well, I will repeat my baseline expectations for Democrats in 2018:

                150 seats (including seats at the state level) picked up by Democrats and lost by Republicans. I see the House flipping but not the Senate.

                If there are more than 150 seats picked up (including seats at the state level), I will agree that there is a Democratic superwave.

                There you have it. Measurable numbers.

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              • “I still think you are suspiciously sympathetic to right-wingers. Are you going to start going into the whole “Well if you take away California and Washington dance that George Turner does?”


                Can you not? You’re doing the exact same emotive and accusational, personal response to someone, dragging in other commenters, that I’ve dinged, suspended, etc. countless other people for. Knock it off.

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      • I also dispute whether Santa Clara is more likely to be pro-Google or pro-Damore.

        On the one hand, he might luck out and get a jury of engineers who agree with him. On the other hand, as a plaintiff’s lawyer, I’d rather not try a case in Santa Clara or San Mateo superior courts because it tends to have a jury base that is more “conservative” than San Francisco or Alameda.

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  9. Have you been able to determine anything about Damore’s lawyer? I looked her up on Cal Bar Attorney search and she seems to be a solo with a good amount of legal experience plus good academic credentials.

    Do you think this case is being bankrolled like Peter Thiel bankrolled the Hulk Hogan case?

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    • No clue.

      I saw a bit of her on Tucker Carlson last night at the gym (annoyingly, when I’m ready to get to my cardio that’s about when Carlson’s show comes on). Now, I wasn’t listening to it or anything because if you actually listen to Carlson you will become less smart than you were before. So all I could tell was her body language. Carlson was doing all of the talking and she nodded her head in agreement while he was doing it. She wasn’t quite holding Damore’s hand but was trying to convey a degree of closeness to Damore by positioning herself close to him, the way lawyers do. Damore had approximately the same look of not-really-comprehending-but-still-disapproving that Carlson always wears, though he held his chin higher than the host.

      And I read the complaint, which is the only impression I can get of her abilities as a lawyer. Those, I’ve discussed at length — she took a case I wouldn’t have, and wrote the complaint in a way I wouldn’t have. Doesn’t mean she was wrong to do it the way she did, necessarily, just that I would have done it differently.

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      • Thanks to a comment in one of Will’s Linky Tuesday links, I actually got more context about Ms. Dhillon. The comment, by another client of hers who is a friend of Damores:
        “I retained renowned civil rights lawyer and GOP official Harmeet Dhillon, who sent a cease and desist letter to Women Who Code, Alicia Carr, Maggie Kane, and Google. In the letter, we demanded a full retraction of the defamatory statements about me. I also requested to have my GDG and Google Women Techmakers memberships reinstated, because I’d been unfairly banned based on false allegations and not on any actual code of conduct violations.”

        So then I did a little bit of research and found this:

        https://gop.com/leaders/national-committeewoman-harmeet-dhillon-ca

        I don’t think any of this means it’s bankrolled, but it’s definitely a Thing, rather than being pure happenstance that Dhillon is the lawyer who took the case.

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  10. The cleanest legal solution is to say that expression of a political opinion is not “political activity” as contemplated by these statutes

    Hmmm. I agree that an employee asserting that physiology is correlated with coding ability isn’t conventionally viewed as political expression and that it (also) shouldn’t be so viewed. Whether Damore is right or wrong is an empirical issue which, in the right context atleast, everyone *should* be open to discussing. Unfortunately, such openness immediately runs up against the post-moderny view of communication whereby *all* speech acts are, or at least in principle could be, political in their nature depending on context and the norms of the community to (or in) which he’s speaking. The issue then becomes a debate not about whether the content Damore expressed is political but whether the content was viewed as political by his readers/listeners, and perhaps broader society. His argument would be, then, that he didn’t make political statements but rather that his audience, by virtue of their having confused political/normative views re: equality with objectively/factually-based views justified by evidence, have imbued those statements with political content which they lacked and not intended, and he was fired for it.

    IOW, it seems to me that Google’s defense will require them to establish that their workplace culture, encouraged by corporate leadership, wasn’t inherently biased against not merely conservative views, but the expression of any views which challenged the political, rather than performance-based, paradigm they adopted. I’m not sure Google can do that.

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    • Well, not with all that jargon, it can’t!

      “Damore was discussing whether a person’s sex affects their ability to code, or their desire to code. That’s not political. In that context, he suggested men had more ability and desire to code so it wasn’t a surprise that on average they were better at it than women. Women got offended by that and so did a lot of men, because that ran contrary to their experience. That’s not political. But it did make the women feel like Damore thought that coding was more of a man’s job than a woman’s job. Which was contrary to Google’s policies, and it was contrary to the law that prevents workplace harassment, and it was contrary to common sense and basic human decency. So it’s no wonder Google disciplined Damore, and it wasn’t because of Damore’s politics. After all, according to his own statements, Damore wasn’t talking politics at all.”

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      • I sincerely hope that Google was very careful about making sure that in the documentation of the firing, that is how things are spun, because if Damore gets far enough to reach discovery, and they find emails suggesting that it was more about politics and less workplace harmony…

        Related: There is a meme I see on FB lately (and I am paraphrasing here) that part of the reason we have some much rancor in our discussions about politics and religion is that we’ve gone so long not talking about politics and religion, face to face, in the spirit of being polite, that we’ve lost the ability to talk about politics and religion in a rational manner. Damore was, IMHO, wrong in his argument, but so was every other adult who threw a temper tantrum about it. More than anything, this is what has bothered me about the whole thing.

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        • While I don’t recall throwing any temper tantrums, I suspect my ire about his memo was less based on having not spoken about politics or religion in a rational manner in so long as a society, and more on it being about the 90-thousandth time I felt expected (by a writer, in this case Damore) to accept thinly-veiled (IMO very thinly-veiled) sexism *aimed at me and members of my class* masquerading as science, as a rational argument, or be judged as inferior for not seeing its wisdom.

          Gould wrote the Mismeasure of Man back in 1981, for Pete’s sake.

          This *particular* discussion isn’t at all novel as discussions go, for those of us who’ve been butting up against a form of it as far back as we can remember.

          It’s cloaked in science, but it’s really not any more scientific than the kid on the playground who says “But girls don’t PLAY baseball!!!!” That makes it more frustrating, not less. The cloaking is transparent not because someone “must” be saying something but because a bunch of people have been using the same pseudo-science to say the same pseudo-rational things since about 5 minutes after people weren’t allowed to just come out and say exceptionally sexist things baldly anymore. The ire comes from “Are you really thinking I’m this stupid, to not recognize this pattern and be lulled into believing you?” Of course that’s not what’s going on in Damore’s self-justifications. But it never is.

          That doesn’t mean there aren’t points to be addressed. It doesn’t mean there isn’t room for rational people who aren’t pulling the same BS Damore is pulling to make those points. But it does mean that those of us who’ve been lectured by Damores in positions where there was nothing we could do about it except smile and bear it, are sick of hearing it. It’s not that no one could say it, it’s that people were saying it over and over for decades of our experience.

          I actually see this as one of the antecedents of the viralization of the #metoo movement, whether one among a zillion causative factors, or just correlated through a shared cause of fed-up-ness.

          Perhaps if you look at it in that frame, the rancor will make an equal amount of sense, but be less bothersome. Perhaps not. But either way, I think this isn’t one of those “oh, no one has ever talked about this for so long people don’t know how anymore” things. ONE side of this argument has been talking about it loudly *at* women for a very long time, laws be damned. What’s new is the social opprobrium.

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          • tl;dr The emotional effect of reading Damore’s memo for me is much the same as that of reading arguments for “scientific” eugenics written by Galton in the 19th century, only with the added frustration of “I can’t believe we’re still having this argument. Why are we still having this argument? Don’t we have more important things to do????”

            (Answer, no, probably not, as long as we’re still having this stupid argument instead of everyone being collectively like “Damore, this argument is kooky and your science is bad. Would you like some help with this one-on-one? Otherwise we’re moving on.” Obviously we’re not there yet, and there are still real imbalances and experiences of mistreatment that lead people to head-asplode at being expected to treat the argument like a serious one, instead of doing a collective loud eye-roll. If Google had already achieved its goals of having a diverse workplace where anyone can work on equal terms, this argument would be impotent rather than harmful.)

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            • I used to get into a lot of discussions with women who argued, on feminist grounds, that (eg) if countries were led by women there would be fewer wars, and if firms were headed by female CEOs corporations would be better (ie., more inclusive) corporate citizens. Those and other types of arguments imply, to me anyway, that their advocates believe there is something fundamentally different about how women approach their interactions in and responsibilities to other actors in the world.* Some of this can be accounted for quite easily, I suppose: testosterone and lack thereof. Women – feminists – used to say things like that. Frequently. “If not for men…” was a pretty constant refrain.

              So serious question: do these types of feminism-oriented negative critiques of men rely on biological differences between the two sexes? Is there a way to sustain those types of feminist critiques *without* appealing to biological differences in the sexes?

              *And I’ll cop to agreeing with them about this.

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              • “do these types of feminism-oriented negative critiques of men rely on biological differences between the two sexes? Is there a way to sustain those types of feminist critiques *without* appealing to biological differences in the sexes?”

                Well first-off I don’t really agree with “if women were in charge of everything, everything would be better” arguments. There are a million reasons why not (IMO) but just for starters, if you don’t change the system except to put women in charge, women who are in charge will have to be MORE whatever-the-system-values to succeed than a man would. So for me systematic change is far more useful than a gender flip ever could be. (Pace counter-argument re: the value of symbols to young girls, here.) That’s an effect of a system based on hierarchical power, IMO. I guess I’m not against it so much as chicken-and-egg it, and why my aims are parity rather than overthrow :D.

                See Alderman’s recent break-out hit The Power (a novel) for a far more effective critique of the argument than I am willing to muster. (Plus it’s like really good and plotful and elegantly written; she used to write purely literary family dramas and has taken those skills with her as she’s shifted toward genre.)
                *deep breath as I run out of air from rambling on*

                To answer your actual questions: I’m not sure that they do, in the short-term. For *this minute*, you could sustain them by pointing out that because women are as-a-group oppressed (which I realize you have to prove, in many fora, rather than asserting, but whatever) – because they are a subjugated class, that set of experiences which they are not really able to escape (even if only through indirect exposure to media / groups delivering stereotype threat) will lead them to there being something fundamentally different etc etc etc etc. It’s quite easy to account for that without any recourse to any sex-determined biology whatsoever.

                (I’d say “without biology” except there’s nothing social, or human really, that happens without biology. we are all bundles of bubbling hormones, neurotransmitters, etc. at all times.)

                So, seriously, if a person really wants to rely on those types of feminist critiques, it’s not hard at all to not lean on essentialism to do it. But it depends on it being a short-term (50-500 years-ish) rather than a long-term (500-5000 years-ish) claim.

                People actually *do* do those kinds of feminist non-essentialist anti-male pro-female critiques but my brain is not currently coming up with them off the top of my head. To some degree Crenshaw and the intersectionalists address this, as does hooks on a more popular level, but they don’t generally go into it in this way. (which I wouldn’t either.)

                The idea that people who are treated less well by the current system make better leaders than people who are advantaged by it is certainly quite common, again apologies that I’m not coming up with names for better arguments than I’m making.

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                    • Oh, I know it’s a complex topic that likely doesn’t lend itself to a simple, concise answer, so the rambliness struck me as entirely appropriate. I was more interested in what an up-to-date feminist familiar with all the literature would say in response to a certain strain of feminist thinking that was prominent not that long ago, one based (in part) on biological differences between the sexes.

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                      • Yeah, that essentialism is still fairly prominent but it’s also been being argued against since it was conceived of, back in… well in this particular set of arguments 16th century, although if I found out women were arguing about this in antiquity I would be less than surprised – it’s an argument that accompanies inequality-by-groups more or less inevitably, IMO.

                        (When I took my first and only Women’s Studies class more or less by accident back in 1995 – I was interested in the history of women in Christianity and it was cross-listed – it was framed as “here’s what more people used to think than do now, and here’s what’s wrong with it but also here’s how it was empowering historically.” with nods to peaks of that strain of feminism in the 18th century and the 1970s.)

                        Works like Fine’s Delusions of Gender have done a lot to weaken it. By focusing on quality science about brains/gender, and what’s wrong with the bad stuff on both sides, rather than arguing from ideology first and science 2nd – so I suppose would approve :D.

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                • Note “than a man would” doesn’t mean a man wouldn’t *be* just as bad, obviously. Just that, if we didn’t change anything else, a man has a wider range of socially welcomed behavior (paradoxically) than a woman does, in the same leadership position. (And, again, talking about People in Charge here. The average male has a ton of constraints on socially welcomed behavior. Uh, as I expect most of you are aware.) (It’s so hard to clarify one’s positions adequately without being ‘splainy, on the tubes.)

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              • Is there a way to sustain those types of feminist critiques *without* appealing to biological differences in the sexes?

                These sort of hypothetical are never very well thought out. When people say ‘If women were in charge’, they never seem to explain what sort of women they mean, or how the world could have gotten that way.

                Women _as they currently exist_ would probably be less likely to start wars if they somehow magically ended up in power.

                This is because society generally trains women to act less aggressive and less assertive (By reacting negatively if they show those traits.) while often training men to act over-aggressively. And then it values aggressiveness in leadership. (Which results in women trying to be elected have to walk absurd lines of ‘prove you can be assertive in theory, but don’t turn off everyone by actually being assertive’.)

                So if somehow all the men died out tomorrow and all the women ended up in charge, yeah, probably, less wars for a generation or two.

                But any world where women ended up in power via _election_ would be either:

                a) a world where aggressiveness among women is just as prized by society as it is among men, which means the women society chose to lead it are probably the ones are just as aggressive as the men, statistically speaking, which means they would probably start just as many wars; or

                b) a world in which aggressiveness is less prized for men, and more prized for women, and they roughly meet in the middle. A world where all genders are expected to be ‘assertive but not violent’, and violence is not glorified. This means the people in charge are probably starting less wars anyway, regardless of their gender.

                This isn’t to say that more women in power isn’t a good thing, mostly because it helps break the toxic masculinity violent bullshit and lead us to (b) anyway. But ‘less wars’ is more a side effect of society changing and being okay with a different sort of leaders, of any gender, not because ‘women will want less war if they magically end up in power’.

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                • Once again, I’d strongly recommend The Power, by Alderman, to anyone who is interested in this topic. Really well-done and gores a lot of sacred cows from all over. (Plus it is sometimes hilarious and sometimes heartbreaking.)

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                • I’m cool with that critique, tho I have worries it begs the question re: why men have accumulated so much power. If not for that bare fact, the claim that women in general are just as self-interestedly ambitious, individualistic, cut-throat and prone to violence as men are is perfectly acceptable to me. :)

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                  • I’m cool with that critique, tho I have worries it begs the question re: why men have accumulated so much power.

                    You mean _originally_?

                    Well, uh, not to get all evolutionary psychology on things, but this is probably one of the few cases where it makes sense: The probable reason men generally ended up in charge, and thus were able to build a societal system that perpetuated them being in charge, is that they generally tend to be stronger than women. (At least in the ways that would allow them to win fights with other people.)

                    Note ‘generally’ in there. There are societies where women ended up in charge. One wonders, in those places, if there once was a particularly strong woman, or a group of women that banded together while the men failed to do so, and set some specific rules going forward.

                    But that’s all just a guess.

                    Now, as some people may know, I consider most of evolutionary psychology complete nonsense, thus me using it here seems a bit hypocritical.

                    But this is mostly because a lot of the ‘evolutionary psychology’ people, or at least a lot of the people on the internet who claim to be practicing it, often end up saying something like ‘Human society is this way because of some evolutionary advantage from hundreds of thousands of years ago’ and have almost never bothered to look at other societies or history and check if ‘human societies’ are truly that way, or if what they are talking about is some modern Western thing. (1) Hence my general mistrust of the entire field.

                    But human societies have generally ended up with the men generally in charge (Although sometimes lead by a women, because the laws of hereditary often trump general rules.), throughout all of history and pre-history, with only a few exceptions. Let’s say 90% of societies were male-dominated. This is something that really is true, and true even of societies divided by tens of thousands of years and oceans. So it seems like there probably is some biological explanation for that tendency.

                    But strength might be a wrong guess. It could have something to do with pregnancy, or possibly responsibility for children and how women are always sure who their children are and men are not. It is interesting that the societies that do not have men in charge, or have men and women as equals, often are the same societies that do not care about the paternity of children.

                    1) Fun diversion….ask an armchair evolutionary psychology why male babies are associated with blue, and female babies with pink. See what sort of EP explanation they come up with.

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                    • As a fellow almost-always-skeptic-of-EP, I agree with you and would only add that when you say

                      “But strength might be a wrong guess. It could have something to do with pregnancy, or possibly responsibility for children and how women are always sure who their children are and men are not.”

                      you’re listing things that could all be possible in some combination, not exclusive possibilities that rule each other out. (You probably know that but I feel the need to clarify it anyway.)

                      (I don’t hate EP b/c it’s a bad idea, either, I hate it because the people doing it are usually really bad at either the E, the P, or both. Sometimes this is not the case and they have interesting points to make.)

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                      • I’m surprised you agree with that account. It’s as old as the hills and doesn’t survive even the slightest scrutiny. For example, if male success is connected to the use of power and violence then over time a predisposition to (successfully) use power and violence will be selected for within the male population. Will those predispositions be selected for within the female population as well? By hypothesis the account we’re talking about assumes that they are, but it’s hard to see how since successful males are those who’s power *overcomes* potentially violent resistance from females, leading to selective pressures against their use of violence.

                        I mean, I think EP is a joke, but this doesn’t strike me as an EP account of male cultural dominance anyway since EP would have to include an evolutionary mechanism by which male dominance actually *is* selected for as a predisposition rather than an artifact of physical dissimilarities. Or more simply: males having greater physical power than females doesn’t explain anything without an accompanying differential predisposition to use it, and (presumably) without the predisposition, as expressed in evolutionarily relevant acts and selected for, men wouldn’t be bigger/stronger than women.

                        Or something like that anyway.

                        Add: maybe the better thing to say is that evolutionary psyche is sorta useless because it can be used to argue anything

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                        • It can be used to argue a lot of things, some more easily than others.

                          I should clarify that I don’t think just strength holds water as an argument by itself. In general the thing I agree with most of all is your last sentence, so I don’t really have a lot of interest in regurgitating the best arguments for the strength/pregnancy/fight/endurance combo that I’ve read.

                          That combo, and the best arguments for it, are just less stupid than most of the SB/EP stuff I’ve seen, which tends to be focused on things that are even more ridiculous and starting from “facts” that aren’t even facts. Like, at least men *are* on average stronger in the fight sense than women are, men are *not* on average actually proven to be more likely to have extramarital affairs than women are, to cite a premise that if I have to see it cited as if there was any good science for it ONE more freaking time I might have to….. ahem. Sorry. Rant not directed at anyone in particular whatsoever, least of all you.

                          So it’s not a high bar I was saying it clears, and I was only saying it cleared it as part of a combination of factors, which may or may not require it or might have sufficed without it.

                          Basically that’s as enthusiastic as I get about EP, and it’s not very.

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                          • FWIW, there’s some kooky-if-I-evaluate-it-scientifically EP and SB generally that I pretty much love and geek out about hardcore even though I don’t believe it very much. The whole aquatic ape hypothesis for example. Terrible science, delightful mythology. Part of what bugs me is that stuff that is NEARLY as terrible as science (and occasionally downright vexing as mythology) gets treated with such seriousness by the field in general. If it was all treated as “what biologists and psychologists enjoy writing about in their spare time kind of like physicists sometimes enjoy writing hard science fiction,” I’d probably be a much bigger fan.

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                          • EP strikes me as one of those things that is probably describing something that exists, but we don’t know how to look for it or confirm it yet.

                            To make a poor analogy, it’d be like trying to measure relativity prior to Newton.

                            More likely to get wrong things than right things even if there is a there there.

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                        • I mean, I think EP is a joke, but this doesn’t strike me as an EP account of male cultural dominance anyway since EP would have to include an evolutionary mechanism by which male dominance actually *is* selected for as a predisposition rather than an artifact of physical dissimilarities.

                          I don’t follow you at all.

                          Evolutionary psychology is not a claim about how evolution works. It is a claim that people have behaviors _left over_ from how we evolved.

                          EP does not have to explain why men generally have more upper body strength than women. EP would just use that fact to try explain social structure now and throughout history.

                          This does not mean my guess is the correct reason for why societies tend to end up male dominated. Hell, my guess is not even proper EP…it’s basically what _I_ think of as armchair EP, which is ‘making wild guesses’. (And is at least using one real thing to explain another real thing, a test that a surprising amount of armchair EP fails.)

                          I mostly think EP is somewhat silly, because I think most behavior(1) that humans notice as ‘behavior’ are almost entirely from nurture and not nature. So EP from my POV is basically running around trying to reverse-engineer justifications out of nature in an extremely unscientific way where they start with all the known data, invent a theory, and say ‘Done. Theory fits all the known data.’, which is, uh, not how science works.

                          So I’m not really trying to defend EP (Or my goofy attempt at it.), I’m just saying ‘How something evolved is not something EP would have anything to do with.’

                          What you are describing, determining why men do have generally more upper body strength, would just be plain ‘evolutionary theory’. Although that wouldn’t be something that evolved in ‘humans’.

                          Both chimpanzees and humans, our closest relatives, have larger gender disparities than humans. Other great apes, that all three of us split from earlier, have even more. It really looks like ‘humans’, or, rather, the branch of apes that eventually turned into humans, were evolving away from sexual dimorphism even before we were ‘humans’, and have kept doing so.

                          1) I almost said ‘almost all human behavior’, but that’s completely wrong. A hell of a lot of human behavior is hardwired into genetics, from walking to vision to speech to all sorts of things. But that’s basically water to fish…I think pretty much anything anyone disagrees on is nurture.

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                      • you’re listing things that could all be possible in some combination, not exclusive possibilities that rule each other out.

                        Yeah. And for all we know, it’s something else entirely. Which is the main problem with evolutionary psychology.

                        I think we can probably definitely say that whatever the original reason, men being physically stronger would probably result in them being harder to overthrow once they did end up in charge. (Which, hell, could be the entire thing. Maybe each gender randomly ends up in charge, but men are harder to dislodge by women than vis versa.)

                        I don’t hate EP b/c it’s a bad idea, either, I hate it because the people doing it are usually really bad at either the E, the P, or both.

                        Heh. They’re often just really bad at history.

                        Half the time they fail to realize what they claim is the result of ‘evolution’ wasn’t true a few hundred years ago and it seems dubious that these ‘genetic traits’ are just randomly resurfacing now.

                        The other half they fail to realize that the way they are imagining pre-historic humans does not actually match up with how evidence indicates they lived. For example, there is very little evidence that humans had any sort of gendered roles when we were hunter-gatherers. Sure, almost every textbook repeats uncritically that ‘men hunted while women gathered’, but there is basically zero evidence of that, and it’s just an assumption made a hundred years ago that somehow turned into fact.

                        While men are stronger in upper-body strength, humans have basically never relied on that while hunting. It’s hard to imagine what we would be hunting that would be close to our strength that it’s plausible that men could hunt it and women couldn’t. Maybe if we were dumb enough to attack wolves with our bare hands?

                        We instead hunted by using weapons, driving animals into traps, or mostly just wearing them out.(1) All of which women can do just fine. In fact, women have a slight stamina advantage.

                        1) Humans have some of the highest stamina of any animal on the planet. We are the determinators of the animal kingdom. We will just keep walking towards food. Forever. We can literally kill skittish prey this way, as they keep running away from us, over and over, until they die of heat exhaustion.

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                  • Or Indira Ghandi or Golda Meyer. British feminists hated Margaret Thatcher because she acted opposite of how they wanted Britain’s first PM to behave.

                    I also think it’s imoirtsnt to ask what feminism are we talking about. Some feminism want the same opportunities and rights as men because they quite fancy being a female Andrew Carnegie themselves. Other feminists see feminism as a more transformative experience for the world. The idea of feminism meaning a female Andrew Carnegie or a woman politician declaring war would seem absurd to them.

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                    • And as you point toward, women are, of course, just as complicated and nuanced as men are. So a lot of British feminists (and American feminists and other country’s feminists) have very mixed feelings about Margaret Thatcher, rather than hating or loving her. [I agree that she’s a very succinct 2 word answer to the question, as says though, and that the other people you name are equally succinct 2-word answers.]

                      One of my favorite people is feminist, anti-racist, generally progressive although politically conservative in many ways … and says she will always have deep respect for Margaret Thatcher because meeting her, she felt *seen* by a head of state who was genuinely pleased to see her in the role she was in, for the first time ever. (Fish’s wife, so feel free to correct me if I’m misphrasing something.) Learning that was eye-opening for me, as someone who grew up thinking that “Thatcher” was more or less a synonym for “evil,” and who still sees her as an enthusiastic supporter/leader of many evil things that were enacted under her PMship. It does *matter* to have a head of state who is clearly pleased to see women in the room, rather than seeing them as hittable-on or ignoring them, in this day and age, and even more so in the 90s. But Section 28 mattered too.

                      It’s not a binary, really, feminism X or feminism Y, women-can-do-everything-men-can-do vs. we-need-a-whole-different-world-and-women-know-how-to-make-that-happen-without-men, it’s that pretty much every modern-day feminist is, as Roxane Gay says, carrying around a whole load of different kinds / strains of feminism, some of which have some conflicts with each other.

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            • First off, thanks for the reply, I appreciate it.

              As to the meat of it, the temper tantrums I was referring to weren’t the ones had by the internet at large, but by the people within Google, before (and after) the memo got out. Let me put it this way, if I learned that my co-workers had acted like that toward, or about, someone else in the company who expressed an unpopular opinion, co-workers who were supposedly professionals, I’d be embarrassed as hell. Instead, people were acting as if Google was a college safe space that Damore had just violated.

              Which is, I believe, what is getting at up here. If Google wants to be a “safe space” for woke millenials, etc., hey, more power to them. But you got to be upfront about that kind of thing. You can’t host a freewheeling forum and then punish one person who kicks over the anthill with an unpopular opinion.

              Personally (and perhaps Google did this, I doubt we’ll ever know), I’d fire Damore just for kicking over the anthill, but I’d also discipline, demote, or fire any person who spoke of the matter in an unprofessional manner over company email/in company forums. Or who spoke about it in public forums outside the company.

              This:

              “Damore, this argument is kooky and your science is bad. Would you like some help with this one-on-one? Otherwise we’re moving on.”

              Is all the attention something like this really deserves. And perhaps this is precisely what HR did at first, but maybe not, or they forgot the smart next step, which was to hide or delete the original post and inform anyone who had commented on it that the matter was addressed by corporate and is considered resolved, and to let it go. It was a fire, one that needed to be put out, not ignored. The fact that ‘we the public’ got to see their dirty laundry tells me it was handled poorly.

              tl;dr – It’s not about the argument Damore made, it’s about Google letting this get away from them. It’s also about the professionalism of Google employees, that they think it’s OK to act like that inside the company (or that it’s OK to air dirty laundry outside).

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              • Well, I appreciate your reply to my reply, but I feel like you’re not actually addressing my point. Which is that the lack of professionalism, head-asplody, etc. was not because no one at Google had heard those kinds of arguments in a professional context before, but because they had, over and over, and they were damn sick of hearing them. ***

                Hence what I said *after* what I said the ideal response would be:
                “Obviously we’re not there yet, and there are still real imbalances and experiences of mistreatment that lead people to head-asplode at being expected to treat the argument like a serious one, instead of doing a collective loud eye-roll. If Google had already achieved its goals of having a diverse workplace where anyone can work on equal terms, this argument would be impotent rather than harmful.”

                Which to me means there’s a reason employees weren’t professional, and it’s that they felt – probably because Google failed in the way you described – that the power-of-the-company, as opposed to the appearances-of-the-company, agreed with Damore.

                Or perhaps just they feel that way about life in general, that the PTB agree with Damore.

                That’s where that unprofessionalism seethes up from, I think, not from having a “safe space” and not wanting it messed with, but from being tired of being inundated with less-than messages way too much of the damn time in the first place.

                You can expect employees to act out, ridiculously so, in those kinds of situations.

                If the company actually addresses those issues and *has a good track record* of addressing those issues, employees will react differently.

                (Though it’s also to some degree, I think, a matter of how big Google is…. we hear about 20-40 employees throwing a temper tantrum and airing dirty laundry, and we think it’s a company-wide failure. Google has about 74000 employees. 73000+ of them can act with perfect professionalism and it turns into a major PR fiasco for the entire company. They haven’t really adjusted to being that hyuj, speaking of their faillings…)

                *** Which I realize gets back to our differing experiences of workplace environments (and our friends’ reports on some of their workplace environments) and I also realize we’ve hashed over before, though I don’t remember if it was about Damore or #metoo, so I can see why you might not have wanted to get into it. If so, fair enough.

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                • No, I think we are pretty close in agreement that the failure is on Google, either because they handled this incident badly, or they’ve been handling previous incidents badly. This is on Google leadership no matter which way you look at it.

                  My ‘safe space’ comment was my impression based upon some of the comments Google employees and leadership had made about Damore’s memo. It is entirely possible there is key context I am missing that colors those comments in a different way*, but my impression was that people were offended that Damore was part of their community, and not upset at how Google was handling it. I got a sense that there was an expectation that people who proffered such arguments were either not part of the Google community, or had at least learned to keep those opinions to themselves. I could be reading it wrong, but that was my impression based upon the limited info I have.

                  Also, totally agree that it is entirely possible that we just got treated to the dirty laundry of a scant few employees, but that is why corporations tend to frown heavily upon people talking out of turn like that, because a few bad employees can create huge public image headaches. So I hope that Google did take action against those few employees.

                  *e.g. if Damore was a well and widely known asshat, and this was just another example of his public asshattery, or if there was similar asshattery that was common at Google, then I could see how people would reasonably be pissed about it.

                  **hyuj?

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                • @maribou — Obviously there is much I cannot say, but @maribou’s explanation matches my feelings on the subject, along with the feelings of many other women and minorities who I talked to.

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            • +100000

              Thank you. This is exactly how I felt and am feeling reading discussion this *again*, but you express it much better than I can.

              You can debate the firing, but someone should send Dalmore a bill for lost time/productivity for bringing up a topic that forced women who already have more than enough to do to have to deal with that BS *again*.

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    • I find it interesting that — in some circumstances — performance is very narrowly focused. “You didn’t hire her because she’s good at coding… you hired her because she is a woman and wanted to make a political statement! That harms the company.”

      Well… maybe? But what if a more diverse workforce makes for a happier or healthier or more productive one? What if the highly effective coding women work even better in a more balanced workplace and any loss in “skill” arising from a lower-skilled women being hired over a higher-skilled man is offset by that highly skilled woman reaching her full potential in a more amenable workplace? Do we consider that? Why or why not?

      Because, strangely, you very often see just that logic applied when a highly qualified female candidate or candidate of color is being considered. “Sure, they’re good, but will they fit? Will they get along? Will they understand our culture?”

      It seems… strange… that performance often gets chucked out the window by some when the best performance actually comes from females or people of color.

      So, yea, let’s consider performance. But let’s figure out what *group* performs better: an entirely white male one or a diverse one. I’m sure there are ways to measure this. And, if it is the latter, doesn’t that demonstrate that “diversity programs” and the like actually are about performance?

      Note: I’m putting half a thumb on the scale because I’ve seen a speaker make these very claims, arguing they are backed up by studies. I haven’t gone looking for the studies but maybe I ought to.

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  11. I’m curious to hear more about the (legal) difference between religious beliefs and non-religious beliefs is and/or ought to be.

    I assume you can’t be fired simply for being Jewish or Muslim or Christian. But can you be fired for walking into work and saying “My [religious book] teaches [unpopular opinion] and I believe it”? Because if you can’t be fired for that but you can be fired for saying, “I believe [unpopular opinion],” that seems to privilege religious-based beliefs over non-religious-based beliefs.

    And whats to stop the Church of Hitler from jumping through whatever hoops it must jump to to be recognized as a religion and seek special protections for its beliefs?

    Without thinking through the full implications of this, I’d argue that it should be illegal to fire someone for who they are (including seemingly mutable* characteristics like religion and ideology) but legal to fire someone for what they say and do at the office… even if what they say and do is inspired by who they are.

    * My understanding is that much of discrimination law is rooted in the idea of mutability, namely that you can discriminate against things which are mutable but not those which are not. But then religion gets covered. Is religion mutable? On the surface, it seems like yes; people change faiths all the time. And yet, try as I might, I’m not sure I could just decide to become a religious person overnight. And I doubt most (if not all) people of faith could just will themselves into a different belief system. Is political ideology or other guiding philosophies similar? Do we choose to be liberal or conservative?

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    • Good questions, , mirroring a great many of my own thoughts about religion and its place in employment law.

      On the one hand, it’s totally and inexcusably nonsense to fire someone because you find out they’re, say, Mormon. Or Jewish. Or Muslim. Etc. And left unregulated, that sort of thing is going to happen.

      On the other hand, religion is an internal, subjective experience. The law takes nearly anything that someone calls their personal “religious belief” as sincere, even if it doesn’t jibe with generally-accepted doctrine of the faith in question. You could have a Muslim who said her interpretation of her faith was that she was required to eat pork five times a day, even though nearly every other Muslim on Earth would tell her, “No, that’s very much not what the Quran says.”

      And the RFRA has the potential to carve out exceptions to literally every other law there is, based on those subjective, purely internal beliefs. At least, that’s how I read the way that law is interpreted by the Supreme Court in the Hobby Lobby case. Which is why the Masterpiece Cakeshop case pending before the Court right now is so interesting.

      If the baker prevails in Masterpiece Cakeshop the next place we’ll see religiously-justified discrimination claimed will be in employment, mark my words: a “Christian company” will either refuse to hire or fire a qualified but openly homosexual person in a state that includes sexual orientation as a protected class (like California and, to various degrees, twenty-one of her Sister States). You heard it here first! (Actually, you probably didn’t, if you read the dissents in Hobby Lobby.)

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      • I think you are correct on what happens if Masterpiece Cakeshop gets a ruling in favor of the Baker.

        My issue with the general discourse on civil rights laws is that you generally have white guys discussing the importance of private property and freedom of association and minorities discussing why civil rights laws are important. There are notable exceptions but they are notable because they are few and far between.

        But it is still kind of depressing how typical the pattern is.

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        • … you generally have white guys discussing the importance of private property and freedom of association and minorities discussing why civil rights laws are important. There are notable exceptions but they are notable because they are few and far between.

          Just because you’re not paying attention to the minorities discussing the importance of private property and freedom of association, doesn’t mean that they don’t exist. It just means that your chosen paradigm excludes those voices.

          And Jesus, , do you really think it’s necessary to make a comment trying to draw some kind of parallel between contemporary civil libertarians and slave owners? That’s sinking to the lowest common denominator real quick.

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          • Actually I was drawing the parallel to conventional conservatives, and yes, it is necessary.

            Liberty University, Freedom Caucus…Patriot this and Oath Keeper that….they are the loudest yelpers of those words, while the most enthusiastic about enshackling nonwhite people.

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            • “What you really need to do is go back in the ’30s when they outlawed all types of drugs in Kansas (and) across the United States, what was the reason they did that?” Alford said at the event. “One of the reasons why, I hate to say it, the African-Americans, they were basically users and they basically responded the worst off those drugs just because (of) their character makeup, their genetics, and that.” — Steve Alford, Kansas state representative, and, in case there was any question, Republican.

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              • Right. It’s pretty easy to find examples of conservative and partisan Republican support restrictions that either target or have an outsized negative impact on minorities. But it ain’t all that hard to find examples of progressive and partisan Democratic policies that also have an outsized negative impact on minorities.

                The fact that you and and have a habit of continually calling out the former while ignoring, or making excuses, for the latter tells me that you care more about supporting your side of the ideological divide than you do about things that negatively impact minorities. And that’s fine. That is your prerogative. I’m just suggesting that maybe you be more honest about it.

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                • It’s not easy to find that kind of open bigotry on the Democratic side. It’s extraordinarily easy on the Republican side there days. But if you want to say both sides are the same, knock yourself out.

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                  • I have no interest in saying whether both sides are the same, because I honestly don’t care about the sides. I care about increasing policies that help and ending policies that harm. That’s it. Full stop. If Republicans support Drug War policies that incarcerate increasing numbers of minorities, then I’ll call out Republicans. If Democrats support onerus licensing requirements that keep minorities locked out of the formal economy, then I’ll call out Democrats. It’s not a contest to me.

                    I think that you care more about repping your side. And that’s fine. Maybe just cut down on using black people as props in your partisan fighting.

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                      • @j-r

                        While the Internet is still a free country (at least for now – and thank goodness for it), this site – as has been vexedly pointed out by many parties of late – is not actually a free country.

                        That said, it is certainly the kind of country where someone has the right to object to being used as a prop, and call that out when it happens, which objection also seems entirely fair to me in this case (and a few other cases in comments earlier this week … it’s a straw-on-straw, last straw kinda thing from my perception, maybe not from j-r’s though).

                        I was taught better manners than that by college friends in the 90s – that my white self could make perfectly good arguments without leaning on black suffering for extra moral weight, and it was cheap and yeah, kinda racist, for me to do so (which is not to say there’s never a relationship / connection between different kinds of crappy deals, just that I’d better be sure and self-critical and definitely never quick-to-retort if trying to describe a parallel I thought was there.)

                        I’m not saying it’s deliberate, at all. I’m not perfect and I still f it up sometimes myself (mostly in the letting it slide rather than saying something dept), it’s not a thing I’m interested in protecting from even very blunt criticism. Because it’s an uncivil thing to do. Doing uncivil things leads me to care less if people are uncivil back to you…. even if you thought you were being perfectly civil in the first place. ‘Cause I don’t think you were.

                        And that type of move is also something that someone can perfectly well object to without it being a BSDI anti-liberal argument, or evidence of anti-Semitism.

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                        • I didn’t call jr anti-Semitic. If it appears that I did, I’m sorry for clumsy wording.

                          Racism, anti-Semitism, and other forms of bigotry often go hand in hand, and I object to them as a simple matter of self-defense, not because I’m using anyone else as a prop. (Also because they’re evil.)

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                          • Still, if someone called me out for using a group they’re part of and I’m not as a prop, I’d want to sit with that and consider how I could make the same arguments in more civil ways, rather than rushing to the defense.

                            (Apologies to j-r, I don’t mean to horn in on the conversation and I’ll step back now unless you indicate you’d rather I show up again – but as the moderator I do feel the need to show my cards on this one. Things were getting heated. If they continue to do so and someone ends up getting flagged on the play, I’d rather people were clear on my instincts about this.)

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                        • , apologies. I did not mean to make this a back and forth thing. I really just wanted to point out to Saul that his characterization that minorities are only concerned with civil rights and not with property rights or free association is only possible with selective focus and to say to Chip that his escalation to bringing in slavery score partisan points is a bit disconcerting.

                          None of this offends me. Like I said, I’m perfectly OK with people being more concerned with scoring points for their side then with actual concern for any group of people. But as a member of that group, I’m going to speak up.

                          ps – I’m only a member of the group. And I’m only representing my own perspective. You could probably find a black person who feels very differently about these issues.

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                          • Oh, I know I could. :D And you shouldn’t have to be “the representative perspective” on every issue you’re a group member whose affected about. No one should have to deal with that.

                            I appreciate you speaking up when this sort of thing happens though, and I didn’t mean to imply you were offended, just that if you get blunt about these things, I’m going to let things slide that I might say were too personal in some other context where civility had not been breached already.

                            Sorry I misspoke about you objecting, rather than just calling what you see. The people who kept pointing it out when I did that *were* offended, rather intensely so (and I’m grateful they schooled me rather than giving up on me). I get that you don’t get offended easily and I should’ve been more precise.

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                            • I’m perfectly OK with people being more concerned with scoring points for their side then with actual concern for any group of people

                              Yeah. I’m not pleading guilty to that.

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                              • Did I say plead guilty to it? This isn’t a court.

                                I said sit with it and consider how you might approach things differently next time to keep things on a more civil footing. Finding better ways to argue and avoiding uncivil choices that lead to other people developing those kinds of beliefs about your motivations doesn’t mean agreeing with them about your motivations. I don’t think those *are* your motivations, because I know you and I think you’re a pretty great guy so of course I don’t think that about you.

                                I just think he’s right that you (and not you especially, it happens fairly often on this board, at least it has been this week) do tend to do that *behaviour* that he’s calling out, and it’s not a good behavior. Whatever your reasons.

                                When I said sit with it, I kinda meant sit with it for more than thirty minutes though.

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                                • [Having sat with it overnight]
                                  We pride ourselves on civility here and its one reason I remain.
                                  So I understand the difficulty when I or one of the other liberals makes a comment about the right and racism, that it comes across as overly sharp elbowed.

                                  And in truth, there is a fine, honorable conservatism, somewhere up in the cloud of abstraction. Balanced budget, respect for individual liberty, moral rectitude, patriotism; All these are wonderful ideas.

                                  Accountability is also a wonderful conservative idea, and speaking truth plainly.

                                  When I look at a Trump rally, a Joe Arpaio crowd, a Roy Moore defense, or the Charlotteville rally, I don’t see any of those fine ideas being presented. Not one.

                                  This isn’t an argument; This is just my testimony of what I am seeing, what a lot of us are witnessing and have for a long time, that the primary motivating spirit of the conservative movement is white ethnic resentment.

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                                  • I appreciate you pondering on this. All of what you say above makes perfect sense to me, but has little to do with a habit of black people as victims, black people during the most painful parts of their history, being your go-to example over and over when you want to make a point about white ethnic resentment. It’s possible to criticize whiteness, and ethnic hatred by whites, without that habit. It’s possible to express sympathy for black oppression and even to draw historical parallels to current day events without that habit. I don’t agree with most of j-r’s positions and I can still see why this is something he makes a habit of calling out.

                                    I’m thinking, tbh, of the post that bothered me rather more than this Samuel Johnson quote did, earlier in the week, where you cast various actors into roles and … yet again…. one particular example of a black person. Cumulatively, that type of description does create an effect of not-thinking-of-black-people-*as-people*, rather than as objects of white actions. I am one hundred percent sure you don’t mean to do it, I never meant/mean to do it either – but I do perceive it, I believe it’s worth making an effort *not* to do it, and if JR is calling you or someone else on his perception that you’re doing it, I’m going to give him a lot more room for heat/negativity/casting aspersions than in a discussion where people are traditionally less likely to go unheard. And when he does call you on it, as he did in that example, and you double-down rather than acknowledging that you’re doing it – it reinforces the pattern.

                                    Anyway, there are few things more tiresome than white people arguing about how to talk about black people, and as I said, I appreciate you listening and reflecting, so if you want to respond to this you can, and I will let you have the last word as far as I’m concerned. As j-r says, there’s room for a lot of perspectives and you could no doubt easily find other black people who disagree with him. I just think, you should listen to him and respond with some degree of recognition when he calls you out on a racially-inflected issue, as he has more than once this week. Also, until I stepped in, it didn’t seem like you all *were* listening, rather than trying to score points against his complaints. (Which, yup, I also did notice and was frustrated by, also because it’s a common systematic discussion pattern when black people talk to white people, even though, *again*, I’m totally sure there’s no ill-intent involved and I can think of a million non-systematic reasons why that would happen.)

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          • As Our Tod often pointed out, it is rare that friction arises due to good coming into contact with evil. Rather, friction generally arises from one set of legitimate interests coming into contact with a competing set of legitimate interests. Private property and freedom of association are legitimate interests; so too are civil rights laws. It makes sense that the folks more focused on the former tend to be those who stand to lose* the most if those interests are superseded by other interests. And that the folks more focused on the latter tend to be those who stand to lose if their interests are the ones that are superseded.

            So, this should not come as some major surprise to . Though I also don’t think recognizing this tendency requires of Saul what purports that it does.

            Ideally, we’d have a fair and equitable system of balancing interests and resolving these frictions. From where I sit — leaving aside my own interests or prioritization of them — it does not seem we’ve yet achieved such a system.

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            • Separate from any moderator concerns expressed above, but just because no one has made this point and I keep hearing making it in my head… I would argue that private property (which I support in a complicated way I won’t get into here) and freedom of association often *are* civil rights laws.

              There are certainly plenty of examples I can think of in the history of the civil rights movement(s) where those particular rights were violated by state actors *to quash civil rights activists* and/or minorities just going about their business not even trying to do anything, who became civil rights activists by default due to those experiences. (Don’t get me started, but just to pick one example, what was Stonewall, if not a response to the quashing of private property and freedom of association rights by the police?) And it is really surprising to me that these examples don’t spring immediately to the minds of those as invested in the social justice movement, and cognizant of US legal history, as the folks here who seem oblivious to that connection. Given that most of my immediately-at-hand-examples are American.

              So yes, there’s friction and tension, but there’s also a great degree of overlap.

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              • What always frustrates me is that people seem to feel that acknowledging the legitimacy of any overlap automatically means that you are legitimizing the points distant on the Venn diagram as well. I mean, see Mike’s comment here.

                Therefore, one must dance around the overlap, and only come right up to the edges of it, but never acknowledge that it’s there, lest you let the camel in.

                (And boy am I mixing metaphors today…)

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              • Private property rights are important but it isn’t of ur importance. I disagree with the notion that private property is the well-spring of all other rights. The franchise used to be limited to private property owners of a certain amount.

                People can’t be free unless they have full access to civic and economic life. If someone has to guess: “Is this hotel going to reject me because I am Jewish?” or “Is this company going to not hire me because I am LBGT? Or is this baker going to refuse to make my wedding cake because we are a mixed-race couple?” than they are not truly free.

                So there are some coercion aspects of civil rights laws but this does not make them unnecessary or invalid. Jason has a counter view but he is within a minority and I sometimes think we give too much credence to dissenting views just because they are different and contrarian.

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                • You might think that about why we/I give credence to them, but I very strongly disagree.

                  I give credence to Jason’s particular dissenting views, and for that matter to j-r’s, and to those of a whole host of other people whom I may or may not agree with, because they strike me as extremely insightful and well-expressed, And when they come from people who *because of their marked identifiers* are not listened to by society as much as extremely insightful and well-expressed views might usually be, I try to pay some extra attention. (This sometimes includes things I don’t actually think are discriminated against, but which don’t get listened to, like people who hunt for food – though that particular example actually has some decent overlap with Native voices, as well.)

                  There’s a whole host of dissenting views that are not of such high quality, to which I give very little credence whatsoever. For example, that of cakeshop guy. I am not interested in his dumb views, I’m interested in the reasons why Jason is interested in them (and a few reasons of my own for wanting to not interfere with his dumb views, balanced with reasons of my own for wanting to).

                  Also, I object *very strongly* on personal grounds, to the claim that because I sometimes wonder if a company won’t hire me because I’m LGBT (or if they’ll fire me if I come out as genderfluid and trans, a specific fear I’ve had recently), I’m somehow automatically less free than another human being who doesn’t have that worry. Speaking just personally, again, I’m more free now, with those worries, than I was in 1996 in Montreal when I had zero fear my employer would refuse my hire, or fire me, but a far greater level of fear than I do today that I would be beaten walking down the street, or wouldn’t be able to find a place in a strange neighborhood where I could use the bathroom without harassment. What’s changed there isn’t the laws (well actually I have less protection in this state than I did in that province, so I suppose they changed in the *wrong* direction), but cultural consensus about who it’s ok to be cruel to.

                  Law can drive cultural change, but cultural change can also improve things and some laws make cultural change less, not more, likely. For many of us, it’s nuanced, not simple. Is that really *so* hard to understand, even if you disagree with it?

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              • what was Stonewall, if not a response to the quashing of private property and freedom of association rights by the police?

                When we listen to the testimony of the people involved in gay rights, civil rights, feminism, they almost never speak in terms of property rights or freedom of association.

                The words that rise to the top consistently are dignity and respect.

                Even now, with Black Lives Matter, the central complaint is that their lives don’t matter, that they are seen as lesser people. This is why it is so important for gay people that they have cakes baked for them; its a question of being viewed by society as immoral and unliked.

                Which is the complaint by many conservative people,like James Damore, that it hurts, it really truly hurts, to be called racist, misogynist or viewed as immoral and unlikeable by the rest of society.

                Which (at the risk of doubling down) is why Samuel Johnson’s quote seems so apt and pertinent today.
                To paraphrase-
                Why is it that the loudest yelps about being excluded and stigmatized are from the ones who petition the Supreme Court for the right to do that very thing?

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                • The words that rise to the top consistently are dignity and respect.

                  You say that as if those two concepts are utterly divorced from the idea of property rights and freedom of association, when in fact they are all tightly linked.

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                  • What Oscar said nearly exactly.

                    As someone who *is* directly involved in civil rights struggles and has been since I was six years old and helping my mom’s feminist friends produce their newsletter, when I say “dignity” and “respect” I am very much also talking about my freedom of association. (“If they don’t want to get bashed they shouldn’t be out on the streets holding hands like that.”) I am very much talking about freedom of speech. (“Why does she have to TALK about it though?”) I am very much talking about my rights to my person, and to privacy in private domains* (I can’t even keep a journal right now without ripping up most of the pages I write every day, out of fear that they’ll be invaded and used against me by whoever I’m most threatened by someday. Doesn’t seem particularly healthy, and I’m working on it. But it’s true and it has to do with the ways in which I’ve been unsafe as a person assigned female at birth, as a queer, as a victim of domestic violence, etc.)

                    I don’t always – in fact very rarely *have bothered* to – spell out that those two things are related because it seems *fairly obvious* to me that they are and I prefer to talk about dignity and respect, but I’ve never thought they were not linked. I don’t know anyone in the midst of those struggles who’d bother to argue they aren’t linked (again pace the property piece, i know plenty of flat out radical communists but even they do believe in personal privacy and personal space and some kind of allowance for being attached to some personal objects. they’re not maoist send-everyone-wherever-you-want-to-punish-em types). Which isn’t to say there aren’t such people – I’m sure there are – but that I find it strains credulity to assume that because most of us don’t make the links explicit, we don’t see or value them.

                    And to be blunt, if you find that my yelps are so much quieter than those who petition the Supreme Court to hurt me, fishing LISTEN TO ME MORE.

                    I could be wrong that this is also true for other kinds of civil rights struggles, but given that j-r said you weren’t listening, this last response of yours makes me feel like you haven’t been listening any of the times I, at least, have said dignity or respect in these conversations … and I’ve heard my students of color, poor working class kids of all colors, talk about how one of their frustrations is that people with more power than they have (non-coincidentally almost all white) are so much more interested in arguing with each other *about* them on these issues, than in listening to what they have to say….

                    Fishing listen to us more seems a pretty apt response.


                    **which again, we can talk about my opinions about property some other time – but privacy sure isn’t *alienated* from private property even if it doesn’t match up as much in my opinion as it does in some other people’s

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            • It’s not just Our Tod who says that (though he does) but Brother Likko says that quite often as well. Though frankly, I’m not sure Damore’s case presents such an example because I’m doubtful that Damore’s purported good interests are actually being advanced in good faith.

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          • I am not claiming that the Democratic Party and/or the Left is filled with saints. There are bigoted people who vote straight-down the line Democratic.

            But this doesn’t mean that civil rights laws are tainted so much that they need to be thrown out the window. They are a valid and necessary government function and aimed at protecting real and significant interests.

            And there are members of minorities opposed to them for various reasons but as far as I can tell the majority of various minority groups supports continued enforcement and expansion of civil rights laws.

            But what I’ve observed is the same. When you have discussions on civil rights laws, you generally see lots of white guys talking about the importance private property rights and freedom of association. This is a group that has never really faced discrimination.

            My parents generation can remember the vestiges of signs that said No Jews allowed and the quota system that sought to limit the number of Jewish college students on any given campus. Some of them recall being fired for being Jewish. My generation does not know this. I think this can be attributed to the Civil Rights Act which is far from perfect but has worked towards its aims.

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            • Thank you for restating your concerns. For me, at least, this is clearer and significantly less over-assuming than your previous comment.

              That said, as much as I agree with you that in general most minority group members support enforcement and expansion of civil rights laws, AFAICT most minority groups, when discussing civil rights, also spend a fair amount of time talking about property rights, privacy rights, and freedom of association *as part of that discussion*. Not just white guys. Those other discussions are commonplace and widespread in civil rights discourse among people of all races, all genders, all sexualities, all classes (though they don’t all use the same terms to express those concerns). I have read and heard lots and lots of non-white-guy talk about those two particular rights, *as civil rights*. It’s a pretty mainstream part of both civil rights legislation and civil rights history. Of course including the tensions/friction that Kazzy describes – but that doesn’t mean those rights are somehow not civil rights.

              Insofar as I agree with your observation, it’s that I agree that the people who talk about *only* that one aspect of civil rights (privacy/free association) do tend to be white guys, and it may have something to do with not having had much experience of the multitude of forms that discrimination takes on the ground. (#notallwhiteguys, as should be obvious, and certainly not everyone who prioritizes those rights – let’s avoid any obvious logical fallacy – but the prevalence is there.)

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              • Perhaps the issue isn’t that only white men talk about property rights, but rather that minorities think (and therefore talk) about property rights within one context, and white men within a different, but parallel context?

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                • That’s an interesting way of phrasing it.

                  Maybe, about the largely-unmarked white men I’m irritated at, whichever side of the argument they’re on.

                  There are plenty of white men who’ve enlarged their context enough to be able to encompass both at the same time, or for that matter, are members of a minority group themselves (disabled white men, trans white men, gay white men, Jewish white men, immigrant white men, poor white men, etc etc etc) and, crucially, also able to extend their own experience with marked-ness to recognize what conflicts other people have around these rights as well. White otherwise-unmarked women, also, are like this to some extent – they have to be able to extend and adapt their awareness, not just assume everyone is like them except for men. I think it’s *easier* but there are still plenty of people who don’t.

                  There’s also a large group of white, relatively comfortable people who just know what they don’t know, if that makes any sense? Like they know these other discussions *are common* (necessary first step), and that they are relevant, but haven’t necessarily (understandably) read up on them much, whereas they are much more familiar with their own context. (I mean, I’m probably in this group in some ways, I’ve read things from groups I’m not part of, and done my best to learn from people I know personally who are members of those groups, but not nearly as many things as I know there *are* to read and not listened nearly as much as I can and intend to … I’m still far more familiar with the concepts I grew up with than with anyone else’s concepts, and those concepts are mostly, definitely not entirely, unmarked-white concepts, albeit with a heftier dose of Irish/Scottish and less English background.)

                  That said, most members of minority groups in European or European-colonized countries are quite well familiar with the contexts of unmarked white men, relatively speaking at least. Because they’ve been constantly exposed to said contexts as a societal standard for most of the last few hundred years (uh, not that a single person can be exposed for hundreds of years, but that’s the historical context). So they can do a pretty good, not perfect, job with empathizing with them whether they want to be able to, or not. (Whether or not they choose to act from that empathy is a different question, of course and obviously.).

                  Folks who are members of a minority group tend (note I said tend, we all have our justifiably-exclusionary radicals and our angry tumblr teens or equivalent) to bake that parallel awareness into their own internal discussions in ways that, from what I’ve seen, don’t happen in white-unmarked-man discussions that aren’t inflected by having really read / spoken with a lot of non-white-unmarked-man activists about their beliefs around privacy (if not private *property* which is more complicated obviously – again, I don’t want to go too far off on a tangent here) and freedom of association and freedom of speech.

                  But at this point I’m pretty far off into the weeds of speculation and intersectional feminist jargon and hybrid Maribou-splainer ways of seeing the world. The very messiest and least well-formed parts of my intellect …

                  Does the above make any sense to you?

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                  • Weedyness aside, I think you grok my point well enough.

                    As much as the term gets used carelessly, it comes down to a question of “can a speaker express these ideas within and without their personal context of privilege”? Your white, unmarked person may not understand how the way they think about rights exists in a very different context relative to the way a minority might. Or perhaps they can, but they are attempting a higher level discussion free of the context of privilege. A minority might not really care at the moment about higher level thinking about ideal rights, and is more concerned with the facts on the ground in the current political context[1], because it is impacting them directly, rather than abstractly[2].

                    [1] i.e. Why AA annoys libertarians, because in many ways it does run counter to liberal ideals, but it was a necessary thing at the time, because a fix was needed in the here and now, not in the ideal future. Politics is messy.

                    [2]Related to [1], as a straight white guy, I won’t be directly impacted by bakers not making cakes for gay weddings, so I can enjoy a bit of distance from the issue and entertain an abstract approach to the issue, or even consider it a non-issue except in specific circumstances, a gay couple looking to plan a wedding, on the other hand, would have a very different, much more immediate context through which to consider such issues. Both ways of looking at the issue have value and neither should be discounted out of hand.

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                    • I’m not really comfortable with framing one of these modes as “a higher level discussion” because it positions the other mode as lower level. IMO the hierarchical approach to ideals vs practicalities is a big part of our collective problem. (Fishin’ Plato, man.) As is the idea that a conversation can be had “free of the context of privilege” in any meaningful way. (I mean, I can play that. But I can’t stop being aware that it’s a game – if sometimes a very fruitful one. Or rather, I won’t stop.)

                      So we may have to agree to disagree on that piece.

                      But otherwise substantially yes.

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                      • Higher level => abstract

                        e.g. There is a way to discuss freedom of association in an abstract, ideal manner, but that discussion may only address the realities of current society in limited ways. Call it theory and practice, if you will. There is a value in the abstract and theoretical, but it can not be treated as superseding the practical realities, only as informing them.

                        “free of the context of privilege”

                        That’s not precisely what I wrote. Here is what I wrote:

                        “can a speaker express these ideas within and without their personal context of privilege”

                        Privilege might be a bad word here.

                        To clarify, can a person understand that their lived experience, whatever it is, colors the context in which they experience and understand a set of rights, and that the same is true for everyone else? The farmer who lives an hour away from any kind of first responder is going to view the right to keep and bear arms very differently than the person who lives with regular gang warfare in their neighborhood, for a number of different reasons that are completely disconnected from the right itself.

                        Talking about rights in the abstract is all well and good, but it’s also critically important to understand how people experience the practical realities and effects of those rights. So the privileged white person can speak about property rights and freedom of association abstractly because their experiences with that right are pretty close to the ideal. A less privileged person might see the right as only existing as a tool to keep them underprivileged because their ability to access those rights fully is limited by social norms or regulatory burdens or financial limitations. Can the privileged person understand that parallel context? And vice versa?

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                        • *cough*


                          “Or perhaps they can, but they are attempting a higher level discussion free of the context of privilege.”

                          I was, actually, quoting precisely what you wrote.

                          I appreciate the clarifications though.

                          It’s not that I didn’t understand but that I object to the hierarchical frame that tends to be used in this conversation when had on these terms.

                          Without that, as you put it here, it suits me much better.

                          ___

                          I would also note, completely as an aside, but just in case folks don’t realize this – I suspect that there are not many people who have lived something close to both things – that the person who lives with regular gang warfare and the farmer may or may not have quite a bit in common, practically, when it came to first responders, depending on the city and other factors. (When I lived in a gang neighborhood, where there was not warfare, but there were infrequent drive-bys, more frequent shootings, and very frequent stabbings in my same apartment building, it usually took the cops at least 45 minutes to show up even if it was a really worrisome emergency. And they were almost always the first ones to arrive.)

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                          • Ohhhh, ok, bad phrasing on my part for the bit you were quoting. But I think you understand what I’m saying.

                            And I understand your objection with the hierarchical frame, it’s just a really handy shorthand. Feel free to frame it in whatever way strikes you as less objectionable.

                            As to the framer, et. al. That’s actually a really good point. I was thinking about how a farmer won’t get a second look by a deputy if he has to use a gun to shoot an animal or an intruder, but a resident of a rough neighborhood could very well find themselves arrested even if they did nothing wrong. The two people don’t get to exercise the right in a manner that is even remotely comparable.

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                            • ” how a farmer won’t get a second look by a deputy if he has to use a gun to shoot an animal or an intruder”
                              That makes sense.

                              I wrote a whole bunch of paragraphs about how it can still get a lot more complicated than that, but I’ll save those for over a beer sometime. Suffice it to say, both historical Feuds and the presence in the farming community of back-to-the-land hippies (like my parents when I was little, and most of their friends, and a couple of my aunts and uncles) really changes how farmers feel about cops and when/if they trust them.

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        • PS I feel stupid even suggesting that. But as I remember my Canadian childhood, that’s how these things were dealt with as practical matters, whether or not that’s what the law said – if it was you and your 5 employees, no one cared what you did, if it was … well, Hobby Lobby or similar sized place, there were expectations of high standards being required to be met.

          (Just wrt discrimination, nepotism, etc. – people weren’t allowed to dodge taxes or launder money or whatever with the same impunity)

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        • Bear in mind that RFRA was drafted in the early 1990’s, in response to Employment Division v. Smith, the case of the guy who smoked peyote for a Native American religious ritual and then lost his unemployment benefits because he used drugs becasue drugs are bad mmmkay. That was well before Candidate Romney busted out with the shorthand-for-a-more-subtle-legal-rule phrase “corporations are people too.”

          There’s no reason at all Congress couldn’t put a 20-employee, 5-employee, 100-employee, or some other sort of reasonable limit upon application of RFRA to corporations. It just hasn’t done so, is all. The reasoning of Hobby Lobby doesn’t take the size of the corporation into active consideration, but that’s in part because the statute doesn’t either.

          The argument agaisnt doing this would be because the point of the statute is to protect individuals’ Free Exercise rights. If a law requires a person to do something, and that something is contrary to a religious practice of that person, then the person should be exempted. As I’ve opined extensively since Hobby Lobby in some prediction of Masterpiece Cakeshop and other incarnations of this fear, it creates the potential for a custom-sized hole to get carved in any law whatsoever for anyone who claims a subjective religious belief. Because that’s a right of an individual — in Hobby Lobby the aggrieved members of a family of multi-millionaires who happened to privately own a corporation subject to the Obamacare insurance mandate — then the size of the company might have nothing to do with it, since those aggrieved multi-millionaires were being asked to tacitly stand by and watch as their corporation paid a few pennies per employee every month that might have been used to purchase contraception if those employees chose to avail themselves of that benefit.

          Sorry, I’ll get off that Hobby Lobby horse now.

          Anyway, the short answer is “Yes, Congress could do that, but so far it hasn’t,” and the reason it hasn’t is potentially justified by the individuality of the right at stake. (Although I personally think that’s bullshit.)

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      • I realize that I never found out what happened with the lawsuit where the Muslim guy who refused to handle pork or alcohol at his cashier’s job was reassigned to cart duty.

        A little googling got me here. Here’s the bottom line:

        Minute Order for proceedings held before Judge Jack B. Weinstein: Jury Trial completed on 3/3/2015. All parties present. Jury deliberations continue. Jury deliberations end. Jury finds in favor of the defendant. Defendant’s Oral Motion to File an application for costs within 14 days is granted. (Court Reporter S. Bryant.) (Barrett, C) (Entered: 03/09/2015)

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        • Sounds like the right decision, frankly. There were aspects of the job he could not fulfill due to his faith. Accommodating him seems impractical. So give him an alternate role.

          This rests somewhat on the alternate role being roughly equivalent to the prior role.

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  12. Damore’s case is strengthened by the fact that it didn’t create hostile work environment, but rather that employees were incentivized to act like they suddenly found their work environment hostile, sort of like professional mourners. This is exemplified in the many internal memos in reaction to the essay which completely missed the point or deliberately misinterpreted it, or went off the deep end into histrionics. Damore’s legal team can show that many of the reactions were disingenuous and calculated to yield “peer bonuses” rather than being real heart-felt grievances. The various ways in which he was retaliated against directly and indirectly (e.g., HR giving a green-light to bullying) are flat-out illegal and I bet my house it will go to a jury. Damore’s legal expenses are probably secretly funded by Peter Thiel or someone like him. Remember when everyone laughed at the idea of Terry Bollea taking down Gawker? The leftwing smugness that was once so fashionable is not having a good decade.

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    • “Damore’s case is strengthened by the fact that it didn’t create hostile work environment, but rather that employees were incentivized to act like they suddenly found their work environment hostile…”

      This requires a remarkable amount of mind and heart reading, no?

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      • To be fair, any case involving a person’s emotional state does.

        Damore alleges that employees were incentivized and encouraged to rally against him. Whether that allegation is proven up by the facts or not is something that will have to be borne out, or not, with actual evidence. Chances are good that whatever is in the complaint will be about as good as it gets for Damore. We haven’t heard much and have seen no evidence at all from Google yet.

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  13. This is pure speculation, but if it turns out that Damore wrote his memo with the intent of causing a ruckus and ultimately getting fired to draw attention to his cause and/or give him ammunition for a lawsuit like this, does that carry any weight in the case itself?

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  14. I’m increasingly of the impression that most workplaces skew more towards “milquetoast status quo” than they do any specific political ideology. Most abhor rocking the boat. Exactly what constitutes rocking the boat will vary from workplace to workplace. But I’ll say that in every workplace I’ve found myself, the overwhelming cultural “pressure” is to just be frickin’ normal so no one gets bent out of shape and management doesn’t have to deal with anyone getting bent out of shape.

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  15. Ropa Dope!

    First, nice essay, Burt, and insightful comments by all.

    Sorry to join the conversation late, but I think this affair is classic ropa dope. The real battle isn’t in the actual case, and the other-than-progressive position wins whether Damore wins or loses. Indeed, losing may be their goal (or at least a positive externality), and the more punches they take the better.

    This is a cultural battle, and the battle is around the larger issue of alleged anti-conservative, anti white, anti Asian, anti male, (again allegedly) anti science ideologies of modern progressive thought dominant in some cultures. Google is first in line, but it is just a matter of time before it spills out to universities, unions and schools.

    I think we need to have this argument.

    It may be legal today to discriminate against conservatives, Christians, whites, Asians, libertarians and males. But it isn’t healthy for us.

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