Most employment discrimination cases involve women, African Americans, or other minorities. But in the wake of social pressure toward diversity and inclusion, some are wondering if perceived left-leaning companies like Google have gone too far. Are efforts to diversify the office crossing the line into illegal workplace discrimination for socially conservative views? Are white men becoming the targets of discrimination and harassment?

In this blog post I will discuss the lawsuit filed by engineer James Damore against Google for alleged workplace discrimination against white men with perceived socially conservative views. I will explain how Title VII is applied in cases of discrimination against members of the majority and whether holding allegedly harmful gender stereotypes is a legal basis for firing.

Gender & Race Disparity in STEM Lead to Diversity Drives at Google

The tech industry has a problem with diversity. In 2017, Google reported its workforce was 69% male and 56% white. While Asian Americans are over-represented compared to the population as a whole, African Americans accounted for only 2% of the company’s workforce.

Among those who do get hired, minorities within STEM (science, technology, engineering & math) fields are far more likely to report discrimination than their white male counterparts. According to a recent Pew Research poll, 50% of women in STEM report experiencing gender-related discrimination at work. That number rises to 62% of self-identified black workers.

In the face of this reality, and media reports about workplace discrimination in the tech industry, Google committed to increasing diversity and training its employees about implicit bias. These efforts were designed to reduce workplace discrimination and increase diversity across the company.

White Male Engineer Says Google’s Diversity Drive Goes Too Far

After attending one of Google’s diversity trainings in August 2017, Engineer James Damore decided to voice his disagreement with the policy on the company’s internal discussion board. The 10-page memo, “Google’s Ideological Echo Chamber” criticized the company’s efforts to increase diversity and claimed that women are biologically less able to work in the industry. The post created an uproar within the company, even causing the CEO to cut short a trip abroad to deal with the fall out. Google terminated Damore for violating policies through the post.

Now Danmore, and co-Plaintiff David Gudeman who left Google in 2016, say the company’s diversity policy “goes to extreme–and illegal– lengths to encourage hiring managers to take protected categories such as race and/or gender into consideration as determinative hiring factors, to the detriment of Caucasian and male employees and potential employees.” In other words, in its attempt to prevent gender and racial discrimination against minorities, Danmore says Google committed the same wrong against members of the majority.

Are White Males Protected Against Workplace Discrimination?

Title VII of the Civil Rights Act makes it illegal for employers to make hiring decisions based on a worker or potential employee’s protected traits. The law protects against discrimination based on:

• Race or color
• Sex or gender
• Religion
• National origin

Age and disability are also protected traits under other federal civil rights laws. Title VII applies no matter which side of the racial or gender divide the employee sits. Members of majority classes like white men can file Title VII claims with the Equal Employment Opportunity Commission (EEOC) or in federal court, just the same as minority class members.

These lawsuits are often called “reverse discrimination”. They include cases where particular workers are singled out for belonging to the majority, as well as class actions that claim diversity actions adversely affect the rights of the majority. For example, on two separate occasions, the U.S. Supreme Court has considered “reverse discrimination” claims that affirmative action policies kept white students from attending their universities of choice.

Reverse discrimination claims are not easily proven. Plaintiffs like Danmore and Gudeman must prove that workers of a different race or sex were treated more favorably because of that trait. They generally must also provide proof that the employer discriminates against historically privileged groups, and that adverse employment decisions were not based on other, conduct by the Plaintiffs.

Workplace Discrimination for Socially Conservative Views?

Danmore and Gudeman have another challenge ahead of them: their allegations are based less on the fact that they are white men and more on the idea that they faced workplace discrimination for socially conservative views. In other words, it wasn’t that Danmore himself was male, but that he felt women should be treated differently because of perceived biological differences. His attorney, Harmeet Dhillon, told the USA Today: “Currently in tech companies ‘it’s okay to disparage, smear, belittle or discriminate against conservatives and white men. That’s not acceptable.”

But political ideology is not a protected trait. While Danmore had a Constitutional right to express his political views in a public space, his private employer was not required to make space for his speech on the job. Danmore chose to use Google’s internal online bulletin boards and email lists to express his socially conservative views, rather than a public forum like Google+. All the company will need to do to defend its decision is show it terminated Danmore for violating lawful workplace policies against disrupting internal operations.

To be successful as a class action against reverse discrimination, Danmore and Gudeman will also have to demonstrate they were targeted because they were white, male, or conservative. Given the company’s hiring statistics, and the fact that it is simultaneously defending an Equal Pay Act lawsuit by female employees, that will be an uphill battle.

It isn’t impossible to to prove workplace discrimination for socially conservative views, particularly if those views are premised on a sincerely held religious belief. But given what is publicly known about the company and its hiring practices, Danmore’s efforts to fight back against Google’s diversity efforts seems unlikely to succeed.

At Eisenberg & Baum, LLP, our experienced employment discrimination attorneys know how to work with Title VII and other civil rights laws to protect any worker facing a hostile work environment. We work with members of all different protected classes, including white males. If you have faced workplace discrimination for socially conservative views, we will meet with you to review your case and advise you of your options, and your chance at success. Contact us today to schedule a free initial consultation and get an honest assessment of your case.