California employment law prohibits discrimination against employees and job applicants on the basis of sex or gender. In the Northern California tech industry, gender discrimination has been a subject of numerous recent allegations and complaints. Last fall, a group of women employed by Google filed a class action alleging disparities in wages based on sex. Ellis, et al. v. Google, Inc., No. CGC-17-561299, complaint (Cal. Super. Ct., San Francisco Cty., Sep. 14, 2017). The company is also facing another discrimination lawsuit with a different, but related, angle. This lawsuit, filed in January 2018 by a male former employee, alleges discrimination on the basis of sex and political viewpoint. Damore, et al. v. Google, LLC, No. 18CV321529, complaint (Cal. Super. Ct., Santa Clara Cty., Jan. 8, 2018). California is one of the few states with an employment discrimination statute that addresses employees’ “political activities or affiliations.” Cal. Lab. Code § 1101 et seq. The plaintiff alleges that he experienced California employment discrimination as a male employee with politically conservative views.
The California Fair Employment and Housing Act (FEHA) generally prohibits discrimination on the basis of sex, gender, and other factors. Cal. Gov’t Code § 12940(a). The California Equal Pay Act (EPA) more specifically prohibits disparities in pay based on gender when the work, working conditions, and qualifications are “substantially similar.” Cal. Lab. Code § 1197.5(a). The statute makes exceptions when a pay disparity is based on certain “bona fide factor[s] other than sex,” including merit- or seniority-based systems and systems that base pay on “quantity or quality of production.” Id.
The statute dealing with employees’ political views prohibits employers from “[c]ontrolling or directing…the political activities or affiliations of employees,” id. at § 1101(b); and from using the “threat of discharge or loss of employment” to compel an employee to follow, or not follow, “any particular course or line of political action or political activity,” id. at § 1102. The California Supreme Court ruled that this statute allows private civil actions for alleged violations in Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481 (1946). The court later affirmed a claim of political viewpoint discrimination based on employees’ advocacy for “the struggle of the homosexual community for equal rights,” when claims of sexual orientation discrimination were not tenable under state law. Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 24 Cal.3d 458, 488 (1979).
The plaintiffs in Ellis first filed suit last September, alleging multiple claims under the EPA and other state statutes. The court dismissed the lawsuit in December, with leave to amend, finding that the plaintiffs had failed to state their case with the required specificity and that they had failed to state all of the elements required for a class action. The plaintiffs filed an amended complaint in January.
The lead plaintiff in Damore was in the news earlier in 2017, when the defendant fired him because of a controversial internal memo that he wrote about diversity in hiring. His complaint alleges, in part, that the defendant maintains hiring quotas for women that discriminated against him as a man in violation of the FEHA. He further alleges that his termination constituted political viewpoint discrimination. The defendant, however, has stated that he was terminated because the memo itself constituted discrimination against female employees.
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More Blog Posts:
California Legislator Reviews Employment Laws Dealing with Workplace Harassment, Pleasanton Business & Commercial Law Blog, January 29, 2018
Northern California Tech Company Faces Federal Labor Complaint, Pleasanton Business & Commercial Law Blog, November 27, 2017
Ninth Circuit Ruling on Whistleblower Protections in Dodd-Frank Headed to Supreme Court, Pleasanton Business & Commercial Law Blog, October 20, 2017