Author Archive for Jason Cheung

Google Memo Writer Would Likely Lose Lawsuit Against Google

Former Google software engineer James Damore was fired by Google for writing a memo titled “Google’s Ideological Echo Chamber” that critics have labeled as “anti-diversity.” Damore’s memo was originally on a private internal company discussion board, but was quickly shared outside Google.

Google, currently under investigation by the Department of Labor for paying women less than men, has distanced itself from Damore’s memo, which claims that numerous differences between women and men are biological. Google’s new Vice President of Diversity, Integrity and Governance, Danielle Brown, has released a statement that the memo is “not a viewpoint that I or this company endorses, promotes or encourages.”

Damore says he is considering bringing a suit against Google for his recent dismissal, though exactly what claims he thinks will be successful in court is unclear.

GoogleWhat about Free Speech?

It’s a common misconception that free speech protects everyone against termination or discrimination. The First Amendment, and the ban against restricting free speech, is constitutional law. The Constitution only applies to governments: the federal government, the states, and local counties. The Constitution does NOT apply to private corporations. If Mr. Damore was terminated for writing his memo while working for California’s Department of Motorized Vehicles, he would have a strong free speech case against California. However, since Damore’s employer, Google, was a private employer, the First Amendment does not apply to this case.

However, while Google may prevail legally, this is a political, employment, and public relations nightmare that most major corporations don’t want to deal with. Google has built a reputation and social philosophy on diversity. Most conservative platforms and publications this week have already pointed out the hypocrisy: what’s the point in having diversity in race or gender if your team’s thoughts and viewpoints aren’t diverse? Diversity as a value is superficial if the only diversity celebrated is the person’s skin or appearance.

Still, this is a political question that will only affect law if public opinion changes enough.

Is There a Discrimination Suit Here?

Employment law is premised on two ideas: 1. that employers (and employees) may terminate “at will” an employment relationship for any reason other than an illegal reason and 2. One of those illegal reasons is discrimination based on a specific personal trait, such as race or gender. Notably, political ideology is not on the list of protected traits in the Civil Rights Act. This means that while a private company cannot fire a woman for being feminine, as that would be gender discrimination; the company could fire that woman for being feminist if she spends her time in the office talking about women’s rights issues.

Damore could attempt to bring a case against Google under the Civil Rights Act by arguing that Google discriminated against him for being a man or for being white. However, that claim would be incredibly hard to support. Google could just claim that it fired Damore because it didn’t like the memo he wrote. There’s nothing about the memo itself to suggest that the author was 100% a white man. Google does not have a history of discriminating white men and it doesn’t have a hostile work environment towards white men. In fact, given that white men make up the majority of the company, it’s a pretty safe assumption that Google’s problem with Damore is what he wrote rather than his race or gender.

What about California Law?

Although the federal Civil Rights Act doesn’t offer any protection for discrimination based on politics, California employment law does protection against discrimination based on “political activities or affiliations.” Although this phrase is somewhat vague, there is some consensus on what kinds of activities are protected. Employers cannot restrict or retaliate against their employees for what they do outside of the office. Employers cannot terminate or demote employees simply for having opposing political views or affiliations.

Damore potentially has a case based on this claim, as he was fired for expressing his views on gender and for his political views. Damore wrote a reasoned memo on what he thought were problematic political biases and Google responded by firing him. However, Google could argue that he wasn’t fired for his political affiliations or his activities, but for creating a hostile work environment. According to Google, Damore’s views would make the women at their offices uncomfortable. This is a real issue for Google, because promotions are based on peer review; Google cannot trust that Damore will be treated fairly by women or that he will treat women fairly after his memo ended up in the evening news.

Is Damore a Whistleblower?

Another route Damore could try is claiming to be a whistleblower. Affirmative action programs are often viewed as discriminatory against “majority” groups like white men. Since employment law prohibits discrimination based on race or gender, Google’s plans to admit only women into certain programs would be potentially discriminatory. If that is true, then Damore is a whistleblower against such discrimination.

Of course, claiming to be a whistleblower only works if Google is breaking the law and Damore is reporting it. Affirmative action programs have survived this long because courts often do not consider them illegal discrimination. The racism and sexism that employment law protects against is based on animus – hostility towards a certain group. Proponents have often won by arguing that their discrimination is based on helping certain groups rather than putting down other groups. Affirmative action is not about being anti-men, but pro-women. The fact that there are only two genders and that one is automatically disfavored if the other gender is favored doesn’t often enter into the analysis.

A Sign of the Times

Ironically, the Civil Rights Act that an employment attorney might try to invoke is premised on the very principles that Damore was writing against. The Civil Rights Act is premised on the idea of protecting race and gender. Granted, most employment suits are brought to protect specific races and genders, but the overall focus is on a person’s surface traits instead of viewpoint discrimination. At this time, there is simply no legal framework Damore could use to receive compensation for his termination.

This is a real shame though. Damore’s memo was articulate and very persuasive. It had a clear thesis, its premises were supported by examples, and it pinpointed specific problems and offered solutions to the problems it identified. To be sure, Damore himself makes a number of assumptions and has a number of biases in his own memo. Still, Damore makes a number of points that are very interesting and engaging. As a hiring manager, I did notice that men were more likely to ask for and negotiate for a higher salary than women. Whether or not that discrepancy exists because of biological differences is up to debate, but that is the point. Google should have engaged in that debate instead of firing the author of that debate.

Google has failed to live up to its business values and philosophies by terminating Damore. But the damage is not limited to Google’s reputation or bottom line. It is rare today to find thoughtful and intelligent political discussion in the public sphere; last year’s presidential election is an example of exactly how far we, as a nation, have fallen in that regard.

Google had a perfect opportunity to engage in the kind of frank debate that the public desperately needs. Google dropped the ball. Small wonder then, that a brainless sound bite machine like Donald Trump should prevail in today’s political environment, when even Google derides an opportunity for outstanding debate. I hope Damore finds a worthy opponent to continue his discussion. In the meantime, I will mourn for our public discourse.

Understanding the Russia Investigation: When Does an Attempt turn into a Crime?

Special Counsel Robert Mueller’s grand jury has begun issuing subpoenas into the June 2016 meeting between the President’s son, son-in-law, second campaign manager, and lawyers from Russia. After Donald Trump Jr. disclosed a series of e-mails about the meeting, critics condemned the meeting as an attempt to commit collusion with Russia.

Although the average American will never be accused of colluding with Russia, an attempt to commit a crime is still a crime under federal and all state law. Regardless of your politics, it’s still good to know where the line between committing a crime and an innocent act is.

Missing Causation

Most crimes have three elements: intent, causation, and the criminal act itself. In order to be guilty of murder, the prosecution must prove that the defendant intended to kill the victim, took steps to kill the victim, and those efforts caused the defendant to die.  For example, Dan wanted to kill Vicky because she broke up with him, so Dan used his car to run her over, causing her death. In that situation, Dan would be guilty of murder.

However, if we removed one of the elements, it would be harder to determine whether Dan was guilty. If we remove the intent element, the murder charge would fail. If Dan hit Vicky with his car, but it was the result of Dan being careless rather than a malicious intent, then Dan would be liable for a wrongful death, but it wouldn’t a murder. Similarly, if we remove the criminal act, Dan would also be off the hook.  If Dan wanted to kill Vicky, but never takes any action, then Dan would not be guilty. Even if Vicky gets struck by someone else’s car, Dan wouldn’t be guilty (unless Dan was somehow involved in the other car hitting Vicky).

The hardest situation to evaluate is lack of causation. Suppose that Dan intended to kill Vicky and drove a car into her. However, Vicky doesn’t die because Dan hit her with a car. Instead, Vicky dies because of medical malpractice by her physician. In this case, Dan’s lawyer could argue that Dan can’t be guilty of murder because his intent and his action didn’t actually cause Vicky to die; the doctor was the one who actually killed her.

So, Dan’s not guilty of murder, right? Dan might not be guilty of murder, but every state would charge him with attempted murder. Since Dan intended to kill his ex-girlfriend and took a substantive step towards killing her, Dan would be found guilty of attempted murder, even if the actual criminal act failed to kill Vicky. Although the doctor’s malpractice was an intervening cause, it was Dan’s car that put Vicky in a position where she needed treatment in the first place.

Russia InvestigationEntrapment

In many sting operations, defendants will claim that the police entrapped them. That is, the police convinced them to commit a crime that they wouldn’t have committed had the police not been involved. For example, suppose that Dan, still mad at Vicky, seeks out an undercover police officer to form a contract to kill Vicky. After Dan pays half the money, the officer arrests Dan and doesn’t kill Vicky. Prosecutors charge Dan with attempted murder and Dan claims entrapment as his defense.

Unfortunately for Dan, he would lose if he claimed entrapment. In order for entrapment to be successful, the police must convince the defendant to commit the crime. Since it was Dan who contacted the officer first, Dan formed his intention to kill Vicky on his own. The fact that Dan fell for a sting operation doesn’t change the fact that it was Dan who initiated the crime. Entrapment would only be successful if the officer somehow convinced Dan into joining an attempted murder of Vicky.

Why do I bring up entrapment as a defense? Before Reince Priebus was terminated from his position as White House Chief of Staff, Priebus argued that the Russians the Trump Campaign meet with had ties to Fusion GPS, the organization that created the original memos linking the Trump Campaign to Russia and funded by the Jeb! Bush campaign and later by Democrats. In other words, Priebus claimed that Trump Jr. was set up by Democrats to take the meeting with the Russians.

Is There Enough to Convict?

Right now, there aren’t enough facts to determine whether the Trump campaign was entrapped. Certainly the chain of emails released by Trump’s son shows that it was the Russians who initiated contact, not the campaign. However, we don’t know if there were any e-mails, phone calls, or other contact prior to the publicly revealed e-mail chain. Only the Special Counsel would know right now if Democrats actually entrapped the Trump campaign or not.

Fox News and the Pitfalls of Sexual Harassment

Over the weekend, another Fox News host has come under fire for sexual harassment. Fox News suspended Eric Bolling after three women accused him of sending lewd photos. Twitter users were quick to point out Bolling’s hypocrisy by resurrecting a Bolling Tweet from 2011, asking “why would anyone take a picture of one’s junk anyway?”Bolling’s suspension is the latest in a string of sexual harassment scandals that have rocked the network:

To date, Fox News has paid $13 million to settle claims of sexual harassment towards women by its employees. Even if Fox News doesn’t believe in feminism, its shareholders have a significant interest in avoiding lawsuits that result in million dollar payments to the other party. So can a profit minded company avoid these kinds of harassment claims?

Sexual HarassmentChange the Corporate Culture

Given the recent terminations of prominent television hosts and high ranking executives, Fox News probably has a larger issue with sexual harassment than a couple of rogue employees. Critics might be quick to point to Fox New’s political affiliations; how could an organization that defended “grab them by the pussy” not be a hostile work environment? However, most politically conservative organizations (Heritage Foundation, National Review, Federalist Society, etc.) don’t have the same sexual harassment problems that Fox News has right now. Fox News doesn’t have to change its political stances to police its employee’s sexual abuses.

One of the biggest factors is how the organization deals with sexual harassment. If the company settles a complaint and demands the victim keep quiet about his or her allegations, the problem will continue. Likewise, if the company merely transfers the harasser between departments, then the problem with persist. The harasser will feel protected and will continue with different women. The Catholic Church had similar issues for decades, transferring priests accused of sexually molesting boys between different churches while praying that the offending priests would stop if they were moved away from the initial victims.

Another big factor in corporate sexual harassment is failure to publically highlight the issue. Allegations of sexual abuse are often embarrassing for the abuser, the abusee, and the company at large. However, if the company fails to educate its employees about sexual harassment, even if employees know or suspect sexual abuse is occurring, the company will be promoting the behavior. Corporate managers might not condone sexual abuse, but failure to speak up will be read as implicit approval of the harasser’s behavior.

Ditch the Arbitration System

Fox News favors arbitration boards to settle complaints, including them in every employment contract. Although arbitration is a legal way of resolving disputes, companies relying on arbitration to address sexual harassment should use Fox News as a model of how everything can go wrong. Arbitration is best described as an informal trial. Instead of a judge, an arbitrator decides the case. Arbitration usually doesn’t follow the rules of evidence, allowing the arbitrator to make decisions faster and at a cheaper cost than a judge would.

Although arbitration is a reasonable way to settle many business disputes, sexual harassment is not the best issue for arbitration to address. In a normal trial, both parties are assured that the judge will remain objective and will consider the arguments presented by both sides. With arbitration, the arbitrator is often selected by the company itself. Even if the arbitrator is truly objective, employees making serious allegations may not trust the arbitrator to be impartial.

More importantly, arbitrations are not subject to the same rules of evidence. Corporations might favor arbitration as a cheaper alternative, but there is an important rule of evidence that makes trial more equitable for the accuser. In a normal trial, the defendant is not allowed to introduce evidence of the victim’s own impropriety as a defense.  In other words, just because Jane sleeps around with different men doesn’t mean that she welcomes John’s sexual advances. Throwing out this rule of evidence only serves to make arbitration another potential avenue to harass the victim. Even worse, arbitration is binding and appeals are rarely granted, so any decision that the arbitrator makes will be binding.

Arbitration is obviously flawed from the employee’s view, but these downsides also affect the employer. Arbitration can manage a few isolated cases, but if the floodgates open, as they are opening now for Fox News, the outpour will be more than Human Resource and in house counsel can manage. The problem with relying on a system that overwhelming favors one party is that when the other parties no longer have faith in the system, that system will collapse.

Fox News has avoided its sexual harassment claims for decades, but the built up has now destroyed the dam.  Hopefully a change in corporate culture can built a more stable foundation.

When Should the Criminal Court Get Involved with Family Law?

Most family law cases make it from petition to marital settlement agreement without having to involve the police or a criminal prosecutor. However, there are cases when a partner is abusive, when the children are in danger, or when a partner makes false accusations that could have grave legal consequences. If you’re involved in such a case, when should you go to the prosecutor?

Family Court or Criminal Court

The biggest difference between family and criminal court is that the former is a civil court only. In other words, while it may have the power to referee and resolve disputes between different private parties, its power to punish criminal wrongdoing is extremely limited. The most available option is a sanction, or fine, for disrespectful behavior and potentially limited jail time for contempt of court. Successful contempt pleadings are rare though and sanctions don’t have an adverse effect if the party is extremely rich or extremely poor.

Criminal courts, on the other hand, are designed to find and punish criminal behavior. Police officers can take down statements and make arrests, prosecutors can initiate investigations, and defense lawyers can make constitutional arguments to protect against false accusations. In family court, it is common for parties make accusations and counter-accusations; in criminal court, the defendant will find that type of finger pointing to be unsuccessful.

by VicThe Right Time

So when is the right time to involve police, prosecutors, and criminal courts in a divorce or child custody matter?

In most circumstances, the right time is when the abuse begins. If a partner shoves you against a wall or throws an object at you, you should have the police make a report. If the situation is life-threatening, you should call 911. If you call 911, be sure to tell the dispatcher as much information as possible. These calls are always recorded by the police department, so even if the responding officer makes a mistake, the initial call will reveal any potential inconsistencies. If it’s not life-threatening, consult a family attorney about the best way to file a police report. If the abusive behavior continues, continue making police reports.

There are three important reasons to file a police report against an abuser. First, police reports are almost always admissible evidence in court, so there will be no problem getting the information in front of a judge. Second, in order to obtain a conviction for domestic violence or harassment (depending on your state and county), there usually has to be a pattern of abuse. Constantly making police reports establishes this pattern. Third, it prevents the abuser from filing the charges first. In many abuse cases, the abuser may attempt to accuse the victim first, so that the victim appears to be the abuser instead. Filing a police report first may prevent the abuser from muddying the situation too much.

If you have children and the abuser is your spouse, the dynamic changes. Many spouses are afraid to call the police on their spouse because they do not want their children to see the police arrest a parent of the children. If you believe your life or the life of your children is actually in danger though, seeing a parent arrested is preferable to seeing a parent being abused.

Will the Real ID Law Prevent You From Flying?

One of the underreported details of the 9/11 attacks is that the hijackers illegally obtained Florida driver’s licenses to board the planes. Although a few of the IDs were forged, most of the licenses were real. The terrorists obtained their licenses by bribing a collaborator to certify their residency and then duplicating the licenses that they obtained. Congress responded to this chain of events by passing the Real ID Act. The Real ID Law requires that state driver’s licenses contain a minimum level of information before the holder is allowed to board an aircraft. For a state license to meet the standards of the Real ID Act, the license must contain:

  • Full legal name
  • Signature
  • Date of birth
  • Gender
  • Unique identifying number
  • Principal residence address
  • Front-facing photograph of the applicant

Additionally, the law also requires that the applicant present documentation of name, birth date, social security number and an ID with a photo or an ID with full legal birth name and birthdate. Yes, a person needs an ID in order to obtain a commonly used ID; but more on that later.

Real ID LawAlthough the Act was passed in 2005, five states, Missouri, Minnesota, Illinois, New Mexico, and Washington, have not updated their driver’s licenses to meet federal standards. This actually isn’t surprising; the Real ID Act was extremely controversial when it was first passed and it was doubtful that any states would actually comply. Missouri went so far as to pass a law in 2009 prohibiting state officials from even considering complying with the Real ID Act. However, the TSA forbids travel with state driver’s license that does not comply with the Real ID Act. People using driver’s license that do not meet the Real ID Act’s requirements would not be able to board a plane.

Alternatives to State ID

States have had a variety of reasons for opposing the ID law.Conservative leaning states saw the Real ID Act as federal overreach; liberal leaning states believe the requirement to have an ID to obtain an ID was discriminatory against minority groups that make less income. People concerned about having their birth date or parts of their social security number have opposed it. As a result, the federal government has often granted extensions to states to meet the requirements. Missouri was granted an extension if it agreed to repeal its Real ID Act ban. The extension would allow Missouri residents to continue using their non-complaint driver’s license until January 22, 2018.

Of course, the Real ID Act only affects driver’s licenses. If you use a driver’s license that doesn’t comply with the Real ID Act, you will be barred from entering the plane unless you have other forms of identification. So even if you live in one of the five states that still refuse to comply, you can always use a passport or an ID issued directly by the Department of Homeland Security to fly. Some states even issue licenses that comply with federal regulations even though they still use the old pre-Real ID Act licenses – check your local DMV for details.

On the other hand, these alternative identifications create additional expenses. Obtaining a passport, ID from DHS, or a state ID that matches the requirements will cost more money. This is a constitutional concern, as the Supreme Court has historically found traveling between states to be a fundamental right. Charging people extra money would potentially burden this right. Unlike voting though, there are other means of moving around the country. It is possible to travel from New York to Missouri by driving a car, riding a bus, or forming a carpool. With states like Missouri reversing their Real ID Act ban, it’s only a matter of time until all state driver licenses are regulated by federal standards.