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PaperclipPerfector  5mo ago (text post)   26556 thread views

Culture War Roundup for the week of June 3, 2024

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Would always be good to get a second opinion. In case you don't, the steelman/charitable version is something like:

  • It's tortuous tortious to fire, or refuse to hire, people because of their race/religion/gender/sex.
  • What happens if you don't fire them, just give them specific job requirements that would any reasonable person would refuse (and might even be illegal on its own), because of their r/r/g/s? Well, now that's illegal.
  • What happens if the employer doesn't give them all the worst jobs, just wink-and-nods to other employees to make that employee's life miserable? Well, now that's illegal.
  • What happens if the employer just happens to hire a whole bunch of people who treat certain people like crap, and not respond to it? Well, now that's illegal. (uh, is 'not sufficiently masculine a sex?' Well, it is now.)
  • Okay, what if it's a genuine coincidence, and the employer's actions to punish rude people is just insufficient? Well, now that's illegal. (wait, is 'being rude' the same thing as 'any reasonable person would refuse' to work with? Well, it is now.)
  • Okay, now you've got a different problem. Anything as small as a single person being slightly rude isn't individually tortuous tortious (uh, in theory). These aren't criminal-law illegal in the way that, say, sodomizing someone with a soap bar without their consent might be. Some of them are even (theoretically) protected the other way around: in Damore's case, federal labor law prohibits employers from acting against employees who doing a very broad definition of organizing or arguing over workplace conditions. It's only in summary that these acts can be become tortuous tortious. But the line between grains and a heap only shows up in retrospect. Well, now employers can (and to avoid liability, must) have a neutral anti-discrimination policy that covers wide breadths of conduct, and that will be preemptively legal if it's used to fire someone.

In practice, this means that Google just sent Damore a note that said:

I want to make clear that our decision is based solely on the part of your post that generalizes and advances stereotypes about women versus men. It is not based in any way on the portions of your post that discuss [the Employer’s] programs or trainings, or how [the Employer] can improve its inclusion of differing political views. Those are important points. I also want to be clear that this is not about you expressing yourself on political issues or having political views that are different than others at the company. Having a different political view is absolutely fine. Advancing gender stereotypes is not.

Is this note pretextual? Is there any overlap between the arguments about inclusion of differing views and 'generalizing stereotypes'? Are there any First Amendment considerations? The NLRB can look at all these questions if they want to, but why would they want to here?

But you could imagine a bizarro!Googler who fits Darwin2500's parody, who wrote at length about how women suck and can't think or correctly perform leadership roles, and nothing else, or perhaps only with pretextual mentions of any speech with meaningful content. And while one of those wouldn't be too rough to deal with, a workforce with nothing but that would have a lot of people looking for somewhere else to work. It's not what the 1964 CRA was meant to handle, but it's not like it's bad as a policy.

And that's genuinely a hard problem to solve without either much more honest actors throughout the enforcement schema, or problems like Damore.

It's tortuous to fire, or refuse to hire, people because of their race/religion/gender/sex.

…

Anything as small as a single person being slightly rude isn't individually tortuous (uh, in theory).

…

It's only in summary that these acts can be become tortuous.

"Tortuous" is a word meaning "full of twists and turns; excessively lengthy and complex." I believe the word you wanted in all these cases was tortious: "of the nature of or pertaining to a tort"

yep. That's embarrassing. Thanks, fixed.

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