Google in the Dock | Center for Equal Opportunity

When diversity morphs into discrimination.

A Google engineer objecting to racial preferences in employment got my attention when he was fired earlier this year. In telling Arne Wilberg’s story, published last month in The Weekly Standard, I was struck by the extent to which Google managers thought they could actually use hiring initiatives that categorically excluded from consideration job candidates of a certain race or sex. You’d think that at least one of those managers would have recalled Martin Luther King’s dream “that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.” Google can still honor that great aspiration by refusing to adopt hiring policies that distinguish and discriminate on the basis of race and sex.

Last year Google, the Mountain View tech giant, told its recruiting staff that certain hires for the third quarter of 2017 must be “all diverse.” That meant all the hires had to be black, Hispanic, or female. None could be a white or Asian-American man.

Not everyone at Google thought well of the “all diverse” demand, not least Arne Wilberg, a recruiter of engineers who told management more than once that such mandates are illegal. In November, after three years of often contentious debate over Google’s hiring policies, Wilberg was discharged for escalating situations with clients, not meeting goals, talking too much in meetings, and not being collaborative—all of which were “pretextual” justifications, as he saw them, meaning that the stated reasons concealed the real ones. In the lawsuit he has now filed in state court in California, Wilberg says he was “an exemplary employee [who] received positive performances until he began opposing illegal hiring and recruiting practices.”

Those practices, he says in his complaint, implemented policies that were “clear and irrefutable . . . memorialized in writing and consistently [used] in practice, of systematically discriminating in favor [of] job applicants who are Hispanic, African American, or female, and against Caucasian and Asian men. These policies were reflected in multiple bulletins, charts and other documents prepared by Google’s highest-level managers, and approved by Google’s C-level officers and directors.”

The purpose of the policies, the complaint says, was to achieve “diversity” in the Google workforce. Toward that end the company found it expedient to occasionally send emails “instructing its employees [to] purge any and all references to the race/gender quotas from its e-mail database in a transparent effort to wipe out any paper trail of Google’s illegal practices.”

Under California law it is illegal for an employer to discriminate against an employee in the terms, conditions, or privileges of employment, including discharging an employee, because of sex or race. Wilberg contends that Google made decisions based on sex and race that adversely affected him as an employee, including (obviously) the one that terminated his job. There is more in his complaint—Wilberg accuses Google of retaliation in response to his complaint about discriminatory hiring practices—but it may be summarized simply: that Wilberg was discriminated against on grounds of race and sex in multiple ways from the day he began opposing Google’s diversity hiring policies until the day he was fired. He seeks remedies for the particular wrongs and wants to see an end to diversity hiring as pursued in his former workplace and the discrimination it causes.

Google, meanwhile, vows it will defend against the lawsuit. For Google, as for much of corporate America, diversity hiring means hiring people who are members of certain groups that are “historically underrepresented” in a workforce compared with their presence in the general population or some subset of it. It seeks to diversify a workforce by employing more members of the underrepresented groups than of the overrepresented ones. If a job seeker is denied the opportunity to compete because of race or sex for a position for which the person is qualified, that would be discrimination, perhaps illegal in the eyes of a court. Likewise, if a job seeker learns that certain hires must be “all diverse” or, as another Google formulation has put it, “diverse-only”—that is a breathtaking quota of 100 percent, and its wholly exclusionary nature, necessarily discriminatory, ought to attract the attention of the California courts, assuming Wilberg has standing to bring his case. Judges have rarely supported explicit quotas. Wilberg’s lawyer declined to comment.

The case is unusual. Plaintiffs in racial-preference cases typically claim to have been discriminated against because of race in their efforts to win a job, or a seat at a college or university, or a public contract. Here, though, Wilberg was not pursuing a job that he says was denied him on grounds of race or sex. And no one has come forward to claim Google discriminated against him during a job search. Even so, judges have been reluctant to recognize “diversity” as a compelling interest justifying race-based preferences in employment. Indeed, sitting en banc in the 1996 Piscataway case, the Third Circuit rejected that ostensible rationale. Piscataway is a federal case, but the state court handling Wilberg may find Piscataway useful background reading.
Would a decision in favor of Wilberg change how they hire at Google? The company says it has “a clear policy to hire candidates based on their merit, not their identity.” Google also says it “unapologetically” tries to hire from “a diverse pool of qualified candidates for open roles.” But if what Wilberg says is true, Google is in fact counting and hiring—and discriminating—by race and sex.

The classic definition of discrimination is different treatment of an individual because of the person’s race or sex. Maybe Google will in time get that. But for now, the tech giant is going to court.

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