CHAPTER 11
Actually, Wokeness Is Literally a Religion
DO FIRED EMPLOYEES LIKE JAMES Damore have legal recourse against employers like Google on grounds of being fired for political or social views?
It turns out the legal answer revolves around the question I raised in the last chapter: Is wokeness a religion? In that chapter, I argued that for practical and moral purposes, wokeness acts increasingly like a religion. In this chapter, I'll prove that wokeness actually is a religion, from a legal perspective. That means both that employees like Damore have some protection from woke employers and that woke employees have certain protections as well. Being a religion comes with legal costs and benefits.
The bottom line is that there's an easy, bipartisan solution to our cultural battles over political firings hiding in plain sight. We don't have to pass any new laws or pressure judges to engage in any kind of judicial activism. If lawyers just bring the right cases, using the right legal theories, existing law will provide perfectly good protection to many of the people getting fired over their political views, whether they're liberal or conservative. And the court system is one of our country's few institutions that both sides of the aisle still have a bit of faith in, so we can turn adjudication of these issues over to it, once lawyers just start making the right arguments.
But before we dig into what the law is, let's play an old Yale Law School game: What should the law be? Should employees like James Damore or Sasha White have legal recourse against their employers when they're fired over their political views?
Libertarians and classical conservatives would argue no because the labor market is capable of fixing this problem on its own without government intervention. There could be another employer—let's call it "Shmoogle"—that invites engineers with alternative points of view and creates an environment that is more open to diversity of ideas than is Google. Shmoogle would presumably enjoy a competitive advantage in being able to hire talented engineers who valued that culture more than Google's monolithic one. Thus, the market itself is a sufficient tool to preserve a thriving marketplace of ideas.
This libertarian perspective is as valid as it is irrelevant. It's not even clear that the free market would correct for political discrimination—after all, it didn't fully correct for racial discrimination in the Jim Crow era. But this is a moot point anyway. As a society we've already accepted government intervention in ordinary course hiring-and-firing decisions over the last five decades.
The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, or national origin. It was the signature achievement of the nonviolent civil rights movement led by Martin Luther King, Jr. One of its biggest components was Title VII's ban on employment discrimination. It also had a number of provisions desegregating public spaces and prohibiting the use of voting registration laws to disenfranchise minorities. After Dr. King's assassination led to a wave of riots, Congress passed the Civil Rights Act of 1968, which extended protection from discrimination to housing, saying that those selling, renting, and financing housing couldn't discriminate on the basis of race, religion, national origin, and, in later additions, disability or sex.
Even before these civil rights acts the Fourteenth Amendment had sought to address our nation's history of slavery with a number of sweeping provisions protecting rights like due process and equal protection of the law. But, crucially, the Fourteenth Amendment stops state governments from discriminating against people; it does nothing about discrimination from private entities like employers or landlords. By the 1960s, it was evident to many that to truly ensure equality the government had to prevent private actors from discriminating in public arenas. Title II of the Civil Rights Act of 1964, for instance, outlawed discrimination against protected classes in "public accommodations"—places like hotels, restaurants, theaters, stores, and schools, which are part of daily life for the public, even if they're owned by private entities. With its guarantee of fair treatment regarding housing, the Civil Rights Act of 1968 simply recognized that housing is a kind of public good too, a necessary part of ordinary life. So the government regulated it to prevent systemic private discrimination from creating de facto second-class citizens who are only equal in name.
Here's the bottom line: a libertarian may insist that in some more perfect world the free market, rather than government regulation, would prevent employment discrimination, but our society has already emphatically rejected that proposal. While it may be a valid intellectual exercise to interrogate the presuppositions of these major pieces of civil rights legislation of the 1960s, this is not a politically relevant question today. No libertarians have made repealing the Civil Rights Act a serious part of their platform, whether Rand Paul, his father Ron Paul, or the Libertarian Party itself.
The more relevant question is this: given that we as a society already view race, sex, religion, and national origin as "protected categories," should we add one's political affiliation to that list? I think yes. When Google fires James Damore, it sends a message that any other employee from his tribe is unwelcome there and that they are in a certain way inferior to those who espouse majority views.
In the same way that it took civil rights legislation in the 1960s to extend the spirit of equal protection under the law, which had been guaranteed by the Fourteenth Amendment—passed in the late 1800s—we require a similar mechanism for extending the spirit of the First Amendment to a modern world in which corporate power represents as much of a threat and an increasingly potent threat to the open exchange of ideas as the government itself. America's Founding Fathers were skeptical of the concentration of power in government hands, but if they were alive and among us today, they would be equally concerned about the power of companies like Google, Facebook, and Goldman Sachs to regulate our speech and conduct as well.
If you believe that civil rights legislation was required to prevent discrimination in our society on the basis of race or sex—in a way that the Fourteenth Amendment's prohibition on government-led discrimination did not sufficiently accomplish—then it's reasonable to think that additional civil rights legislation is required in the twenty-first century to prevent the suppression of speech in our society on the basis of corporate leaders' views—in a way that the First Amendment's prohibition on government-led speech suppression doesn't sufficiently accomplish. For example, the Civil Rights Act of 1964 prevents discrimination in the workplace on the basis of race, sex, religion, or national origin. You could envision a simple amendment to the statute that adds political beliefs to the list. In other words, you could make political belief a protected category—just like race, sex, or religious belief.
But in today's political climate, it's unrealistic to expect that legislative fix. That's the same problem I flagged in Chapter 9 with respect to amending Section 230—a great idea in theory, an impossible idea in practice—which is why I made an argument based on existing legal doctrines that Big Tech's victims could pursue in court.
Here's the good news: in order to fix political discrimination in the workplace, new legislation actually isn't required either. In reality, the Civil Rights Acts of 1964 may already suffice as a basis for plaintiffs to win in court. So now let's end the old Yale Law School game of talking about what the law should be and talk about what the law is.
Take a look at the Supreme Court's recent landmark ruling in Bostock v. Clayton County. This ruling prevents employers from discriminating on the basis of sexual orientation, holding that such discrimination represents a violation of the Civil Rights Act of 1964. Yet that act only prevents discrimination on the basis of "race, color, religion, sex, or national origin." There's no doubt that at the time the Civil Rights Act of 1964 was passed, Congress didn't intend to include discrimination on the basis of sexual orientation in it. But the Bostock majority effectively reasoned that in the year 2020, our understanding of discrimination on the basis of sex was fundamentally different from what it was in the 1960s—in such a way that caused discrimination on the basis of sexual orientation to be a civil rights violation in 2020, even if it wouldn't have been considered one in 1964.
The Bostock decision was a combination of a few separate cases: Gerald Bostock was fired by Clayton County when he joined a softball league for gay men, skydiving instructor Donald Zarda was fired after he told a female client he was gay in an attempt to put her at ease about being strapped to him, and transgender woman Aimee Stephens was fired by a funeral home after she told it she wanted to wanted to live and dress as a woman instead of a man. The Court ruled 6–3 in favor of the plaintiffs, with Chief Justice John Roberts and Justice Neil Gorsuch joining the liberal wing. Gorsuch wrote an opinion on strict textualist grounds, arguing that the plain meaning of the words in the Civil Rights Act of 1964 made the case an easy win for the plaintiffs, even if that wasn't the original legislative intent of the statute. Here's the key section:
That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer's mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Put differently, the employer intentionally singles out an employee to fire based in part on the employee's sex, and the affected employee's sex is a but-for cause of his discharge. Or consider an employer who fires a transgender person who was identified as male at birth but who now identifies as female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee's sex plays an unmistakable and impermissible role in the discharge decision.
Bostock's reasoning was appealingly simple. How can we recognize when an employer discriminates on the basis of sex? Just reimagine the case, switching the sex of the fired employee but keeping all other facts identical, and see if they'd still be fired. If not, then their sex must've been a crucial reason for their firing—in legal terminology, this proves that their sex was a "but-for cause" of their termination. They wouldn't have been fired but for their sex.
This easy formula for recognizing when one entity is discriminating against another has ripple effects in areas of law that go far beyond sex discrimination litigation. Combining Bostock's formula for recognizing discrimination with the interpretation of Title VII by the Equal Employment Opportunity Commissions yields the conclusion that people like Sasha White, the literary agent fired for tweeting about transgender people, ought to receive Title VII protection for expressing beliefs rooted in secular reasoning just as Title VII protects the same beliefs when they're rooted in religious reasoning.
Let me finally put that pricey Yale law degree to work with a legal argument. Take the belief that marriage should be between a man and a woman.