The judge recommended class certification be determined by an evidentiary hearing. Walsh said in his San Jose courtroom that his decision is not commentary on whether Google engages in systemic discrimination, or even whether the class will be certified.

Former Google engineer James Damore sued the company after he was fired for distributing a viral 10-page memo called “Google's Ideological Echo Chamber.” In the dispatch, Damore claimed “Google's left bias has created a politically correct monoculture that maintains its hold by shaming dissenters into silence,” and that diversity initiatives might not entirely close the gender gap in tech. He posited that some biological differences between men and women could explain why there are fewer female leaders in Silicon Valley.

After originally leading a class action on behalf of white, male and conservative employees, Damore, and fellow Google employee David Gudeman, dropped out of the case to pursue individual arbitration in November.

Now, the would-be class is made up of Google job applicants who say they were discriminated against for their conservative political views, and white and Asian job seekers, represented by Google applicant Michael Burns, who said they face race-based discrimination as a result of the company's unlawful hiring quotas and other employment practices.

In Google's support for demurrer, its Paul Hastings legal team, led by San Francisco partner Zach Hutton, argued the conservative political class did not represent a well-defined community of interest, and that neither the plaintiffs nor the law have provided a concrete definition of “conservative,” unlike classes defined by race or gender.

“Even if we look at applicants one by one, we would have to make a subjective decision about their conservatism,” Hutton said in court. “People's political beliefs are often not binary.”

Representing the job applicants, Harmeet K. Dhillon, founding attorney of Dhillon Law Group in San Francisco, said Hutton's argument is one class action lawyers have made for decades as cases incorporate broader groups. Additionally, she said even typical classes are not as straightforward today. “Race and gender are no longer considered to be binary constructs, and yet the courts deal with this every day,” she said.

To determine the class, Hutton said the parties would have to review millions of records and then make a subjective decision. Dhillon said they could potentially expedite the process by navigating Google's hiring software and access to applicant data with search terms to unearth relevant characteristics that might be flagged by recruiters and hiring managers.

Although Walsh said he is not sure he shares Dhillon's optimism on the ease of the discovery process, the parties should first come up with a strategy. Walsh and the attorneys on both sides met after the hearing to discuss discovery plans.

“In the court's view, the novel theories proposed by plaintiffs fall somewhere between these two scenarios: while identifying a 'political conservative' will certainly prove more difficult than identifying a person who belongs to a given race or gender in the typical case, it does not necessarily involve the type of case-by-case inquiries required to determine whether individuals with a range of different potential disabilities are in fact disabled and whether they were denied a reasonable accommodation,” Walsh wrote.

Besides the request for demurrer and striking of language tied to the political class, Google asked Walsh to toss Burns' claims of racial discrimination against Asian candidates. Google's legal team claimed that since Burns identifies as white, he does not encompass a class of Asian applicants. Hutton said Burns represents a completely different form of discrimination than filed in the lawsuit.

Walsh denied the motion, writing in his ruling that Google failed to prove Burns' claims on behalf of Asian applicants did not meet the Fair Employment and Housing Act's exhaustion requirement. Burns alleges that both of these races were discriminated against due to Google's preference for candidates from other, “'favored minority' backgrounds perceived as categorically distinct within the company. … Here, plaintiffs allege that white and Asian job applicants are similarly situated in this regard,” he wrote.

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