Free Speech

Political Discrimination Lawsuit Against Apple Can Go Forward

The plaintiff claims Apple was upset about his stance critical of censorship by the Chinese government, in the context of his reviewing the Guo Media App, established by a Chinese dissent.

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The decision is Pham v. Apple, Inc., by Judge Socrates Peter Manoukian, handed down three weeks ago but to my knowledge largely unnoticed until now. First, the allegations from the Amended Complaint, as repeated in the opinion:

Plaintiff Trieu Pham … worked for defendant Apple, Inc. … as an iOS App Reviewer …. As an App Reviewer, plaintiff Pham was responsible for determining whether software applications ("Apps") were reliable, performed as expected, and were free of offensive materiaI. Plaintiff Pham reviewed Apps based on a pre-set of technical, content, and design criteria provided by defendant Apple; and plaintiff Pham determined whether to accept, reject, or hold each App…. Between July 2018 and September 2018, defendant Apple conducted an audit of plaintiff Pham's App Reviews, identified reviews by plaintiff Pham that were purportedly erroneous, and issued plaintiff Pham a Documented Coaching Plan [DCP] …. Following plaintiff Pham's rebuttal, defendant Apple reversed their classification of several of plaintiff Pham's purported errors.

The most serious error identified in plaintiff Pham's DCP was plaintiff Pham's approval of a Guo Media App which was forbidden from defendant Apple's China App store. The same App was reviewed and approved by a series of other Apple employees, including three Chinese App Reviewers, yet none of them were disciplined for approval of the App as plaintiff Pham was. All of the Apps identified by defendant Apple's management team as being "erroneously approved' by plaintiff Pham in the DCP remained on defendant Apple's App store following the audit and remain there to date.

Guo Media was established by Guo Wengui  …, a Chinese dissident who fled China in 2014 to seek asylum in the United States. Guo remains wanted by the Chinese government for a series of alleged crimes. Guo regularly uses Guo Media to publicize claims of corruption against Chinese government officials and members of the Chinese Communist Part. After plaintiff Pham approved the Guo Media App, the Chinese government contacted defendant Apple and demanded that the Guo Media App be removed from defendant Apple's App store. Defendant Apple then performed an internal investigation and identified plaintiff Pham as the App Reviewer who approved the Guo Media App.

In or around late September 2018, shortly after defendant Apple provided plaintiff Pham with the DCP, plaintiff Pham was called to a meeting to discuss the Guo Media App with multiple defendant Apple supervisors and managers. At this meeting, defendant Apple supervisors stated that the Guo Media App is critical of the Chinese government and, therefore, should be removed from the App store. Plaintiff Pham responded stating the Guo Media App publishes valid claims of corruption against the Chinese government and Chinese Communist Party and, therefore, should not be taken down. Plaintiff Pham further told his supervisors that the Guo Media App does not contain violent content or incite violence; does not violate any of defendant Apple's policies and procedures regarding Apps; and, therefore, it should remain on the App store as a matter of free speech.

Plaintiff Pham also stated at this meeting that removing the Guo Media App under pressure from the Chinese government amounts to censorship. A few days later, plaintiff Pham met with [a supervisor] and again reiterated that the Guo Media App should not be taken down and Guo is entitled to publish his opinions. In the following weeks, plaintiff Pham discussed the Guo Media App with colleagues and relayed what transpired in his meetings with defendant Apple managers. Defendant Apple became aware of plaintiff Pham's criticism and defendant Apple's managers responded by retaliating against plaintiff Pham and ultimately terminating plaintiff Pham.

Plaintiff Pham believes the DCP was pretextual and created by defendant Apple to appease the Chinese government and to signal to China that defendant Apple did not approve an App created by Guo. The DCP was created to punish and retaliate against employees who spoke out against censorship or complained and refused to remove Apps that the Chinese government objected to on political grounds. …

Pham sued on various grounds, including national origin discrimination and discrimination based on a medical condition—claims that the court rejected—but the court allowed the case to go forward on a political discrimination claim:

[Cal.] Labor Code section 1101 states, "No employer shall make, adopt, or enforce any rule, regulation, or policy: (a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office; (b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees." …

[Cal.] Labor Code section 1102 states, "No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity." …

[A] prima facie case for employment discrimination requires the following showing:

"Generally, the plaintiff must provide evidence that (1) [s]he was a member of a protected class, (2) [s]he was qualified for the position [s]he sought or was performing competently in the position [s]he held, (3) [s]he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests a discriminatory motive."

"To establish a prima facie case of retaliation, the plaintiff must show (1) he or she engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action; and (3) a causal link between the protected activity and the employer's action."

For both discrimination and retaliation, a plaintiff must demonstrate some discriminatory/ retaliatory intent. In other words, the alleged discrimination and retaliation (adverse action) must be because of or linked to plaintiffs engagement in some protected activity; here, plaintiff Pham's engagement or participation in political activity or affiliation.

The timing of defendant's knowledge that plaintiff engaged in a protected activity is significant. If defendant is unaware that the plaintiff has engaged in a protected activity (or is a member of a protected class) and subjects the plaintiff to some adverse employment action, there can be no causal link as a matter of law. Such is the case here where plaintiff Pham has not alleged defendant Apple's awareness that plaintiff Pham was engaging in protected political activity prior to issuance of the DCP. There can be no link between the protected activity and the adverse employment action.

However, plaintiff Pham's allegations in the [Amended Complaint] are sufficient to establish defendant Apple's awareness that plaintiff engaged in political activity prior to plaintiff Pham's termination. Plaintiff Pham must ultimately prove some causal link between his engagement in protected activity and his termination, but it is not a factual impossibility as it would be where plaintiff fails to allege defendant's knowledge and awareness that plaintiff engaged in protected activity prior to issuance of the DCP….

[P]laintiff can survive a demurrer if he can "show that he faced an adverse action because he engaged in political activity, or that he was coerced by threat of discharge to adopt or refrain from adopting a course of political activity." … [P]laintiff Pham's [has made] allegations … [about his] "approval of, and vocal support for, the Guo Media app" created by a political dissident…. Thus, there are now allegations contained in the [Complaint] that plaintiff engaged in protected activity and suffered retaliation and/or termination as a result.

Accordingly, defendant Apple's demurrer to the first and second causes of action in plaintiff Pham's [Complaint] on the ground that the pleading does not state facts sufficient to constitute a cause of action for discrimination and retaliation, respectively, is OVERRULED….

For more on Cal. Labor Code §§ 1101-02 and similar statutes in other states, see this article.

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  1. With Left’s sudden love for more censorship we have a lot less ground to stand on when it comes to criticizing other countries. I mean, they’re only censoring what they deem as ‘misinformation’ or ‘hate speech’. Just like us.

    1. It’s about money and power. This is why the Democrats in California didn’t shut down the ultimate fluff industry: Hollywood.

      Nope. We rely on those monster donations by overpaid airheads. Ergo we will protect our own lest they turn on us, followed quickly by their partners in TV news.

      Boycott a small US state for a small transgression. Do not boycott or even speak out against China because they are a massive and growing market. Seems like only yesterday East Timor was a big deal to them, yet it doesn’t show up on the radar scale of China’s various misdeads, from treatment of minorities to supression of free speech.

      Better to help export supression of speech for fear of China closing them off, Hollywood or Apple-wise.

      I would assume Gwyneth is still proud she named her kid Apple.

  2. Sorry, while I dislike this action on the part of Apple I still think they should be free to engage in it. Choosing to toe the CCP line should be well within the business decisions an employer can make.

    Where Apple runs into trouble is the allegation that the app is, in fact, still available.

    1. Except they also terminated him for expressing his view that the App should not be delisted. That is political discrimination.

      Had they said, “thank you for your opinion, but we choose to toe the CCP line, which is good for our business. Now go back to work,” they would have been fine.

      Of course, that kind of candor will never be expressed.

      1. Freedom of association should allow Apple to fire at will, of course pursuant to employment contracts.

        I have always done my best to avoid big companies, primarily because I detest the bureaucracy you get once there are more than, say, 100 employees. But decisions like this typify the second reason, that said bureaucracies are arbitrary and capricious.

        Apple could have just admitted to kowtowing to the CCP; but they knew that would look bad, and the CCP would not like to look bad, so they made up the DCP.

        Or, by my book, they could have just fired him for daring to upset the CCP (pursuant to contract, etc).

        I don’t think anyone is surprised at Apple’s conduct.

        1. So long as we have the Civil Rights Act, and recognize it as Constitutional, though, we’re going to have to put up with things like this.

          Nonetheless, despite what the Supreme Court has said about the Civil Rights Act, it is unConstitutional, and it’s unConstitutional for the exact same reason Jim Crow laws are unConstitutional: these laws interfere with freedom of association.

    2. Why should Apple be free to violate the law? I don’t follow this argument. No one forced Apple to maintain offices and hire people in California.

      1. Seems fairly obvious that Soronel Haetir is saying the law shouldn’t prohibit this conduct.

    3. Every corporation always blathers the boilerplate that they “obey local laws”.

      This is a job for the governments who set the policies of economic engagement. They can legally twist the arms of foreign governments, and their companies, and the bank accounts of their kleptocrats, who often store cash safely in the US with its strong banking laws, and well away from rivals.

      It is unfortunate Trump was president in one sense: when he applied such arm twisting to China, Chinese corporations, and individual Chinese, his efforts were regularly met by talking head panels decrying it because Trump is the worst thing since Hitler, and therefore (and therefore, and therefore) everything he does must be declared wrong.

      So maybe Biden will do this and have more success, without the evening’s talking head panels being scheduled by 5 pm, ready to tear into it.

      1. So maybe Biden will do this and have more success…

        Given his past history and current cabinet picks, that’s extremely unlikely.

      2. Biden isn’t going to do this, though, because he’s bought and paid for by China.

        And that’s only to the degree that he isn’t a fellow traveller. I suspect that the money China pays to Biden is as much appreciation money as it is bribe money, if not more so.

        1. Are you mentally ill?

  3. What about Apple’s rights to abase themselves before their Chinese Overlords?

    I realize a lot of progressives don’t think corporations have free speech rights, but I can’t believe that they would intend that Apple (Google, NBA, Disney etc.) can’t police their employees to suppress all criticism of the CCP, and follow their orders on censoring anything critical or embarrassing to the Chinese regime like this app, or images of Winnie-the-pooh.

  4. The question in my mind is *exactly* what Pham was disciplined and terminated for.

    Apple has every right to determine what it publishes based on whatever criteria it chooses. If it wants to do what China says, that’s its business decision. Apple has no “free speech” obligations. It is not obligated to allow all points of view to be presented on its platform.

    If Pham was employed to implement Apple’s clearly-defined criteria, and failed to implement them, it’s either insubordination or incompetence.

    If Pham publicly disclosed Apple’s internal decision-making process – “hey, I work for Apple as a reviewer, and they overrode my decision and booted this app under pressure from China” – then that’s probably an NDA violation.

    If Pham publicly commented on publicly visible information – “Hey, Apple booted this app that’s critical of China” – that should be totally protected. *Why* Apple booted it is NDA-protected information. That Pham was the reviewer for the app is NDA-protected information. I don’t know whether Pham’s status as an Apple employee is NDA-protected information. I don’t know whether Apple can restrict its employees from publicly criticizing Apple based on public information.

    If Pham made a review decision that was consistent with Apple’s stated policies, and then internally defended that decision based on those policies, then no employment action is appropriate – at least until management says “no, we’re going to do this instead”, at which point he needs to shut up.

    It would be very wrong if Pham made a review decision consistent with Apple policies, and then when China was upset Apple made Pham a scapegoat.

    1. I have a soft spot in my heart for people who expose horrible behavior by corporations, or governments, or corporation-government partnerships.

      We may not know the whole story, but the point of free speech is you are free to speak out against those in power, especially in government. Shutting down “false” things hurts the attack on dictatorship a lot more than any problems it “cures” in the west.

  5. On the one hand, this case doesn’t involve the plaintiffs personal political activities. It involves his work on behalf of Apple. And since Apple is not being regulated as a utility, so it is free to reject apps critical of the Chinese governments, and to order its employees to do so.

    If the plaintiff had been ordered not to approve the act and had refused the order, it seems to me this would be a case of insubordination, not viewpoint discrimination. The plaintiff is free to have whatever political views he wants and to express them on his own time. But he is not free to inflict those views on Apple or to act contrary to Apple’s policies in his official actions as an employee on company time.

    1. Quote from ReaderY: “The plaintiff is free to have whatever political views he wants and to express them on his own time. But he is not free to inflict those views on Apple or to act contrary to Apple’s policies in his official actions as an employee on company time.”

      I find that remark a bit odd. Was Apple, a trillion-dollar-plus company, bound by the actions of this relatively minor employee? Hardly. Phan was free to express an opinion that he was employed to state. Apple, as the ultimate decider, was free to accept or reject his views. There was no need for Apple to demand that he change his POV, much less to fire him for expressing his POV. Apple could have simply expressed thanks for what he had said and made its only decision about the app.

  6. That said, I think there’s a good case that software platforms should be regulated as utilities. But that’s not the law.

  7. Pardon me if this is a dumb question, but the article refers twice to a FAG. What does that stand for?

    1. It should be “FAC” for First Amended Complaint and is so in the linked opinion. This is the sort of technology error that can occur when one uses Optical Character Recognition on a poor quality scanned or faxed document.

    2. Whoops, sorry, fixed — I had tried to replace these references (with “Complaint,” to make it clear) but missed the two at the end.

  8. Pham will lose especially with the “engaging in politics” arguments.

    He is and was always free to engage in any type of politics he wishes – OUTSIDE OF HIS EMPLOYMENT.

    Which then gets into the question, can a company fire someone for their outside employment political activities (a current issue).

    And the answer to that is: sometimes.

    1. Agreed, again. Twice now. It’s a thorny issue, and one I don’t much like to see employees punished for, the expression of ideas. The sad fact is, overly risk averse management will terminate based on perceived negative impact to company image -not telling you anything, I suspect.

  9. Prof V, in the sub-lede, ‘dissent’ should be ‘dissident,’ yes?

    1. Crikey, that’s more summary than sub-lede.

  10. Silicon Valley blatantly discriminates against employees for political beliefs. Anybody who doesn’t buy into the narrative has to live in fear of saying the wrong thing that could get them in trouble or fired.
    Employees are constantly being sent to various seminars to teach them how to think correctly.
    Yet, apparently, nobody has any problem with any of this. Never in the news or any media. It’s completely dismissed.
    These companies are increasingly taking control of our ability to communicate and receive information and at the same time pushing their political views at every step and nobody seems to give a damn. We used to watch movies about dystopian futures but we’re living in one now.

    1. Silicon Valley blatantly discriminates against employees for political beliefs.

      Careful with the broad brush, there. Google does that, Apple doesn’t.

      -jcr

  11. This is really bizarre:

    In a recent blog post titled “Supporting the 2020 U.S. election,” Google-owned video-sharing platform YouTube announced plans to remove any content that questions Joe Biden’s victory in the 2020 U.S. presidential election or implies fraud impacted the election outcome.

    In the blog post, YouTube writes:

    Yesterday was the safe harbor deadline for the U.S. Presidential election and enough states have certified their election results to determine a President-elect. Given that, we will start removing any piece of content uploaded today (or anytime after) that misleads people by alleging that widespread fraud or errors changed the outcome of the 2020 U.S. Presidential election, in line with our approach towards historical U.S. Presidential elections. For example, we will remove videos claiming that a Presidential candidate won the election due to widespread software glitches or counting errors. We will begin enforcing this policy today, and will ramp up in the weeks to come. As always, news coverage and commentary on these issues can remain on our site if there’s sufficient education, documentary, scientific or artistic context.

    YouTube also announced that it will be promoting “authoritative news sources,” such as NBC and CBS:

    Now let’s look at recommendations, one of the main ways our viewers find content. Limiting the reach of borderline content and prominently surfacing authoritative information are important ways we protect people from problematic content that doesn’t violate our Community Guidelines. Over 70% of recommendations on election-related topics came from authoritative news sources and the top recommended videos and channels for election-related content were primarily authoritative news. In fact, the top 10 authoritative news channels were recommended over 14X more than the top 10 non-authoritative channels on election-related content.

    1. Google’s motto had been “Don’t be evil” for the first decade or two after they were founded. They have clearly dropped the “Don’t” part from their motto since then.

  12. Apple’s alleged behavior in this case is truly disgusting.

  13. Not buying it. I’m a hard-line Libertarian, I’ve never been shy about my political views, and I’ve worked at Apple three times, starting back in 2002.

    I’ve had vigorous arguments with co-workers at Apple about politics, including with my immediate and next-level management, and I was never subjected to any repercussions for my views at all. I think this guy Pham was canned for other reasons, and he’s reaching here in hopes that Apple will decide it’s cheaper to pay him to fuck off than to litigate it.

    -jcr

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