Wokeness as Saddam Statues: The Case of the Tesla Elevator Operator

Understanding civil rights law as a form of class warfare

John Nixon was a CIA analyst who interviewed Saddam Hussein after he was captured by American forces. He wrote a book about the experience called Debriefing the President. The following passage I always found interesting.

“Saddam, I know that you have spent your life building a spot in Iraqi history and that you have tried your best to commemorate your rule with monuments to mark your reign. How does it feel now that all of these statues have been torn down?”

Saddam gave a little laugh. He put up his index finger and said, “I want you to listen to me. I never asked anyone to put up a statue of me. Oftentimes, members of the Revolutionary Command Council would say to me, ‘Saddam, we want to put your picture up somewhere or we want to put up a statue of you.’ I would tell them no. But the command would overrule me. Who am I to overrule the command?”

Is this believable? I don’t know, but the US military captured a lot of documents from Saddam’s regime, along with recordings of his meetings. And from what I’ve seen of them, Saddam was a lot more interested in the day-to-day working of government than building a personality cult.

Stephen Kotkin says something similar in the second volume of his Stalin biography.

Stalin personified Communism’s lofty vision. A cult would be built around him… By acclaiming Stalin, people could acclaim the cause and themselves as devotees. He resisted the cult. Stalin would call himself shit compared with Lenin. In draft reportage for Pravda of his meeting with a collective farm delegation from Odessa province in November 1933, he inserted the names Mikhail Kalinin, Molotov, Lazar Kaganovich, simulating collective leadership. Similarly, according to Anastas Mikoyan, Stalin rebuked Kaganovich, saying, “What is this? Why do you praise me alone, as if one man decides everything?” Whether Stalin’s objections reflected false modesty, genuine embarrassment, or just his inscrutable self remains hard to say, but he indulged the prolonged ovations. Molotov would recall that “at first he resisted the cult of personality, but then he came to like it a bit.”

The impression I get from Kotkin’s books is that the Soviet leader was deadly serious about his ideology, and this explains most of his atrocities. Stalin was motivated primarily by ideas, although he may have become a sadist as time went on. It is therefore easy to believe that he never set out to create a cult of personality at the beginning of his rule.

How did personality cults then form around both these men? It’s not hard to understand. The process probably goes something like this:

1) Everyone understands you don’t criticize the leader. It doesn’t even have to be an official law.

2) They’ve built an extensive spy service, so everyone needs to be careful.

3) Lower-level government officials and normal citizens play it safe by being more enthusiastic about the leader than the norm.

4) This causes everyone else to become more enthusiastic about the leader to keep up, not to seem relatively unexcited about him.

5) People start to internalize what they need to believe for self-interested reasons.

6) You get a cult of personality, composed of some combination of cynics and true believers.

I would guess many personality cults are created like this. They are emergent phenomena, not the result of a conscious plan coming from the top. Similarly, few regulators and lawmakers responsible for the state of civil rights law intended to create a world where schools are teaching that punctuality and hard work are racist. But by getting government into the field of social engineering and making hurt feelings a matter of law, they set us on the path to modern wokeness.

In response to my essay on how wokeness resulted from civil rights law, some were doubtful this could be a sufficient explanation for all the insanity we see. Tyler Cowen writes that “in much of the corporate and nonprofit world, wokeism is not merely a reflexive defense against lawsuits. It is embraced with enthusiasm.” Unquestionably! And I’m sure the Stalin and Saddam cults had many true believers. Even after those dictators were gone, they still had some committed to their memory. But that doesn’t mean that government power wasn’t ultimately necessary for their most enthusiastic supporters to dominate the rest of society.

Wokeness works the same way. Last week, a court case came along that seems as if it was scripted to make my point. It also demonstrates another idea that is worth exploring, that is the extent to which civil rights law is a form of class warfare, in which elites take their preoccupations and hangups about race and enlist powerful institutions to force these standards on everyone else.

The Case of Diaz and Di-az

A black father and son named Owen Diaz and Demetric Di-az (not sure what happened with the last names) worked at a Tesla plant in Fremont, California in 2015 and 2016. They sued the company for racial discrimination, though in the end only the father’s claims made it to trial. Diaz in particular seems to have been a malcontent who couldn’t get along with anyone, as can be seen in the judge’s order ruling on a series of motions for summary judgment (NYT coverage here).

One time, he became confrontational with a safety inspector who asked him to put on his required vest and shoes. In another incident, Diaz got into an argument with a co-worker who was either Hispanic or Filipino while they were in the same elevator, and witnesses thought they were about to fight and had to separate them. Diaz claimed he made a racial slur, and the other guy denied it. A few months later, he got into a fight with another black employee, who allegedly was so frustrated with Diaz that he threatened to shoot him. Although that guy denied making the threat, he was fired for the incident.

Throughout their time at the factory, Hispanic and black co-workers would occasionally use the n-word, though there are no allegations of whites doing so in the record. For example, one time Di-az (the son) and others took too long on a meal break, and one Hispanic supervisor said “All you n-----s need to hurry the fuck up.” The father once saw racist graffiti on a bathroom wall. A different Hispanic worker admitted to drawing the picture and said he was “just playing.”

In March 2016, Diaz got to take a week off because his mother had died. When he was supposed to come back, he didn’t show up to work, and was fired. When they told him, he was “‘mad, upset’ and ‘cussing,’ because he wanted to continue working at Tesla, in part because he was making good money.”

Whether Tesla could be sued depended on the legal question of whether they were acting as an employer, and the judge found it was a question a jury could decide. They did, and awarded Diaz $137 million.

Tesla and the other defendants appeared to have been hesitant to fire their employees over allegations that couldn’t be proved. For example, the Hispanic guy in the elevator was let off with a verbal warning because witnesses could not confirm what he had allegedly said. But when something was verifiable, Tesla or the other defendants took action, as the guy who admitted to drawing the racist cartoon got a three-day suspension. Other allegations were supposedly taken less seriously. Tesla says that Diaz made three complaints to the company, and they resulted in two people being fired and another getting suspended.

Let’s for the sake of argument take the claims of Diaz and Di-az at face value. How would a rational system handle them? Perhaps the law can have strict rules like “If an employee says certain words, you must fire him or be legally liable.” You can do the same for racist cartoons. Seems harsh, but it would at least provide clear guidance.

Instead, you have a completely subjective system. The Iraqi mukhabarat did not tell you what phrases or words to avoid in order to be left alone. And the government never passed a law saying everyone must worship Saddam. Likewise, civil rights law never explicitly said you have to invite Robin DiAngelo to talk to you about how she has no time for your white woman tears. It just gives you some vague standards, empowers the most sensitive individuals, and creates huge payoffs for attorneys looking for racism along with serious penalties for businesses that fail to guess what will or won’t be declared discriminatory after the fact.

Lawyers and judges like to pretend we have something called the “rule of law.” The judge in the Diaz case writes the following on the standard that applies to an anti-discrimination case in California.

To make a prima facie showing of a hostile work environment under section 1981, Diaz will have to prove that: “(1) he was subjected to verbal or physical conduct because of his race, (2) the conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of his employment and create an abusive work environment.”… The environment must be both objectively offensive to a reasonable person in the protected class and subjectively offensive to the plaintiff… “Simple teasing” and “offhand comments” may not be sufficient even where the conduct is “offensive and inappropriate.”

This is all the guidance you get. It’s literally based on feelings, what a “reasonable person in the protected class” thinks is offensive, but “simple teasing” doesn’t count. These definitions are completely circular. When something isn’t that bad, we call it “teasing,” when it seems bad, we call it “hostile”; on which side of the line any particular conduct falls is for the jury or bureaucrat to decide.

The entire debate over “cancel culture” revolves around what it is or isn’t reasonable to be offended about. For corporations and non-profits, this is a legal question. But although being too aggressive in rooting out “racism” will never cost you $137 million, being not anti-racist enough might.

In addition, notice that that the law depends on what a typical member of the protected class thinks, not any kind of universal standard. If one race or sex is particularly sensitive – or more importantly, if judges and bureaucrats think they are – then this has legal significance. As polling on the word “Latinx” shows, educated liberals often have wrong ideas about the preferences and beliefs of groups they claim to speak for and represent. Corporations therefore aren’t required to be inoffensive to minorities or women, but to the versions of women and minorities that exist in the heads of educated liberals.

Civilizing the Working Class

Given the triumph of wokeness, what made working class Mexicans in California believe that they could use anti-black slurs? Some people reading this might be surprised to learn that the lower classes aren’t as sensitive as they are when it comes to race.

Where I went to school, we had something like 6 main races: default white Americans, Irish, Italians, Poles, Arabs, and Mexicans. Few of the people I hung out with had parents who graduated from college, and those who did went to state schools. “Racism” was everywhere; the guys would greet each other as “beaner” or “dego,” and whenever Clinton bombed Saddam the ethnic whites and regular whites would celebrate together and make fun of the Arabs. If two guys of a different race got into a fight, they would of course use racial slurs against one another, and although race was pretty much never the cause of a fight, I imagine that if a NYT columnist set out to write a story about that time and place certain magic words would have been all that they noticed. (see season 12, episode 7 of King of the Hill, a highly underrated show with very right-wing politics, on when a diversity consultant comes to a normal American middle school).

The idea that these words would have ever been grounds for a lawsuit, much less one of us becoming rich beyond our dreams, would’ve never crossed anyone’s mind. I look back at that time, how cool everyone was, and compare it to how contemptibly weak most people I see talking about race in the press or academia are. I sometimes wonder whether the late 1990s was a completely different world, or this is just a class thing, and out there in Real America there are still Mexican and black guys who call each other racial slurs and nobody’s feelings get hurt, that is at least until the lawyers get called in?

When I was in graduate school, I noticed a general neuroticism about such matters. A “racist” joke would make people physically uncomfortable. While my background made me used to an environment where racial slurs were no big deal, I was now in one in which people were always on the lookout for “stereotypes” and “tropes.” I came to the conclusion that racial and cultural differences are such an obvious source of potential tension that you really have two choices. You can either have a culture where everyone is chill about it, or one of hyper paranoia.

One poll result I always found fascinating was just how many Americans believe discrimination against whites is as big a problem as discrimination against blacks and other minorities. In 2016, 57% of whites, 29% of blacks, and 38% of Hispanics said that it was.

This is a view that no one would have dared to express in any college classroom I was ever in. It has absolutely no representation on CNN or MSNBC, and I doubt many writers at National Review would openly say it. Yet 5 years ago it was believed by about half of all Americans!

Note that the gap between whites with and without college degrees is larger than the gap between whites and Hispanics, and almost as large as between whites and blacks. I would guess that the same poll today would show that everyone has become more woke, and the class gap has grown wider.

In America, the working class has adopted the relaxed approach to race relations, and more educated Americans have gone with the paranoid style. To liberal elites, this makes the working class seem hopelessly racist, being unable to understand that they exist in a world in which racial slurs don’t have the same effect and racism isn’t that big of a deal in modern American life. It’s sort of like how a lower class individual might hear college educated women use more “classic” swear words and come to the conclusion that they’re disgustingly vulgar, not realizing that they speak a different language and come from a culture without the same taboos (see McWhorter on old and new forms of profanity).

Each approach to race relations must ultimately be rooted in the personality and cognitive traits of the class that adopted it. The upper class way is more feminine, and probably ill suited for blue collar professions made up of high testosterone men. Hyper-sensitivity under such conditions would likely lead to a great deal of violence. Women are better at reading emotions and navigating complex social relationships, so the paranoid approach may actually work in a more female-dominated environment. The same might be true about white collar men who are high in intelligence and low in masculine traits, a group that disproportionately goes into fields like academia.

In a free and diverse country, then, we’d have different institutions and professions organically building the kinds of rules and norms that suit them best. This is exactly what civil rights law will not allow. Instead, a feminized and neurotic elite is using the power of government to push its rules and norms onto a lower class with a different cognitive profile.

Going back to the judge’s order, note that the “environment must be both objectively offensive to a reasonable person in the protected class and subjectively offensive to the plaintiff.” In other words, you adopt working class norms and brush off racial slurs, you get nothing. Become like elites, and you just might get $137 million. With incentives like that, it’s amazing any vestige of the working class culture still exists. One of the main limiting factors preventing the complete triumph of wokeness seems to be that there aren’t enough lawyers and journalists to make sure the paranoid style of race relations dominates in every workplace and profession in the country. The fact that they tend to focus on the deepest pockets helps explain why the biggest corporations are usually the most woke.

Tesla rested its defense on the idea that there could be an environment in which racial slurs were used in a friendly way. This can be seen in the statement they released in response to the verdict in the Diaz case.

In addition to Mr. Diaz, three other witnesses (all non-Tesla contract employees) testified at trial that they regularly heard racial slurs (including the n-word) on the Fremont factory floor. While they all agreed that the use of the n-word was not appropriate in the workplace, they also agreed that most of the time they thought the language was used in a “friendly” manner and usually by African-American colleagues. (emphasis added)

I can see how this defense could’ve worked with the people I went to high school with. At the same time, it would’ve been considered offensive (“read the room!”) by most people I’ve met in academia. Despite Elon Musk being a pioneer in developing green technology, I have a feeling that this is why the elite hate him so much. They sense that he’s too autistic or high testosterone to internalize their rules of conduct, and the kind of guy who would build a mega corporation that might put out a statement implying that the working class has generally gotten race relations right, where elites have failed.

But Tesla and the rest of corporate America have been put on notice: for the purposes of law, only feminized, upper class norms are applicable (Blue Origin is now being attacked in The Washington Post for its “bro culture”). They could at least make those rules clear enough to give businesses some certainty going forward, but that would take away the power of judges, bureaucrats and HR professionals to continue to make it up as they go along and instead force them to spell out much of what they would rather leave implicit (i.e., the criminalization of jokes and different standards based on whether one is white, black, or other). If you told businesses all they had to do to be non-discriminatory was to do X, they would all do X and the entire civil rights industry would collapse.

Even in the Bay Area, it seems, there are still guys with surnames like Romero and Martinez who haven’t yet gotten with the times, and they engaged in conduct that they correctly thought wouldn’t even get them fired. In the same area, there was a jury that thought their behavior was so egregious that it was worth nine figures, and a media that apparently agrees. The latter group is the one that has the power, and they’ll use cases like this in order to stamp out the part of working class male culture that doesn’t think racial slurs are that bad. This could also be understood as intra-elite class warfare in the form of a constant transfer from the more productive sectors of the managerial class to its NGO, legal, and bureaucratic members. Business accordingly becomes a little less like Elon, and a little more like Ellen Pao.

The First Amendment won’t let you arrest people for racist cartoons. So civil rights law found a workaround. It doesn’t go after who was most responsible, but instead after those with the deepest pockets, and forces them to be constantly proving that they are not only not racist, but taking whatever steps are necessary to make sure those who are under their control behave themselves.

Corporations have the resources and power to civilize the lower classes by forcing them to sit in diversity seminars and adopt the cultural hangups and pathologies of American elites. They can declare certain types of relationships forbidden, and create financial incentives for them to take their racial identities seriously, and assume everyone else does too.

One might reasonably ask, “Surely it doesn’t have to be this way? Can’t we ban the kind of treatment faced by Diaz and Di-az, without it turning into full wokeness?” In theory yes, but I think in practice no. We can’t have a culture where buddies use racial slurs when talking to one another, because race is more funny to them than a serious issue of life and death, but at the same time your employer can lose millions of dollars if somebody complains about the exact same words in other contexts. Deciding what words should or shouldn’t offend an “objective Mexican” and what is “simple teasing” puts judges, juries, and bureaucrats in the position to micromanage the most basic human interactions. Either government is in that business, or it’s not, and getting out of that business would mean setting objective standards and otherwise leaving individuals and institutions alone to find a way to live together.

Even after the case has been litigated, we still do not know what exactly Tesla could have done to avoid the $137 million judgment (it may be reduced on appeal). Employees did in fact get in trouble for using the n-word and drawing racist cartoons. In retrospect, they probably would’ve been safer if they just fired everyone who Diaz or Di-az accused of racism, at least the non-blacks, but there’s no guarantee that would’ve worked either, as they were in an industry that required them to rely on workers who hadn’t yet internalized elite ways of thinking about race. If they had fired black people for using the n-word too, would that have helped or hurt them in trying to avoid a lawsuit? It’s difficult to say, and that’s sort of the point.

For next time, there’s little Tesla can do but go all in on diversity training, be as enthusiastic as possible in adopting whatever next race fad comes out of academia, and hope that the next jury isn’t as woke as the one they got this time. Until anti-discrimination laws are rolled back, or come to be based on clear and objective standards, there is no other way.