US judge says she ‘would quit’ if required to work long hours, high intensity

Twitter Inc. asked a federal judge on Thursday to dismiss claims that it pushed out female and older employees in the wake of Elon Musk’s purchase of the social media platform, saying the people who left the company voluntarily resigned.

An email sent by Musk in November 2022 asking employees to click yes on a link if they consented to “working long hours at high intensity” plausibly alleged a constructive discharge claim, said U.S. District Judge Jacqueline Scott Corley in San Francisco. Musk, who bought Twitter for $44 billion and renamed it X Corp., said in the email that “anyone who has not done so by 5 p.m. EST tomorrow … will receive three months of severance.”

“The decision to remain employed was before the plaintiff and the others who received the email and they made an election. Some of them elected to remain employed and some of them elected to not remain employed,” said Morgan Lewis & Bockius LLP partner Brian D. Berry. He added that it was “commonplace” for many people to work long hours every day of the week.

“Really? Because you know what, I would quit,” the judge replied. She also seemed resistant to Berry’s argument that news reports of some Twitter employees working 84-hour weeks during Musk’s acquisition referred to an isolated occurrence, adding that she had to draw all inferences in the plaintiff’s favor at this stage in the case.

According to the complaint, plaintiff Sydney Frederick-Osborn was a software engineer for Twitter for five months. After receiving that email, Frederick-Osborn, who was in her late 50s, no longer felt welcome at the company because of her sex and age, wrote Lichten & Liss-Riordan PC partner Shannon Liss-Riordan. She said about 36% of female and 28% of male employees left Twitter because of Musk’s email. Frederick-Osborn v. Twitter Inc. et al., 3:24-cv-00125-JSC (N.D. Cal., filed Jan. 5, 2024).

At Thursday’s hearing, Liss-Riordan pointed to comments made by Musk shortly before he acquired Twitter, including an interview with Axel Springer where he said if people live too long, “we will be stuck with old ideas and society won’t advance.” As the head of a powerful technology corporation who has made repeated ageist and sexist comments, Musk’s “discriminatory animus” should not be disregarded, said Liss-Riordan. The attorney, who unsuccessfully ran for Massachusetts attorney general in 2022, has filed at least a dozen cases against Twitter in the Northern District of California.

Berry maintained throughout the hearing that working long hours was not a sufficient basis for a constructive discharge claim. He added that the context for the Axel Springer interview was important as Musk was asked about technology that would extend people’s life expectancy. “It has nothing to do with Twitter or businesses in general … It’s a million miles away from something that would constitute anecdotal evidence of age prejudice,” said Berry.

Taking the motion under submission, Scott Corley said she did not understand Berry’s position that Musk’s email offered employees a choice to remain at the company. “I think it’s a termination. Check this box or you’re fired,” said the judge.