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Lost RSUs After a Layoff? When Unvested Equity Can Be Recoveredandrea mazingoDec 193 min readLast updated December 19, 2025By Andi Mazingo, Esq.Equity compensation is a central part of compensation in Big Tech. For many employees, restricted stock units (RSUs), stock options, and other equity awards make up a significant portion of total pay.When a company terminates an employee, unvested equity is almost always forfeited automatically. Employers often present this as unavoidable: “Your equity stopped vesting when your employment ended.”That statement is incomplete — and in many cases, legally wrong.reeHow RSU Forfeiture Typically WorksMost equity plans provide that:RSUs vest only while the employee remains employedUnvested shares are forfeited upon termination “for any reason”The company retains broad discretion over vesting schedulesOn paper, these provisions appear absolute. In practice, they do not insulate employers from liability when a termination is unlawful.When RSU Forfeiture Becomes Legally ActionableUnvested equity may be recoverable when the underlying termination violated employment law.Common scenarios include:Disability or medical leave discrimination: Employees are terminated shortly after disclosing a medical condition, requesting accommodations, or returning from leave.Pregnancy or parental leave: Employees are managed out, downgraded, or selected for layoffs after announcing pregnancy or taking parental leave.Retaliation: Employees are terminated after raising concerns about discrimination, harassment, or unlawful practices.Pretextual performance-based layoffs: Long-tenured or high-performing employees are suddenly labeled “low performers” to justify termination shortly before significant vesting events.In these cases, lost RSUs are often treated as compensatory damages, not speculative future compensation.Courts Do Not Treat RSUs as “Optional” PayEmployers frequently argue that unvested equity is discretionary and therefore unrecoverable.Courts and arbitrators increasingly reject this argument where:Vesting was scheduled and predictableThe employee was performing satisfactorilyTermination timing conveniently avoided vesting milestonesWhen an employee can show that they would have remained employed but for unlawful conduct, lost equity is part of the harm caused and may be recoverable. For more information about what constitutes an unlawful termination in big tech, read here.How Companies Strategically Use Termination TimingOne of the least discussed aspects of Big Tech layoffs is timing.Companies often:Terminate employees weeks or months before major vesting cliffsSchedule “performance” terminations just before refresh grants or bonusesUse opaque review cycles to justify exits before equity eventsWhile employers rarely admit this motive, patterns across teams and cohorts can be powerful evidence.Arbitration Does Not Eliminate Equity ClaimsMany tech workers believe that arbitration clauses prevent recovery of equity losses. That is not necessarily true.While arbitration changes the forum:Arbitrators can and do award damages for lost RSUsEquity losses are routinely litigated in arbitrationConfidentiality often hides how frequently employees recoverThe key question is not where the case is heard — but why the termination occurred.Why “At-Will Employment” Does Not Defeat RSU ClaimsAt-will employment allows termination without a contract — not termination for unlawful reasons.An employer cannot lawfully terminate an employee:To avoid vesting obligationsBecause of protected leave or statusIn retaliation for protected activityIf the termination itself was unlawful, the resulting forfeiture of equity is part of the damages.What Employees Should Do After Losing RSUsIf you lost unvested equity after a termination:Preserve equity documents and documents showing illegality of termination: Stock plans, grant notices, vesting schedules, communications (emails, Slack messages showing discrimination, retaliation, reliability of additional equity grants), performance reviews, peer reviews, and self-reviews.Document timing: Note how close termination was to vesting events.Compare treatment: Look at who else was terminated — and who was not.Avoid assuming the loss is final: Many employees incorrectly believe forfeiture is automatic and irreversible.Speak with counsel early: Equity claims are fact-intensive and time-sensitive.Why These Claims Are Often ConfidentialEmployees are often surprised to learn how frequently equity losses are recovered. The reason this is not widely known is simple: most resolutions are confidential.Confidential settlements and arbitration awards obscure:How often employers lose these claimsHow significant equity damages can beHow fact-specific the outcomes areThis silence benefits employers — not employees.The Bottom LineLosing unvested RSUs after a layoff does not automatically mean those shares are gone forever.When a termination is unlawful, equity forfeiture is not a technicality — it is part of the injury. Understanding that distinction can make the difference between accepting a loss and pursuing accountability.Meta, Facebook, Instagram, xAI, X, Anthropic, OpenAI, Amazon, Samsung, HP, Nvidia, Microsoft, Apple, Tesla, Oracle, Netflix

Frequently Asked Questions About Lost RSUs After a Layoff

Can unvested RSUs be recovered after a layoff?

Yes. If a layoff or termination was unlawful—such as when it was discriminatory, retaliatory, or based on protected leave—lost unvested equity may be recoverable as part of an employee’s damages under employment law.

Does at-will employment prevent recovery of lost RSUs?

No. At-will employment does not permit termination for unlawful reasons. If an employee would have continued working and vesting equity but for unlawful conduct, equity forfeiture may be legally actionable.

Do arbitration agreements prevent recovery of unvested equity?

Not necessarily. Arbitration agreements may affect where a dispute is resolved, but they do not automatically eliminate an employee’s ability to recover lost equity caused by unlawful termination. Arbitrators routinely consider equity-based damages.

How close to vesting do I need to be to recover RSUs?

There is no fixed rule. Courts and arbitrators look at factors such as vesting schedules, performance history, employer intent, and whether vesting was reasonably expected absent the unlawful termination.

What documents should I preserve if I lost RSUs?

Employees should preserve equity grant notices, vesting schedules, offer letters, performance reviews, internal communications, severance documents, and any records showing the timing of termination relative to vesting events.

Imagine The Possibilities Of Openly Autistic Lawyering By Andi Mazingo (February 4, 2025) Bill Gates disclosed recently that he has a "pattern match" to the traits indicative of autism spectrum disorder, or ASD, reflecting on how — while he "didn't behave in a standard way" — his "deep concentration" on math, science and programming became one of his strengths.[1] His candid reflection has sparked conversations about the evolving understanding of neurodiversity and its impact on innovation and leadership. But seldom do these conversations happen openly in the legal industry. Andi Mazingo Imagine a lawyer who meticulously pores over e-discovery, uncovering patterns others miss, yet who struggles with the unspoken rules of small talk at firm gatherings. Picture another lawyer who hyperfocuses during trial preparation, crafting arguments and uncovering key documents with unparalleled precision, but finds the chaos of networking events overwhelming. Now, imagine these lawyers being open about their ASD — their unique abilities celebrated rather than misunderstood, and their differences embraced as strengths. Envision the sense of belonging, professional satisfaction and well-being they could achieve in a workplace that values neurodiversity. In recent years, society has seen a surge in neurodiversity awareness, fueled by growing diagnosis rates and increased understanding of conditions like ASD. It is estimated that 15% to 20% of the global population is neurodivergent, with attentiondeficit/hyperactivity disorder being the most common condition, and ASD affecting 2.21% of U.S. adults — approximately 5.4 million individuals.[2] In the U.S. technology industry, the value of neurodivergent employees has long been recognized, and this recognition is beginning to expand into other U.S. industries.[3] Companies in banking, retail, advertising and other sectors are increasingly tapping into the strengths of autistic and neurodivergent workers.[4] This shift is fueled by a growing awareness of mental health, in part due to the postpandemic landscape, and the realization that atypical thinking can drive innovation and productivity, and need not be seen as a limitation. The legal industry, a field reliant on logic, analytical thinking and meticulous advocacy, is uniquely positioned to benefit from neurodiverse representation. However, while some recent strides have been made toward neuroinclusion in the U.K.'s legal industry,[5] few autistic lawyers in the U.S. have chosen to be open about their diagnoses — perhaps due to the profession's inherent risk aversion, traditionalism, and emphasis on decorum and hierarchy. Indeed, a September 2024 report from Stanford Law School's Deborah L. Rhode Center on the Legal Profession underscores how lawyers managing mental health issues may face stigmatizing and potentially illegal mental health screenings as early as their state bar character and fitness evaluations.[6] I've experienced firsthand both the challenges and rewards of navigating the legal profession as an attorney who was diagnosed as autistic midway into my legal career. During my decade as a BigLaw associate, I knew that I thrived in innovative and intellectually rigorous environments, but I didn't know what support I needed to thrive as a leader. I was entirely unaware that my ASD may have contributed to my difficulties at my first firm, viewed by some as having uniquely entrenched conservatism and traditional gender dynamics, which often felt alienating to me. At my second law firm, I benefited from inclusive policies and culture, including the normalization of remote and flexible work arrangements, the policy of each associate having a structured partner mentorship, performance reviews focused on substantive contributions instead of personality, and a supportive and inclusive tone at the top. It wasn't until I was diagnosed with ASD during my tenure as general counsel and director of legal services at a nonprofit that my understanding of the benefits of collaborative, strengths-based approaches crystallized. When practice leaders celebrate team members' unique strengths, rather than focusing on deficits, employees are more likely to feel valued and motivated, leading to improved job performance and innovation. For those of us who are openly autistic in the legal field, the opportunity to challenge stereotypes and leverage our distinctive strengths can be transformative — not only for ourselves, but also for our teams, clients and the broader profession. This article delves into how openly autistic lawyers can enhance equity, inclusion and innovation, while navigating the challenges and opportunities that come with self-defining what it means to thrive as an autistic lawyer. Contributions of Autistic Lawyers While every person on the spectrum is different, many autistic individuals possess unique traits that can align well with legal work. These include: • Hyperfocus: This trait is common among autistic people. Attorneys with this trait may find that it helps them sustain the attention necessary to deeply analyze complex issues. • Attention to detail and pattern recognition: This trait is also common among autistic people. Attention to detail helps with tasks like proofing and finalizing documents of legal consequence, e.g., contracts and legal briefs. Pattern recognition can help lawyers uncover inconsistencies in corporate financial statements or deal documents and unearth new fact patterns during document review. • Abstract problem-solving and structural intuition: Many autistic individuals excel at identifying abstract connections and intuitive frameworks for solving complex problems. Attorneys with this trait may find it useful when analyzing multifaceted legal issues, developing novel legal theories or building intricate case strategies. This ability to see structural relationships that others might miss can provide a significant advantage in litigation and transactional work. • Justice orientation and special interests: Many autistic individuals have systemizing minds, resulting in a commitment to fairness and ethical principles.[7] This can fuel zealous client advocacy and reinforce workplace integrity. Moreover, autistic individuals often pursue fields aligned with their special interests, which often translates to exceptional motivation and dedication to their lawyering. These traits not only enhance client advocacy, but also foster collaboration. Teams that include neurodiverse attorneys benefit from fresh perspectives, meticulous research and a steadfast commitment to delivering substantive results. Programs from the tech and financial services industries illustrate the potential impact: Neurodiverse employees in JPMorgan Chase & Co.'s Autism at Work program have been shown to achieve productivity levels up to 140% higher than their neurotypical peers.[8] Similarly, the Autism at Work initiative at SAP SE has successfully tapped into autistic employees' unique strengths, such as precision and innovative thinking, to improve processes and outcomes.[9] These initiatives demonstrate the tangible benefits of embracing neurodiverse talent. Challenges in the Legal Industry While autistic lawyers bring immense value to the legal profession, they face systemic barriers and biases that can undermine their ability to thrive. Many feel compelled to conform to traditional norms and societal expectations of what it means to be a lawyer to avoid stigmatization. Despite the legal protections against workplace disability discrimination,[10] the realities of navigating bias and misunderstanding present unique challenges in the legal profession. Intersectional Biases Autistic attorneys who are female, racial minorities or members of the LGBTQ+ community may experience compounded discrimination due to intersectional stereotypes,[11] which can hinder access to mentorship, sponsorship and high-visibility work. For autistic female attorneys, direct communication styles can be misinterpreted as lacking empathy or warmth, whereas male colleagues exhibiting similar traits may be viewed as quirky or confident. Leadership roles intensify these pressures. In more conservative environments, gendered expectations for female attorneys to wear wool skirt suits, pantyhose and heels may compete with an autistic individual's preference for more sensory-friendly or gender-neutral options. Moreover, many autistic individuals are also a part of the LGBTQ+ community,[12] creating additional intersectional concerns. For example, in less inclusive environments, autistic LGBTQ+ attorneys may feel pressured to mask not only their autistic traits, but also their LGBTQ+ identities. This dual masking can lead to heightened stress, burnout and reduced job satisfaction. Autistic attorneys who are members of the LGBTQ+ community may also contend with stereotypes about their neurodivergence alongside biases related to their LGBTQ+ identity, compounding potential workplace ostracization. For autistic attorneys who are racial minorities, workplace challenges may be amplified by racial and cultural stereotypes. For example, for autistic Asian American attorneys, intersectional discrimination may stem from cultural stereotypes about deference and collectivism, combined with assumptions about neurodivergent traits, e.g., being reserved or direct. The Double Bind of Professional Expectations Not unlike corporate norms generally, legal norms often emphasize a traditionally polished presentation, social assimilation and hierarchical deference — qualities that can conflict with neurodivergent traits. Many autistic lawyers are capable of masking their behaviors to conform, but this can be physically and emotionally taxing, especially for sustained periods. Disclosure, on the other hand, comes with its own risks of stigma and misunderstanding. Autistic lawyers who disclose their diagnoses may be subject to unfair assumptions that their neurodivergence will impede their competency, professionalism, communication, or capacity to build relationships with clients or colleagues. There is a risk of being perceived as difficult, uncooperative or unfit for leadership roles, even with exemplary substantive contributions. Disclosure can also invite unwelcome scrutiny, with colleagues attributing unrelated workplace challenges to the individual's autism, or treating them as if they require constant accommodation or oversight. These risks, compounded by the legal profession's arcane judgments on character and fitness, can discourage autistic lawyers from being open about their identities. Despite the risks, openly autistic lawyers can own control over our narrative. As trial attorney wisdom suggests: If something can be used against you, address it on your own terms. Disclosing autism on one's own terms can foster authenticity, improve team dynamics and set the stage for a more fulfilling career. When I was diagnosed with ASD while leading a nonprofit's legal practices, I disclosed my autism to the teams I supervised. I did so with the intention of creating a supportive environment, fostering transparency and improving communication. The result was transformative: My team's understanding and support deepened our connection and enhanced our effectiveness. My teammates began supporting me by sending me messages to remind me to wish someone a happy birthday or celebrate a promotion.[13] In turn, my teammates became more comfortable asking me for the support and flexibility they needed, which I understood to be a success for purposes of retention.[14] However, reactions outside my teams were more mixed, underscoring the stigma that still exists around neurodivergence. Ultimately, disclosure allowed me to embrace my identity authentically, paving the way for meaningful professional growth, stronger advocacy for my clients, and freedom and purpose in self-definition. Transforming the Legal Profession As Florida's first openly autistic lawyer, Haley Moss, has stated, "[b]usinesses should be creating a culture where it is safe and productive for employees to share their autism, ask for accommodations, and thrive."[15] Indeed, workplaces that encourage authenticity promote recognition and respect for one another's freedom and individuality, benefiting not only autistic lawyers, but also their neurotypical counterparts. To foster the systemic changes needed to fully realize the potential of neurodiverse lawyers, the legal profession should do the following: • Educate human resources professionals and leadership teams on the strengths and needs of neurodiverse employees to combat biases and foster understanding. • Implement clear procedures for requesting accommodations, reporting discrimination and addressing retaliation.[16] These processes should provide multiple avenues to ensure comfort and accessibility. • Normalize adjustments such as flexible schedules, sensory-friendly or remote working environments, and alternative communication methods to create environments where neurodiverse attorneys can thrive.[17] Employee resource groups can assist neurodiverse lawyers in finding needed support and aid the normalization of relevant conversations. • Create pathways for neurodiverse lawyers to assume leadership roles, such as structured associate-partner mentorship programs. • Measure progress by soliciting voluntary feedback from neurodiverse attorneys. By making these shifts, law firms and legal organizations not only comply with antidiscrimination laws, but also unlock the unique talents of their neurodiverse employees, driving innovation and equity. Conclusion The legal industry has a unique opportunity to question some of its traditionalism and risk aversion in favor of unlocking the potential of neurodiverse talent. By dismantling biases, fostering inclusion and amplifying the voices of autistic lawyers, the profession can create workplaces that are not only equitable, but also engines of innovation. My personal experiences reinforce that transparency fosters trust and team cohesion, and affirm that inclusive policies, practices and tone at the top can create a positive and productive workplace for all. When neurodiverse individuals are empowered to bring their full selves to work, the entire industry — and its clients — benefits. Let us embrace this moment to build a legal profession that truly reflects the diversity of the world it serves. Andi Mazingo is the founder and principal attorney at Lumen Law Center. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] Bill Gates Says He Would Have Been on the Autism Spectrum as a Kid, The Wall Street Journal, https://www.wsj.com/video/series/in-depth-features/bill-gates-says-he-wouldhave-been-on-the-autism-spectrum-as-a-kid/11B11C56-F1C7-4D7E-B04C20F423E197A2?msockid=1b3ef036ecfe6a900eabe57ced106bcc (accessed January 28, 2025). [2] Key Findings: Estimated Number of Adults Living with Autism Spectrum Disorder in the United States, 2017, Center for Disease Control, https://www.cdc.gov/autism/publications/adults-living-with-autism-spectrumdisorder.html?CDC_AAref_Val=https://www.cdc.gov/ncbddd/autism/features/adults-livingwith-autism-spectrum-disorder.html, accessed December 17, 2024. [3] Preetika Rana, Jobs for the Autistic Grow Beyond Tech, https://www.wsj.com/lifestyle/careers/jobs-for-the-autistic-grow-beyond-techb4eee329? (June 2024). [4] Companies like SAP, Salesforce, and Microsoft have adopted inclusive practices, from providing sensory-friendly workspaces to redesigning interview processes to accommodate neurodivergent candidates. See id. [5] The United Kingdom's legal industry has made some recent advancements in neuroinclusion. Founded in 2022, the UK's Legal Neurodiversity Network champions initiatives to improve workplace inclusivity for neurodivergent individuals, including mentoring, visibility enhancement, and neuroinclusive training, recently publishing a neuroinclusion guidebook and promoting articles written by neurodiverse attorneys. A 'people first' approach to neuroinclusion, The Law Society Gazette (United Kingdom), https://www.lawgazette.co.uk/wellbeing/a-people-first-approach-toneuroinclusion/5121058.article (October 2024). [6] Graham Ambrose, Brianne Holland-Stergar, and Nora Freeman Engstrom, Mental Health Screening in Lawyer Licensing, Stanford Law School Rhode Deborah L. Rhode Center on the Legal Profession, https://law.stanford.edu/wp-content/uploads/2024/12/Mental-HealthScreening-in-Lawyer-Licensing-Final.pdf (accessed 12, 26, 2024). [7] Greenberg, Y.D.M., Holt, R., Allison, C.et al., Moral foundations in autistic people and people with systemizing minds,Molecular Autism15, 20 (2024), https://doi.org/10.1186/s13229-024-00591-8. [8] Overlooked workers gain appeal in challenging times, Financial Times, https://www.ft.com/content/ea9ca374-6780-11ea-800d-da70cff6e4d3 (accessed December 16, 2024). [9] A Decade of Inclusion and Empowerment: Celebrating SAP's Autism at Work Initiative, https://www.sap.com/assetdetail/2024/02/b668233e-ab7e-0010-bca6c68f7e60039b.html (accessed December 17, 2024). [10] The Americans with Disabilities Act (ADA) establishes the federal baseline for protecting neurodiverse employees against discrimination, prohibiting discrimination against qualified individuals with disabilities in all aspects of employment. 42 U.S.C.A. § 12112. The EEOC affirms that individuals with ASD, a record of ASD, or regarded as having ASD are protected under the ADA. 29 C.F.R. §1630.2(j). Many states strengthen these protections further with legislation like California's Fair Employment and Housing Act (FEHA). See Wills v. Superior Court, 195 Cal.App.4th 143 (2011). [11] Intersectionality is a framework introduced by legal scholar Kimberlé Crenshaw that examines how overlapping social identities — such as race, gender, class, and disability — create interconnected systems of discrimination or privilege. It highlights the unique challenges faced by individuals who occupy multiple marginalized identities, emphasizing the need to address these experiences within social justice and policy efforts. [12] Autistic individuals are more likely to be LGBTQ+, University of Cambridge, https://www.cam.ac.uk/research/news/autistic-individuals-are-more-likely-tobe-lgbtq? (accessed January 3, 2025). [13] One teammate even took charge of organizing monthly team lunches that allowed me to spend structured time with them when I would normally work through lunch — and that allowed my teams to have the bonding time everyone needs. [14] My greater self-awareness also aided my own professional growth. As I learned about autistic traits, I also created professional adaptations. I began making more conscious efforts to provide positive feedback and encouragement to my teammates, even by way of emails that may have come across as awkward, overly enthusiastic, or random if I were neurotypical. This helped me to counteract moments when I was too intensely focused on client work to provide timely praise. I also consciously prioritized praising team members for innovation and thought leadership, including for contributions outside of their job descriptions, as well as for emotional labor — all intended to create a strengths-based environment. As my colleagues' job satisfaction grew, I noticed improvements in their dedication and willingness to innovate solutions for our team's efficiency. [15] Haley Moss, Personal Perspective: Inclusion, It's Not Just a Concept (April 7, 2020), https://www.autismgreaterwi.org/inclusion-not-just-concept/. [16] Retaliation is a significant challenge for neurodiverse individuals. Known for their strong ethical principles, adherence to rules, and limited susceptibility to social influence, neurodiverse employees are more likely to encourage compliance in the face of workplace misconduct. Stereotypes can exacerbate the risk that employers misinterpret neurodiverse employees' actions as confrontational or insubordinate rather than productive and riskmitigating. [17] Employers should ensure flexibility in response to reasonable accommodations requests, engaging in the interactive process to support employees in performing their essential job functions before resorting to disciplinary action or claiming undue hardship. See, e.g., Humphrey v. Memorial Hosp Ass'n, 239 F.3d. 1128 (9thCir. 2001) (holding that attendance-related issues caused by obsessive-compulsive disorder can be protected under the ADA, emphasizing that employers must engage in an interactive process to explore reasonable accommodations and cannot simply rely on inflexible attendance policies when a disability is involved). In California state regulations, "reasonable accommodations" is defined to include "[j]ob restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities." Cal.Code Regs., tit. 2, § 7293.9(a).

Zuckerberg's Remarks Pose Legal Risk For Meta Amid Layoffs By Andi Mazingo (February 6, 2025) Troubling leadership statements and decisions can have profound implications, translating into potential claims under California employment law. At influential companies like Meta Platforms Inc., leadership decisions not only shape internal workplace culture, but also set the tone for norms across industries. Meta's recent decision to cut 5% of its lowest-performing employees[1] has reignited debates about workplace equity and drawn attention from other high-profile corporate leaders.[2] Andi Mazingo While layoffs are a familiar strategy in a competitive tech sector, troubling leadership statements and decisions surrounding this announcement warrant closer scrutiny. On Joe Rogan's podcast last month, Mark Zuckerberg said corporations are becoming "culturally neutered," need to bring back "masculine energy" in the workplace and praised "a culture that celebrates the aggression a little more." These comments, coupled with his assertion that diversity and inclusion efforts "can always go a little far," stand out starkly in a broader corporate trend.[3] Many companies have scaled back diversity, equity and inclusion initiatives following the U.S. Supreme Court's 2023 decision on affirmative action in Students for Fair Admissions Inc. v. President and Fellows of Harvard College.[4] However, most have approached the shift cautiously, issuing carefully worded statements that avoid prioritizing one group over another.[5] In contrast, Zuckerberg's remarks risk signaling a preference for traits that could disproportionately disadvantage women, nonbinary and LGBTQ+ employees. Adding to the controversy, Zuckerberg recently appointed Ultimate Fighting Championship President Dana White to Meta's board of directors. White — a polarizing figure with no background in social media technology — has been publicly criticized for defending UFC fighters' homophobic and transphobic remarks,[6] dismissing mental health concerns,[7] and exhibiting personal behavior that has sparked outrage.[8] In addition to White's appointment, there are reports of Meta deleting internal employee criticism of the decision, underscoring growing concerns about the company's leadership priorities.[9] For attorneys advising corporations that are undergoing changes to their DEI programming, or strategizing to appeal to newly inaugurated President Donald Trump, these developments are a critical reminder of how statements and cultural priorities at the top can translate into potential claims under California employment law. Zuckerberg's comments are likely to create viable claims. Under California's Fair Employment and Housing Act, leadership comments that reflect potential bias can play a pivotal role in employment disputes. Statements that reveal a preference for aggression and masculine energy in the workplace could be used as direct evidence of discriminatory intent in disparate treatment claims. These claims arise when an employer intentionally discriminates against a protected group, such as women, nonbinary or LGBTQ+ employees. For example, in Martin v. Board of Trustees of the California State University in 2023, a California state appeals court reaffirmed that discriminatory animus need only be a substantial motivating factor for an adverse employment action.[10] Leadership statements, like those made by Zuckerberg, could be viewed as reflecting such animus, particularly when made in the context of layoffs. In fact, Zuckerberg's remarks likely create a triable issue as to Meta's motivations, because they pertained to the composition of its workforce and came out merely days before his layoff announcement. This signals favorable odds that discrimination and wrongful termination claims would survive summary judgment.[11] Leadership statements can also aid employees in stating disparate impact claims, which arise if neutral policies disproportionately harm protected groups. To the extent that Meta does not make demographic data available to employees when the layoffs occur, those who file a lawsuit could defend against a subsequent motion to dismiss their disparate impact claims by citing anecdotal evidence, including the context of Zuckerberg's remarks about masculinity and related actions.[12] Then, during the discovery period, plaintiffs would likely be entitled to demographic data for affected and nonaffected employees to determine whether there is a statistically reliable pattern of discrimination.[13] Finally, White's appointment to Meta's board and Zuckerberg's subsequent comments may also give rise to retaliation claims. Employees who voice concerns about the potentially discriminatory layoff plan, or any other such practices at Meta, can establish retaliation claims by showing they opposed the perceived discriminatory conduct, even informally, that they were laid off, and by demonstrating a causal link between the two.[14] Temporal proximity between opposing such conduct and leadership's decision to lay off a particular employee can evidence the requisite causal link.[15] What can counsel learn from Meta's missteps? For attorneys, the Meta controversy highlights the importance of the tone at the top in assessing potential claims. Leadership comments are not just sound bites; they reflect cultural priorities that can shape workplace practices and policies. These priorities can directly influence how employment decisions are perceived under laws like the Fair Employment and Housing Act, particularly in cases involving layoffs, terminations or other adverse actions. Employers should also take note of the risks associated with high-profile appointments like Dana White's. While corporate boards often include individuals with diverse expertise, it may signal misaligned priorities to appoint a figure whose public behavior and statements conflict with the values of inclusion and equity. Beyond the reputational damage, such decisions may embolden internal criticism or litigation if employees or shareholders believe the company's leadership is fostering a culture of exclusion. For companies navigating complex cultural shifts, the lesson is clear: Decisions about layoffs, DEI programs and leadership appointments must be communicated thoughtfully, with careful consideration of their potential impact on all employees. Employers should also ensure that their messaging remains neutral, avoids language that could be construed as biased, and clearly communicates the rationale for decisions in a way that aligns with their legal and ethical obligations. By prioritizing transparency, equity and compliance, companies can protect their reputations while fostering a workplace culture that attracts and retains top talent. Conclusion The decisions emerging from Meta underscore the critical role of leadership's tone and priorities in shaping workplace culture and mitigating legal risks. While other corporations are rolling back DEI initiatives with neutral and carefully crafted statements, Meta's approach — celebrating aggression and masculine energy while embracing divisive leadership appointments — raises serious questions about equity and fairness in one of the world's most influential workplaces. No matter how powerful tech giants become, they still owe shareholders a duty to manage their corporations within the law.[16] Employment laws remain firmly in effect, and seemingly biased off-the-cuff remarks have no place in corporate America, regardless of their popularity. Even beyond the legal implications, while a culture that celebrates aggression may resonate with political machismo, it sounds miserable for the employees, and lawyers,[17] who actually have to show up. Meta may claim its layoff plans are aimed at the lowest-performing employees, but its newfound tone at the top risks alienating the highest-performing and most innovative talent — the very people who drive the company's success. Andrea "Andi" Mazingo is the founder and principal attorney at Lumen Law Center. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice. [1] Bloomberg reports that Meta will lay off 5% of staff, available at https://www.msn.com/enus/money/other/bloomberg-reports-that-meta-will-lay-off-5-of-staff/arAA1xfm5g?ocid=BingNewsSerp. [2] See, e.g., Rebecca Shaw, I knew one day I'd have to watch powerful men burn the world down – I just didn't expect them to be such losers, available at https://www.theguardian.com/commentisfree/2025/jan/16/i-knew-one-day-id-have-to-watchpowerful-men-burn-the-world-down-i-just-didnt-expect-them-to-be-such-losers; Elon Musk shares one-word reaction to Mark Zuckerberg's Joe Rogan podcast revelation about MMA opening his eyes to the dark side of corporate culture, Sportskeeda, available at https://www.sportskeeda.com/mma/news-elon-musk-shares-one-word-reaction-markzuckerberg-s-joe-rogan-podcast-revelation-mma-opening-eyes-dark-side-corporate-culture. [3] Joe Rogan Experience #2255 - Mark Zuckerberg, available at https://www.youtube.com/watch?v=7k1ehaE0bdU. [4] Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023) (holding that Harvard College's and the University of North Carolina's affirmative action admissions processes violate the Equal Protection Clause of the Fourteenth Amendment). [5] Which US companies are pulling back on diversity initiatives?, The Associated Press, https://apnews.com/article/dei-diversity-equity-inclusion-meta-facebook-mcdonalds8ab144803dab400ac901db1530f930e5. [6] Dana White loves and defends his homophobic UFC fighters. Now he's helping guide Meta, available at https://www.msn.com/en-us/sports/other/dana-white-loves-and-defends-hishomophobic-ufc-fighters-now-he-s-helping-guide-meta/ar-AA1xcB26?ocid=BingNewsSerp. [7] What It Means to Be a Man, According to UFC's Dana White, available at https://sports.yahoo.com/means-man-according-ufc-dana-165740235.html (quoting Dana White as stating "... you can't afford to be a man and talk publicly about, 'Oh, my mental health.' We all have bad days and good days. And I believe that as a man, you suck that sh-t up."). [8] Old video of Dana White slapping wife recirculates after Meta board announcement, available at https://www.dailydot.com/debug/dana-white-slap-video-meta/. [9] Facebook Deletes Internal Employee Criticism of New Board Member Dana White, available at https://www.404media.co/facebook-deletes-internal-employee-criticism-of-new-boardmember-dana-white/. [10] Martin v. Bd. of Trustees of California State Univ., 97 Cal. App. 5th 149, 315 Cal. Rptr. 3d 117 (2023), review denied (Feb. 14, 2024). [11] Zamora v. Sec. Indus. Specialists Inc., 71 Cal. App. 5th 1, 34 (2021) ("The plaintiff is required to produce 'very little' direct evidence of the employer's discriminatory intent to move past summary judgment."); see also Harris v. City of Santa Monica, 56 Cal. 4th 203, 232, 294 P.3d 49, 66 (2013) (holding that while "liability will not be imposed based on evidence of mere thoughts or passing statements unrelated to the disputed employment decision ... proof that discrimination was a substantial factor in an employment decision triggers the deterrent purpose of the FEHA and thus exposes the employer to liability, even if other factors would have led the employer to make the same decision at the time). [12] Mahler v. Jud. Council of California, 67 Cal. App. 5th 82, 115 (2021), citing Jianqing Wu v. Special Counsel Inc., 54 F.Supp.3d 48, 55 (D.D.C. 2014) ("... speculative correlation between age and experience" is "insufficient to state a claim for disparate impact"; at a minimum, plaintiff was required to proffer "some form of statistical or anecdotal evidence showing that older candidates were being excluded systematically".). [13] See, e.g., Guz v. Bechtel Nat. Inc., 24 Cal. 4th 317, 367 (2000); Alch v. Superior Ct., 165 Cal. App. 4th 1412, 1431, 82 Cal. Rptr. 3d 470, 486 (2008). [14] Cornell v. Berkeley Tennis Club, 18 Cal. App. 5th 908, 942 (2017). [15] Light v. Department of Parks & Recreation, 14 Cal.App.5th 75 (2017). [16] Meta Platforms Inc., formerly known as Facebook Inc., registered in the State of Delaware. Under Delaware law, directors may be said to owe a duty to shareholders as a class to manage their corporation in a legally compliant way. See, e.g., Firefighters' Pension Sys. of City of Kansas City v. Found. Bldg. Materials Inc., 318 A.3d 1105, 1138 (Del. Ch. 2024), citing TW Servs., Inc. v. SWT Acquisition Corp., No. CIV.A. 10298, 1989 WL 20290, at *7 (Del. Ch. Mar. 2, 1989) (describing as "non-controversial" the proposition that "broadly, directors may be said to owe a duty to shareholders as a class to manage the corporation within the law, with due care and in a way intended to maximize the long run interests of shareholders"). [17] A lawyer says he dropped Meta as a client after what he called a 'descent into toxic masculinity' by Zuckerberg's company, Business Insider, available at https://www.businessinsider.com/lawyer-meta-dropped-client-mark-zuckerberg-changesmark-lemley-2025-1 ("Mark Lemley, a Stanford law professor and lawyer who representedMetain a 2023 AI copyright case,said he has dropped the company as a client because of what he described asCEO Mark Zuckerberg's'descent into toxic masculinity and Neo-Nazi madness.'").

Machiavelli 2.0: Why Ethics Is Now the Ultimate Competitive Strategyandrea mazingoJun 78 min readRewriting The Operating System Of Legitimacy ItselfBy Stephen Klein and Andi MazingoreeA recent Vanity Fair exposé revealed Meta’s quiet confession: yes, they took your data. No, they don’t believe it had value. This isn’t just a legal maneuver, it’s a worldview. One in which the creative commons is seen as raw material, and ethical justification becomes retrofitted PR.Meta’s position wasn’t abstract. It was a direct response to one of the dozens of lawsuits now confronting Big AI. As of mid-2024, there are over 35 active cases, ranging from The New York Times to bestselling novelists, alleging systematic copyright infringement. These lawsuits target not just Meta, but also OpenAI, Google, Microsoft, Anthropic, and Stability AI. Together, five companies have vacuumed up and monetized the overwhelming majority of the world’s public internet, claiming everything from Wikipedia to Reddit threads to song lyrics as fair game.The defense? The data had no value. Therefore, no harm was done.That argument isn’t just false. It’s foundationally dangerous. And it proves the stakes of this paper: that we are no longer merely debating legality. We are rewriting the operating system of legitimacy itself.This moment changes everything. It validates what this article argues: In a world where legal systems lag technological innovation, corporations are no longer simply market actors, they are becoming de facto regulators. As generative AI reshapes the foundations of value creation, the rules of competition are shifting. The strategic use of ethics and values, once dismissed as "soft," may now be the most Machiavellian move a company can make.This article explores a provocative thesis: that in a post-IP, post-regulation, and post-tech world, values-driven governance becomes a fiduciary obligation. Not because leaders believe in it. Not because it’s moral. But because there may be no other sustainable path to competitive advantage.The Premise: A Post-IP, Post-Regulation, and Post-Tech WorldWe begin with four core assumptions that define the new competitive landscape:Post-IP: In the age of generative models trained on the internet’s collective output, intellectual property rights are functionally unenforceable at scale. The law has not, and may never, catch up to the reality that nearly all foundational models contain embedded traces of copyrighted material. Legal recourse, even if technically viable, is economically and logistically out of reach for most creators. [1]Post-Regulation: The pace of AI advancement has overwhelmed traditional legal systems. Agencies are under-resourced, politically fractured, and fundamentally reactive. In 2023 alone, 25 U.S. states proposed AI-related legislation, but a coherent federal strategy remains absent. [2] Meanwhile, regulators like the SEC have begun penalizing companies for "AI-washing"—a sign that enforcement is playing catch-up, not leading. [3]Charitably, we can refer to this as Post-Regulation, but with additional context, it approaches Post-Democracy. Tech companies are functioning as sovereign entities, governing AI systems that affect military, speech, elections, employment, and mental health without democratic accountability. Consider OpenAI’s partnership with the US military or Altman’s Worldcoin project, framed as a path to corporate-instituted universal income. As Adam Becker writes in More Everything Forever, rather than respond to valid criticism, tech billionaires increasingly cloak their antidemocratic ambitions in apocalyptic longtermism. Elon Musk, for instance, calls longtermism a “close match” to his philosophy. The result hauntingly echoes Supreme Court Justice Louis Brandeis’s warning from 1941: “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.” [9]Post-Fiduciary: As Meta considers reincorporating from Delaware to Texas, arguably to eschew accountability to shareholders, public benefit corporations (PBCs) like xAI, Anthropic, and now OpenAI benefit from their corporate form’s comparative absence of stakeholder enforcement mechanisms. With minimally established shareholder inspection rights—and no inspection rights and legal standing for public stakeholders—the ethical compliance of PBCs often is relegated to self-reporting. In contemplating the potential for bias in self-reporting, consider Anthropic using its own AI model to audit itself during emergent behavior tests. While shareholders may theoretically enforce PBCs’ duties, public benefit goals often are too uncertain to litigate. Thus, you will find PBCs’ AI’s, like xAI’s Grock, surfacing misinformation like Holocaust denial without accountability.Post-Tech (The Closed-Sourced Collapse): The flood of open-source models has reduced technological advantage to a window of months. GitHub reported over 100,000 new AI-related repositories launched in 2023 alone. [4] Meta alone manages dozens of active open-source projects, with thousands of contributors and no IP enforcement model capable of stemming derivative creation. [5]The convergence of these four forces, post-IP, post-reg, post-fiduciary, and post-tech, means that the traditional tools of competitive advantage are eroding. What remains is something harder to fake, easier to lose, and more essential to scale: trust.Background: The Legitimacy Crisis Unfolding in CourtAs of early 2025, more than 39 active copyright infringement lawsuits are pending in U.S. courts against the largest generative AI companies—including Meta, OpenAI, Microsoft, Google, Anthropic, and Stability AI. These suits have been brought by a diverse range of plaintiffs, including novelists, visual artists, news organizations, musicians, and independent content creators. The core allegation is consistent: these companies scraped vast swaths of the public internet, including copyrighted books, articles, lyrics, artwork, and posts, without permission or compensation, to train commercial AI models now valued in the billions.Meta, for example, faces multiple lawsuits related to its Books3 dataset, a controversial compilation of more than 180,000 copyrighted books used to train its LLaMA models. In legal filings and public statements, Meta has defended its actions by arguing that the individual books had "no economic value," a claim that has sparked outrage among authors and rights groups.This defense strategy may succeed in court, but it raises a deeper problem: If companies can justify appropriation on the grounds that the content was abundant or undervalued, then the very foundation of intellectual property law, and trust in the digital economy, begins to erode.Meanwhile, AI companies avoid other categories of legal liability while the legal industry plays catch-up. Personal injury law has not adapted to AI-specific harms like relational exploitation, therapy chatbot malpractice, or nervous system dysregulation or psychosis caused by emotionally charged hallucinations. Nor have employment protections caught up with the pretextual use of AI to justify potentially biased mass layoffs—or with the bias-vulnerable use of AI to select employees for inclusion in layoffs.Even where legal claims exist, arbitration provisions, safe harbors for business judgment, and a politically influenced judiciary makes redress elusive. But reputational consequences remain unpredictable and potent. Consider the case of former OpenAI developer Suchir Balaji: following his purported suicide, his mother raised over $100K on GoFundMe under the theory that OpenAI contributed to his death. [10] Whatever the legal facts, the cultural narrative took root. Risk does not vanish when rights go unenforced; it mutates.Machiavellian Ethics: Power by LegitimacyHistorically, Niccolò Machiavelli wrote that power is preserved through fear, manipulation, and control. But today, fear-based leadership no longer scales. In the AI age, where velocity and transparency are absolute, legitimacy, not force, is the new currency.And legitimacy cannot be faked indefinitely.What happens when Machiavelli, to remain Machiavellian, is forced to compete on ethics and values? He does what he’s always done: adapts.Companies will begin to treat operationalized ethics, not as virtue signaling, but as competitive infrastructure. They will not need to believe in it. They will not need to mean it. But they will need to demonstrate it, measure it, and integrate it across product design, data usage and privacy practices, hiring and compensation systems, vendor and partner policies, and shareholder communications.Here's the challenge: today’s AI elite tend to share worldviews distinct from the general public. As observed in a 2021 study, elite technologists increasingly form an epistemic class of their own. [6] These cultural echo chambers ignore dissent and flatten nuance. But ethical intuition comes from the margins.Some neurodiverse or autistic forms of cognition—marked by pattern sensitivity, resistance to groupthink, and rigid integrity—may be especially attuned to subtle moral incoherences. These modes of perception, long dismissed as too rigid or intense, may provide essential early warnings of misalignment. This is only true, however, when ethical principles are not collapsed into abstract reasoning.Ethical foresight requires more than abstract reasoning; it requires embodied reflection—a felt capacity to question the shape of the problem itself. As Francisco Varela writes in The Embodied Mind, when reflection is embodied, “it can cut the chain of habitual thought patterns and preconceptions . . . open to possibilities other than those contained in one’s current representations of the life space.” [7] Ethical clarity comes not only from logic, but from sensing what context demands.Similarly, Shannon Vallor’s framing of Aristotle’s definition of “greatness” as “founded in a life-time of moral and social efforts rather than relatively meaningless zero-sum contests of ego” modernizes the ancient wisdom that “the magnanimous are those who have rightly earned the moral trust of others.” [11]Stakeholder Capitalism as Competitive RealityThis is where the fiduciary shift takes on added complexity. As more employees become shareholders, through equity, options, and 401k participation, the line between "internal culture" and "market accountability" begins to blur.In this context, values alignment isn’t soft. It’s economic. It’s risk management. It’s brand durability. It’s talent retention.And AI, far from replacing ethics, can become the instrument through which it is enforced:Internal LLMs that guide ethical decision-makingGenerative systems that flag bias or hallucination risk in content and codeDistributed ledger technology to record model transparency and accountabilityThe future isn't just AI-powered. It’s ethically operationalized AI. Not because it’s better. But because it's more likely to win.Along with an ethically attuned AI, companies can iterate legitimacy through:Transparent correction (e.g., not Altman joking about sycophancy, but publishing public audits);Stakeholder co-design (e.g., not firing ethicists, but elevating dissent);Restorative alignment (e.g., not issuing generic apologies, but engaging harmed communities, correcting processes, and demonstrating change).Forward-looking fiduciaries ask not only "Is this legal?" but: "Who could credibly claim harm—and how might that shape trust, investor confidence, or litigation risk?"A Call to Boards and ExecutivesIn many ways, the boardroom is now the arbitrator of law and ethics. Fiduciary duty must evolve with the landscape it governs. The strategic mandate is no longer only about growth, efficiency, or disruption. It’s about legitimacy engineering.If corporations become the new sovereigns, then trust is the new GDP.And the companies that master it, not through rhetoric but through repeatable design, will define the next era of economic leadership.Stephen Klein is the Founder and CEO of Curiouser.AI and teaches AI Ethics at UC Berkeley. Andi Mazingo is the Founding Attorney of Lumen Law Center focusing on employment and corporate governance law. They are collaborating on the future of ethics, law, and legitimacy in the age of Generative AI.ReferencesWired, "Tracking AI Copyright Lawsuits" — https://www.wired.com/story/ai-copyright-case-tracker/National Conference of State Legislatures, "AI 2023 Legislation" — https://www.ncsl.org/technology-and-communication/artificial-intelligence-2023-legislationBarron’s, "SEC Cracks Down on AI-Washing" — https://www.barrons.com/articles/sec-penalizes-investment-firms-for-ai-washing-49e17971The Verge, "GitHub’s Explosion in AI Repos" — https://www.theverge.com/24221978/github-thomas-dohmke-ai-copilot-microsoft-openai-open-sourceMeta Engineering Blog, "Meta Open Source by the Numbers" — https://engineering.fb.com/2025/04/02/open-source/meta-open-source-by-the-numbersBrockmann, H., Drews, W., & Torpey, J. (2021). A class for itself? On the worldviews of the new tech elite. PloS one, 16(1), e0244071, https://doi.org/10.1371/journal.pone.0244071.Francisco J. Varela et. Al, The Embodied Mind: Cognitive Science and Human Experience (2016 Massachusetts Institute of Technology) at 27, 145.Douglas R. Hofstadter, Godel, Escher, Bach: an Eternal Golden Braid (1999) at 661. Adam Becker, More Everything Forever: AI Overlords, Space Empires, and Silicon Valley’s Crusade to Control the Fate of Humanity, (2025 Basic Books) at 288-89.Justice for Suchir Balaji — https://www.gofundme.com/f/justice-for-suchir-balaji?attribution_id=sl:aca98d09-f8a9-4f30-9c43-eadea723c01c&utm_campaign=unknown&utm_medium=undefined&utm_source=undefinedShannon Valor, Technology and the Virtues: A Philosophical Guide to a Future Worth Wanting (Oxford University Press 2016) at 152-54.

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