By Will Swaim
Saturday, October 17, 2026
On September 21, I took a long tram ride through Tesla’s
factory in Fremont, Calif. It was a marvel for a white-collar kid from the
suburbs: helmeted men and women working in partnership amid a Jurassic Park of
swinging robot arms inside 3.7 million square feet of industrial space — the
equivalent, my notes show, of about 64 NFL football fields, including the end
zones.
On that same trip, I accomplished something California’s
state investigators never did in the course of an eight-year probe: I actually
went to Tesla.
California’s Civil Rights Department (CRD) says the
factory is a “racially segregated workplace,” where black employees encounter
racist graffiti, hear racial slurs with astonishing frequency, and work in
areas known as the “plantation” and “slaveship.” The state’s case went to trial
the very day of my visit. Yet the CRD had never set foot inside the factory.
Its investigators met with Tesla officials just once, for two and a half hours,
before filing their lawsuit the following day.
The state alleges a range of discriminatory practices.
But much of the case’s force comes from one accusation: that Tesla tolerated
the frequent use of a single terrible word, one capable of making an entire
room of Americans seize up before anyone has finished pronouncing it: the
N-word.
The state will have its experts. But Tesla has called its
own, Hiram L. Smith. A sociolinguist at Bucknell University, Smith specializes
in African-American English and has just published a book
on this lexical minefield, Wassup, My Nigga: The Hidden History of a
Controversial Word.
Unlike me, Smith is black and refuses to deploy the
customary euphemism “N-word.” It’s not because he is trying to be provocative —
though provocation is an unavoidable occupational hazard here — but because he
thinks the euphemism muddies the very distinction he is trying to examine. In a
recent academic presentation, he told his audience, “In this talk, I do not use
the word ‘nigga’; I refer to it.”
More important for Department of Fair Employment and
Housing v. Tesla, Smith rejects the idea that the word is
self-interpreting. Who said it? To whom? In what grammatical construction? With
what pronunciation, intention, relationship, and social context? His research
examines how the word has served different functions over time: insult,
affiliation, masculine in-group marker, quotation, lyric, reference. Simply
counting occurrences tells us remarkably little about what happened. Smith’s
point is not that racial epithets are harmless. It’s that linguistics does not
permit us to convert every utterance mechanically into a racial assault. A word
that is unmistakably an insult in one setting may carry an entirely different
meaning in another.
And there’s a related problem, one that the state doesn’t
seem to account for, which sticks out from my own nonlawyer’s perspective: Many
of Tesla’s factory workers are Latino and black. If Tesla executives had
disciplined those workers for their use of The Word Which Cannot Be Uttered
(TWWCU), California might be making a very different claim: that Elon Musk’s
company was guilty of policing black language. You can imagine the
headlines for that case.
Indeed, while my group of tourists and car buyers was
ferried about Tesla’s “slave plantation” in a humming electric tram, the trial
was beginning an hour’s drive north: in the Alameda County Superior Court, a
1960s brutalist admin building that includes the courtroom of Judge Peter
Borkon. There, opening his defense of the carmaker, attorney Tyree P. Jones
Jr., himself a black man, told the court that the state’s case against Tesla
is, in fact, a case against black speech. “By this action, the state of
California attacks the way many black people greet each other,” Jones said.
“It’s offensive.”
This cannot mean that every invocation of TWWCU at Tesla
was affectionate, harmless, or protected by some exemption from workplace
rules. A black employee subjected to repeated racial insults by hostile
co-workers has a serious complaint, and an employer that ignores it may be
liable. Nor does Smith’s research answer the state’s separate allegations about
pay and promotions.
But those distinctions make the circumstances of each
alleged offense essential. Unfortunately, state law allows the state to make
such allegations without what you and I — or anyone who grew up on a television
diet of courtroom procedurals — would recognize as a named victim. In a
pretrial hearing, one of the state’s attorneys explained that its expert
witnesses would address Tesla’s human resources practices and their departures
from professional standards, as well as the historical and sociological significance
of the word. Smith’s presence this week makes that testimony considerably more
interesting. The CRD appears prepared to establish that the word has a long,
ugly history; Smith will ask Judge Borkon to consider what particular speakers
meant by particular uses of it. One might suppose that an agency that has
conducted an eight-year investigation would already have answered those
questions.
***
The state’s case has a second peculiarity: the methods of
its investigators.
From 2017 to 2022, Tesla claims,
CRD (then called the Department of Fair Employment and Housing) investigated
almost 50 claims of racism at the Fremont plant. “On every single occasion,
when the DFEH closed an investigation, it did not find misconduct against
Tesla. It therefore strains credibility for the agency to now allege, after a
three-year investigation, that systematic racial discrimination and harassment
somehow existed at Tesla.”
Tesla also claims that CRD officials never visited the
factory and never interviewed the Tesla executives one might suppose were the
architects of the Jim Crow system CRD says it has discovered. And although the
department has a statutory responsibility to investigate discrimination
complaints and attempt conciliation, its single encounter with Tesla consisted,
the company says, of a single, two-and-a-half-hour meeting on the day before
the state filed its 2022 lawsuit.
Despite all that, in May, Judge Borkon rejected Tesla’s
effort to dismiss the case before trial. CRD Director Kevin Kish celebrated the
ruling by declaring that Tesla’s employment practices were rooted in “some of
the ugliest relics of the past.” Yet the judge himself seemed perplexed by one
aspect of the department’s case. After years of investigation, the CRD had
proceeded without identifying individual workers as plaintiffs in its lawsuit.
In a let-me-get-this-straight moment, Borkon asked the CRD’s attorneys whether
identifying an entire category of people but not a single named victim was, you
know, sufficient.
“You don’t have to ever name the individual?” the judge
asked.
A CRD attorney explained that the department brought the
action in its own name to seek relief for affected workers. If Tesla wanted the
names of every person potentially entitled to relief, she asked, “How would CRD
have known that?”
“Why would you not have known that?” the judge replied
with something like exasperation.
It’s a marvelous exchange, and not because the state
necessarily lacks legal authority to sue on behalf of workers who aren’t
individually named in the complaint. California law gives it that authority.
Rather, the exchange raises an elementary question about an investigation that
consumed years: How closely did the state investigate the experiences of the
people it says were victimized?
The CRD’s answer may be that its evidence establishes a
pattern of misconduct extending beyond the experiences of particular employees.
But that raises the stakes of the evidence, not least because the agency is
alleging something considerably more serious than bad behavior by a handful of
employees. It is accusing one of the world’s best-known manufacturers of
maintaining a workplace culture of racial discrimination. The distinction
matters. A company that employs thousands of people can have racist employees
without operating a racist employment system. Whether Tesla knew about
particular instances of misconduct, tolerated them, punished them, or failed to
prevent them is central to the case.
So are the meanings of the words the state has collected
as evidence.
***
Tracking the evolution of California’s CRD over nearly 70
years is like examining the rings of an old tree. The agency’s changing names,
expanding authority, and increasing appetite for litigation tell a larger story
about California itself.
It dates to 1959, when California established the Fair
Employment Practices Commission to enforce the state’s first broad
workplace-discrimination protections. In 1980, the state’s employment and
housing civil rights laws were consolidated, and the agency became the
Department of Fair Employment and Housing. Four decades later, in 2022,
Governor Gavin Newsom signed legislation renaming it the Civil Rights
Department.
The changes weren’t merely cosmetic. The department’s
jurisdiction now reaches well beyond employment and housing into other areas of
public and private life. Its lawyers can pursue sweeping institutional claims,
as they have in the Tesla case. It can retain outside counsel and seek
substantial monetary relief — winnings that it can plow back into its budget
for future investigations and additional staff. Painful litigation and
eye-popping settlements are its business model.
There’s an essential place in American jurisprudence for
civil rights enforcement. But there’s also a danger in an agency whose mission
has expanded from investigating discrimination into pursuing massive legal
actions against corporations — and whose success is increasingly measured in
the size of the settlements and the changes it can compel employers to make.
Consider Activision Blizzard, the California video game maker. The
CRD accused the company of maintaining a pervasive “frat boy” culture and
pursued litigation that brought it into conflict with federal
employment-discrimination investigators. In 2023, after more than two years of legal
combat, the state announced that Activision would pay $54 million to settle. In
exchange, the state admitted that no investigation, including its own, “has
substantiated any allegations that there has been systemic or widespread sexual
harassment at Activision Blizzard.” Nor is there any evidence, California now
admits, “that Activision Blizzard senior executives ignored, condoned, or
tolerated a culture of systemic, harassment, retaliation, or discrimination; or
that Activision Blizzard’s Board of Directors including its Chief Executive
Officer, Robert Kotick, acted improperly with regard to the handling of any
instances of workplace misconduct.”
But the litigation demonstrated the old adage that the
process is the punishment. It proved the extraordinary leverage available to a
government agency that can threaten years of legal investigations and ruinous
costs, reputational damage, and enormous potential judgments.
***
My tour of the Tesla plant was lovely, even though it
recalled my early terror of industrial labor. As a ten-year-old, along with 25
or so kids in my fifth-grade class at the Old Mission School, the Catholic
school on the grounds of the Mission San Juan Capistrano, I visited a lima bean
canning factory in nearby Costa Mesa. Inside a rust-colored, barnlike facility,
a speeding, clanging belt conveyed a river of unmarked cans. I saw a man with a
kind of poking stick. He was, the guide explained, making sure that no dented
cans were sent off to grocery stores. And as I watched, the man — who seemed
old but was perhaps in his 40s — occasionally jabbed his short, wooden
broomstick-like tool at the rare can with (to me) invisible defects. These
landed in a box on the other side of the belt, a box that went to the poor, our
guide said, shouting above the mayhem. During our debrief, we agreed that this
appealed to our Catholic sense of charity. But in the moment, all I could see
was a man in a state of constant, animal awareness, working in semidarkness and
in claustrophobic noise. With God as my witness, I declared I would never work
in a factory so long as I could do anything else to survive. Soon after, I
determined that I’d become a priest. (I failed at that on first contact with
the reality of celibacy.)
Tesla’s Fremont plant was nothing like that canning
factory. Near the entrance stood something resembling an Apple Genius Bar,
except that the sign above it read “HR Answer Bar.” Other signs told employees
where to report workplace concerns, from vacation and insurance matters to
safety problems and, presumably, allegations of racism.
We climbed aboard a kind of Disneyland tram and moved
slowly into a vast, brightly lit space with red robotic arms and hard-hatted
humans. Our guide, Salim, drove us through a maze of buildings devoted to
motors, painting, aluminum-pressing, body panels, and interior finishing. He
waved at workers moving between tasks, sometimes calling out their names. They
responded with nods, waves, and the occasional fist bump.
Above and beside them, robots moved with alarming speed
and inerrant precision. Salim pointed out “ro-bats,” machines suspended upside
down above their floor-mounted brethren, all choreographed by software that
seemed to possess a better understanding of factory traffic than most
Californians will ever have of the 405.
The humans worked hard, it seemed. They wore helmets,
neon vests, boots, rubberized gloves, and safety glasses. Their jobs appeared
repetitive, demanding, and intense. My pleasant experience as a visitor proved
nothing about their treatment by co-workers or managers. Whatever ugliness
might exist in their intimate relationships would be largely invisible to
someone passing through on a tram. But that is precisely why I would have
expected the investigators to go there, talk to the workers and examine the circumstances
in which the alleged misconduct occurred.
Near the end of the tour, Salim drove our tram past the
quietest part of the facility. There, behind transparent sheets of plastic,
engineers were building the assembly line for Tesla’s newest project, Optimus —
athletic-looking wasp-waisted bipedal robots that can climb stairs, lift boxes,
and manage tools. The Optimus robots use the same visual-perception tech that
Tesla cars use to drive themselves. It’s easy to imagine that the CRD is
unintentionally accelerating the development of Optimus, by launching legal
assaults that may well incentivize the creation of human replacements. These
robots would seem to herald the end of much of the factory work we saw that
day. They would require neither lunch breaks nor overtime, and presumably they
would be indifferent to the race, sex, or ancestry of the machines working
beside them. And then (as Marx predicted in a different but related context)
deprived of “victims,” the California Civil Rights Department would simply
wither away.
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