Although Ellen Pao lost her gender-discrimination case against Silicon Valley’s venture capital giant Kleiner Perkins, her lawsuit can still become a positive force for establishing equal employment opportunities for women in technical fields.
Pao sued Kleiner Perkins for discrimination only on behalf of herself, but her suit focused the country’s attention on the overall climate of gender bias in tech. Although Pao lost at trial, it would be a shame if women in Silicon Valley came away with the message that gender discrimination cases all turn on a single plaintiff’s personality.
Litigation has proven effective in combating gender discrimination across a range of industries, particularly in cases brought as class and collective actions. These forms of litigation enable women to stand together and prove that discrimination is not isolated, giving them the leverage to demand systemic changes in the workplace.
In class and collective actions, women have been able to obtain not just compensation for demonstrated pay and promotion disparities, but also ongoing changes in their workplaces. For example, although full gender equality is not yet at hand, Wall Street today is a far cry from the infamous “Boom Boom Room” levels of sexism that went unchecked until a group of women who worked at Smith Barney successfully brought a discrimination lawsuit in the 1990s. More importantly, when companies fail to live up to the promises they make their female employees, their lawyers can again bring suit, as our own firm is doing in a lawsuit we recently announced against Alcon, a division of Novartis Pharmaceuticals. Although Novartis implemented substantial changes to promote gender equality after a previous class-action lawsuit, the same diligence and oversight have allegedly not been applied to the Alcon division, which was acquired after the original lawsuit.
Class and collective actions are also uniquely suited for challenges to systemic problems, especially now that gender discrimination often takes on a more subtle form, in part due to prior litigation successes. One prominent species of discrimination class actions challenges corporate practices that––while appearing to be gender neutral and free of overt bias––nonetheless have a disparate impact on women.
The recently filed class-action lawsuit against Twitter, challenging the social media company’s promotions practices, is but the latest example. The plaintiff is seeking to represent 50-plus women affected by a promotion policy that allegedly created discriminatory barriers for female software engineers. Specifically, the plaintiff is arguing that the lack of transparency and objective criteria led a predominantly male leadership team to promote men while overlooking women, and she is asking the court to order Twitter to change the way it handles promotions.
Lawsuits that seek court orders to dismantle the glass ceiling have plenty of precedent. In Ellis versus Costco, gender disparities in management were also alleged to have resulted from promotion practices that unfairly disadvantaged women, including failing to post management job vacancies and failing to provide a formal application process. The statistics, corporate policies, and anecdotal testimony of women who worked at Costco showed “a general policy of discrimination” that allowed the case to go forward as a nationwide class action. Costco eventually settled the case and agreed to implement court-approved reforms to its hiring and promotions practices.
It’s not just promotion processes that are subject to scrutiny in these “disparate impact” cases. It might also be a company policy of basing salary, bonus, or other compensation on subjective criteria that, in male-dominated companies, are susceptible to gender bias. If the statistics show a pay disparity between men and women who are similarly qualified, the onus will be on the company to come forth with a strong business justification for why that is. As a result, the cold hard statistics end up mattering more than the likability of a single plaintiff.
That is not to say that the testimony of female employees isn’t important. It is, but in class cases more women are likely to step forward and their testimony is less likely to get blown out of proportion. As a result, it is difficult for companies to deflect attention away from corporate misconduct. In the Novartis case, for instance, a parade of women testified before a jury about rampant gender bias in a class-action trial. Their compelling personal stories were necessary for demonstrating a pattern of discrimination, eventually leading a jury to award the class of women $250 million in damages.
In class and collective actions, employees are incentivized, as potential class members who can benefit directly from the lawsuit, to come forward with their own stories that can help show how a seemingly neutral policy can have an unfair, discriminatory impact. Such testimony may reveal overt or hidden biases, but need not prove that any particular decision-maker was biased against a plaintiff. All that is necessary in these “disparate impact” cases is for the plaintiffs to show that the company policy at issue has a disparate impact on women without being justified by a countervailing business necessity.
By removing the requirement that women prove that there was a single decision-maker who actively discriminated against them, “disparate impact” class and collective action cases are stronger legal vehicles for women seeking to effect changes in their workplaces. They make it harder for companies to defend themselves––whether in front of the judge or jury––by disparaging the personality and qualifications of a single plaintiff. Of course, no woman who believes that she was ill-treated due to gender bias, explicit or implicit, should ever be accused of playing the “gender card” in order to get ahead. But, unfortunately, Ellen Pao’s legal claims were the perfect setup for that defense strategy. Ellen Pao’s personal journey has a lot to be admired, but her suit was not designed to achieve systemic changes.
Challenging biased power structures means elevating a case beyond personalities and putting the bull’s-eye on corporate practices that may not even appear biased at first glance. That’s why the Twitter suit and similar suits that have come before it are better examples of what women can achieve through litigation challenging discrimination.
Xinying Valerian is senior litigation counsel and Sherri Hansen is an associate at Sanford Heisler Kimpel, LLP, a national public interest law firm that represents employees and whistleblowers.