#WhatNow?

How #MeToo is impacting gender-discrimination cases

Published in 2018 Northern California Super Lawyers — August 2018

On March 27, 2015, one week after Jason Lohr sued Twitter for gender discrimination on behalf of client Tina Huang, a jury in a downtown San Francisco courthouse ruled against another plaintiff in one of the most highly publicized tech-industry gender bias trials. In that case, Ellen Pao claimed that her former employer, venture capital firm Kleiner Perkins Caufield and Byers, had discriminated against her and retaliated when she complained.

A lot was riding on the Pao verdict, says Lohr, co-founder of Lohr Ripamonti & Segarich. When she lost, he admits, “It was tough for our client because, of course, if Ellen Pao had prevailed, it would have put some wind in our sails. It was a bit grim, and it was really kind of a dark time for our case. Fortunately for us, things have changed, and, of course, the Me Too movement and the landscape today is so much different than it was even just a couple of years ago.” 

After being denied a promotion despite receiving excellent reviews, Huang alleged in her suit that Twitter’s promotion policies are biased against women. Lohr filed a motion in December 2017 for class certification in the case.

Silicon Valley is ground zero for gender-discrimination and harassment suits in the tech industry. In 2015, computer security researcher Katherine Moussouris filed a class action suit accusing Microsoft of favoring men for promotions in tech and engineering jobs. The case is ongoing. In 2016, Qualcomm settled a gender-discrimination case involving 3,300 female employees for $19.5 million, even before the plaintiff’s lawyers filed suit.

Fast-forward to last fall, when sexual misconduct allegations against Hollywood producer Harvey Weinstein snowballed. Actress Alyssa Milano’s catchy #MeToo phrase quickly spread far beyond Tinseltown, spurring women across America to step forward and declare solidarity against unfair hiring practices, sexual harassment and workplace abuse. 

Some Silicon Valley attorneys believe the movement will have a positive effect for plaintiffs in pending and future litigation. 

“Ellen Pao stepped up and she spoke out and, frankly, it turned out badly for her,” Lohr says. “But now, with the Me Too movement, I think there’s just safety in numbers and that, if you do step up, it doesn’t necessarily mean that your career’s going to be derailed or you’re going to be attacked in the press.”

James Finberg with Altshuler Berzon recently filed class actions against Google and Oracle, alleging the companies violated the California Fair Pay Act, systematically paying male employees more than their female counterparts for the same work and promoting women less often, even when they were more qualified. Heidi Lamar, a Google preschool teacher for employees’ children and one of the four named plaintiffs in that case, “actually had higher interview scores on a four-point scale” than a male colleague brought in at a higher salary, Finberg says. “His average combined scores were 3.68 and hers were 3.74.”

Finberg believes the #MeToo movement played a role in prompting all 50 state attorneys general to recently ask Congress to amend the Federal Arbitration Act, which currently forces new-hires to sign confidential arbitration clauses. “When people can go forward in court and talk about what’s happened to them, I think it’s empowering for other people, and it makes it more possible for people to assert their claims on a collective basis instead of on an individual basis,” he says. “That’s one connection between the Me Too movement and what we’re doing.”

Another link, says Alan Exelrod of Rudy, Exelrod, Zieff & Lowe, who—along with Therese Lawless of Lawless & Lawless—represented Pao, is the hope that #MeToo will force the courts to allow evidence showing a pattern of discrimination, harassment or abuse against multiple women. “I think if anything has happened with this,” he says, “maybe ‘he said, she said’ is a thing of the past.”

Despite Pao’s defeat, which at the time led to speculation that tech companies might hire fewer women, her suit against Kleiner Perkins helped start a national conversation about gender inequity. 

Exelrod believes his high-profile client made a difference because she insisted on going to trial. “She wanted to tell her story,” he says. “By standing up and not taking a settlement, Ellen gave courage to people [by saying], ‘You can do this.’ … My client didn’t come out with a money victory. But she certainly came out, I think, a heroine.”

To Lawless as well, Pao is a trailblazer. “In retrospect, she is probably the one who really was a catalyst for the Me Too movement and got the ball rolling.” 

Indeed, if the case were tried today, Lawless says, “I think that Ellen’s chances would be much higher that she would prevail in the courtroom. I believe we have a much higher-educated populous now because of what has occurred since her case and subsequent cases and the Me Too movement, that people are having a greater understanding of the insidious and systemic discrimination that occurs in many industries against women.”

As the victorious lead employment defense attorney in the Pao case, Lynne Hermle of Orrick, Herrington & Sutcliffe sees things differently. “I think that Ellen Pao’s claims were completely and wholly meritless in every respect, and there isn’t a Me Too or other movement that would have hidden those facts,” says Hermle, who notes that the case was tried before a jury that was half female, in a historically liberal community. 

“The facts and the claims in [the Pao case] really aren’t connected with Me Too issues around concern of retaliation,” Hermle says. “She was, as the jury concluded, treated fairly and lawfully.”

Hermle says that, in her focus areas of tech and retail, she is seeing an increase in baseless, “decades-old, meritless” allegations. She believes these types of claims could end up harming clients and women in the long run. “To the extent anybody’s acting on a hair trigger in firing accused employees, without being thoughtful, there are going to be problems down the road,” she says. “I do think there’s the potential for a backlash if companies are not following good processes, including thorough investigations.”

Lawless is skeptical about how quickly the new movement will make a difference—“We thought we had made some progress with Anita Hill, but we’ve got Clarence Thomas on the Supreme Court, and now look who we have in the White House,” she says. But she is fielding more calls from female employees who want to know their legal options. “I think it’s going to help women in the long run,” she says. “When people see others doing it, it emboldens them.”

Like Lawless, many plaintiff’s attorneys see an upside to the momentum the movement has given their cases. “The more this issue is discussed, the more it is legitimized,” says Lohr. “It’s absolutely not going away. I think that the Me Too movement, frankly, is the tip of the iceberg.”

Adds Finberg, “You can’t put the genie back in the bottle.”

 


 

Percentage of Workplace Made Up of Women Women’s Earnings as a Percent of Men’s Earnings
2016  >>  46.82016  >>  80.5
1990  >>  45.22000  >>  73.7
1980  >>  42.51990  >>  71.6
1970  >>  38.11980  >>  60.2
1960  >>  33.41970  >>  59.4
1950  >>  29.6 

 

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