DISCLAIMER: This “background” is purely fiction, and any similarity by name or circumstance to any actual person or litigation is coincidental only. The fictional account is presented only to “set up” the legal principles that are presented after the story.
Gender Discrimination in the Workplace: A Fictional Background.
“You have an MIT doctorate for Christ’s sake!” Alice’s mother said.
“I made a mistake.”
Her mother wasn’t satisfied. “No, it was stupid. My God, you wrote that he was “a bag of shit.” You were texting him like a school girl. What were you thinking?”
“I wasn’t thinking. It was how I felt.” The mea culpas were adding up, but not doing much good. She really couldn’t blame her mom. The stress of the upcoming trial weighed on everyone. Alice’s attorney had required the Company to disclose and share the damaging personal texts and emails.
“I need to get away. I’ll be back in a few hours,” she said. Her legs felt heavy, and it was a labor just to breathe. She needed to get to the Beach, kick off her shoes. It was early morning, and she was mostly alone. She walked just along the edge of the water, letting her thoughts flow more slowly with the rhythm of the waves.
In so many ways she felt like two people: the public person presented on her resume, and the private person whose life seemed to be spinning out of control. She had attended the best schools, combining a business and engineering degree to land a junior executive spot with a top biotech company. In five years of countless 12 hour days, she was earning nearly half a million with incentives and stock options. Why was it she was doing everything right, but watching men getting promoted into partnership status while she was in a holding pattern? She knew her time was short. Make partner, or be cut from the squad to make room for someone else.
Maybe some of her frustration had leaked into her work behaviors. She clearly was angry at times. When Gordon, a colleague she wanted as a husband would not leave his wife for her, she lost her perspective. Looking back, she was like a spurned teenager angry with a boyfriend. She had foolishly texted Gordon both in love and hate, in the “before” and the “after” of their affair. Now the Company was using those texts and emails against her to prove she was not a victim of retaliation by the Company because she had delayed two years after the breakup to complain of harassment.
“Why’d you wait so long?” Alice’s best friend, Nancy, asked her over drinks while sitting outside on a summer afternoon. Alice felt her skin tingle with the directness of her friend’s question.
“I knew there would be fallout if I complained. I hoped the promotion would come through despite the hostility. But it didn’t get better. Gordon was one of the boys, and the boys take care of their own.”
The reality was she had always felt “on the outside” at Stellar Biotech. Nancy was only the second woman to be hired into the Executive Vice President position in the 20-year history of the Company. True Jamison Clark, the Vice President of Marketing, had taken on the role of mentor – but he was the only one to provide the “inside information” needed to get ahead. When Nancy approached Lauretta McGill for guidance, she got a cold reception.
“Look, if you want a confidant to share your troubles, hire a therapist,” Lauretta had said. “Wait,” she added, as Nancy walked away, stunned. “I’m sorry. It’s tough here. I had to break into this club alone. Just do your job, and you’ll be fine.” Nancy never approached her again.
“Is it me?” she asked herself as she strolled at the water’s edge. She had always been strong-willed and assertive. She had ideas, and she saw solutions, and she was ready to assert them. But she knew she wasn’t the problem. It was the the double standard. She had seen her male colleagues blow up in meetings, practically getting into fist fights. Later, it blew over, and they were buddies again, going out for drinks, or attending sporting events together, or sharing a lunch or dinner.
“Soften it a bit,” Jamison had counseled her. Looking back, maybe that was what she should have done that, been more like Lauretta. Smart, but not too smart. Capable, but not too capable. Now Lauretta was the Company’s star witness, dribbling on about how she had never experienced any discrimination at work. Worse, Lauretta had turned on her, stating in a deposition how difficult she could be to work with, and that she was “territorial.” Nancy laughed to herself with that memory. Lauretta had never collaborated with her. Maybe by collaboration they meant collaborating as liars under oath. She began to walk faster, her skin flushed. She would not back down.
As Alice sat on the sand looking out at the vast empty sea, the image of that last day of employment rose up out of the water like an ugly Poseidon. She actually thought she was being summoned to receive the long sought promotion, finally gaining parity with her male colleagues. But when she saw the H.R. Director with her boss and the Executive Vice President of Operations, she knew it wasn’t good.
“We’ve come to a difficult decision,” her boss was saying. “We appreciate the hard work you’ve given the Company, but we must let you go.”
“What? Why? How can you?”
“We’re sorry. We truly wanted you to succeed, but we’ve come to a crossroads. You’re just not a good fit for our culture.”
“What does that mean?”
The Human Resources Director intervened. “We really do not want to debate this. You realize of course, all employees here, including senior executives, are employed at the will of the company.”
“You really don’t think I’ll just accept this, do you?” She glared at her boss, who remained quiet, his face in set in a botox neutrality.
“We have prepared a generous severance offer, better than what we usually offer people at your level,” the H.R. Director said. She handed Alice a full set of documents, including a “General Release of All Claims” agreement.
Alice was in a state of shock. She felt like she was in a bad dream. It was almost as if she were no longer in her own body. Somehow she found the works to say, “Don’t count on me signing this.” A security guard escorted her from the building.
The Gender Discrimination Trial.
Alice alleged that Stellar Biotech had fired her because she complained of sexual harassment by Gordon. She alleged that Stellar Biotech had discriminated against her because of her gender in denying her promotion, and in deciding to terminate her employment.
Stellar Biotech Attorneys argued that Stellar had terminated Plaintiff because she was unable or unwilling to work effectively with her colleagues, and that that she lacked the necessary leadership qualities for promotion. Specifically, they charged her with causing conflict and dissention by seeking her own agenda at the expense of teamwork.
They also argued her affair with Gordon was consensual, and that her denial of her willing participation was implausible given the text and email evidence. They also pointed out that she had waited two years to come forward with a complaint of harassment.
Stellar also presented evidence that Alice was treated no better or worse than men, and that her complaints of being excluded from meetings and necessary information were “trivial” matters that other executives experienced as well.
Stellar also called in a list of executives to testify that they observed behaviors and heard statements by Alice that impressed them that she lacked the necessary character for a future with the company.
And, the Company argued, Alice had found another position as a CEO of a Medical Device Company about a year after her termination, and so suffered no significant wage or career loss.
The Gender Discrimination Verdict for Alice.
Alice lost her case, but because the case was based on California anti-discrimination law and heard in a California Court, she did not have to pay the attorney’s fees and litigation costs of the Company.
Gender Discrimination in the Workplace — Some Non-Fictional Reflections.
Gender discrimination is pernicious and subtle, like all discrimination, but I think it is probably one of the most entrenched and subconsciously rooted. Imagine that fifty per cent of the population sees the other 50% as lacking all the component qualities that make that population an equal partner in a common effort. There is a parallel I think between a drug addiction and a gender bias: we deny there is a problem, and we base that denial on what we simply cannot see in ourselves. One academic group has put together a self-test to expose bias: Harvard’s Project Implicit. To take a short online test that will expose your unconscious biases, go to: https://implicit.harvard.edu/implicit/education.html
The perceptual shift will come in situations where men and women see one another as partners in reaching goals they could not reach apart from one another. The desire to reach the summit then surmounts the secondary debilitating biases that hobble the climb. In the workplace, skill, talent, energy and positive focus are seen as too valuable to lose by focusing on irrelevant matters of gender, age, race, or disability. This is the dominant phenomena in Silicon Valley where age and formal education become less important that technical expertise.
But here is the “cold water” in the face of whatever progress we’ve made: we hold more tenaciously to our subconscious biases than we realize. We also know that companies like Google have openly admitted their hiring and promotion data shows women are being excluded from opportunities within the Company. The Google Gender Discrimination Story.
Gender Discrimination cases are especially challenging because discrimination cases are like chasing the smoke after the gun is fired, but the gun is never admitted into evidence. That is because the gun is an intangible and illusive and often subconscious bias. But sometimes the smoke is so thick, and there is no other source of combustible material to be found, that a jury or arbitrator will conclude that more likely than not, gender discrimination played a critical role in the decision to fire the employee. But the proof is difficult when the employer’s attorneys gather evidence that other women are happy in their work, or that the decision maker who fired the plaintiff also hired the plaintiff, or that the decision was made by a committee, not all of whom could be biased. And of course, in every gender discrimination case, the employer’s counsel will bring in a list of witnesses to testify how incompetent or disagreeable the Plaintiff was during her time with the Company.
But juries are not so readily led by the nose. They assess the credibility of witnesses, and they have a knack for choosing the version of events that makes the most sense about how the world, and the people in it, really operate. If the attorneys have done their job, the jury will realize too that they don’t have an absolute conviction, but only a 51% level of persuasion that gender discrimination was a “substantial motivating factor” in the final decision.
The Law of Gender Discrimination in the Workplace.
The term “gender” doesn’t actually appear in the California anti-discrimination statutes because it is subsumed in the term “sex.” Sex discrimination is prohibited by Government Code Section 12940 et seq.
Gender discrimination as a concept has been expanded by both the U.S. Supreme Court and the California courts to include discrimination and harassment of men by men or women by women if the discrimination uses gender based humiliation or degradation.
For example, where some oil rig workers, all of whom were male, used sex based terms to insult and humiliate a male coworker who was heterosexual, the U.S. Supreme Court ruled the harassment was gender based in violation of Title VII even without a component of sexual desire. Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998). In California, a group of women could claim gender discrimination where one of the women was accorded power over them by her male supervisor-lover. The other women were not themselves the direct victims of any harassment by their male boss, but it was “because of gender” that they came to experience the environment as hostile. Miller v. Department of Corrections 115 P.3d 77 (Cal. 2005). See also Scholarly Article — Gender Discrimination.
But perhaps the most interesting and powerful law originates out of the “gender stereotyping” cases that allow a gender case to be made on evidence that certain work behaviors are expected of women because they are women, and that a woman is denied a job or promotion, or even is terminated from employment, because she does not conform to these stereotypes. See Price Waterhouse v. Hopkins 490 U.S. 228 (1989). In Price Waterhouse, a female executive brought her case for denial of partnership because she exhibited behaviors her male management counterparts thought to be too aggressive. She was allowed to proceed with her case upon evidence that more likely than not, her gender was a factor in decision not to promote her. Once she presented that proof, the burden shifted to Price to prove that the delay and denial of promotion would have occurred independently of any consideration of Anne Hopkin’s gender. For a list of cases generally addressing gender cases and proof, see Gender Case Law List.
The trial strategy of a gender discrimination case is to focus on gender stereotyping words and behaviors of the decision makers. This approach should be coupled with evidence of “disparate treatment,” that is, that men exhibiting particular behaviors are rewarded more richly or punished less severely than women for like behaviors. But any Plaintiff and Plaintiff’s attorney should be fully prepared to confront women still employed by the Defendant employer who will claim they have experienced no bias in the workplace. Also, it is a standard of the “shifting burdens of producing evidence” that the Plaintiff must demonstrate that the supposed legitimate reasons for termination (or denial of promotion) are conflated to hide the discriminatory purpose.
We cannot address what we do not recognize in ourselves. Corporate America must become aware of the financial losses caused by excluding 50% of the talent pool. Perhaps money speaks louder than conscience. Whatever. Let there be progress, and may it be complete.