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Will Silicon Valley’s gender-bias cases look different in a post-Weinstein world?

Lila MacLellan
close-up of Harvey Weinstein

Two years ago, Katherine Moussouris, an ex-Microsoft engineer, filed a lawsuit against her former employer, accusing the company of discriminating against women in technical jobs, and failing to sufficiently investigate systemic bias against women at the firm.

Now, according to Bloomberg, she and two others who joined the suit are hoping to bring an additional 8,630 peers, women who have worked in technical roles at Microsoft over the past five years, into the case, to argue that they collectively lost out on 500 promotions and at least $100 million in pay.



If a Washington state judge decides the case can proceed as a class action (a ruling will be made in February), it will become an historically important legal battle, but perhaps just one of many for the tech sector.

Microsoft is not the only industry titan that stands accused of discrimination, or of creating a toxic environment for women—one in which, say, men comment on their bodies, or scantily clad women are invited to dance on tables at a product launch, two incidents that are also detailed in the women’s statements. Last month, Google was hit with a class-action complaint, and Uber with a fresh set of discrimination charges. Meanwhile, another potential class-action suit is being mulled by former employees of Twitter.

None of this was a good look for Silicon Valley before. Now, in the wake of the Harvey Weinstein sexual-harassment scandal and the #MeToo campaign-inspired outpouring of women’s accounts of injustice—the latter made possible, it should be noted, by technology platforms like Facebook and Twitter—we seem to be in the middle of a sea change in attitudes about harassment, witnesses who don’t act, and companies that protect accused men instead of the women who’ve been wronged or hurt.



Michelle Lee Flores, an employment lawyer with Cozen O’Connor in Los Angeles, says that among colleagues in her field, there’s now fear of a post-Weinstein backlash against plaintiffs, because of the sheer number of cases being reported. “We hope that it won’t be that there’s so much that [juries] begin to roll their eyes and say, ‘Oh, here’s another,’” Flores says.

Then again, she can also imagine how it could go the other way. “There are individuals that may have never known about this, who are now thinking, ‘Oh my gosh, wow, I never knew that existed before, and it does—so maybe this exists, too, and maybe that exists, and maybe this was wrong, and maybe there is something here.’”

People who are newly woke today are tomorrow’s jurors. When juries consider a case, they will at least be aware now that horrible actions against women do still occur in the workplace, and they may be newly open to the idea that harassment is more prevalent than they ever thought before. The question becomes, “Did it happen in this case?” rather than, “Is this a real issue in work environments?”

Deborah Rhode, a professor of law at Stanford University, believes the Weinstein crisis will make a difference “both in terms of plaintiffs’ willingness to make a formal complaint and to litigate them, and also to use other methods, such as social media, to share chronic examples of workplace abuse and harassment.”

Whether this newly informed cultural conversation will mean more juries will be willing to vote in favor of plaintiffs over companies in bias cases is unclear, however. That’s extremely difficult to predict, Rhode says. There’s a chance it could, could this be “even though harassment and discrimination fall into completely discrete legal categories.

“One of the ways that women get screwed in the workplace—sometimes literally, but most often metaphorically— is when they resist implicit quid pro quos, or when they voluntarily exit situations that are hostile work environments,” Rhode explains. “Harassment is not unconnected to women’s unequal opportunities for salaries and promotions, but there are many other factors that contribute to a woman’s lack of advancement and pay equity in a workplace besides harassment.”

And, of course, the two behaviors require very different remedies, she notes.

Weinstein—and “the accumulative impact of seeing someone do it again and again, and get away with it, and feel entitled and empowered as a result of getting away with it,” as Rhode puts it—has made it impossible to argue that women aren’t at risk at work. The connection to unfair employment practices more generally may become clearer as the movement against the Weinsteins of the world progresses.

“One thing these cases have shown is that what seems to be a relatively minor incident is often part of a broad pattern in practice,” Rhode observes. “And that imposes serious cost on women in the workplace.”

We can’t yet say if the watershed moment triggered by the Weinstein scandal will reframe the gender-based lawsuits already in progress against the tech giants. We may never be able to separate out its effect on the cases’ outcomes.

But we know the zeitgeist has changed dramatically since Moussouris first reached out to her employment lawyer. It’s hard not to look ahead without considering the new climate and what it could mean for her and thousands of others.

 

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