*Famed lawyer Anita Hill thinks women who face gender discrimination in tech should consider filing class-action lawsuits.
*Twitter and Microsoft both face on-going gender discrimination lawsuits, stemming from 2015.
*Both lawsuits have faced unusual delays.
Want to end gender discrimination in tech? File a class-action lawsuit.
That’s the advice given by Anita Hill, the attorney and professor who garnered national attention in 1991 when she accused Clarence Thomas, then a nominee to the US Supreme Court, of sexual harassment.
On Tuesday, in an opinion piece in the The New York Times inspired by the ongoing controversy over a memo opposing corporate diversity efforts that was written by a Google software engineer, Hill wrote that women in tech “can’t afford to wait for the tech industry to police itself — and there are few indications that it will ever do so.”
In a conversation with Business Insider on Thursday, Hill said that while class-actions can be difficult, they are the most efficient way of addressing systemic issues, such as biased hiring and discriminatory promotion processes. When a woman pursues a lawsuit on an individual basis, it’s easier to dismiss her claims.
“The problem isn’t one individual. It wasn’t just Ellen Pao,” Hill said, referring to the lawsuit filed in 2012 against venture capital firm Kleiner Perkins Caufield & Byers by one of its female partners in which she claimed to have been the victim of gender discrimination; Pao lost her suit. “The problem seems to be an attitude toward women. What I’m proposing is an option that looks at bigger systems and problems that are common throughout the system.”
Twitter and Microsoft
The recent history of litigation against tech companies is not a story of progress, but delay.
There are at least two ongoing gender discrimination class-action lawsuits in the tech industry — one against Twitter, and one against Microsoft. Both suits were filed in 2015, but have been drawn out due to disputes over which documents the defendants have to hand over to the plaintiffs.
The case against Microsoft was brought against the company in 2015 by a former technician, Katherine Moussouris, who alleged that performance reviews and a peer-ranking procedure led to discrimination against women.
“Female technical employees were systematically undervalued compared to their male peers because as a group they received, on average, lower rankings despite equal or better performance,” she charged in the suit.
Microsoft has refuted the claims.
“We’re committed to a diverse workforce, and to a workplace where all employees have the chance to succeed. The plaintiffs’ allegations are unsubstantiated and we are defending the case in court,” a representative said in a statement.
The case against Twitter is similar. Tina Huang, a former engineer at the company, alleged that Twitter failed to promote women who were equally or better qualified than their male peers to leadership positions in engineering.
The “company’s promotion system creates a glass ceiling for women that cannot be explained or justified by any reasonable business purpose, because Twitter has no meaningful promotion process for these jobs,” she alleged in the case.
Twitter declined to comment.
Class-action lawsuits take time, and it’s not uncommon for defendants to resist handing over documents requested by the plaintiffs. However, Jason Lohr, who represents the women suing Twitter, said the two-year time frame is out of the ordinary.
“Twitter has been fighting tooth and nail to give us anything,” said Lohr, an attorney at Lohr Ripamonti & Segarich.
“Our case is based upon disparate impact, meaning that we claim that the promotion process unfairly favors men over women,” he said. “To support this, we need granular access to Twitter’s employment and promotion statistics. Twitter resisted our efforts to get this information for well over a year.”
While Hill sees class-action lawsuits as the best way to resolve systemic discrimination, she understands why some women don’t pursue them.
“There still are difficulties. This is not a finger wagging, ‘let’s go blindly into lawsuits, and everything will be alright,'” Hill said. “I want to provide options.”
Women contemplating such suits face numerous barriers. Many tech employees have clauses in their employment contracts that discourage legal action. Others fear that filing a suit will make it harder for them to find a job in the future, said Anne Shaver, a partner at Lieff Cabraser Heimann & Bernstein, which is leading the suit against Microsoft.
And then there are the cultural barriers. The industry encourages employees to internalize their successes and failures, rather than blaming others for them. That attitude can be the most difficult hurdle to overcome, Shaver said.
“Tech is a sector where women have been extremely reluctant because it’s such a culture of individual merit,” Shaver said. “The value of the class action is that it gives you access to the data of what’s happened across an entire company, and you are able to see those patterns for what’s happening to women compared to men.”
Ironically, Hill said, the tech industry also claims to have a culture of progress.
“When it comes down to all of those things, you have to do a lot of deep thinking about how to change — how to be truly disruptive,” Hill said. “It is, I find, very interesting that we’re talking about a sector that prides itself on disruption, and they haven’t done the deep work to disrupt the traditions that are holding the sector back.”