How many women must complain that their rights have been violated before a court will consider the possibility that something is really wrong in their workplace? That is the question posed by an amicus brief filed this week with the Ninth Circuit Court of Appeals by the Impact Fund, Equal Rights Advocates, Queen’s Bench Bar Association of the San Francisco Bay Area, and 29* other civil rights and women’s groups in Moussouris v. Microsoft.
The case challenges certain pay and promotion policies that a group of female Microsoft employees claim have systemically disadvantaged women in violation of Title VII. To support their request to proceed as a class action, the women presented statistical evidence showing the impact of the policies on their careers, their own narratives, and substantial additional expert and documentary evidence. The district court denied their request for class treatment, and the women have now petitioned the Ninth Circuit to hear an immediate appeal of the order.
Part of the judge’s rationale was that the women’s personal stories of discrimination could not be credited because they failed to come forward with a large enough number of such stories, mathematically calculated based upon the number of women in the class. The judge also refused to credit hundreds of internal complaints of discrimination, reasoning that he had no evidence to suggest that that number was any different from the number of women complaining of gender discrimination at other big employers. Apparently, so long as an employer does not generate more complaints than average, a certain threshold of gender discrimination raises no broader concerns.
As our brief argues, the judge’s decision to count rather than analyze the women’s stories to see whether they showed common problems for women at Microsoft, or otherwise illuminated the statistical evidence, relied in part on a misreading of Wal-Mart Stores v. Dukes. Even though the Wal-Mart majority opinion expressly disclaimed creating any numerical minimum for anecdotal declarations, the judge in Moussouris did just that - calculating the ratio of stories to class members and dismissing that evidence has numerically insufficient.
The judge’s arbitrary mathematical rule also ignores the reality that most women – and particularly those working in male-dominated industries like tech -- are unwilling to risk their years of hard work and professional relationships in order to join a lawsuit. That understandable reticence is then used to justify the conclusion that the few brave women who have stepped forward have failed to show that gender discrimination is systemic in the workplace.
And, what was the anecdotal evidence of discrimination that the district court refused to credit? Those sworn statements explained how women at Microsoft are undervalued in comparison to men, are denied opportunities that men receive, are left out of important meetings, and work in a sexualized environment in which male employees stare at women’s breasts, grope them, and comment on their bodies and clothes. One woman explained the pressure that she and other women feel to “hit the sweet spot between being perceived as ‘too timid’ or ‘overly passionate’ and ‘too harsh’ in Microsoft’s male-dominated culture.” Her male manager lowered performance ratings for her and the team of women she supervised because he believed they did not “smile enough.”
Just as the Supreme Court explained forty years ago in Teamsters v. United States, those narratives help bring the “cold numbers convincingly to life.” We hope that the Ninth Circuit will allow these women’s voices to be heard.