Does My Company Discriminate Against Women?

Frequently Asked Questions by Women in Tech

By Aniko R. Schwarcz and Christine E. Webber

In August, our colleague Anita Hill addressed the current state of women in technology in an Op Ed in the New York Times. As she points out, Silicon Valley is far from a “seat of human progress” when it comes to its treatment of women ̶ many have recently reported experiences of sexual harassment and hostile workplaces, and surveys show that women hold few top positions in tech start-ups, venture capital firms, and Silicon Valley companies and are routinely paid less than their male counterparts. In reaction to that Op Ed, we have been fielding a lot of questions from women who work in the tech sector. Here we address the most common:

1. How can I tell if my company discriminates against women?

• Given recent events in the news, including the federal government’s allegations that some of the biggest employers in Silicon Valley systematically underpay women as compared to men with the same experience, it is reasonable to want to find out if you could be affected. As a first step, look around. Check out your employee directory and walk around your employer’s campus. What positions do women hold? Are they concentrated at the entry-level and increasingly scarce as you look higher up the corporate ladder? Are women tracked into certain divisions or types of work where there is less opportunity for advancement? Or, are women simply not hired? These are some highly visible indicators of how women fare. Do an informal census and pay attention to what’s going on. By observing trends in your workplace, you can start to consider their root causes.
• You may also try to learn what others with comparable experience are making in similar positions to yours. One way you might start looking into this is via one of the websites that feature company salaries as reported by current or former employees.
• Some employers discourage or disallow the discussion of pay, and in some states such bans may be illegal. For example, the California Equal Pay Act makes it illegal for an employer to prohibit employees from discussing or inquiring about their co-workers’ wages (Cal. Lab. Code § 1197.5). Even if there’s no such law in your state, there may be other legal bases upon which to challenge a policy that seeks to prevent wage transparency. In any case, such a policy can be a red flag that the employer has something to hide.

2. I’m being paid less than the guy I went to college with who holds the same job. Another peer received a lower performance rating than I did and received a promotion ahead of me. Could it be that there is something wrong with me?

• Sometimes, especially early in your career, or when you are isolated or have just a few women in your workplace, you can assume anything going wrong is your fault. But you should take a broader look. Talk to other women in your workplace or your peers at other companies for some perspective.

3. I know there are problems at work, but my company is no worse than others, right?

• Don’t grade on a curve. Just because no company is perfect doesn’t mean that your company cannot do better. Some companies already do better, and all companies can be pushed to do better. It is true though that many people who thought that “the grass would be greener” at another company made the jump and ended up disillusioned — problems persisted. So instead of just leaving for greener pastures, consider pushing your current company to improve.
• For years the “pipeline” issue has been cited as the primary cause of the dearth of women in powerful, high-earning tech jobs. But studies show that even where women graduate with degrees in computer science and math and enter the tech workforce, they tend to leave at much higher rates than their male counterparts. Moreover, women are underrepresented — and underpaid — even in non-technical roles, suggesting that the root of the problem lies elsewhere.
• Indeed, settling for low levels of representation and failing to push for a fully representative percentage of women in leadership positions can lead to continuing isolation of the “token” women in the room, and doesn’t set the stage for the necessary changes in culture that must be brought about.

4. I know that if I challenge my employer, I will take on a lot of risk and ultimately — even if I’m successful — the tech industry may not change. Why should I consider bringing a lawsuit?

• Litigation can be risky and there are no guarantees of victory. Even when an individual woman recovers a significant settlement or jury verdict, she may not see the sort of structural, systemic change that prevents future problems instead of just compensating for past problems. Class action cases have greater potential for relief that can really change a workplace over time. While not all circumstances are appropriate for class action litigation, in cases that are, the relief is more than just monetary. The remedy in a class action case is focused on creating, implementing, and monitoring changes to practices in order to create a level playing field. In addition, there is strength in numbers — in a class action case, it is much less likely that an employer would retaliate against all of the plaintiffs. Recent events have shone a spotlight both on tech and Hollywood. Women are seizing this particular moment in time to take on the “Old Boys’ Clubs” that permit and perpetuate the devaluing and discrimination against women in the workplace across different industries. Power does not cede power without a fight, and it is high time to fight wage and promotion discrimination so they won’t affect future generations of women in tech.

5. What if I don’t have enough evidence of mistreatment to file a complaint?

• It is so important to note that, while many people think they need a “smoking gun” to prove they’ve been subjected to illegal discrimination, this simply isn’t true. Courts consider a wide array of evidence, including how the conditions of your employment compare to those of your male peers (e.g. those with similar experience, expertise, or seniority), and how consistently women are adversely treated in the workplace
• For example, the federal government has lodged a complaint against Oracle alleging that the company has systematically paid its white, male employees more than its female and non-white employees with the same job titles, even when taking experience levels and seniority into account. The suit was filed not in response to any specific “smoking gun,” but rather in response to systematic trends uncovered as a result of a Department of Labor compliance review during which Oracle refused to provide prior-year compensation data for employees, complete hiring data for certain business lines, and employee complaints of discrimination.
• Those elements of a system that make it unfair are not always explicitly gendered (such as, say, a policy that penalizes employees for taking maternity leave). There are plenty of bases for challenging even the systems and policies that don’t have an overt reference to gender, but harm women all the same. Experienced counsel can help you evaluate your situation, and identify your alternatives if you want to challenge your employer.

Christine E. Webber is a Partner in the Civil Rights & Employment practice at Cohen Milstein Sellers & Toll PLLC, where she regularly represents victims of discrimination and other illegal employment practices in class and collective actions. Aniko R. Schwarcz is an attorney in the same practice at Cohen Milstein where she serves as Director of Civil Rights & Employment Case Development, investigating new cases and serving as the first point of contact for prospective clients and class members.

To discuss any questions you might have or to learn more about any of the issues raised above, please contact Aniko Schwarcz at 202.408.4600 or aschwarcz@cohenmilstein.com to schedule a confidential consultation.