Letter from London: Sex Discrimination Means David vs. Goliath
You don't often hear the gory details of a sex discrimination claim. Unless it goes to Court, the minutiae will be hidden away behind gagging agreements. That means few employees can decide for themselves whether claimants are bounty hunters or if there's a growing number of genuine sex discrimination grievances out there.
The airing of very grubby corporate linen holds us transfixed in cases such as Schieffelin vs. Morgan Stanley last summer, but it's true to say that most employment cases do not involve such large sums and don't attract such publicity.
The norm is for cases to be settled before they reach court, with confidentiality clauses preventing employers from discussing the matter and employees from talking about sometimes blatant discriminatory practices. This can create a false picture of the health of employers' gender discrimination policies.
I witnessed two acquaintances go through the wringer, against seemingly inexhaustible legal and financial resources, to prove that they had been discriminated against because they were female. I couldn't help wondering why on earth anyone would willingly expose themselves to such a process.
They both have very different employment backgrounds, although their stories have some startling similarities. Both are bright, highly qualified, attractive and very good at their jobs. Both would have preferred not to fight. Both won out-of-court settlements, but had to go right up to the wire in order to do so. Both have to remain anonymous.
I'll call them Celia and Louise, in the interests of protecting them from The Litigious Ones. Celia worked at a large bank, Louise was a top-ranked sales head at a multi-national. Each had encountered prejudice with some low-level old-boy and uncouth behaviour occasionally, but both shrugged it off as part of the territory in which they chose to operate. Neither could be stigmatised as girly shrinking violets, but neither are they aggressive or domineering in their demeanour.
Where the discrimination really bit them was in terms of pay. Louise earned some $10,000 less per annum than male colleagues who did not perform to her level. Coupled with underpayment on bonuses and several ill-considered remarks about her female status, she came to the conclusion that she was being discriminated against because of her gender.
Celia was stitched up on bonus. When she received notice of her annual 'discretionary incentive' payment she was horrified to see it was less than half of those she had received previously - despite a stellar year's performance. In addition, a little digging unearthed she had been paid considerably less basic salary than male colleagues in comparable jobs.
(You can request a Peer Remuneration Review from your human resources department to assess whether your pay is comparable to that of colleagues doing equal or similar work - but most employment lawyers I know say that this should only be done as a last resort, as it is a total giveaway that you are considering action).
Celia comments: "I thought at first that I must have misjudged my own performance, and that perhaps I had a warped view of my own self-worth. So I talked to a lot of people, including peers and clients, to give me a clearer picture. I realised that my managers had been evasive whenever I had wanted to discuss my pay, my progress, my achievements and my future. It was a big red flag."
Louise went to a specialist employment lawyer: "I felt I had nothing to lose. I'd exhausted all the internal processes to resolve the matter. Finding a good lawyer was a great help. He helped every step of the way, monitoring and advising me. I did it to clear my name - I didn't want to be seen as ineffectual and underperforming when I clearly hadn't been either."
If you're going to pursue your employers for any reason, and especially for a reason which has open-ended liability for your employer if they lose, it makes sense to collate as much solid data as you can to support you. Banks and multinationals have a canny ability to manipulate stats and surveys, so you have to be able to fight your corner with every conceivable piece of evidence and any witness you can lay your hands on.
This means obtaining call data, emails, performance appraisal documents and comment from seniors, colleagues and clients. In addition, every meeting, every phone call about your status has to be noted, giving date, time, people involved and topics discussed.
All too often, the perception is that claimants are trying it on. Celia advises: "Sadly, some people do, which is why you need as much paperwork as absolutely possible. It's so easy for management to try to minimise the reputation damage of a claim by using this as a defence. You need to assume that management will start with this view, and you need concrete evidence to be ready to prove otherwise."
Louise agrees. "The lawyers told me how tough it would be, and as I'd seen a friend go through it, I was aware how time consuming and emotionally draining it would be. I knew that once I'd started the case I would have to become the equivalent of a paralegal for however long it took. So that's what I did."
Their suggestions if you are considering similar action?
- Have the support of friends, both within and outside your industry.
- Get all of your paperwork in order. Be obsessive and meticulous about this.
- Most important, obtain good legal advice before you take any action, or even threaten to take any action against your employer.
- Have a Plan B with respect to how you will support yourself during this period.
- Check if you have Legal Expenses Insurance under your home insurance policy. If you have a strong case, this could help you fund your fight against your employer.
- Be prepared for how much emotional energy something like this consumes. If you can tolerate that, you'll cope.
Ken Taber, an employment lawyer with Pillsbury Winthrop LLP in Manhattan, says: "Be careful. You may need deep pockets to fund a sex discrimination case in the States. Even if you manage to obtain a 'no win, no fee' contingency lawyer, you have to accept that many contingency attorneys will expect out of pocket expenses. A transcript deposition, for example, can run into thousands of dollars. In addition to expenses like those, you could be well out of pocket if your legal expert witnesses charge you thousands of dollars. Even fewer plaintiffs can afford to take on an attorney with an hourly charge."
(Ken Taber is the author of Employment Litigation in New York (West Publishing 1996, 2001), a treatise on litigating employment disputes.)
Taber adds: "But there's an interesting dynamic sometimes driving cases to settlement early on: From an employers' perspective these litigations can also be time consuming and expensive. Therefore, many employers will be looking to settle the meritorious cases early."
"OK, some may take a 'scorched earth' policy and fight to the last, but in my view, that will often be unproductive," he says.
But the final words have to go to Celia and Louise (who do not know each other, by the way). The crunch question to each has to be would they do it again? Once more, their answer is identical:
"Yes, I felt I owed it to myself."
Jane welcomes feedback and guarantees complete confidentiality to anyone who wishes to discuss employment issues with her: firstname.lastname@example.org.