Anita Hill -Class Actions could fight discriminations in tech.

The recent leak of a Google engineer's screed against the company's diversity initiatives is a reminder that the notion of Silicon Valley as the seat of human progress is a myth — at least when it comes to the way the women behind the latest in technology are treated.

The tech industry is stuck in the past, more closely resembling "Mad Men"-era Madison Avenue or 1980s Wall Street than a modern egalitarian society. It may take the force of our legal system to change that.

The leaked memo, titled "Google's Ideological Echo Chamber," called on the company to abandon its efforts for gender diversity and replace them with a focus on "ideological diversity." The author even claimed that biological differences make women poorly suited to engineering. While the document may be unusual in its explicit embrace of this kind of backward thinking, the attitudes that underlie it are nothing new in Silicon Valley. Google's decision to fire the employee responsible for the memo neither dispels the notion that a systemic problem exists nor solves it.

Since a former Uber employee published her blog post detailing her experience with the ride-sharing company's toxic, male-dominated culture, a stream of female coders, engineers and others have come forward to discuss their experiences with sexual harassment and hostile, discriminatory workplace cultures. Companies like Google, Tesla, Twitter, Microsoft and Oracle face allegations of sexism in the form of individual lawsuits and Labor Department inquiries.

Sadly, these types of cases represent only one element of the industrywide discrimination against women in tech. There's also an alarming gap in pay and promotions, which has devastating effects on women's careers.

In the tech industry, women under 25 earn on average 29 percent less than their male counterparts. Women of all ages receive lower salary offers than men for the same job at the same company 63 percent of the time. They hold only 11 percent of executive positions at Silicon Valley companies and own only 5 percent of tech start-ups. Only 7 percent of partners at the top 100 venture capital firms are women. It is no wonder that the rate at which women quit tech jobs (41 percent) is more than twice as high as the corresponding rate for men.

By and large, women are the only ones distressed by such dynamics. Eighty-two percent of men working for start-ups agree that their companies already spend the "right amount of time" addressing diversity. Nearly half of women — 40 percent — disagree, saying inadequate time is devoted.

We can't afford to wait for the tech industry to police itself — and there are few indications that it will ever do so. Consider what lawyers for Google said in May, in testimony in a suit alleging wage discrimination against women: It would be too burdensome for the company to collect data on salaries. Given recent Department of Justice moves to limit protections against gender and race discrimination, it's hard to foresee serious government intervention coming from the current administration. Nor can we wait for bad press and shareholder class actions to force out negligent chief executives responsible for cultures of inequality.

Instead, women in the industry should collectively consider their legal options. Top among these would be class-action discrimination cases against employers.

The tech sector is not the first white-collar "boys' club" to demand an industrywide correction. In the 1990s, Wall Street firms faced a slew of class-action discrimination lawsuits. Perhaps the most notable was the 1996 "Boom Boom Room" case. A group of 23 women filed a class-action lawsuit against the Smith Barney stock brokerage firm, charging it with rampant harassment and gender discrimination. By the time Smith Barney settled the case for $150 million, nearly 2,000 women had joined the suit and helped expose a culture of sexism to the outside world.

As a result of this and other cases that similarly challenged systemic practices at other Wall Street firms, many of these companies now have more extensive human-resource policies addressing sexual harassment and gender discrimination. While pay and promotion discrimination still exists, more women on Wall Street are advancing in their careers to managing directorship and other leadership roles. The lesson of these cases is clear: Class-action lawsuits can force industrywide change, even in the most entrenched, male-dominated industries.

Women in tech no doubt have hurdles to bringing class-action lawsuits, including the requisite preponderance of statistical evidence and the prevalence of confidentiality clauses and arbitration agreements, which are, in effect, designed to pre-empt class actions. But this challenge doesn't mean the suits cannot be brought, or won. This is a route that the women of Silicon Valley should consider, especially if regulation is not an immediate and viable solution.

Hundreds of female former employees of the Signet Jewelers conglomerate, for example, recently alleged in a class action that the company's chief executive and other leaders presided over a corporate culture that promoted unbridled sexual harassment and pay and promotion discrimination. The case, which is strikingly similar to the "Boom Boom Room" case, is still being adjudicated. Last month, Signet's chief executive stepped down.

It's not just the female plaintiffs who would win if they were to be victorious in court. The economic benefits could be remarkable. Advancing women's equality, which includes minimizing the gender gap in labor force participation, holds the potential to add $12 trillion to global G.D.P. by 2025.

The male-dominated leadership of Silicon Valley has proved unwilling or unable to solve systemic gender inequality, and the leaked Google memo should serve as an alert about how deeply and passionately anti-equality attitudes are held. It's time women in tech consider taking advantage of the law to disrupt the industry once and for all.

This appeared in The New York Times Opinion Au

Anita Hill is of counsel to Cohen Milstein Sellers & Toll, a national plaintiffs' law firm.


August 9, 2017.

Addendum. If you have been disgusted by the false equivalent and yes, #FakeFree speech defense of the Google employee hate speech attack on women, you will be pleased to read this opinion piece by Anita Hill in today's New York Times. This is my fifth New York Times post today. I will sleep well.

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