Possibilities and Limitations of Discrimination Lawsuits in Tech

News of three major discrimination lawsuits in the tech sector has brought international attention to gender and race inequality in Silicon Valley: the ongoing Ellen Pao vs Kleiner Perkins trial, the recently announced lawsuit against Facebook filed by former employee Chia Hong, and a new lawsuit against Twitter, focused specifically on discrimination in its technical team.

Many are speculating: could this be the start of sweeping discrimination lawsuits across the industry? Last year’s disclosures of diversity data (while surprising no one who was paying attention) revealed the depths of inequality and homogeneity at major tech companies, possibly laying essential groundwork for a swell in legal action. The loss of financial and career opportunity to marginalized workers implicated by this data easily amounts to billions of dollars in salary, stock, bonuses and benefits. Meanwhile, factors including increased visibility around discrimination suits, the in-house expertise and growing reputation of specific law firms in the sector (Lawless and Lawless is leading the lawsuits against both Facebook and Kleiner Perkins), and emerging frameworks tying cultural factors to systemic opportunity loss may all contribute to a significant uptick in discrimination actions.

Despite these developing conditions, many factors threaten or restrict the possibilities and potential gains of legal action. As the Kleiner Perkins trial has shown, filing a gender discrimination lawsuit means facing blatant character assassination by desperate defense teams who will shamelessly resort to stereotyping, double-standards and defamation to clear their heavily-monied clientele… ironically proving just how abusive and misogynistic those clients truly are. Aside from the great personal cost, risk of harassment and potential loss of future career opportunities, lawsuits also requires a great deal of resources, time, support and money, which many of the people most marginalized in Silicon Valley and tech do not have. This perhaps points to the need for community-based resources to support legal actions against discrimination, although the difficulty many face raising even paltry sums of money and support for diversity in tech efforts bodes unfavorably.

Tina Huang’s action against Twitter is seeking class-action status, inviting “all current and former female employees of Twitter denied promotions in the three years prior to the filing of this complaint” to join. A class action structure, such as the one that recently reached a $415 million settlement in the illegal market-fixing trial against Apple, Google, Intel and Adobe, could provide a framework in which employees without the resources to pursue personal legal action could have some recourse — however, the individual financial gains such suits may garner is paltry compared to the actual injury and systemic loss, as the Apple/Google/et al. suit suggests. And while class action lawsuits may be on the uptick, much of the industry remains hostile to the idea of more formal, ongoing worker’s organization, even as parts of the tech sector vote to unionize — as drivers for Apple, Yahoo, eBay, Zynga and Genentech did in February.

Predictably, some pundits are worried that high-profile lawsuits will make employers hesitant to hire women… but they weren’t exactly hiring, retaining or promoting women anyways. Such attempts to blame women for institutionalized oppression and sow fear across the industry additionally lack more nuanced analysis of how, for example, marginalized people who speak out about industry inequality may face serious limitations in career mobility whether or not they ever pursue legal action; tech companies already use a number of intimidation tactics to prevent discrimination lawsuits; and tech companies disproportionately use their financial and political leverage over marginalized employees to get them to sign NDAs, nixing the possibility of future lawsuits early. Other outlets note that much of the gains to be found in such lawsuits lie in how they publicize the inner workings of tech’s discriminatory machinery, which may prompt change even if big financial wins aren’t landed in the process.

Little discussed to date is how multiply-marginalized members of the tech community are disproportionately impacted by discrimination in the field, and whether the judicial system can provide recognition and recourse for those groups. Notably, the lawsuit against Facebook alleges gender and race discrimination, even though many of the headlines have concerningly opted to mention only the gender aspect — indicative of a deeper cultural problem where gender discrimination in tech is prioritized over race discrimination and discrimination that occurs at the intersection of gender and race. This prioritization is directly linked to who benefits the most from diversity and anti-discrimination efforts in tech.

In her ground-breaking work “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics,” Kimberlé Crenshaw discusses intersectionality and the judiciary process:

“With Black women as the starting point, it becomes more apparent how dominant conceptions of discrimination condition us to think about subordination as disadvantage occurring along a single categorical axis. I want to suggest further that this single-axis framework erases Black women in the conceptualization, identification and remediation of race and sex discrimination by limiting inquiry to the experiences of otherwise-privileged members of the group. In other words, in race discrimination cases, discrimination tends to be viewed in terms of sex- or class-privileged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women.

This focus on the most privileged group members marginalizes those who are multiply-burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination. I suggest further that this focus on otherwise-privileged group members creates a distorted analysis of racism and sexism because the operative conceptions of race and sex become grounded in experiences that actually represent only a subset of a much more complex phenomenon.”

Crenshaw’s work is essential not only for analyzing how multiply-marginalized people may not equally participate in or benefit from such lawsuits, but how the judicial process itself (and the cultural attitudes it reflects) may not recognize, much less be capable of addressing, the unique discrimination Black women face, as well as other groups who experience intersecting oppressions in the industry. (Related reading: How Asian American Women Are Forgotten In The Tech Diversity Debate).

As one tactic in efforts against widespread systemic injustice in the tech community, discrimination lawsuits already show promise in exposing engrained cultural practices that promote discrimination, albeit at great personal cost to the plaintiff. With the results of the Kleiner Perkins lawsuit coming soon, we can hope for a precedent that may lead to greater culture change across the industry as well as financial restitution for victims of discrimination within it. However, it’s important to also consider factors of access to legal resources, the personal and career costs of filing to marginalized people, lawsuit-suppression intimidation tactics by tech companies, and the role of intersectionality as we monitor the state and growth of discrimination lawsuits across the industry.