Women

In February, the Lawless sisters squared up to Elon Musks electric vehicle company, Tesla, on behalf of 33-year-old engineer AJ Vandermeyden. She accused the company of ignoring her complaints of pervasive harassment from men on the factory floor, including inappropriate language, whistling and catcalls. Vandermeyden also alleged they paid her a lower salary than men doing the same work, promoted less qualified men over her, and punished her for being a whistleblower eventually firing her after she spoke about her experience to the Guardian. Tesla rejected the allegations; the case is ongoing.

But these high-profile cases represent just a small proportion of the Lawless sisters workload. More than 95% of their gender discrimination and harassment cases are settled behind closed doors and involve non-disclosure agreements. If companies are going to pay X amount of dollars [the sisters website lists settlements of between $450,000 and $8m], then, as part of the deal, our lips are sealed, Therese says. Its far worse than people know. People would be appalled at some of the behaviour that goes on at the workplace.

***

Therese and Barbara, originally from Buffalo, New York, grew up as two of 12 siblings: six girls, six boys. It was great crazy, but really fun, Barbara says. She was the second child, born 14 years before Therese, the ninth. It could be chaotic, Therese adds, but our mother was very organised I always likened her job to running a small business.

Law is in the Lawless family blood. Their father, William, a liberal who believed in educating girls and boys equally, was a judge, lawyer, law school dean and professor. Both Barbara and Therese married lawyers (Barbara has since remarried an accountant), and they have two siblings, two nieces and a nephew in the field.

Their family name is a frequent conversation starter. Its Irish, Therese explains. We dont know what our ancestors did, but were trying to make up for it.

When Barbara, who graduated from law school in 1972, started out, women represented less than 10% of all law graduates. She would frequently find herself the only woman in a room of 100 lawyers. By the time Therese graduated in the late 1980s, it was less of a boys club, at least for entry-level lawyers. However, among trial lawyers and in leadership positions, the representation of women was and still is very low.

Barbara tells me about an incident in 1975, when she attended a sentencing hearing while pregnant. The judge, a friend of her father, took one look at her and said, as Barbara recounts, You are in a family way go back and send your [business] partner down to make this argument.

I couldnt believe it, but he must have been 75 years old and was generally a nice man. Still, I thought, This is what we are dealing with.

She adds that this was at around the same time that schoolteachers were being forced into unpaid maternity leave in around the fifth month of pregnancy, over fears that it was dangerous for the mother and child, and distracting to students.

I was dealing with the last vestiges of this going on, and didnt want to make an example of him at the end of his career, Barbara says. Thats why women go into business together: its almost as if you have to start your own business because men wont give you the opportunity.

In 1988, Therese found herself in the type of large corporate law firm she had pledged to avoid. She stuck it out for nine months, until she found herself working on a case that was so repugnant she couldnt take it any more. Two teachers had been fired from a private school for allowing students to create a poster about Aids, complete with a container of condoms too much for the Catholic community in Boston.

I was supposed to represent the school, she recalls, but I picked up the phone to Barbara and said, When can I come?

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Now the sisters are a force to be reckoned with in California. If you have a case against them, you know its going to be serious, says Donna Rutter, a defence attorney who represents companies that the Lawless sisters have sued. They really care about advancing women in society and in the workplace.

The sisters have become used to facing aggressive tactics from defence lawyers, who often trawl through work emails and chats to find information that will put the complainant off pursuing a case. They go into all of the dirt and try to shame the victims, Therese says. Sometimes they try and say she initiated it, or she was incompetent at work, therefore [engaging in a sexual relationship] was the only way she could move ahead.

In one particularly egregious case, a company accused of sexual harassment hired psychologists to assess the emotional distress of the victim during the pre-trial phase, and discovered that shed had two abortions more than two decades earlier. They tried to argue that her current emotional distress was impacted by the abortions rather than the harassment, Therese says. That was a little dirty. She responded by persuading the judge to let her interview the jurors to screen out those with strong negative beliefs about abortion.

Before the Ellen Pao case, it was rare, if not unheard of, for a woman in a senior position to take a tech company or venture capital firm to court over sex discrimination. Paos testimony was eye-opening, describing a boys club atmosphere, including men-only work trips and inappropriate behaviour by senior male partners towards junior female colleagues.

What Ellen did was important, Therese says. She took the lead.

Therese was approached by Paos attorney, Alan Axelrod, to work with him on the case just three months before the five-week long trial. She knew the case was emblematic of something bigger when they arrived at the courthouse and were told that theyd have to move to a larger courtroom, to accommodate all the cameras. But, ultimately, they were outgunned by Kleiner Perkins. We did not have the resources that a VC [venture capital] firm with billionaire partners has, Therese explains. I dont have six or seven lawyers working on the case, preparing my exams or attending the courtroom with a jury consultant.

The case was particularly tricky, too, she says, because being left out of meetings, spoken over by co-workers or asked to take notes are all very subtle signs of discrimination; none provides the kind of smoking gun jurors are looking for.

Then theres the cultural bias that many people still have when talking about gender. I think misogyny is so deeply ingrained in our culture that even women perpetuate it, Therese says. We had a lot of female jurors who were willing to accept what were in my opinion simply untrue explanations as to why things happened. Several witnesses described Pao as having sharp elbows and being prickly and competitive. Men exhibiting the same type of ambition and wanting to move up in the company are seen as being assertive, while Pao was perceived as bossy and aggressive, Therese says.

Its a type of discrimination that the sisters think is pervasive in the tech industry. Its also so much harder to prove, Barbara says, because companies can always find alternative reasons to explain a lack of promotion, or why a woman wasnt invited to certain meetings.

In the end, the jury sided with Kleiner Perkins, but the impact was felt far beyond the courtroom. Pao emboldened other women to talk, something other lawyers dubbed the Pao effect. Women shared their experiences of discrimination online using the hashtag #ThankYouEllen. Trae Vassallo, a former partner at Kleiner Perkins, who testified against the firm at the Pao trial, went on to co-author a survey of women working in Silicon Valley: it found that 60% had experienced unwanted sexual advances and 90% had witnessed sexist behaviour at work. Pao has since launched a nonprofit venture called Project Include, unveiled in May 2016, which collects and shares data to help diversify the tech workforce.

In February this year, Uber engineer Susan Fowler published a detailed account of unwanted sexual advances and discrimination at the company. She alleged that, when she joined, a manager immediately propositioned her for sex over the company chat tool, and that a director explained the shrinking numbers of women in her department by saying the women of Uber just need to step up and be better engineers.

Following Fowlers post on her blog, dozens of stories emerged from Uber, including a report of a trip by senior employees, including chief executive Travis Kalanick, to a South Korean escort bar, and the leaking of a company-wide email from Kalanick that set out rules about sex and drinking ahead of a company trip. He wrote: Do not have sex with another employee UNLESS a) you have asked that person for that privilege and they have responded with an emphatic YES! I will have sex with you AND b) the two (or more) of you do not work in the same chain of command. Yes, that means that Travis will be celibate on this trip. #CEOLife #FML.

This summer, a company-wide investigation into sexual harassment at the firm led to the termination of more than 20 employees contracts. Soon afterwards, Kalanick announced he was taking an indefinite leave of absence, before resigning in the face of a mutiny among Ubers investors.

Since then, several women have filed lawsuits against less well-known startups. In an ongoing wrongful dismissal suit, Elizabeth Scott accused the founders of virtual reality firm UploadVR of creating a boys club environment marked by rampant sexual behaviour, including setting up a room with a bed in the office referred to as the kink room.

Shortly after that, several female entrepreneurs, including 31-year-old Sarah Kunst, accused tech investor Dave McClure of sexual harassment. Kunst alleged that she had been talking to him about a possible job when he sent her a Facebook message saying, I didnt know whether to hire you or hit on you. McClure stood down from his role at investment firm 500 Startups and fell on his sword with a blogpost titled Im A Creep. Im Sorry.

Last month James Damore, a software engineer at Google, circulated a 10-page memo in which he argued that there were biological reasons women were less suited to jobs in tech. Even the battle-hardened Lawless sisters were taken aback by its language. That was so outrageous, Barbara says. That he could even think that way in this day and age I was shocked. The memo came just months after the US Department of Labor accused Google of systematically underpaying women, in an investigation that is still ongoing. More than 60 current and former Google employees are now considering bringing a class action, alleging sexism and pay disparities against women.

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Why does the technology industry have so many issues with discrimination? The Lawless sisters point to the way it celebrates rule-breakers, and how it frequently blurs the lines between social and professional lives with long working hours, a lack of structure and human resources (HR) departments, and office fridges full of free beer. The entrepreneurial personality makes people much bigger risk-takers, Barbara explains. And that risk-taking can spill over into unwanted sexual advances. They [Silicon Valleys entrepreneurs] are more blatant and less sophisticated compared with other industries, Barbara adds, mentioning certain law firms and accounting firms. I really do think they are cowboys.

Increasingly, the Lawless sisters are seeing cases where individuals have gone to human resources for help, and not got it. Therese puts this down to a lack of attention: HR is not usually a priority for startups founded by a handful of computer science college graduates. If youre building the next Facebook, youll hire software engineers, a sales person and an operations person; but you probably wont invest in human resources until the company grows. By the time the company is big enough to hire an HR person, the culture will already be embedded, and other inexperienced managers may not be able to identify discrimination. They might have studied [sexual harassment and discrimination], but they dont know it, Barbara says. When you see it a few times, you recognise it fast.

Immature companies and their CEOs will often rally around a person accused of misconduct if that person is a key contributor to the company the culture Susan Fowler describes at Uber. When she took screenshots of her managers sexual advances to HR, she was told that it was the mans first offence and that he was a high performer, so would only get a warning.

As technology companies mature and become more institutionalised, women will have more protection and opportunities, Barbara believes: The cultures will get more genteel and the cowboys will no longer rule.

Meanwhile, in addition to the Tesla litigation, which is currently in the pre-trial phase, the firm is working on a mixture of cases, from pregnancy and disability discrimination to sexual harassment, though Therese is protective over the details: I dont like disclosing how many cases I have, because I dont want my opponents using it against me, she says.

The sisters are increasingly concerned by the normalisation of hate speech used against women and minorities. After Google fired James Damore, he and other free speech advocates argued that Google has been subsumed by liberal groupthink, and is censoring anyone with different views about diversity and political correctness. Andrew Torba, CEO of the social network Gab, which offered Damore a job, said, The message to conservatives is: if you dare step out of line and say something outside of the status quo of liberalism, you can expect to be fired.

With the alt-right, we are getting these strange views that we havent had in the open for a long time, Barbara says. I wonder how many men really feel that way. I think a lot do. Therese adds: Its troubling to see some people thinking that the workplace is an appropriate forum for hate speech. I hope he [Damore] is not the norm for the new generation.

Either way, the sisters wont be out of work any time soon. As Barbara says, Its lifelong employment for sex harassment lawyers.

A brief history of harassment

May 2012
Ellen Pao, venture capitalist and interim CEO of Reddit, brings a gender discrimination lawsuit against her employer, Kleiner, Perkins, Caufield & Byers (KPCG). She is represented by Therese Lawless and Alan Axelrod. Pao losescorrect, but the high-profile case encourages other women to come forward.

March 2015
Former product manager and technology partner Chia Hong sues Facebook for gender and race discrimination, claiming she experienced a hostile environment and was belittled by male colleagues. It was resolved out of court.

March 2015
Tina Huang, one of the first 100 employees of Twitter, submits a class action lawsuit against the company, alleging that its promotion system discriminates on gender. Twitter denies the claims and hires the same lawyers who represented KPCG against Ellen Pao. The case is ongoing.

September 2015
Computer security researcher Katherine Moussouris files a class action complaint against Microsoft, together with two other female employees, alleging that they discriminate against women in technical roles. The case is ongoing.

July 2016
Before an action is filed, Smartphone chip manufacturer Qualcomm pays $19.5m to 3,300 employees who accused it of gender discrimination against women in tech, engineering and science-related roles.

October 2016
Scott Ard and Greg Anderson, two former editors at Yahoo, file separate suits against the company, both alleging that they lost their jobs because the performance review system introduced by former CEO Marissa Mayer discriminated against male employees. Yahoo denies the allegations.

February 2017
AJ Vandermeyden reveals that she has sued Elon Musks electric carmaker Tesla, accusing it of ignoring her complaints of pervasive harassment, paying her a lower salary than men doing the same work, and promoting less qualified men over her. She is represented by Therese Lawless. Tesla refutes her concerns and in June 2017 dismisses her from the company. The action is ongoing.

April 2017
The US Department of Labor accuses Google of a systemic gender pay gap, saying it is in violation of federal employment laws. In August, it emerges that more than 60 current and former Google employees are considering a class action over pay disparities for women.

May 2017
Former director of digital at virtual reality startup UploadVR Elizabeth Scott files a gender discrimination and wrongful termination lawsuit against the companys founders. She alleges that they created a boys club environment marked by rampant sexual behaviour and focus, including setting up a room with a bed in the office referred to as the kink room. Scott alleges that women were paid less than men, and given menial tasks. The company denies the claims; the action is ongoing.

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