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Judge on Microsoft gender discrimination case finds 'flaw' in class grouping argument

Counsel suggests issues with staff evaluation behind women being passed on for promotion

US District Judge James Robart had some challenging questions for lawyers representing a group of female ex-Microsoft staff for gender discrimination in a Seattle District Court yesterday.

At issue in the hearing was a motion by lawyers for the plaintiffs – engineers Katherine Moussouris, Holly Muenchow, and Dana Piermarini – to band together as a class with 8,630 other female high-technical specialists in a class action. At a motion hearing, the plaintiffs' lawyers proposed to include in the suit over 8,000 other women who had worked in tech jobs for Microsoft in the United States since 2012.

Moussouris, who resigned from Microsoft in 2014, claimed she received lower performance ratings than her male peers, despite performing better, and was passed over for promotions. She went on to allege that female techs at Microsoft suffered at the hands of the Seattle software giant's policies and procedures in terms of compensation and promotion compared to their male counterparts.

The lawsuit was initially filed in September 2015 before Moussouris was joined by the two other plaintiffs, Muenchow and Piermarini.

Judge Robart had thrown out an attempt by Microsoft in 2016 to get the case dismissed in a ruling that hinged on Microsoft's "stack ranking" employee evaluation process, which was later replaced by the "Connect" system. At the time, Robart was content that "multiple plausible causes of the alleged disparate impact" on female techs had been set forth.

Yesterday did not go quite so well for the plaintiffs. The Seattle Times reported that Robart dug deeper into the alleged discrimination to see if there were sufficient ties between the women to merit a jointly argued case.

According to the paper, Kelly Dermody, lawyer for the plaintiffs, said:

"The problem of Microsoft's system is they tell managers, 'Here are the policies, here are the criteria,' and don't actually give sufficient guidance on how to rate [those] criteria."

Robart then jumped in with: "Didn't you just drive a wooden stake through the heart of your argument [for commonality]?"

He went on to say that the assertion of a chaotic process seemed at odds with the claim that the women had been victims of policies consistent enough to merit a class-action remedy.

Microsoft contends that class-action status for a case involving more than 8,600 women spread over 45 states and with hundreds of job titles would be inappropriate.

A Supreme Court decision in 2011 that stopped an action by 1.6 million current and former Walmart employees over gender bias was driven by an inability to prove that the experiences of the plaintiffs were similar enough and caused by company policy. Microsoft's lawyers have been pointing excited fingers at the standard set by that case.

The case will now continue through the US justice system. Judge James Robart did not give a ruling at the end of Monday's session, nor any indication of when he would. ®

Moussouris v Microsoft Corp, 15-cv-01483, is being heard at the US District Court, Western District of Washington.

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