IBM manager sues for $5m claiming postnatal demotion

Congratulations on the twins! By the way, our discrimination laws are 'subject to interpretation'

A former IBM product manager has sued Big Blue alleging that the company discriminated against her for going on maternity leave to have twins.

In October 2019, according to a complaint [PDF] filed in the Southern District of New York, Catherine Lockinger was working as a product manager for IBM's internal enterprise content management and publishing system.

A month later, Lockinger informed her supervisor that she was expecting twins and received congratulations and expressions of support. Then in April 2020, a month before Lockinger left to give birth, she was told "her position was 'safe' but when she returned to IBM, she found she had been demoted.

Around September 21, 2020, just prior to the conclusion of Lockinger's maternity leave, the woman who had taken over Lockinger's direct reports allegedly informed her "that she would no longer serve as the Product Owner of enterprise CMS," telling Lockinger, "'The business couldn’t wait for you.'"

And when Lockinger returned to work the following month, she was not given an equivalent position. She was reinstalled as a group product manager for sales enablement tools within the performance marketing division.

"The group product manager position had not previously existed, lacked a clear mission or even a job description, and supervised product owners of non-essential tools and services, so that the position seemed unnecessary and vulnerable to budget cuts or reorganization," the complaint explains.

And Lockinger had been demoted two levels in the organizational hierarchy, which was all the more humiliating, the complaint claims. Particularly so as her supervisors asked her to train her replacement to take over her role as product owner for the IBM internal CMS.

The complaint recounts comments from peers and managers that Lockinger understood to mean IBM believed she could not work effectively now that she had children.

"This discriminatory and paternalistic perception that Lockinger was unable or uninterested in continuing with her career because she had children was entirely inaccurate, as Lockinger desired to continue her career while also being a mother," the complaint states.

And the complaint points out that a male colleague who had a child in 2020 chose not to take parental leave "so that he could be promoted, which was not an option for Lockinger as a woman, confirming that Lockinger was disadvantaged because of her gender."

HR in action

Then in December 2020, Lockinger put her oral objections into writing and, according to the complaint, the retaliation began. A draft positive performance evaluation became "drastically different" in January 2021 from what had been presented to Lockinger the previous month.

When Lockinger filed a formal complaint with IBM's HR department, she was initially told there had been no IBM policy violation because she had been out for 12 weeks.

"When Lockinger pointed out that IBM’s handbook allowed for the 20 weeks of leave that Lockinger took, in addition to laws that granted Lockinger leave, [her HR contact] responded that the policy was 'subject to interpretation,' which really meant that IBM would contort the policy however it needed to in order to avoid taking action to respond to Lockinger’s complaint," the lawsuit claims.

In the months that followed, Lockinger challenged her treatment with IBM's Concerns & Appeals organization, to no avail. She was also unable to move elsewhere within the company. And by April 2021, convinced that IBM had given her a placeholder job with no future to force her out, Lockinger was "constructively discharged" – or forced to resign or retire by a hostile work environment, the lawsuit states.

Lockinger is seeking $5 million in damages – $2 million in financial loss and $3 million "as punishment for [IBM's] reprehensible conduct," for violating New York City Human Rights Law.

Lockinger's attorney and IBM did not respond to requests for comment.

Programmed behavior?

According to research [PDF] published last year by the University of Amherst's Center for Employment Equity, about 5,300 pregnancy discrimination charges are filed each year with either the federal Equal Employment Opportunity Commission (EEOC) or state Fair Employment Practices Agencies (FEPAs) and these are believed to represent only about 2 percent of pregnancy discrimination incidents.

The study estimates that 250,000 women are denied accommodations related to their pregnancies each year, and suggests that's a conservative figure because 36 percent of women who reported needing accommodation did not ask their employer.

"Despite an overall higher success rate of receiving benefits than other forms of sex discrimination, the majority (74 percent) of pregnancy charges result in no monetary benefit or required workplace change through the EEOC process," the study says. "Of the 23 percent of charges that receive any monetary benefit, the average benefit is only $17,976 and the median benefit is only $8,000. These monetary benefits are lower than those secured for other sex-based discrimination charges."

According to EEOC data, 27 percent of pregnancy discrimination claims were resolved in favor of the complainant in 2021, up about four percentage points more or less from what the figure has been since 2010.

Wendy Musell, managing partner of law offices of Wendy Musell and counsel for employment-law specialists Levy Vinick Burrell Hyams LLP, told The Register in a phone interview pregnancy discrimination continues to be a problem in workplaces.

"If we look at what happened during COVID, we know that there was a disproportionate effect upon women for caregiving responsibilities," said Musell. "So you're already looking at a diminished percentage of women in the workforce."

Musell said that the allegations in the complaint against IBM, if true, sound a lot like the things she hears from clients about how discrimination manifests in the workplace.

"This is exactly the type of allegation that I see in my practice," she said. "There's a stereotype that women who have children, particularly young children, can't be as committed to their job or won't be as available for their job, and the employer preemptively takes away opportunities, takes away promotional pathways, takes away more prestigious job assignments, so that there's less of a pathway for promotion in the workplace.

"In these types of workplaces where you have these pay bands, and more Byzantine administrative systems, that makes it even more possible to sideline women who have children or go on maternity leave with exactly the type of allegations that are alleged in the lawsuit."

Musell said California has made some progress against workplace discrimination issues through pay equity legislation and labor code provisions that help promote transparency. But she said there's a limit to what these laws can do, noting that in Silicon Valley, stock-based compensation may not be apparent when considering the amounts employees get paid.

So with regard to the complaint's allegations about being sidelined, she said, there's no automatic disclosure of employment changes that may affect compensation or career path, though such information could come to light during legal discovery.

It appears from the allegation in the lawsuit, said Musell, that there was a lack of response from IBM's human resources department.

"Arguably, if a woman is subjected to sidelining like this as soon as she goes out on the eve, and returns, those things could be resolved if you have a functional HR process," said Musell. But if the HR process is really there as a CYA for the employer, and not really to get at the truth of what's occurring, then of course, you're going to have more of these lawsuits." ®