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Is HR a Legal Problem? The Microsoft Class Action Suit by 8,630 Female Engineers
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By Marianne Jennings

4/27/2018

 

Microsoft is a defendant in a class-action suit brought by women who worked at the company between 2011 and 2016.  The 8,630 female engineers and IT specialists are asking for between $100 million and $238 million in back pay as well as damages for 508 denied promotions.  The documents in the suit finds that the women raise an interesting question because the descriptions of their experiences at Microsoft seem to indicate that when HR at Microsoft got involved, things seemed to get worse.

 

In the cases established in the documentation, managers who were found to have sexually harassed female employees were not terminated, but, rather, were transferred. When the women reported retaliation by managers who were retained after they had filed complaints, no action was taken.  An engineer's documents allege that a manager told her that he was not giving her a promotion because she had just had a baby and would probably want to have another and that he "did not want to waste a promotion on her."  Erika Fry and Claire Zillerman, "HR Is Not Your Friend." Fortune, March 21, 2018, p. 99. 

 

The sexual harassment cases in the Microsoft suit present some interesting dilemmas because the legal definition of sexual harassment is quid pro quo, sexual favors in exchange for promotions and other benefits at work, or hostile environment, which is defined as an atmosphere of harassment.  In some cases, the alleged harassment is that a supervisor asked for a date twice.  That level of interaction may not reach the legal standard.  However, one of the issues in the case is whether HR was taking sufficient steps when conduct was reported to curb the behavior, which could ripen into behavior that did meet the legal standard. The interesting aspect of the Microsoft case is the alleged inaction of HR in responding appropriately to the complaints.  Is a transfer of a supervisor enough or is termination necessary?  If the conduct does not meet the legal standard, must HR take any steps, such as discussing the concern with the supervisor?

 

Still other issues arose because HR did address the issues with supervisors and then the complainants returned to HR when they experienced retaliation in the form of reduced bonuses, poor performance evaluations, or being passed over for promotions.  The issue that has arisen as a result of the case is whether HR is the best place for employees to turn.  Former FOX News anchor Gretchen Carlson, who settled her lawsuit for harassment with the network, believes not, “Is human resources really the right place to go?” Because what I always equate it to is: Who’s giving them the paycheck? In the end, if the culture’s being set from the top and it’s trickling down to the lower levels, human resources may not be looking out for you.”

 

 

have begun the process of reexamining the roles of HR and have begun using different approaches.  For example, many companies are relying more and more on third parties -- hiring outside law firms to investigate allegations so that HR employees, who do get their paychecks from the company, do not feel pressures or view issues as fairly as they should. Many companies are also abandoning the annual performance evaluation in favor of more frequent one-on-one discussions with employees about performance, concerns, and plans for improvement.  Some companies are even sending weekly surveys that allow employees to give a "thumbs up" or "thumbs down" in describing their work week as a way of tracking were problems are arising in the organization. Some companies are even hiring third-party HR companies that can serve as a sounding board for employees and as a source for advice. 

 

With the annual number of cases filed with the EEOC increasing and reaching almost 85,000 in 2017, organizations are looking at HR with new eyes to see if they can adjust their processes and interactions to better understand what is happening in their workplaces before the class-action suits are filed. In the Microsoft case, many of the documents filed indicate that HR did not follow up on some of the complaints that employees made or did not take sufficient steps to stop the behaviors or take disciplinary action.  The focus is now on the HR function and how it can be improved to address the increasing litigation and regulatory complaints. 

 

DISCUSSION STARTERS

 

Explain what is happening with the Microsoft case.

 

Discuss what issues are being addressed with the HR function.