In Male Gender Discrimination Case, Lawyer for Former Yahoo Employees Faces Skeptical Questions

SAN JOSE — A lawyer representing two former male Yahoo Inc. employees faced a string of skeptical questions Wednesday afternoon from the judge overseeing his clients’ gender discrimination case.

Palo Alto-based attorney Jon Parsons claims that his clients—Gregory Anderson and Scott Ard—were pushed out of the company by female managers who went too far to promote and hire women. He’s also argued that Yahoo’s forced ranking system, designed to push out low performers and managers who didn’t add sufficient value to the company, was a pretense to conduct mass layoffs in violation of state and federal laws designed to protect workers.

At a hearing on Yahoo’s motion for summary judgment in the case, Parsons honed in on Yahoo’s quarterly review process, where employees performance scores were often “recalibrated” by upper-level managers who had little or no direct contact with them.

“What we have is a practice of men’s scores being reduced while women’s scores were not” by women in upper management, Parsons said. “The proper process, we would submit, is that the managers who know what their employees are doing should evaluate the employees.”

But U.S. Magistrate Judge Nathanael Cousins, who is overseeing the case, suggested that allowing the review of a single manager to determine the value of an employee could be potentially more troublesome, as could a system that foregoes reviews altogether.

Cousins asked: “Is the alternative potential more discriminatory and more unfair?”

Cousins also prodded Parson to point to evidence that showed that his clients weren’t the poor performers that their Yahoo reviews made them out to be. “What tells me that their assessment was wrong?” the judge asked.

The case has moved to the summary judgment phase just as a broader discussion about gender diversity in Silicon Valley has reached a boiling point, after a Google engineer’s memo arguing that women are biologically less adept at technology led to his termination.

Yahoo, represented by a team at Morgan, Lewis & Bockius led by labor and employment partner Melinda Riechert, has pushed back against Parsons’ narrative and defended Yahoo’s review system.

“If you just have one person giving the score, and there’s no review of the score, that allows more discrimination to take place than a score given by a whole team of managers with” human resources officials overseeing the process, she said.

Yahoo claims that Anderson was fired because of consistently lower quarterly performance review scores, which put him in the bottom 5 percent of the entire company, and low scores from his subordinates in bottom-up reviews. Ard, the company argues, was let go because his manager found that he didn’t add enough value to his team, especially given his senior level.

But on Wednesday, Parsons argued that Anderson’s score was artificially manipulated downward and that Ard was pushed out shortly after he complained about changes that resulted in male employees below him having their review scores reduced.

Parsons also argued that Yahoo manipulated its review process to make layoffs look like merit-based job cuts in order to avoid triggering obligations under the state and federal Worker Adjustment and Retraining Notification Act (WARN) laws,  which require notice and benefits for workers affected by economic cuts.

“If the court allows a company like Yahoo to manipulate these numbers and create terminations ‘for cause,’ ” Parsons said, “then the WARN Act becomes a toothless device.”

Cousins held off on ruling and said that he would issue a written opinion after reviewing the matter and reading the deposition transcript of former CEO Marisa Mayer, which Yahoo is seeking to keep under seal.

Both Parsons and Riechert declined to comment beyond their remarks to the judge.