/uploads/sites/403/2017/10/Yahoo-Article-201710092322.jpg" alt="" width="616" height="372" /> <em>Yahoo corporate headquarters.</em>[/caption]
Yahoo Inc. is <a href="http://www.almcms.com/contrib
Morgan Lewis Bockius
/uploads/documents/403/ArdvYahooSJ.pdf" target="_blank">set to ask a federal judge</a> in San Jose Wednesday to knock out claims from two former managers in the company���s media��unit who claim they were discriminated against based on gender.
But in this case, the plaintiffs, <a href="http://www.corpcounsel.com/id=1202749085844#comments" target="_blank">Gregory Anderson</a> and <a href="http://www.corpcounsel.com/id=1202769581629" target="_blank">Scott Ard</a>, claim that they were discriminated against because they were men in an organization that��went too far to promote and hire women.
���Only intentional discrimination can explain how an amazing 83 percent of the people holding leadership positions in the new digital magazines were women,��� <a href="http://www.almcms.com/contrib
Morgan Lewis Bockius
/uploads/documents/403/ArdvYahooSJResponse.pdf" target="_blank">wrote the men���s lawyer</a>, Palo Alto-based Jon Parsons, describing how Yahoo���s media arm was restructured under then-CEO Marissa Mayer and media chief Kathy Savitt.
The case has moved to the summary judgment phase just as conversations about gender parity in Silicon Valley have reached a fever pitch. In <a href="https://www.nytimes.com/2017/09/23/technology/silicon-valley-men-backlash-gender-scandals.html" target="_blank">a front-page story for The New York Times</a> headlined ���Push for Gender Equality in Tech? Some Men Say It���s Gone Too Far,��� Parsons said there was ���no control over women hiring women��� at Yahoo. ���When you���re on a mission from God to set the world straight, it���s easy to go too far,��� he told the Times.
Parsons declined to comment to The Recorder in the run-up to Wednesday���s summary judgment hearing. The hearing is before��U.S. Magistrate Judge Nathanael Cousins of the Northern District of California.
Yahoo, represented by a team at Morgan, Lewis & Bockius led by labor and employment partner Melinda Riechert, is set to push back with their own explanation of why the men were let go. Anderson, the company claims, was fired because his quarterly performance review scores were repeatedly low, putting him in the bottom 5 percent of employees in the company. Ard,��Yahoo's lawyers argue, didn���t add enough value to his team, especially given his senior level.
���Yahoo had legitimate bases to terminate plaintiffs��� employment and plaintiffs have not and cannot produce evidence that those legitimate bases were a pretext for gender discrimination,��� Riechert wrote.
Here are three things to watch as the parties prepare to argue��for their arguments.
<strong>The burden is on Yahoo</strong>
As the moving party, Yahoo has the ���heavy burden��� to show there are no triable fact issues. Summary judgment will be nixed so long as a ���fair-minded jury could return a verdict��� for the plaintiffs. The standard typically makes winning summary judgment for defendants in fact- and circumstance-specific discrimination cases a long shot.
In his opposition papers, Parsons latched onto one particular claim that he says Yahoo has not addressed: That Ard���s firing came just three days after he raised red flags internally about quarterly reviews scores that he gave to three male employees��that were adjusted downward by his female supervisor.
���Yahoo engaged in sex-based discrimination not only by reducing plaintiff���s scores and terminating them, but also by retaliating against Scott Ard because of his repeated attempts to address what he saw as the arbitrary lowering of men���s QPR scores and the wrongful termination of men,��� Parsons wrote.
<strong>This could get awkward</strong>
In��pushing Anderson���s case,��Parsons will have to grapple with the fact that three of��his four managers were men, including fellow plaintiff Ard. Yahoo���s lawyers have seized on that reporting relationship.
���[Anderson] was identified as a poor manager by his managers, <em>including plaintiff Scott Ard</em>, and his direct reports who completed annual anonymous Yahoo Employee Engagement Surveys (YEES), in which they answered questions rating his management skills,��� <a href="http://www.almcms.com/contrib
Morgan Lewis Bockius
/uploads/documents/403/1412/ArdvYahooSJReply.pdf" target="_blank">Yahoo���s lawyers wrote</a>.
Yahoo���s lawyers also point out Ard took on Anderson���s duties when he took personal leave to attend a professional fellowship at the University of Michigan without��much disruption���a point they argue shows how expendable Anderson's position was.
Lori Andrus of Andrus Anderson, who regularly represents women bringing gender discrimination claims but who isn't involved in the Yahoo case, said gender discrimination lawsuits brought by men ���don't represent an existential threat to tech companies.��� Since tech companies constantly claim there���s a ���pipeline problem��� creating a lack of qualified female candidates, she said it would be hard to argue that they���re hiring too many women and forcing men out unfairly.
Beyond their gender discrimination claims, the plaintiffs in the Yahoo case argue Yahoo���s internal review process was used as��a pretense��for wide-scale reductions in force. While the company claims it used the internal reviews to rank low-performing employees and managers whose pay exceeded their value, plaintiffs claim Yahoo labeled economically motivated layoffs��as merit-based to��stave off having to provide the sort of notice and benefits associated with mass layoffs.
Even though the Yahoo case is not styled as a class action,��it seeks a finding that the company���s moves violated state and federal Worker Adjustment and Retraining Notification Act laws, or WARN Acts, which require certain notice and benefits to workers who are subject to mass cuts. Such a finding could create a dangerous precedent for Yahoo or any other companies employing so-called ���stack ranking��� systems in the future.
���By paying out roughly one-third the pay and benefits than it would for standard layoffs, Yahoo had a tremendous financial incentive to characterize each employee���s departure as being for cause under cover of the QPR process,��� Parsons wrote. ���And in doing so, Yahoo denied thousands of employees their proper separation benefits.���
<em>Ross Todd can be contacted at [email protected]</em>
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