In 2011, Monique da Silva Moore along with several other coworkers, sued her employer, the PR firm Publicis. Ms. da Silva claimed that the company discriminated against female employees. “Publicis’ glass ceiling might as well be a cement wall,”she said, noting that, although 70% of the company’s employees were women, the senior management was dominated by men.
According to Ms. da Silva Moore’s version of events, the company discriminated against female employees, all while hiding behind a veneer of “equal treatment” while the president had a habit of making unwanted, creepy comments about women’s appearance and was known to say things like ‘we need a big swinging dick’ to lead the midwest office.
Publicis Group, of course, had a different version of events. To hear them tell it, they were committed to making sure the best employees got promoted, and indeed committed to creating a company where men and women could succeed. And if there were fewer women in upper management, well that was partly due to the fact that getting promoted required working long hours, and many of their female employees wanted more work-life balance. Wanted, for example, to take time off to raise a family.
So, stop right now, and think of what you have heard so far. Imagine yourself on the jury. What would it take to convince you that Ms. da Silva Moore’s story is right? What it would it take to convince you that the Publicis is right? What the judge is going to tell you is that, under the law, you have to determine whether the fact that Ms. da Silva Moore was a woman was a “motivating factor” in Publicis’s decision not to promote her. The Supreme Court has told us that a “motivating factor” means that even if was one of several reasons for denying the promotion, if the fact that she was a woman played a part, then Publicis could be found liable.
So, what would it take? Sometimes the evidence can be pretty blatant. For example, a 54 year old woman won an age discrimination case after it came out that her employer had demanded that she be fired because she looked “like a bag of bones” and sounded “old on the phone.” But of course frequently the evidence is NOT going to be so blatant. Maybe, for example, it’s more subtle.
Now, it does not take Sherlock Holmes or a CSI detective to figure out that one place you might want to look is in emails. People seem to have their guard down when they write emails. They tend to think and write in the moment, but then of course, as we all know by now, those emails last forever.
So let’s go take a look at the emails. Lots of emails. Lots and lots and lots of emails. How do we find the ones that matter? In the U.S. legal system, this is done through a process called “discovery”. Here’s how it works. Soon after a case starts, each side submits to the other side formal requests to produce documents, and these include electronic documents, such as emails. And soon after Ms. Da Silva’s case started, her lawyers submitted requests to Publicis’s lawyers requests to produce, among other things, all the emails that might be relevant.
Now, I’ll ask you once again to stop right now and conjure up your mental image of Ms. Da Silva’s lawyer. I bet you, influenced by movies or tv shows, conjured up an image of a lawyer in a suit, making an argument to a jury.
But, one thing that is crucial to understand about the U.S. Legal system — despite what you’ve heard, cases almost never go to trial. In fact, for employment cases like Ms. Da Silva’s, less than 4% actually go to trial. In another 20%, the defendant is able to get the whole case thrown out. In the remaining cases, about 3/4 of all cases filed, the parties reach a settlement.
What that means is that, in the vast run of cases, most of the action happens in the discovery phase. Most of the fighting is over whether and what documents have to be produced. And in Ms. Da Silva’s case, there was a lot of fighting.
It started with the request for emails…