Class Certification Defeated in Twitter Gender Discrimination Case

Recently, another technology company defeated class certification in a gender discrimination lawsuit. On July 3, 2018, a California state court judge denied female Twitter employees class certification in a lawsuit entitled Huang v. Twitter. This ruling follows a federal judge’s denial of class-action status to females in a gender bias case against Microsoft Corporation. Similar cases are currently pending against Google and Oracle.

In Huang v. Twitter, the named plaintiff, Tina Huang, initially sued Twitter in 2015 and alleged that Twitter wrongly fired her, and that Twitter’s promotion process leads to an environment where female employees are less likely to be promoted than their male counterparts. The case is venued in San Francisco Superior Court, where Judge Mary Wiss found the 135 current and former female technical employees in the putative class could not proceed as a class because they did not have enough in common in terms of allegedly being held back from promotions and receiving raises based on their gender.

In trying to establish class certification, Huang alleged managers act as “gatekeepers” to better jobs at Twitter by deciding who is nominated and/or considered for a promotion. Huang alleged that Twitter instituted a “uniform practice” of allowing managers to nominate software engineers for promotion if they met certain criteria, which disparately impacted women. She also relied upon Twitter’s 2014 promotion policy to argue that there were common issues of law and fact, such as how managers nominating candidates for promotion were instructed to consider employees’ concrete contributions to projects or the overall quality of their work. Huang relied upon declarations from class members describing a “brogrammer” culture at Twitter, and a 2017 report by an economist and statistician, which concluded that fewer females were promoted when compared to their male counterparts.

In relying upon the U.S. Supreme Court’s Walmart Stores v. Dukes standard, Judge Wiss held that the putative class could not show that Twitter had a “common mode of exercising discretion” for denying promotions to women as the employees’ individual allegations were too diverse to proceed as a class. Likewise, the Court held that the Huang “failed to satisfy her burden of presenting substantial evidence to show that managers at Twitter acted as “gatekeepers” with respect to the promotion process involving the putative class,” and that Duke’s “common mode” standard was not met since managers’ discretion was not uniform. As such, Huang did not satisfy the “community of interest” standard that would allow the case to proceed as a class action.

The Court also found that Huang failed to establish that her claims were “typical” of the entire class because, unlike the class she sought to represent, Plaintiff’s promotions were not hindered by her manager’s “gatekeeping.” Lastly, the Court found that Plaintiff failed to demonstrate that a class action was the superior method for resolving the case as numerous individual factual inquiries would have to be made regarding whether or not individual managers acted as “gatekeepers” regarding the promotion process.

Thus, the Huang case can be cited by technology (and other) companies to defend against class claims based on alleged gender bias.

We have extensive counseling and litigation experience in the class action area. If you would like to discuss these issues further, or have any questions about this blog, please contact us.

New Protections For Employers Reporting Sexual Harassment Claims In Reference Checks

California employers for the most part play it safe by following their job reference policies allowing them to state period of employment, job title, and possibly compensation (with the employee’s consent). For those who go beyond these basics, there is a dilemma when asked to respond to a reference check regarding a former employee who has had his or her employment terminated due to an accusation of sexual harassment. Thus, by informing a future employer of an employee’s misconduct, the former employer opens itself up to a defamation claim by an employee claiming he or she was falsely accused. (more…)

The U.S. Supreme Court Upholds Class Action Waivers In Employment Arbitration Agreements

The United States Supreme Court has issued its much-anticipated opinion in Epic Systems Corp. v. Lewis, 584 U.S. __ (2018), and two companion cases. In a decision that will be welcomed by employers, the Court has upheld the use of arbitration agreements with class action waivers that require employees to litigate any claims against their employers individually in arbitration. Specifically, the Court has held that class action waivers in arbitration agreements between employers and their employees do not violate the National Labor Relations Act (NLRA) by preventing employees from engaging in protected concerted activity. (more…)

The New “ABC Test” For California Employees and Its Potential Impact On The “Gig Economy” And Otherwise

On April 30, 2018, the California Supreme Court issued its decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles County, 2018 Cal. LEXIS 3152 (Cal. Apr. 30, 2018), announcing new guidelines that could result in widespread reclassification of California workers and, at the least, presents significant new challenges for certain employers. (more…)

Equal Pay Update: Ninth Circuit Ruling re Salary History

The Ninth Circuit has recently ruled that salary history cannot be used to justify a wage gap between men and women. Specifically, in Rizo v. Yovino, Case No. 16-15372 (9th Cir. April 8, 2018), the Ninth Circuit held that a “factor other than sex” under the federal Equal Pay Act must be “job-related” and the court therefore rejected an employer’s use of pre-employment salary history as a reason to pay females less than males performing the same work. (more…)

California Supreme Court Explains How to Calculate Overtime Pay When Non-Exempt Employees Earn Flat Sum Bonuses

On March 5, 2018, the California Supreme Court issued its long-awaited opinion in Alvarado v. Dart Container Corporation of California, Case No. S232607 (Cal. Sup. Ct., March 5, 2018). The opinion resolves a dispute between an employer and a former employee regarding how his overtime wages should have been calculated for workweeks in which he worked overtime hours and also earned a flat sum bonus. (A flat sum bonus is a bonus whose amount is fixed regardless of the number of hours the employee works.) The calculation method urged by the employee, which would result in slightly higher overtime pay, would treat the bonus as earned only during the non-overtime hours he worked; the employer’s method effectively treated the bonus as earned during all hours he worked. (more…)

Contractor v. Employee in the Gig Economy

A federal court in California, (Lawson v. Grubhub, Inc., No. 15-CV-05128-JSC (N.D. Cal February 8, 2018)), recently ruled that drivers for Grubhub, a food delivery service, are independent contractors rather than employees. The critical factor in the court’s decision was Grubhub’s lack of control over how its drivers perform deliveries, and even whether deliveries are to be performed at all. The decision is significant because, under California law, if an individual performing services is deemed to be an employee, that person has rights to minimum wage, overtime, expense reimbursements and workers compensation benefits. In contrast, an independent contractor is not entitled to those benefits. The decision is thus a welcome development for employers who rely on flexible and semi-autonomous workers in the “gig” economy. (more…)

EMPLOYMENT LAW UPDATE: 2018 Brings Major Changes for California Employers

Several important new California employment laws took effect on January 1, 2018. These new laws will impact California employers from the pre-hiring stage through the entire employment relationship.

Restriction on Obtaining Salary History

Effective January 1, 2018, Assembly Bill 168 went into effect, which prohibits all California employers from:

  • Directly or indirectly inquiring into a job applicant’s salary history, compensation or benefits
  • Using such salary history information in determining whether to extend a job offer or in deciding what salary to offer the applicant.


Employment Challenges in a Holocratic Work Environment

Many Silicon Valley start-up companies, as well as larger companies such as Zappos, have moved from a traditionally structured work environment to a “holocracy” model. Essentially, while there are lots of variations, a holocracy model is a “boss free” business environment that focuses less on a structured workplace with traditional job descriptions and job titles, and more on creating self-organized “circles” of workers that concentrate on specific goals. Each circle of workers is a self-organized entity with the authority to manage itself, and the circle is ultimately part of a larger circle within the company. In addition, there is a general principle of transparency in the organization’s rules and decision-making. For companies that are able to tolerate a high level of adaptability, have motivated workers, and are established and mature enough to bounce back if things do not work out as anticipated, this is a highly attractive work model. However, this organizational model raises a host of potential employment issues, a few of which are highlighted below:


Employment Law Update: What’s In Store for California Employers in 2017 and Beyond?

In 2016, California Governor Jerry Brown signed numerous laws that will affect California employers. Here are some of the new laws that employers need to be aware of:

Employers Are Not Required to State Hours Worked on Wage Statements of OT Exempt Employees

AB 2535 clarifies the wage statement requirements for tracking hours worked for exempt employees. The bill was passed following the federal court decision in Garnett v. ADT, LLC, which held that employers must include total hours worked on pay stubs for exempt outside sales employees and executives because they received bonuses and stock options. Under the new law, employers are not required to provide itemized wage statements to employees if the “employee’s compensation is solely based on salary and the employee is exempt from payment of overtime,” or the “employee is exempt from the payment of minimum wage and overtime under …any applicable order of the Industrial Welfare Commission” and specified statutes. (more…)