Judge blocks effort to expand Microsoft gender-bias case to thousands of women

A federal judge in Seattle denied a motion to broadly expand a gender-discrimination lawsuit against Microsoft, dealing a blow to a group of women suing the company who had hoped to add thousands of plaintiffs to the case.

The plaintiffs in the case, Moussouris v Microsoft, had been seeking permission from the judge to create a class-action suit. That would have made it possible for more than 8,600 women to join the case and potentially get damages from the company.

U.S. District Judge James Robart denied the class-action motion Monday, according to a docket report filed with the courts. The decision is sealed while Microsoft and the plaintiffs discuss what information needs to be redacted.

At a hearing earlier this month, Robart had tough questions for the women’s lawyers, asking whether there were strong enough similarities between the women’s cases to justify a class-action suit.

In a statement Monday, Microsoft said the judge made the “right decision.”

“We remain committed to increasing diversity and making sure that Microsoft is a workplace where everyone has an equal opportunity to succeed,” a company spokesperson said.

Lawyers for the plaintiff did not respond to a request for comment.

The Microsoft lawsuit has been weaving its way through the court for more than two years, and alleges widespread gender discrimination at the Redmond tech company — saying that women in engineering roles were promoted and given raises at a slower rate than men in similar jobs.

It’s one of several similar lawsuits against big tech companies in recent years, all taking aim at an industry they allege favors white men over women and minorities.

Robart’s decision does not dismiss the lawsuit against Microsoft, which can still proceed with the named plaintiffs.

Charlotte Garden, an associate professor of law at Seattle University, said she expected the plaintiffs to appeal the class action ruling, one of the only appeals that is allowed to happen while an active case is still proceeding.

During oral arguments on the class-action motion earlier this month,  an attorney for Microsoft relied on a 2011 precedent — a case that now has been cited in multiple suits seeking class action. In that case, the U.S. Supreme Court rejected a proposed class in a gender bias case against Walmart, which sought to include about 1.6 million women.

The potential Walmart plaintiffs were located all across the country and had different managers and varying stories of gender bias. The court ruled the plaintiffs did not have similar enough experiences to be considered a class, and did not prove company policy had led to the discrimination.

“One thing it did was stake out the far end of the class certification decisions,” Garden said of the Walmart suit. She noted that the Walmart case involved a huge number of potential plaintiffs, more than most other cases, and the decision did not give “tremendously clear guidance” to courts considering smaller-scale cases.

During oral arguments in the Microsoft case, Kelly Dermody, an attorney for the plaintiffs,  said that Microsoft managers were given little instruction on how to determine pay and promotions, and that lack of structure allowed for discrimination.

“Didn’t you just drive a wooden stake through the heart of your argument?” Robart asked, pointing out that there must be consistent practices in a class-action suit.

A former Microsoft cybersecurity engineer, Katherine Moussouris, sued Microsoft in September 2015, claiming less-qualified men had been given raises and promotions over her. She was joined by two other plaintiffs in the case, and their lawyers had been trying to add thousands of other women in technical roles to the suit.

Microsoft has denied throughout the case that systemic gender discrimination is taking place within its employee reviews, which determine who gets promoted and who gets raises.

It’s tough to know exactly what impact Robart’s decision will have on other similar cases weaving their way through the courts because his opinion is still sealed, Garden said.

Sealing a decision while awaiting both sides in the case to decide what to redact is not a common practice. But it has been used several times in this Microsoft case as the company and the plaintiffs redact — or block from public view — trade secrets and names of colleagues who appear in anecdotes, but are not part of the case.

Lawyers for both sides must file a joint statement in the next 10 days, indicating what they want to be redacted.

A class-action decision in a similar case is pending in California, where a  judge heard arguments in May in a gender bias case against social media giant Twitter, which is also seeking class-action status. Judge Mary E. Wiss has not yet ruled on the question.

Wiss dismissed a gender bias case against Google last December, saying the class it proposed was too broad. She allowed the plaintiffs to file an amended suit, which they did in January.