9th Circuit Court of Appeals Accepts Plaintiffs' Request for Discretionary Appeal Regarding Class Certification in Microsoft Gender Discrimination Lawsuit

On September 20, 2018, the Ninth Circuit Court of Appeals issued an order accepting Plaintiffs’ petition for a discretionary appeal of the District Court’s June 25, 2018 order denying class certification in the Microsoft gender discrimination lawsuit, Moussouris v. Microsoft Corporation, brought by female current and former Microsoft professionals. Plaintiffs seek to represent a class of female current and former employees in Microsoft’s Engineering and I/T Operations professions in the U.S. at stock levels 59 through 67. Plaintiffs allege that Microsoft has engaged in systemic and pervasive gender discrimination with respect to pay and promotions.

A remarkable showing of over 30 national and regional women’s and civil rights organizations supported the Plaintiffs’ request for the appeal. Those organizations are:

• A Better Balance

• Alianza Nacional de Campesinas

• American Civil Liberties Union

• American Association of University Women

• Asian Americans Advancing Justice – Asian Law Caucus

• Asian American Legal Defense and Education Fund

• California Women Lawyers

• California Women’s Law Center

• Center for WorkLife Law at the University of California, Hastings College of the Law

• Disability Rights Education & Defense Fund

• Equal Justice Society

• Equal Pay Today

• Equal Rights Advocates

• Impact Fund

• International Action Network for Gender Equity & Law

• Lambda Legal Defense and Education Fund, Inc.

• Legal Aid at Work

• Legal Momentum (formerly NOW Legal Defense and Education Fund)

• Legal Voice

• Mexican American Legal Defense and Educational Fund

• Muslim Advocates

• National Center for Law and Economic Justice

• National Center for Lesbian Rights

• National Employment Law Project

• National Women’s Law Center

• Public Advocates, Inc.

• Public Counsel

• Southwest Women’s Law Center

• Washington Lawyers’ Committee for Civil Rights and Urban Affairs

• Women Employed

• Women’s Law Project

As the pleadings in the case describe, Microsoft has permitted and facilitated a corporate culture of unchecked gender bias and a Human Resources department that virtually never finds in favor of female complainants alleging gender discrimination. Discovery in this case revealed that from 2010 to 2016, Microsoft’s internal complaint investigation team only substantiated 1 out of nearly 120 gender discrimination complaints made by female technical employees. The disadvantage to female engineers in pay and promotions is the predictable result of Microsoft’s policies and practices and its lack of proper accountability measures to ensure fairness. Plaintiffs further allege that Microsoft has implemented these policies and practices despite knowing that they have a long-standing disparate impact on women.

“We are pleased that the Ninth Circuit will hear Plaintiffs’ appeal,” stated Kelly M. Dermody, the Chair of Lieff Cabraser’s Employment Law Group and co-counsel for the Plaintiffs in the case. “We welcome the Ninth Circuit’s clarification of the class certification standards and believe the evidence here demands that Microsoft’s common discriminatory systems be addressed on a class basis so that women at the company can get justice.”

“This is a terrific development for our clients,” stated Adam Klein, Deputy Managing Partner at Outten & Golden LLP and co-counsel for the Plaintiffs in the case. “We look forward to the appeal to the Ninth Circuit and then proceeding with the merits.”

The case alleges claims under federal anti-discrimination law, Title VII of the Civil Rights Act of 1964, as well as under the Washington Law Against Discrimination. Plaintiffs seek back pay as well as monetary damages, including punitive damages, along with injunctive relief —that is, court-monitored changes to Microsoft’s pay and promotion practices as well as its system for investigating internal complaints.

About the Plaintiffs

Katie Moussouris worked for Microsoft in its Trustworthy Computing Group in Redmond, Washington, for over seven years. She left Microsoft in 2014 and is the founder and CEO of Luta Security, a firm offering solutions architects for vulnerability disclosure or Bug Bounty programs. Holly Muenchow is a current Microsoft engineer, and has worked for the company since 2002. Microsoft’s attempt to dismiss the claims of both women was denied in full.

About the Law Firms

The co-lead counsel representing the Plaintiffs – the plaintiffs’ employment firm Outten & Golden LLP and the national class action firm Lieff Cabraser Heimann & Bernstein, LLP – also represented female professionals in the Amochaev v. Smith Barney and Calibuso v. Bank of America gender discrimination cases, which resulted in a $33 million and $39 million settlements, respectively. The firms are also co-lead counsel in the on-going gender discrimination class actions against Goldman Sachs, Chen-Oster v. Goldman, Sachs & Co., and Sandia National Labs, Kennicott v. Sandia Corporation d/b/a Sandia National Laboratories.

Outten & Golden LLP is a 50 attorney firm with offices in New York, San Francisco and Chicago. O&G represents plaintiffs in a wide variety of employment law matters, including national class and impact statutory discrimination cases, major class-based wage and hour violations, and contract negotiations. O&G represented plaintiff-intervenor Allison Schieffelin in a pattern or practice sex discrimination suit prosecuted with the EEOC against Morgan Stanley that resulted in a $54 million settlement and substantial injunctive relief. It is also lead counsel in Houser v. Pritzker, a class action lawsuit on behalf of hundreds of thousands of African-American and Latino job seekers alleging that the Census Bureau’s criminal background check had a disparate impact on African-American and Latino applicants for jobs related to the 2010 census. It has handled discrimination claims against numerous Fortune 500 firms. More information on the firm can be found at www.outtengolden.com.

Lieff Cabraser Heimann & Bernstein, LLP, is a 70 attorney firm with offices in San Francisco, Seattle, New York, and Nashville. Lieff Cabraser has represented plaintiffs in a wide variety of class action litigation, including employment discrimination and civil rights, wage suppression, and pension benefits litigation. It has represented many plaintiffs in litigation against technology companies, including serving as class counsel in the Silicon Valley no-poaching case, In re High-Tech Employee Antitrust Litigation, which resulted in settlements totaling $435 million, and as plaintiffs’ co-counsel in the ongoing class action challenging Google’s failure to pay female employees in California equal pay for substantially equal work, Ellis v. Google, LLC. More information on the firm can be found at www.lieffcabraser.com.

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