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Microsoft Judge Sees ‘Fatal’ Flaw in Women's Group Bias Case

Dina Bass, Margaret Cronin Fisk
Customers stand near the Microsoft Corp. logo during the Microsoft Corp. Xbox One X game console global launch event in New York, U.S., on Monday, Nov. 6, 2017. Photographer: Mark Kauzlarich/Bloomberg

Microsoft Corp. women engineers seeking to pursue gender-discrimination claims as a group were told by a judge there may be a “fatal’’ flaw in their case.

A 2011 decision by the U.S. Supreme Court requires plaintiffs to point to a common corporate policy or action that affected the women adversely, U.S. District Judge James L. Robart said Monday at a hearing in Seattle about whether to let the case proceed as a class action. He seemed skeptical about the Microsoft women’s ability to find commonality.

According to the judge, one of the women’s attorneys appeared to argue that women at the tech giant were disadvantaged relative to men because there was a lack of uniformity and management oversight in performance evaluations. Applying that contention to the legal standard set by the Supreme Court is “fatal to your class,’’ Robart said.

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When plaintiff lawyer Kelly Dermody said there wasn’t enough uniform guidance for managers at Microsoft, Robart interjected: “Counselor, didn’t you just drive a wooden stake through the heart of your argument? You just told me there’s no commonality because there’s no common criteria.’’

The complaint filed almost three years ago alleges that Microsoft discriminated against women engineers in pay and promotions. The proposed class action would include more than 8,630 women in those high-level positions from Sept 16, 2012, to the present.

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Microsoft has denied any discrimination and has opposed class certification. Microsoft has made “significant progress’’ in recent years in ensuring a diverse and inclusive workplace, the company said in an emailed statement before the hearing. “But even as we work on these broader issues, it is clear we don’t discriminate on pay and promotions.’’

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