Gender Discrimination and Retaliation Still Difficult to Prove in Lawsuits

Regardless of how significant a problem gender discrimination and retaliation for reporting such mindsets and behavior is within organizations, it remains shockingly difficult to receive leadership support, corrective measures and when needed, legal protection and justice.

Susan Steen and Warner Bros. Entertainment, Inc. are emotionally and legally entangled in a challenging such dispute.

Steen invested 31 years with the company before being terminated, allegedly for complaining of sexism. She began with the company as a secretary and rose to the role of Executive Vice President of Worldwide Marketing Services and Head of Marketing Services.

That success didn’t come without adversity as claims have been made that Steen endured hostility, resistance and rejection from senior male managers. Information was withheld, normally a power play rooted in a desire to control and she was talked to in an unprofessional, aggressive manner and experienced harassment and gender bias.

Steen made the decision to step forward to express concern and dissatisfaction to human resources yet she and her legal representation claims those complaints were disregarded as “silly, unimportant, and uncomfortable to address.”

Shortly thereafter, fellow company leadership allegedly reacted with aggression, threats and retaliation. The cause of termination has been reported as Steen’s violation of a non-disclosure agreement. Her attorneys have responded that defense isn’t factual. Steen believes her reputation and career have suffered badly.

So, what now, for Warner Bros., Steen and her attorneys? How does this get legally resolved safely for the disputants? Legal experts say it’s going to be a hard road, regardless of facts, for Steen.

Warner Bros. has the advantage of law, precedent and burden of proof that could be difficult to successfully present.

“They do not have to show that they acted appropriately or were even correct, they merely have to beat back the plaintiff’s claim that the real reason for their actions were discrimination,” says Alex Granovsky, an employment law attorney in New York City and Cleveland, Ohio. “In other words, the employer can be wrong, dumb, unfair, etc., but so long as the employer is not discriminatory in its actions, it can win.”

Warner Bros. might be able to reasonably express and show Steen’s success within the organization as credible evidence it valued, supported, promoted and treated her professionally.

“The company response is likely to be that there was no sexism and bias against Ms. Steen because of her gender because Warner Brothers was clearly very supportive in her career as she grew from secretary to E.V.P.,” says Ayesha Krishnan Hamilton, an attorney in Princeton, New Jersey. “They will also argue that they investigated her HR complaints and found ‘same’ to be without merit.”

It’s a point that Granovsky believes is a possible argument company attorneys could and will communicate, with a high degree of plausibility.

“I think Warner Bros could argue that it treated her great. Indeed, it promoted the plaintiff from secretary to a high-level executive. This cuts against accusations of discrimination,” he says. “The company will also point to various internal documents which certainly say that W.B. is very much against discrimination, etc.”

Company attorneys will also attempt to provide evidence that Steen’s allegations are perceptions and not truthful.

“They will also deny that they denied her internal complaints, or called them ‘silly,’ etc. and argue instead that they take all complaints very seriously, did a thorough internal investigation, but that plaintiff’s complaints were unsubstantiated, and again, point to her own career trajectory as proof that they don’t discriminate,” Granovsky says.

The firing might even be perceived, considered and judged as reasonable and legally permissible.

“Warner Bros. Entertainment response will likely be that the reason she was fired was legitimate and non-discriminatory,” says Robert C. Bird, professor of business law and Eversource Energy Chair in Business Ethics at the University of Connecticut. “For example, they might argue that the reason she was fired was because she violated a non-disclosure agreement.”

Company investigations are not always ethical in practice and that’s a point that employees, former employees and plaintiff attorneys know and face as a task.

“In my experience, most but not all of these internal investigations are self-serving. A company’s internal investigation is typically undertaken by and for the company, not the employee,” Granovsky says.

There is also the question of the quality of evidence to support Steen’s claims and case for the desired outcome.

“It’s too early in the lawsuit to determine whether Ms. Steen’s complaint is based on strong evidence,” Bird says. “During the potentially long process known as discovery, each side will obtain information from the other according to legally prescribed rules. Although Ms. Steen’s claim could be different, most lawsuits like this settle out of court before going to trial.”

Whether that happens or not can be unpredictable from case to case yet Bird says there are benefits that inspire it, even if grudgingly.

“I can’t predict whether these specific parties will settle. However, defendants in employment cases may have an incentive to settle promptly. A lengthy lawsuit brings a steady stream of negative publicity about the company,” he says. “Furthermore, settlement agreements are generally private whereas jury verdicts are public. Companies generally do not prefer to disclose how much they have paid or not paid in employment discrimination settlements.”

The advantage and motivation to come to an agreement is not one sided either, Bird says.

“Employment discrimination plaintiffs can also have an incentive to settle. The legal costs of bringing an employment discrimination case through to trial are significant. A plaintiff may prefer the certainty of a fixed settlement agreement over the risk of an adverse jury verdict,” he says.

The odds, Granovsky says, are that in this dispute and case that Warner Bros. and Steen will somehow come to an agreement.

“I think that the case will likely settle as the vast majority of discrimination cases settle. Settlement is often a financially efficient result. Both sides can mitigate their risk and move on,” he says. “All of this said, I generally represent employees and, if W.B. did discriminate against her, I hope that Ms. Steen sticks it to them.”

Whether Warner Bros. corrects the reported problems Steen endured for the purpose of improving organizational culture for women, will be a story worthy of following. Leadership knows that it will be watched by media, employees, advocacy groups and especially women. This opportunity to exhibit character, remorse, empathy and wisdom is valuable to organizational reputation well being.

There will be serious doubts as to whether this gap in values and conduct is closed.

“Warner Brothers might make changes in their H.R. investigation process or personnel handbook but they are unlikely to implement any meaningful change that will result in a systemic shift,” says Krishnan Hamilton.

The company, as happens in poorly governed ones, repeats its errors, seemingly unwilling or uncommitted to learning and correcting course.

“This is not the first time that they have been sued for some gender bias or workplace harassment and retaliation claim and it won’t be the last,” Krishnan Hamilton says. “Large corporations are often willing to overlook bad behavior from high performing senior executives as a cost of doing business.”

Company leadership usually has to suffer some sufficient pain, whatever that dividing point is, of some kind of emotionally-based pain to be driven to change and the psychology of change for improvement can be fraught with denial and resistance, something Bird sees as possible.

“We can’t assume that Warner Bros. will learn or not learn because we don’t know yet how strong Ms. Steen’s evidence actually is,” he says. “However, if we assume that Ms. Steen’s accusations are true, it points to a deeply troubling culture that favors men over women and a human resources department that needs to rethink how it manages its employees. A highly costly settlement could trigger Warner Bros. to change its culture, but culture change is never easy and takes a long time to occur.”

Hamilton sees a big disconnect between intent, standards, correction and consequences in how people are treated in the workplace.

“I believe that, in most instances, corporate leadership does intend to commit to long term, meaningful change when it comes to eradicating discrimination and harassment from the workplace. But what corporate America has not successfully achieved is making sure that the bad actors understand this policy as well,” she says.

Hamilton speaks to the faulty belief system of what will work in practice and what actually does.

“It is impossible to ‘legislate’ good behavior through employee handbooks and policies,” she says. “What corporations need to do, as appears to have happened with the Me-too movement, is make loud and public examples of firing these bad actors.”

That measured-yet decisive response, while becoming more common is still considered by women to be rare, meaning that enabling still prevails. Hamilton says organizational leadership is still playing it conservative despite the problems not being prevented, mitigated or solved.

“Where these firings occur, they are also likely accompanied by settlement agreements paying the victim significant sums of money. Hence, corporations are unlikely to make public examples of bad actors unless they absolutely have to. In some of the cases that I handle, the bad actor is actually a high revenue performer and his or her behavior was tolerated despite knowledge of the bad actions because of the benefit to the bottom line,” she says.

This might lead those harmed by misconduct to come to a discouraging conclusion that Hamilton herself has developed.

“I think many companies roll the dice on the chance that the affected employee or victim may not have the strength, resources, etc. to sue.”

Warner Bros. has a decision to make. What is its character and standards of conduct and how will it carry itself moving forward? A message has been sent to women, is still being sent and the upcoming responses of leadership will keep sending a message. The company however determines the quality of that message will be, to employees in general and more specifically, women.

Reputation internal to an organization is as important and valuable to companies as the one in the minds of the media and public.

The best leaders understand the value of foundation characteristics of healthy relationships — high character, respect, responsibility, compassion, trust, credibility and psychological safety.

When this matters to the point of commitment, stress resulting from the figurative fires of misbehavior and wrongdoing and the accompanying consequences become rare and simpler to solve.

Michael Toebe helps individuals and organizations accurately analyze and wisely, more successfully respond to conflict and crisis that threatens or harms reputation. He writes Red Diamonds Essays and Reputation Specialist Essays (both on the Medium platform) and analysis and advisory for: Chief Executive, Corporate Board Member, New York Law Journal, Corporate Compliance Insights and Physicians Practice. He also publishes on LinkedIn and beBee.

This essay first appeared at Red Diamonds Essays, on the Medium platform, on Oct. 15, 2020.