EMPLOYEE DIVERSITY OR DISCRIMINATION?

February 19, 2016

Author:  Taylor H. Fouser

REVERSE DISCRIMINATION

On February 1, 2016, a former Yahoo employee sued the company in US district court for actual and intentional gender based discrimination (Gregory Anderson v. Yahoo!, Inc.).  The plaintiff, Gregory Anderson, worked as an editorial director for the company for four years, until his firing in November 2014.  Anderson alleges that Yahoo’s adoption of Quarterly Performance Reviews (QPRs), which was implemented after Marissa Mayer became President and CEO of Yahoo in July 2012, permitted management to manipulate employee QPR scores on the basis of personal biases and stereotyping, to the detriment of male employees. 

In support of his intentional discrimination claim, Anderson alleges that female managers, in a traditionally male dominated industry (70-30 male-female gender split), made statements about their want to hire women in particular positions.  In addition, the plaintiff alleges that when Yahoo’s Chief Marketing Officer Kathy Savitt started at Yahoo the top managers reporting to her in the media department were less than 20% female.  However, after three years, those top managers were more than 80% female.  Of the 16 senior-level editorial employees hired or promoted by Savitt during an 18 month period, 14 of them were female.

QUARTERLY PERFORMANCE REVIEWS

The crux of Anderson’s allegations surround Yahoo’s use of the QPRs.  Under Yahoo’s QPR process, the employee’s direct supervisor assigns a rating number from 0.0 to 5.0 based on his or her performance with immediate peers.  Based on that number, the employee is placed into one of five ranks. According to the complaint, managers are required to rank their employees so that a specified percentage of employees are assigned to each rank.  Next, upper management can adjust the employee’s score up or down, which could result in a change to the employee’s original ranking. 

Anderson claims that the QPRs were the mechanism that granted Yahoo upper management the ability to make employment decisions based on subjective biases.  He argues that employees’ QPR scores were not transparent and Yahoo employees did not know who was making the final decisions or what numbers were assigned by whom and why.  Moreover, he claims that female employees were allowed to appeal their QPR score while men were not allowed to do so. 

INSIGHTS FOR EMPLOYERS

While this discrimination lawsuit is still in its infancy stage and Yahoo has publicly denied the allegations in Anderson’s complaint as “tropes and narratives,” employers can still learn important lessons from this case to help prevent litigation.

  • Make sure that hiring and firing practices do not unintentionally appear to take gender into account.
  • Intentionally basing hiring decisions on gender, whether male or female, is unlawful and a violation of state and federal law.
  • When implementing an employee review process, make sure that the selection systems are as objective and transparent as possible.
  • Take steps to make sure that an employee’s performance is determined by managers who directly supervise him or her on a day-to-day basis.
  • Diversity in the workplace is an important guiding principle for all companies to strive for.  However, while it is not illegal to set diversity goals for a company, making individual employment decisions based on a protected class can expose a company to a discrimination lawsuit.

    • Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other employment issues facing your company.