Don't Drink the Tea. Think With the WE.

$100 Million Lawsuit Alleges Sexual Discrimination by Healthcare Giant MERCK


A recent lawsuit claims global healthcare giant MERCK has systematically engaged in gender bias. The $100 million suit alleges that the company discriminates against pregnant employees, pays women less than their male peers and runs a defacto “boys club” in terms of promotions.  

Lawyer Jonathan Segal explained the situation in a piece he wrote for Fortune, “In Denial: Corporate America’s Blindness to Gender Discrimination.” Segal explained the “boys club” allegations:

In particular, the complaint against Merck alleges that “male junior employees have opportunities to socialize with male senior management to the exclusion of women. Female employees are excluded from these events, and thus excluded from opportunities to develop relationships with senior management that provide opportunities for advancement within Merck due to the company’s ‘tap-on-the shoulder’ promotion policies …”

The MERCK case is an individual suit but chipping away at gender discrimination has been assisted by previous class action lawsuits against several Fortune 500 companies. The Equal Employment Opportunity Commission (EEOC) has used this approach to attempt to change the landscape of hiring bias in American companies:

It is highly likely that the EEOC’s approach will involve more and more class action suits because company wide or systemic issues almost always involve a group of employees. It is probably no accident that the most recent EEOC commissioner appointee is an attorney with significant class action expertise.

The fact that the Supreme Court threw out the gender bias class action suit against Wal-Mart(WMT) in 2011 should not provide employers with a false sense of security. In Wal-Mart v. Dukes, the proposed class had more than 1.5 million current and former female employees. Legal niceties aside, the Supreme Court held that there was not sufficient commonality for the employees to proceed as a class. Indeed, the only real commonality among these employees was their gender.

Since the decision, lawyers are choosing their words carefully in class action cases.  Segal says this can be attributed to a denial among corporations that they are involved in what their peers are being charged with.

There obviously are legal risks of engaging in sex discrimination. But perhaps even greater than the legal risks are the business risks. How can a company expect to survive, let alone thrive, if half of the talent pool is excluded from key positions? There are lots of theories on the topic. For example, there is what the EEOC calls “like me” bias. Leaders hire, mentor, and sponsor those who are “like them” and, so the thinking goes, as long as more leaders are men, so will most of their replacements.

But I suspect something else is going on here. The best way for me to explain it is to recount a conversation I had with a client. We were discussing a Boys’ Club case at another company. It was a typical story — an informal network of drinking buddies created a culture in which men were included and women were marginalized. Note: alcohol is often the glue that keeps the club together and the neighborhood drinking hole the unregistered address.

My client commented that he never would want to work in a place like that. I gently pointed out to him that everyone on his company’s senior leadership team had a Y chromosome.

We all know there is unconscious bias. It’s just others who have it. We all know there are Boys’ Clubs. It’s at the company next door.

Read Segal’s entire piece here.


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