Last week's federal court ruling that the pharmaceutical giant Novartis is guilty of systemic gender discrimination comes with the biggest award of its kind in U.S. history. The female sales representatives and entry-level managers who were denied promotions and wages because they were women—and sometimes pregnant women—are now due up to $250 million in damages.
The trial told a story that could have been written 40 years ago, about 12 female employees up against a hostile old-boys club. Their male supervisors went to great lengths to keep them out of management positions, lying about the dates of trainings, promoting less-qualified men over them, and then taking these guys and their male clients out to strip clubs to conduct business. Meanwhile, the women were treated to the silent treatment, the worst assignments, and the offer of a seat in a boss's lap. It all reads like a company stuck in the dark ages. Only that was not Novartis' reputation.
For more than a decade, the company has been on Working Mother's 100 best companies list, which is regarded as one of women's best tools for finding family-friendly workplaces. The Web site effusively praises the company's "flexible schedules" and quotes an employee raving about how the company gives her time to take care of her children and all her personal needs. How can this be true? How can Novartis be a bastion of hostility toward women and, at the same time, one of the companies "standing tough in their support of working families," as Working Mother puts it? Is Novartis an anomaly? Does the lawsuit say something about how these lists get put together? And more importantly, does it imply that the growing fad of "flex time" policies at American companies is just a PR maneuver that does little to relieve the burdens on working mothers?
Part of the answer is that such lists are essentially free PR for companies to promote the good things they're doing, or say they're doing. The 100 best companies are chosen according to employers' self-reports, with no input from employees, which leaves little recourse for exploring the potential gaps between stated policies and reality. While Novartis has instituted several family-friendly programs and policies, the problem is that the company clearly also has serious endemic problems that fly in the face of those much-heralded efforts. So if women are entitled to certain benefits and then mocked or punished for using them, they're useless. "If you're in a culture that devalues women as workers once they become mothers, it doesn't matter if you have a policy on the books," says Cynthia Thomas Calvert, deputy director of the Hastings Center for Work/Life Law, a research and advocacy group in California.
Even if Working Mother had polled employees, they might not have gotten to the horror stories. Higher-paid employees tend to have better access to family-friendly policies such as flex-time. And lower paid workers, like the sales reps and entry-level workers in the suit, tend to be more vulnerable to discrimination. "Sales is an area where it's easier to bash women," admits Carol Evans, president of Working Mother Media. Still, while not excusing Novartis, Evans defends her own company's inclusion of the drug-maker on its list. "What we wrote is true," says Evans. "I can assure you Novartis has all these programs in place."
Working Mother does make some attempt to measure the culture, versus policies, of employers, though again only through self-reporting. Its survey includes questions about how companies handle grievances around unequal pay and work-family issues as well as how many managers received training on work-life issues and whether their compensation was tied into supporting flexibility. Employers also answer "a series of yes/no questions about how your company creates a culture of acceptance for flexible work arrangements and guards against stigma," according to a spokesperson for Working Mother Media. They routinely ask companies whether they're being sued, and Novartis did answer that question honestly in the last go-round. But Working Mother didn't publish the fact that Novartis was the subject of the biggest class-action discrimination law suit in U.S. history either on its site or in its magazine.
If Working Mother had asked women what was going on behind the scenes at this supposedly fabulous employer, they would have been horrified. Some of the worst hostility emerged around pregnancy, which was explicitly discouraged at times. ("Oops, too late," a male Novartis employee said to a visibly pregnant woman in a training session, according to testimony.) One woman told of being pressured by her male manager to have an abortion. Another said she was asked whether she could give the company "two child-free years." And a male Novartis employee is said to have explained his preference for not hiring young women in rhyme: "First comes love, then comes marriage, then comes flex-time and a baby carriage."
Some of the problems fall into the classic, and harder to pin down, category of "differential treatment." Sonia Klinger, an area sales manager in the Senior Care Department in Novartis' St. Louis/Kansas City, Mo., district, for example, had good sales numbers. Yet numerous men with comparable and worse sales numbers got promotions and high-profile assignments instead of her. Despite her performance, her male supervisor gave her a negative review, incorrectly basing his assessment on only part, instead of all, of her territory. That review led to her being penalized and not getting a salary increase. In fact, a male with the same position and title at Novartis made 14 percent more. And when her male boss used company money to take male employees to Las Vegas, Klinger wasn't invited. Then, two weeks after Klinger filed an EEOC complaint, she was reassigned to an undesirable sales territory 215 miles from her house.
Because the 12 women represent a class of female Novartis employees, now 5,588 other female employees of the maker of Ex-Lax, Bufferin, and NoDoz can apply for damages. With up to 2.6 percent of the Swiss company's 2009 revenue at stake, the decision is a serious warning to employers of the potential costs of operating like an old-boys' club.
Novartis isn't alone in having serious dissonance between its official policies and the experiences of its female workers. Thirty-six companies that have been on Working Mother's 100 Best Companies list have faced "family responsibilities discrimination" suits filed by employees who are pregnant or care for young children, sick family members, or aging parents, according to Calvert. Plaintiffs prevailed in 15 of those cases, including in suits against Deloitte & Touche and Ernst & Young, two accounting firms often heralded for their efforts to retain women by instituting family-friendly policies.
In many ways, Novartis fits right in with patterns observed in this emerging legal area. With more than 2100 family responsibilities discrimination cases having taken place so far, lawyers in the field have begun to make classifications among them, coining terms like "maternal wall discrimination" to describe cases involving working mothers, "new supervisor syndrome," in which a working parent doesn't run into trouble until a new boss comes along, or "second child bias." (Ditto, except it's a second baby that comes along.) Even the abortion comment can be seen as part of a trend, since at least seven of these suits have involved employers encouraging female workers to abort.
This behavior isn't new, of course. But the fact that that mothers and other caregivers are increasingly filing—and winning—suits against employers is new. Such cases having increased almost 400 percent over the past decade. Among more than 2,100 suits tracked by the Center for WorkLife Law, the employee either won or reached a favorable settlement in more than half (a rate that's higher than in other kinds of employment cases).
That's good news, and this latest victory will stand as a warning to companies. Still, the decision is only part of what will probably be a long process of combating discrimination in the workplace. For now, Novartis is planning to appeal the ruling, while Working Mother is considering whether to bar the pharmaceutical company from its list. Working Mother's Evans says her company is not planning on changing the methodology it uses to compile its list, though, because it's succeeded in getting companies to compete with one another to be family-friendlier.
Perhaps so. But if this is what it's like to work for one of our country's 100 best companies for working mothers, one shudders to imagine what it'd be like to work for one of the worst.