Jenny Schwartz is a partner at world-class employment law firm, Outten & Golden. She has litigated against major U.S. tech companies and many other types of employers handled retaliation claims, and helped people of different race, age and gender reclaim their power at work.
Simone: Jenny, something we’ve heard (and seen firsthand) is that gaslighting in the workplace is a real thing. (For people unfamiliar: gaslighting is when a person is psychologically manipulated to question their own sanity.) When a company wants someone out, they’ll start to purposefully poke holes in someone’s work, whether it’s warranted or not.
This can be incredibly demoralizing. Do you see this happen with many of your clients? And how do you help them overcome this?
Jenny Schwartz: I do. Unfortunately people often to go to a place of self-flagellation when they’ve experienced discrimination. They’ll ask themselves, “What did I do wrong?” or “I must have done something wrong to warrant this level of criticism or conflict.” Oftentimes, seeds of self-doubt will come before an employee questions the behavior of the company or its agents.
Of course I do see people who objectively have real performance issues and that needs to be considered, but even perceived low performance does not necessarily impact, as a legal matter, a claim of discrimination or hostile work environment. Overwhelmingly, I see people very willing to criticize and question themselves, even under circumstances that are blatantly discriminatory.
This is especially common among older women, who grew up in an era of “keep your head down and do your job.” Many women who were socialized in a certain way, feel like they should just plow forward, keep their mouths shut, and hope that doing a good job will save the day.
It’s important early on for folks to give themselves the mental space to thoroughly evaluate what’s really going on — as well as connect with the right person or community to validate their concerns.
Simone: It’s especially difficult when you’re working every day with the same people, and may not have the clarity or space from the company or work environment to make an independent analysis.
To that point: can you tell us about a time when you saw the “light bulb” go off for someone? When they realized the reality of what was happening to them?
JS: That’s my whole practice! People frequently come to me with uncertainty. They are aren’t really sure of what the rules are, or what the applicable law is. And often, when I explain the law regarding their situation, I do see a light bulb flick on. This happens most frequently in gender discrimination cases when I explain that even nuanced actions on the part of employers can constitute discrimination. Actions such as failure to promote, marginalization in a “boys club” environment, failure to fairly evaluate, “tap on the shoulder” promotional practices and so forth.
Simone: Let’s talk about older workers and their rights. As baby boomers enter their 60s and 70s, can you share a bit about what kinds of problems they’re facing at work? Would you say that age discrimination is one of the more insidious forms of discrimination?
JS: Absolutely. Our society is infected with this idea that younger is better. And companies have become much more subtle about pushing older people out of the workplace: not hiring them, not promoting them, or laying them off.
As a lawyer, I don’t feel that as much. In my industry, experience is highly regarded. People actually look up to me and think: “She’s got gravitas and experience.” But with so many other professions, folks don’t see their experience and wisdom afforded the same kind of respect. They feel a difference in treatment as they age. Technology has become so integral to the way we work — and technological aptitude is most often associated with younger people.
You asked about women in their 50s and 60s. Women who were raised at a time when it wasn’t quite as normal to assert themselves. They just want to make things okay, so they’ll tend to be super-critical of themselves, in an effort to resolve conflict and just continue marching ahead.
Oftentimes these women won’t come to me until much later in the process, usually after they’ve been terminated. But I think it’s important to keep educating people to look for coded language signifying a preference for youth — such as “fresh”, “innovative”, “energetic”, “vibrant”, “digital savvy” — and other warning signs before it’s too late.
Simone: So say that someone does recognize a form of discrimination, and they report it to HR. The company then takes some sort of adverse action — whether that’s termination, or a more subtle form of retaliation, like purposefully leaving someone out of a meeting. What do you do?
JS: There’s so much nuance nowadays, as employers and managers become more savvy and more sensitive to the most egregious kinds of behavior. Managers often resort to the “slow burn” — whether that’s not including people in meetings or leaving people out of social events.
At the same time, people are really scared about going to HR officially to file a complaint; they think they might get fired. What they don’t know is if their company fires them for registering a complaint, the company has committed an illegal act and is liable for it.
It’s best to get advice from an attorney immediately once you realize something is amiss — and try to get legal advice even before you go to HR. Many attorneys will offer you a free consultation or a contingency rate and even for attorneys that charge you, the benefits are likely going to be worth the cost.
As to retaliation, I frequently have great retaliation cases even where the discrimination might be difficult to prove, because in fact, discrimination can be incredibly hard to prove. If you have a written complaint to HR that specifically states what you believe to be discriminatory, any company with any decent level of HR is going to realize that it would be a problem to retaliate by demoting or firing you. Any failure to keep you in a comparable position is considered to be retaliation. And that’s illegal.
Simone: Right. And most people don’t know that retaliation is illegal. What about for people who are concerned about quitting or floating a concern because of other reasons, like an impending bonus or financial incentive?
JS: A lot of employees get equity at start-ups and that can be quite complicated. In a past class-action in which I was involved, a lot of the plaintiffs felt like they were putting up with behavior that they wouldn’t have put up with otherwise because they were handcuffed by their equity.
If you’re a woman, and you’re getting hit on by other guys — or you feel like you’re not getting referrals compared to what your male colleagues are getting — are you really going to make a big stink to HR if you have a ton of equity on the line? Or are you just going to silently work and wait for that pay-day? Many will wait it out.
The reality is that you don’t need to wait for that pay day if you are enduring conditions discrimination or harassment. You might be able to negotiate a resolution that could include acceleration or buyback of your equity and extricate yourself from the environment.
Simone: Right, but conflict with your employer isn’t easy to approach — especially because the employer holds so much of the power. We’re told not to burn bridges. This is especially acute for women, who, as we know, are taught to be perfect or not to rock the boat.
What are other forms of conflict resolution?
JS: Mediation is worthwhile conflict resolution tactic — but you need to have an attorney manage that mediation.
I’m not going to agree to mediate unless both sides exchange mediation statements, so I can get information about what the employer’s position is. Then both parties have to agree upon a mediator.
While arbitration is sometimes appropriate, forced arbitration basically takes away an employee’s right to a trial before a jury. That takes away a big threat that one would otherwise have against an employer. It’s really damaging to fair workplaces and the rights of employees.
Simone: Yes, it’s a good thing that people are hearing those words and what they mean, the more awareness the better. Speaking of bringing awareness about thinking down the road, what else do you see that could help people considering new roles?
JS: Oh yes! I do deal with a lot of folks who have lower salaries and more equity. As I mentioned earlier, equity can come with its own set of challenges, but employees at early stage start-ups often don’t know much about the type of equity included in their offer. I’m always surprised at the basic lack of knowledge people have about equity and how it works. The two rules I tell people to follow when they are considering an offer are 1) consider trying negotiate terms of employment and 2) understand the compensation package, especially if it’s equity-heavy.
We often don’t think in terms of what could happen in the future, but it’s really important to understand how your equity shares or options work in the case of a voluntary termination, or if the company is bought or there’s a change in control. You don’t want to be stuck with nothing in the event of those scenarios, because you weren’t aware of tax consequences or the amount of capital you would need to buy your equity options.
And if you want help, call an employment attorney!
Simone: That’s very helpful advice, thank you Jenny.
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