But Lawless knows firsthand the obstacles that remain in that fight. Large companies have more resources at their disposal than the individual employees seeking accountability. (“You had a bunch of really rich men who were going to fight this until they won,” Lawless says about Pao’s lawsuit. “I don’t even know how much money they spent on that case.”) Non-disclosure agreements often prohibit current and former employees from speaking freely about their experiences outside the workplace. And they are often prevented from taking their cases to court because of a growing trend of arbitration clauses in employment contracts.At Lawless & Lawless, the firm she runs with her sister Barbara, Therese says that more than 90 percent of the cases are discrimination-based, and most of them never reach a jury trial. “Ninety percent of employment cases settle outside of court because it’s less expensive,” she says, “and companies don’t want their dirt exposed.”
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Settling outside of court can mean mediation, in which the parties try to reach middle ground for a settlement with the assistance of a neutral mediator. It can also mean arbitration, which means that due to an agreement between the parties, sometimes as part of an employment agreement, a claim is adjudicated in a private venue by arbitrators -- lawyers or retired judges -- who are paid by the hour. In arbitration, there are no rules of evidence and there is no public access to what happens. Arbitration clauses often include language in which the parties agree that the rulings are non-appealable, so the decision of the arbitrators is usually final. While binding, the process and format of arbitration cases are typically less formal than a traditional court setting.It’s a tactic Lawless has seen employers use on a regular basis, requiring new employees to sign mandatory pre-dispute arbitration clauses.
That was the case when AJ Vandermeyden approached Lawless last year with a case against her employer, Tesla, the electric car manufacturing company founded by Elon Musk. After three years there, she had worked her way up to being an operations commodity manager. “AJ was trying to raise issues in the company,” Lawless says. “She wasn’t getting paid as much as her male colleagues and she complained about sexual harassment at work.”
“You have very competent women who do not get the position and much less competent or completely incompetent men get it,” Lawless says. “That’s why we have Trump in the White House, because of the misogyny in our culture. It’s a deep hatred toward women.”In pursuing the lawsuit against Kleiner Perkins, Pao garnered the support of powerful public figures like Anita Hill and Hillary Clinton. “[Clinton] understood what Ellen was going through,” Lawless says. “She got it.”
“That’s why we have Trump in the White House, because of the misogyny in our culture. It’s a deep hatred toward women.”
Losing Pao’s suit was a devastating blow but, Lawless says, “It helped me grow. I think it was good for me. I learned a lot. It showed me what’s important to me and how much work I have to do in the future.”Today, Lawless takes heart from the Pao case. “[Ellen’s] had a huge impact on the world and on other women,” she says. “If you compare it to what’s happening in Hollywood right now, I think the time is ripe. Women have gotten a certain empowerment. In these particular fields—whether it’s Hollywood or venture capital—the industries are controlled by men who want to keep women out. Women are fed up and they don’t want to deal with it anymore.”Correction: A previous version of this article incorrectly stated that Lawless previously worked for the Boston AG's office. While in law school, Lawless worked one summer for the California AG’s office.