Lynne C. Hermle

Hermle's big win in Ellen Pao's gender discrimination and retaliation case against client Kleiner Perkins Caufield & Byers was just the start.

Following her Orrick team's success in that trial, Hermle was retained by Twitter Inc. for a gender discrimination class action filed by ex-employee Tina Huang, a software engineer. The complaint alleges Twitter's promotion practices discriminate against women. Hermle predicted the case will be closely watched by the tech community and beyond as alleged gender bias in tech remains under a national spotlight.

In March 2016, Hermle fought off Huang's effort to expand the case to include challenges to Twitter's employment contract clauses that bar departing workers from recruiting their colleagues. Huang v. Twitter Inc., CGC-15-544813 (S.F. Super. Ct., filed March 19, 2015).

The pace and diversity of such suits is mounting, Hermle said. "Employment litigation is more active than it's been in the last few years and virtually all of it is interesting," she added. "Gender and diversity issues are front and center, especially in tech, and there's a steady wave of gender and equal pay claims. And plaintiffs are filing sexual harassment claims, many arising from consensual sexual relationships, at steady levels."

In one such case, Hermle in August successfully fought off an effort by a sexual harassment plaintiff to disqualify Orrick from representing client Hawthorne-based SpaceX, formally Space Exploration Technologies Corp., in her lawsuit. A Los Angeles County Superior Court judge found no violation in Orrick's having contacted a plaintiffs' expert about working on another case. Teasley v. Space Exploration Technologies Corp., BC568896 (L.A. Super. Ct., filed Jan. 8, 2015).

For client Microsoft Corp., Hermle leads the defense of a national class action alleging gender discrimination related to the company's performance review system. Former Microsoft technician Katherine Moussouris alleges that the software giant's policy of ranking employees to determine pay and promotions led to bias against women. Moussouris seeks to represent a class of any female U.S. technical workers employed by the company since 2009. The case is at the discovery stage. Moussouris v. Microsoft Corp., 2:15-cv-01483 (W.D. Wash., filed Sept. 16, 2015).

Hermle predicted problems will arise out of corporate bids to diversify the workforce. "It's great that employers are looking to increase diversity, especially at the senior levels, but some of the initiatives which provide preferential treatment for diverse candidates are likely not to pass scrutiny with the Equal Employment Opportunity Commission or the courts," she said. "We are likely to see reverse discrimination claims arising out of the diversity efforts; there's some indication those are already here.

"In addition, the National Labor Relations Board's continued efforts to ratchet up its positions, including with the recent attack on class action waivers and the Securities and Exchange Commission's attack on monetary waivers, suggest there will be active litigation focused around regulatory issues. Never a dull moment."

— John Roemer