"This is really scorched earth"
February 19, 2018 1:51 PM   Subscribe

IBM Sues Microsoft's New Chief Diversity Officer To Protect Diversity Trade Secrets: IBM has filed suit against one of its longtime executives, Lindsay-Rae McIntyre, alleging that her new position as Microsoft’s chief diversity officer violates a year-long non-compete agreement, allowing the Redmond company to use IBM’s internal secrets to boost its own diversity efforts.

IBM lawsuit casts diversity in starkly competitive terms:
IBM’s stance puts it at odds with trends in the tech industry and broader corporate world towards sharing diversity success stories and best practices, instead seeming to view diversity as a zero-sum game.

The lawsuit is unusual because IBM is arguing its diversity data and strategy are economically valuable “trade secrets,” a legal term typically associated with closely guarded formulas like that for Coca-Cola. It appears to be the first company to bring such a lawsuit against a rival over diversity efforts, legal experts said.
Diversity hiring is so competitive, IBM is suing a Microsoft executive over it:
Microsoft has been accused of underpaying women and faces a gender discrimination lawsuit that could expand to include more than 8,600 women. The company, which says its pay and promotion policies are fair, is overwhelmingly male, according to its own diversity report. Just 26% of all employees, and 19% of tech workers are women, while fewer than 10% of employees are black and hispanic.

In its suit, IBM huffs that Microsoft is “rated the worse technology company for the employment, pay, and promotion of women.” IBM doesn’t disclose its employee statistics, so we don’t know if its record is any better or worse than Microsoft’s.
Employment lawyers puzzled over IBM’s non-compete suit against Microsoft’s new diversity chief:
Venkat Balasubramani of Focal PLLC, a Seattle-based attorney who represented a former Amazon executive sued for allegedly violating a non-compete by taking a job with Smartsheet, also said he found the IBM lawsuit surprising at a time when the entire tech industry is trying to improve its diversity.

“If somebody is increasing diversity efforts, whether it’s at Microsoft or IBM, ostensibly diversity is going to increase overall,” Balasubramani said. “I can’t quite put my finger on it, but there’s something about the optics of going after a diversity officer that just felt weird to me. That made me think, ‘Wow, I wonder if they may regret doing so,’ just because I could see people looking at it and saying, ‘This is really scorched earth.'”
Previously: Microsoft faces $5 billion race discrimination lawsuit, Microsoft refuses to support gay rights bill
posted by not_the_water (48 comments total) 25 users marked this as a favorite
 
Freaking yikes.
posted by showbiz_liz at 1:52 PM on February 19, 2018 [3 favorites]


Oh, IBM. Never stop being shady.
posted by orrnyereg at 2:00 PM on February 19, 2018 [4 favorites]


She signed a year-long non-compete, I don't see how she gets out of this.
posted by Annika Cicada at 2:02 PM on February 19, 2018 [2 favorites]




Non-competes are frequently abused. Also very difficult to enforce depending on the state; California has particularly good protection for workers. Ms. McIntyre's LinkedIn lists her as "Greater New York City Area", not sure which jurisdiction would be relevant for her.

Want a great reason not to work for IBM? Because if you leave, they may treat you like this.
posted by Nelson at 2:08 PM on February 19, 2018 [12 favorites]


I can't imagine that being Chief Diversity Officer at a company that's continually reducing its US headcount and shipping most of its work overseas would be very impactful.
posted by meowzilla at 2:13 PM on February 19, 2018 [6 favorites]


Is...diversity...even...like...a secret recipe? I get that there are specific things you have to do to keep hiring practices fair as you increase your ratio of "diverse" people, but like, is there a patent on fair hiring practices? Because doesn't increasing hires of diverse people just mean "so here's a best practice measure or fifty to eliminate bias, we know 'cause science and 'cause we have employee data" and then just taking it seriously? It seems like the easiest thing to me. Yeah yeah hard in execution, but I can totally encapsulate how to do this in my head, I think?

Am I missing something? How is this not absurd on its face?
posted by saysthis at 2:16 PM on February 19, 2018 [24 favorites]


Huh. They're still sore about OS/2...
posted by Jessica Savitch's Coke Spoon at 2:22 PM on February 19, 2018 [16 favorites]


I work in the semiconductor world, and while my current job didn't require an NDA, all gigs prior did. That said they're never, ever enforced at my level - people go to competitors all time and no one cares. The only sort of person who might get their new company sued is a lead design engineer who architected the core IP for an entire business unit. And even then it's rarely worth the cost. Google's lawsuit against Uber over an engineer accused of taking driverless-car trade secrets with him is the typical high-stakes level needed for this kind of lawsuit. [This is distinct from the recent trend in NDA abuse toward low wage workers - in that case there is a streamlined and low-cost process to abuse employees.]

Not seeing the point in a lawsuit here either, beyond the creeping militarization in thinking in the corporate world. There's no secret sauce to sue over.
posted by MillMan at 2:33 PM on February 19, 2018 [4 favorites]


It's a well kept secret considering just yesterday I sat in on a lecture for IT students, the very first one for these kids, and there was so much secret diversity it looked like they were 90% male.
posted by adept256 at 2:37 PM on February 19, 2018 [32 favorites]


Am I missing something? How is this not absurd on its face?

I see you are new to the dark art of Human Resources.
posted by Lanark at 2:41 PM on February 19, 2018 [27 favorites]


Is...diversity...even...like...a secret recipe?

I guess it could be, but any related secret I can think of is necessarily extremely shitty on some level:
  1. Original research on the maximum pay gap that won't get a company sued
  2. A list of high level diversity-hires that are too good a bargain--like a sort of anti-poaching list
I'm sure we can expand this.
posted by Chuckles at 2:41 PM on February 19, 2018 [15 favorites]


She signed a year-long non-compete, I don't see how she gets out of this.

Yeah...As assinine as suing over diversity “secrets” may seem, at the heart of this is the fact that she signed a non-compete contract, but went to work for Microsoft anyway. If a court rules against IBM, that could have a huge ripple effect throughout all manner of businesses that also impose non-comps on their execs/talent. Not that that would be a bad thing, mind you.
posted by Thorzdad at 2:43 PM on February 19, 2018 [3 favorites]


MillMan...NDAs and non-comps are two different animals, though the latter also has the effect of limiting what you can say to people.
posted by Thorzdad at 2:46 PM on February 19, 2018 [1 favorite]


Is...diversity...even...like...a secret recipe? I get that there are specific things you have to do to keep hiring practices fair as you increase your ratio of "diverse" people, but like, is there a patent on fair hiring practices?

My first excited thought: "Holy shit, what if IBM has actually figured out how to remove bias from the work environment, and as such, only a deeply diverse group of remarkably talented and competent people work there? The secret to having an incredibly skilled workforce is probably something a company would sue over."

My second thought: "Orrrrrr they figured out a bunch of statistical tricks to make themselves look more diverse than they are and they don't want anyone to know."
posted by Snarl Furillo at 2:50 PM on February 19, 2018 [36 favorites]


Thorzdad - yeah sorry, I should have said non-compete agreements. I've never had to sign an NDA that I can think of.
posted by MillMan at 2:53 PM on February 19, 2018


Yeah...As assinine as suing over diversity “secrets” may seem, at the heart of this is the fact that she signed a non-compete contract, but went to work for Microsoft anyway. If a court rules against IBM, that could have a huge ripple effect throughout all manner of businesses that also impose non-comps on their execs/talent. Not that that would be a bad thing, mind you.

Just because something is in a contract doesn't necessarily make it enforceable. Courts frequently refuse to enforce non-compete clauses in all kinds of jurisdictions. They're difficult because the fundamental common law position has always been against their enforceability. You'd need an employment lawyer working in the relevant jurisdiction(s) to tell you what the impact of a ruling for the defendant would be here.
posted by howfar at 2:57 PM on February 19, 2018 [1 favorite]


> Non-competes are... very difficult to enforce depending on the state; California has particularly good protection for workers.

And yet IBM v. Papermaster delayed P.'s start at Apple by 6 months [in the settlement, down from the 1 year term in the contract]. This from a VP-level guy who can certainly afford fancy lawyers. If a bigco wants to fuck with you, unless another bigco has your back, you might find your career in the toilet.
posted by ASCII Costanza head at 2:58 PM on February 19, 2018 [1 favorite]


It's bizarre that IBM would ever see this as worth the negative PR. It reads like they're just angry and trying to make an example of her. Non-competes are far from iron-clad in a bunch of US jurisdictions.
posted by allegedly at 3:00 PM on February 19, 2018 [5 favorites]


I see this as IBM promoting an anti-diversity agenda.
posted by caddis at 3:22 PM on February 19, 2018 [8 favorites]


Gosh, this is baffling. I'm really curious what on EARTH sort of shady crap IBM was doing that they're scared of Microsoft finding out about. My first thought was that she negotiated a bunch of anti-poaching agreements with competitors and they're scared MSFT will find out and quietly fund a class action suit? I've gotten a few thousand bucks over the last several years in settlements related to a previous employer's anti-poaching agreements, so that's the top of mind idea for me, but I never heard about IBM being involved in any.

From what I understand, IBM has spent the last decade or so quietly moving its reputation from "surprisingly great place to be a woman in tech" to "approximately as shitty a place to be a woman as the rest of the tech industry, but also you make less money" so I guess she must have been doing...something...? Something really special?

Seriously, baffling.
posted by potrzebie at 3:34 PM on February 19, 2018 [8 favorites]


If your HR executives start blatantly violating the company's non-compete agreement, then how do you expect any staff to follow it?

(Easy answer: get rid of the non-compete agreement. But huge old companies are dumb.)
posted by miyabo at 3:35 PM on February 19, 2018 [1 favorite]


I've always felt for the diversity people at large technical companies, they face a ridiculously hard problem.

As a very rough guess 80-90% of the people interviewing for entry level tech jobs are white males. You need to hire a population that is more diverse than the general population at large to fix decades of hiring 80-90% white males.

You can improve on the interview pool a bit by having diversity scholarships and mentoring programs at schools. Regular advertising is going to be less effective because every other big tech company has a similar diversity goal. This means it will take years and lots of money to get a better interview pool.

You are going to have to work hard to convince the other people on the entry level hiring panel(s) to make diversity a real criteria. Every time a diverse hire is an bad hire it will be seen as a reflection of the program you're running. Nobody is going to remember the non diverse candidates who flame out.

People interviewing for mid-career and senior tech jobs are way less diverse than the ones interviewing for entry level jobs. Due to the policies and culture at the other companies you're recruiting from a lot of women have changed fields or dropped out entirely to raise children. Also everyone originally got hired decades ago before diversity was a significant priority in the industry. As a HR/diversity professional you have much less input into mid-career and senior hires as they're seen as business critical.

You're going to be judged by the public on the diversity of the entire company, and you probably have an average tenure at the company of at least a decade as the kind of people who go to a big employer value security.
posted by zymil at 3:54 PM on February 19, 2018 [2 favorites]


Is...diversity...even...like...a secret recipe?

How the fuck is this ethical? Like, if somebody is fixing nondiverse spaces, they should be trumpeting it from the skies. Imagine if some place had actually solved the problem and then were preventing someone from sharing it because markets. Like, that’s so profoundly fucked up.
posted by corb at 4:10 PM on February 19, 2018


As a very rough guess 80-90% of the people interviewing for entry level tech jobs are white males.

I work at Microsoft, and I'd guesstimate that the resumes our team sees are roughly 50% Indian subcontinent, 25% Chinese and 25% white. Maybe 15% overall are women.
posted by Slothrup at 4:21 PM on February 19, 2018 [20 favorites]


I work at a midsize tech company and recently represented us at a job fair and collected over 200 resumes. I'd say 80% Indian, 20% Chinese, and literally 1 white guy who was a political science major who was just curious. About 30% women. There's a lack of diversity but it's not the same issue that small tech companies face.
posted by miyabo at 4:35 PM on February 19, 2018 [3 favorites]


In other IBM news, Berkshire Hathaway dumped 95% of their stock holdings in the company.


I guess they finally realized that LotusNotes is never making a comeback.
posted by TheWhiteSkull at 4:47 PM on February 19, 2018 [3 favorites]


Do IBM even do anything anymore? Are they basically a SCO now?
posted by Artw at 4:53 PM on February 19, 2018 [1 favorite]


They still have many, many brilliant people and incredibly innovative products. POWER8 chips, OpenWhisk serverless infrastructure, most of the world's quantum computing researchers. But they seem intent on throwing it all away to become yet another IT outsourcing vendor.
posted by miyabo at 4:59 PM on February 19, 2018 [7 favorites]


IBM also has the misfortune to have designed systems that were built to last and expand and adapt and support small business operations for decades with no hiccups or down time or problems. Like, since 1997, and it's still plugging away like a dream.

There cannot be any profit in that mindset these days.
posted by halfbuckaroo at 5:10 PM on February 19, 2018 [1 favorite]


I used to work for a tech company and what I saw was that the hiring and promotion of women and POC was just as bad for all the non-coding jobs as it was for the coding jobs, even when the pipeline was considerably more diverse than the C.S. pipeline (for certain fields of subject matter expertise, marketing, publicity,etc). White men ran every division, engineering or not, and in the engineering divisions Indian men were way under-represented in top management, based on how much of the engineering staff they compromised.

Actually for a good illustration of the mindset you need to make it in tech, look no further than Apples former head of diversity, promoted to that position after a 20-year tenure at Apple, who is a black woman and who famously said: “I’ve often told people a story– there can be 12 white blue-eyed blonde men in a room and they are going to be diverse too because they’re going to bring a different life experience and life perspective to the conversation.”
posted by mrmurbles at 5:35 PM on February 19, 2018 [1 favorite]


IBM has had a pretty good history when it comes to diversity.
posted by Poldo at 5:41 PM on February 19, 2018


Yeah that was my error sorry. As Indian and Chinese candidates are not usually considered to be minorities for the purpose of diversity I swept them under white.

It's not really fair to either group.
posted by zymil at 5:41 PM on February 19, 2018


Making good hires can be challenging, and the big tech companies are competing for the same skilled people. I wonder if IBM just regards any kind of top-level hiring strategy as a trade secret worth protecting?

This is admittedly a huge stretch. I’m just trying to think of some reason this could be seen as a good idea.
posted by fencerjimmy at 5:56 PM on February 19, 2018 [1 favorite]


Mod note: A few deleted; this thread doesn't need conspiracies or James Damore; NeoRothbardian, skip this discussion.
posted by LobsterMitten (staff) at 6:00 PM on February 19, 2018


I'm guessing the only reason IBM might have better diversity in the US is that they've already globalized most of their entry-level coder/services jobs, meaning most of the positions in the US are for middle management, marketing, and sales. It's not really a tech company like Microsoft, Google or Facebook.
posted by meowzilla at 6:06 PM on February 19, 2018


It’s a lot like gerrymandering?
posted by oceanjesse at 6:13 PM on February 19, 2018 [1 favorite]


Does IBM do anything anymore? IBM will be here longer than any of us.
posted by rhizome at 6:16 PM on February 19, 2018


Cheif Adversity Officer.
posted by Devils Rancher at 6:39 PM on February 19, 2018 [2 favorites]


This is admittedly a huge stretch. I’m just trying to think of some reason this could be seen as a good idea.

Well one reason (if you actually read the complaint, which is helpfully embedded in the first article) is that they don't want to pay her certain comp (called her "LTPP") that's linked to the non-compete. IAAL. I practice in New York, in exactly this area. This isn't strange or unusual, though the diversity angle makes it read strangely.
posted by The Bellman at 6:40 PM on February 19, 2018 [9 favorites]


IBM fired Lynn Conway in 1969, before she went on to write, with Carver Mead,
"Introduction to VLSI Design" which was basically the bible for all modern chip designers?

Man, that is one doozy of a mistake!
posted by eye of newt at 7:55 PM on February 19, 2018 [7 favorites]


IBM probably has a formula and a program for identifying and nurturing leadership potential in people from underrepresented demographics. It could be quite sophisticated, given the amount of data companies have on their workers. They could be looking at anything from performance reviews and salaries/job titles, to the contents of people’s work, to the way they interact with each other on chat, to social media. Learn what works for successful people, and teach it to others with potential who need a nudge to break through. A company with a long history on a large enough pool of workers would be well posed to make some breakthroughs in this area.

It’s generally much cheaper to promote from within than to make external hires from a small pool of “diverse” leaders, so you can see why a large company would want to do this. Microsoft probably made the hire because they also have a lot of worker data and want to carbon copy IBM’s formula. Hence the lawsuit.
posted by mantecol at 7:57 PM on February 19, 2018 [4 favorites]


Is it possible that Microsoft was not aware of the non-compete before making the hire? If they don't drop her for having hid it, I expect they made the hire with the expectation they can win the lawsuit.
posted by I-Write-Essays at 9:19 PM on February 19, 2018


mantecol, that's by far the best guess I've seen. Great call, I imagine it's something like that. In which case, it's hilarious that IBM would think that's not something Microsoft could come up with in-house.
posted by potrzebie at 11:51 PM on February 19, 2018 [1 favorite]


I have heard people working in diversity describe a diverse workforce as a competitive advantage many times. Treating this as a zero sum game or a trade secret is the natural outcome of the leadership of a company actually believing that is to be true, instead of paying it lip service like most do.

Of course this PARTICULAR case seems to just be IBM being shady.
posted by thedaniel at 3:38 AM on February 20, 2018 [4 favorites]


It reads like they're just angry and trying to make an example of her.

IBM Legal is famously scorched-earth, so this is not really that surprising. They have a longstanding (if maybe exaggerated, I didn't research it) "don't settle, ever" policy on civil suits, dating, I suppose, back to when they were one of the most deep-pocketed companies in the world, and they didn't want to create the appearance of being an easy win.

And they're big enough that they have in-house counsel, so it's not like dealing with a small company that has to pay its lawyers by the hour. They have guys on salary with literally nothing better to do than file motions and go to court, so why would they not try to crush their enemies, see them driven before them, and hear the lamentation of their executives? That's the attitude I think they bring to the table.

This is sort of a cool thing when it comes to combating patent trolls; IBM is one of the few companies you can depend on to reliably fight trolls, even when settling and paying some bullshit license fee would be cheaper (and arguably, rational, at least in the short run).

But here, it seems like they really scored an own goal, just on the optics.
posted by Kadin2048 at 10:56 PM on February 20, 2018 [2 favorites]


Diversity is huge. People want to work for diverse companies, hire them, work with them. The biggest supporters of affirmative action are large businesses. Believe it or not, I get this.
posted by xammerboy at 9:14 AM on February 21, 2018 [2 favorites]


I like the idea of framing this as, "We at IBM believe that diversity isn't just the right thing to do, it's a competitive advantage and we're putting our money where our mouth is."

I mean, I think the MOST right thing to do would be to make the details of their diversity programs public in an effort to actually combat racism rather than just promote diversity as a business strategy but corporations gonna corporate so I'll take what I can get.
posted by VTX at 9:50 AM on February 22, 2018 [1 favorite]


« Older Cooking with Ursula K. Le Guin   |   Ancient Hill Rice Rediscovered Newer »


This thread has been archived and is closed to new comments