The Risks and Rewards of Shifting from Fitting into Speaking Out

May 1, 2014 by Julie A. Uebler, Esq.

I resisted reading Lean In after it was first published last year, put off by the initial commentary which characterized Sheryl Sandberg’s philosophy as “blaming” women for not getting ahead.  Since my day job as an employment attorney is to advocate for individual rights in the workplace, including for the numerous women subjected to all variety of gender-based discrimination, I decided I was not going to waste my time on the book.  On the recommendation of a former male boss, who happens to have three daughters, I picked it up, and I am glad I did.  Regardless of your view of Sandberg, the privileged position from which she speaks, or the specific suggestions she makes, there can be no doubt that her book has become a catalyst for important and productive conversations about women and leadership.

Sandberg has moved us forward on the continuum toward gender equality simply by being brave enough to be a successful female leader who accepted gender and leadership as “her thing.”  The chances of making real cultural and institutional change will come more rapidly if successful women leaders, and the enlightened male leaders who support them, join the conversation and “speak out” about how to increase the number of women in leadership roles.  Yet, many women who hold leadership positions do not want to be associated with gender equality issues because they believe doing so poses a risk to all the rewards they have achieved on an individual basis by “fitting in.”Since I regularly work with individuals who take the risk of claiming unequal treatment in the workplace, I know all too well that those hazards are real.Perhaps with Sandberg’s willingness to take on this issue in public, while simultaneously reaching billionaire status, we will someday experience an era in which the rewards of leaning in will far exceed the risks for all of us.  Until then, let’s make sure our efforts to lean indo not get us kicked out.

Speaking Out: The Risk of Retaliation

In her book, Sandberg shared several incidents in which she was singled out for different and demeaning treatment by supervisors or clients because of her gender.  In one situation, a significant client openly and repeatedly talked about his desire to introduce Sandberg to his son as a romantic partner. Sandberg initially attempted to address her concern about the client’s mistreatment of her with her direct supervisor, a man who failed to recognize the issue, and certainly felt no obligation to fix it.  Sandberg then went to her boss’s boss, who understood the dilemma immediately, and took specific actions to correct the behavior.  As part of sharing this anecdote, Sandberg mentions that her second level supervisor was an African American, who validated her experience by confirming that sometimes people need to be reminded how to treat others appropriately.  Sandberg was grateful for the “protection” she received from that higher level manager.

Sandberg expresses regret that women decide it’s “safer to bear the injustice” than to speak out and face the risks of retaliation.  For most women, however, there is no one to protect them when they speak up about disparate treatment based on gender.  Although illegal, retaliation for making a good faith “complaint” (a word Sandberg may be uncomfortable using in this context) of gender bias in the work place is a real risk that cannot be ignored or minimized.  Not surprisingly, I feel strongly that women should be able to speak up about perceived gender bias in the work place without risk to job or career.  In today’s work environment, women should take this riskonly if they know their rights, have weighed the costs and benefits, and have taken the time to size up their audience.   Sandberg says we need to be able to talk about gender without other people thinking we are “crying for help, asking for special treatment, or about to sue.”  For that to happen, we also need to have a more serious discussion about protecting women from retaliation.

Speaking Out: The Risk of Lawsuits

The value of having the conversation about culturally-based gender stereotypes is also relevant to Sandberg’s advice that women should not “leave before they leave.” In other words, women should not take themselves out of the running for leadership opportunities because of the fear they will not be able to balance it all someday, particularly after having children. As part of that discussion, Sandberg encourages managers who work with women to ask whether concerns about becoming mothers are holding them back, and use that as a platform to address obstacles to integrating work and family responsibilities. In doing so, Sandberg laments that the “specter of legal action” can create barriers to these conversations, and have a “chilling effect” on our ability to discuss and deal with them effectively.

As Sandberg observes in her book, these kinds of conversations tend to give most employment lawyers heart attacks. Rightly so. Asking candidates or employees whether they have children, plan to have children, and/or what kind of child care arrangements they have is generally considered blatant gender discrimination, particularly when such inquiries are made of mothers, but not fathers. The prohibitions on such questions are intended to guard against our own gender biases about the roles of men and women as they relate to raising children. As highlighted in the Harvard Business Review’s recent article “Manage Your Work, Manage Your Life,” these biases continue to be ingrained in our consciousness. Based on the HBR survey, the majority of executives of both genders still consider the tension between work and family to be primarily a “women’s problem.”

We have to remember, however, that the people who typically ask these questions of women are not motivated by Sandberg’s goal of helping women to lean in, but want to screen them out. As Sandberg herself understands, she is in a position to identify any legal risks of participating in these conversations, and to take the “risks” where warranted. For managers who are willing to have these conversations with their employees, the easiest way to stay out of legal trouble is to frame the issue positively, be clear on your motivations, and to approach the topic the same way for both women and men. Although the pressure to integrate work with family responsibilities may still be a “women’s problem” today, let’s not lose sight of the significant shifts on the horizon as more men lean in at home. With support from their Human Resources and legal departments, the “specter of legal action” should not derail well-intentioned managers from seeking to help both women and men manage family responsibilities while advancing their careers.

Speaking Out: The Risk of Discrimination

A lot has been written about Sandberg’s admission that she has cried at work. Yet, it was another admission that really caught my attention. At one point in her book, Sandberg openly admitted that pregnancy was a very difficult time for her, “making it impossible to be as effective as normal.” Wow. In the era of “fitting in,” it never made sense to admit that anything could interfere with effectiveness at work – not sick kids, not trouble with child care, and certainly not being pregnant. The risk of being the target of backlash in the form of gender-based bias for such admissions is huge. But, wouldn’t we all benefit from a more open discussion about the impact of gender differences, gender stereotypes, and cultural biases on our workplaces? After all, who among us – men or women – had a reaction to Yahoo CEO Marissa Mayer’s return to work after a two-week maternity leave that was free from the impact of stereotypes and cultural norms? Sandberg’s discussion of the Heidi / Howard study (revealing the disparaging perceptions of a female candidate with a resume identical to a male candidate), the importance of being vigilant during the performance review cycle, and the disparate impact on women of systems that require self-nomination (whether hand raising in class or putting yourself up for promotion) are good places to start. The reward for recognizing and constructively talking about the differences between the genders and its impact on our work lives could be phenomenal.

Sandberg clearly recognizes the obstacles to equal leadership opportunities for women are complex and multifaceted, and cannot be solved by one person or one initiative. Yet, just having the conversation can be the catalyst for significant positive change. So, for all of you who may have opted out of reading Sandberg’s book, give it another chance. It might even be worth the risk of sharing it with your boss.

Julie Uebler is a litigator, mediator, and investigator of employment law-related matters in the greater Philadelphia region.

Julie A. Uebler, Partner | Employment Law

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This article originally appeared in the “Women in the Profession” supplement of The Legal Intelligencer on April 29, 2014, © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.