Thoughts on Tuli v. Brigham & Women’s Hospital, Inc., et al.

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The Boston Globe reported  here  on the $1.6 million jury verdict in an employment discrimination case brought by a female neurosurgeon against her employer, Brigham and Women’s Hospital, and the male chair of the Neurosurgery Department.  An earlier order granting the Plaintiff’s motion (with the factual background) is  here.

This  did not happen  during the Pleistocene Era . . . nor was the defendant a Neanderthal.   He ‘s two years older than I.

There must have been much, much, MUCH more bad behavior than reported here 1) for her to have gone to a lawyer and then pursued this WHILE still working at the hospital, you ‘ll note, which must have been really pleasant; and 2) for the jury to have found in her favor.  

I will not be at all surprised if the judge simply sets aside the verdict as contrary to the evidence, or inconsistent, or something.   That ‘s what does usually happen to sex discrimination verdicts.  In a way, it ‘s become much worse for working women in the past two decades – because, no offense, nice young men like you just can ‘t believe that this kind of shit still happens.   It ‘s so easy to marginalize and trivialize women with “jokes. “   It ‘s just “fun. “   Funny.  Ha-ha. And if a woman doesn ‘t play along, then she ‘s a self-important bitch (to use a comparatively polite term of art) who can ‘t take a joke and must be insecure.   And not “tough enough. “   So even if you get a verdict like this,  the amount is  barely enough to cover the costs of litigation (that ‘s definitely true here) because the impact of the attacks on your livelihood, professional reputation, etc. is minimized.   You of course realize that this woman is now marked for life: she will never, never, ever, get a job offer from any other hospital in this country.   So, the bonus payoff here is, she gets to work in an environment where she is ostracized, despised, feared, and hated – barred from any leadership position –   and will never be taken seriously as a decision-maker or policy-maker — for the rest of her professional life.  And that ‘s because she WON!

On the other hand (and I ‘d bet the verdict that ‘s what happened here), if you DO try to “go along to get along “ –if you try to smile at the nasty comments, if you pretend to laugh at the smarmy “jokes, “ if you ignore the behavior on the theory that ‘s the best way to extinguish it, if you tell yourself “I ‘m just going to do my work well and not let this asshole get to me “ –  and it goes on, and on, and on, and on, and on – until you realize it ‘s NOT going to stop, and it ‘s really hurting you professionally as well as emotionally — as in, you hate going to the job you used to love, your stomach cramps up like a car crash as you walk up the steps to the office, your skin breaks out, your heart rate is elevated, you want to smoke drink and otherwise self-medicate, your teeth and hair start to fall out (stress does that), you ‘re snapping at your husband and every other male you come across, you have headaches and stomachaches –  and  then perhaps the greatest, most excruciating, pain and disappointment is realizing that, unbelievably, your colleagues who are witnessing all this aren ‘t about to come forward, offer to help, tell the asshole to shut the fuck up, etc. etc. etc. (after all, the asshole is usually, as in this case, enormously respected and very powerful and totally prone to retaliate if challenged at all).

IF, after months and years of this – it ‘s never less than that — you finally decide, knowing how horrible any complaint  process  or legal action will be, knowing that it will cost you tens of thousands and quite possibly a couple of hundred thousand dollars in legal fees —  if you finally decide  that you MUST do something:   then the first thing you ‘ll hear from the defense is:   “She liked it. “   “She laughed at the jokes. “ “She led me on. “ “She voluntarily [fill in the blank: accompanied me on business trips, operated with me, litigated a case with me -- whatever the woman had to do to keep her job/preserve her professional standing, while she was still hoping the behavior might stop]. “   “She never said boo about any of this. “   “If something like this had happened, she would have raised hell about it on day one. “ Along with: “She ‘s hysterical, premenstrual, postmenopausal, and mentally impaired [because of course by now, you ARE in therapy and probably on medication]. “  ”She always had a crush on me,  she ‘s just a scorned woman.”   And so forth . . . I’m sure you get my point.

It ‘s not a coincidence that the very phrases and concepts of “domestic violence “ and “hostile work environment, “ which you find so hard to believe didn ‘t exist 35 years ago when I was in law school, evolved in parallel.   There is great similarity between the two.   In both phenomena, women start out EXACTLY like you: they simply cannot believe that this is still happening, let alone happening to them.   Try to remember and hold on to  this  feeling you have,  XY: so that you will understand if someday you are called upon to respond to one of these phenomena in some capacity, as a lawyer or otherwise.   You ‘ll understand that in both instances, it starts, and often it ‘s only the cumulative effect that is brutal and savage.   Women never, ever want to believe that this is happening to them.   It ‘s like being hijacked in your car.   You want to believe that if you just act normally, and make nice with your tormentor, somehow the nightmare will stop.   And it ‘s that very survival mechanism which is then used against you:   “Well, why didn ‘t you scream?  Run?  File a complaint? Tell somebody [how humiliating it is for a woman trained to be strong and independent to have to say: "I 'm an abject, hapless, helpless victim "]. “   In both instances, it can start out subtle and trivial and “not worth making a fuss about. “  But if you don ‘t make a fuss that very first time and then every single time, you ‘re the enabler, the two-faced manipulator, the tease.   “All she had to do was tell me she didn ‘t like my remarks. “    

-Vanessa Merton

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2 Responses to Thoughts on Tuli v. Brigham & Women’s Hospital, Inc., et al.

  1. areino says:

    This is the best description of a sex discrimination lawsuit from the plaintiff’s perspective that I have ever read. Every time I advise a client about whether or not to proceed with administrative charges and lawsuits, I basically give them a toned down version of this essay. It’s only fair for them to know what they’re getting into and what they sacrifice either way (because no matter what, they won’t get through it without losing a few limbs). It’s still hard to prepare someone for the reality that the colleagues they thought were their friends would actually lie, that the employer would pursue a scorched earth tactic, that they would rather pay their lawyers to fight for five years than pay her a penny, etc. etc.

    Of course this scenario is the same one that my race plaintiffs experience.

    This is precisely why we should always be outraged when people suggest plaintiffs file employment discrimination lawsuits because they are looking for a quick and easy payday. Quick? No. Easy? No. Expensive? Yes. Soul destroying for the client? Yes. Worth it to me as a lawyer? most of the time, yes.

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