Some have argued that the statistics proving discrimination are overwhelming, and, beyond the numbers, nearly every woman on Wall Street will tell you there are, to this day, subtle and not-so-subtle double standards and a still pervasive locker room atmosphere of harassment.
The numbers, however, can tell different stories–besides that Schieffelin was not a number. The former institutional sales executive is not just any woman looking for a place in the securities business. She had a place but wanted a better one, a slot as a managing director, which is reserved for the top 2% at a firm like Morgan Stanley (nyse: MWD – news – people ). Morgan Stanley could have argued that determining who should breathe that rarified air can only be done one case at a time.
That Schieffelin got to make her case at all was made possible by a shift in the law just as she was starting her fight. In 1998, Nancy Gertner, a federal judge in Boston, ruled that a female employee at Merrill Lynch could bring her sex discrimination case in court rather than submit it to arbitration. Most securities industry workers–and most clients–sign agreements requiring them to arbitrate disputes.
Around the time of the Boston decision, the National Association of Securities Dealers and the New York Stock Exchange changed their arbitration rules in a way that permitted employees to sue under federal discrimination statutes in federal court, bowing to pressure from the U.S. Securities and Exchange Commission and Congress. Court rulings might have required a change in any event.
The arbitration rule change had no direct effect on the Schieffelin case because the EEOC is not bound by a particular employee’s arbitration agreement, says Wayne Outten, the lawyer who represented her along with the agency. But the fact that the case was in court, allowing for a public trial, certainly made a difference.
Outten says Schieffelin pursued her case through EEOC channels rather than through an individual lawsuit because “she wanted to have an impact.” The case could have a direct impact on as many as 340 current and former Morgan Stanley employees, though the EEOC has indicated that the number is closer to 100. About 20 women were prepared to testify at the trial, Outten says.
Outten also says that the $12 million his client received in the settlement was just for her illegal termination claim. She remains part of the class of women who can claim compensation from the settlement’s $40 million fund for discrimination, so she could wind up with an even bigger payout. Part of what she collects will go to Outten for his legal fee. The EEOC gets no fee.
As for the discrimination claims, the EEOC emphasizes that nationally, 48% of the work force is female, but on Wall Street, women make up just 41%. Of course, there are a lot of clerical and relatively low-paying administrative jobs in finance, as elsewhere. The Securities Industry Association has published some statistics indicating women are suffering some losses, while making some gains on Wall Street.
First, the SIA says women represent just 37% of the industry as of 2003, down from 43% in 1999. Women have lost ground at the executive management level. On the other hand their numbers have grown in the managing director ranks to 19% in 2003 from 14% two years earlier. More women are working as brokers and investment bankers, though fewer are employed as traders. Women are more likely to be retail assistants; men more likely to be institutional assistants, where the prospects for advancement are likely greater. In large firms, the numbers for women are all slightly better.
The argument relevant to this case is what happens at the highest level of a large firm where Schieffelin sat, making more than $1 million per year. Even there, Outten said when the lawsuit was filed, an “old boys club” still exists and that complaining about sex discrimination while on the job would be a “kiss of death.” The boys club evidence would be likely more compelling, though at the same time more arguable