Microsoft just hired a chief diversity officer - and IBM is suing them over it

Mike Blake/Reuters

IBM CEO Ginni Rometty

• IBM is suing Microsoft for poaching its chief diversity officer and human resources executive, Lindsay-Rae McIntyre.
• On Monday, a court issued a temporary restraining order which prevents McIntyre from working at Microsoft until further notice.
• Using Microsoft's own arguments from a previous lawsuit, IBM is arguing that its diversity strategy is both confidential and "potentially damaging" if shared with its competitors.

Tech companies have a less than stellar record hiring women and minorities. But these companies will apparently do whatever it takes - including launching a legal fight - to hire one type of person: a Chief Diversity Officer.

IBM is suing Microsoft for poaching its top diversity officer, Lindsay-Rae McIntyre in a case that could prove just how important diversity, recruitment, and retention has become for tech companies.

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McIntyre, who joined IBM in 2006, was named chief diversity officer of Microsoft on Sunday, after serving in the same role and as VP of human resources at IBM. IBM, in its complaint, argues that McIntyree had access to diversity data, strategies, methodologies and initiatives that are confidential, and that she "will use, rely on or divulge" these strategies in her new role.

On Monday, IBM was granted a temporary restraining order in New York federal court, which prevents McIntyre from working for Microsoft until the court decides otherwise.

"McIntyre was at the center of highly confidential and competitively sensitive information that has fueled IBM's success in these areas," a representative for IBM said in a statement. "While we understand Microsoft's need to deal with mounting criticism of its record on diversity, IBM intends to fully enforce Ms. McIntyre's non-compete agreement to protect our competitive information."

IBM is using another Microsoft lawsuit to argue its case

At the heart of IBM's complaint is an on-going lawsuit from 2015, Moussouris v. Microsoft Corporation. The lawsuit alleges that Microsoft systematically discriminated against women in technical and engineering roles at the company when it came to evaluations, pay, and promotions.

The briefings for that lawsuit wrapped up on February 9. Now it is up to the courts to decide whether or not the case has class-action status.

As part of its non-compete case, IBM is looking to use Microsoft's own legal arguments from the Moussouris lawsuit to make its own point.

In April 2017, to prevent certain information from being released publicly in the discovery process, Microsoft argued that such diversity data is "not merely confidential, but so sensitive and potentially damaging to Microsoft if revealed to its competitors (e.g., IBM), that the court should take the extraordinary measure of putting the information under seal," according to IBM's complaint.

Microsoft ultimately got some of the documents in the case sealed, and others released with redactions.

In its official response to IBM, Microsoft argued that enforcing McIntyre's non-compete agreement is "draconian," as McIntyre has promised not to share confidential information with Microsoft.

It's worth noting that IBM's employee ranks are not a paragon of diversity: According to IBM's website, women comprised 31.8% of its global workforce in 2016.

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