Minority Issues, Women's Issues

The Curious Case Of Ellen Pao And The Lesson We Can Learn From It

This case is unique because it actually went to trial, so unlike mediation or a settlement, we are privy to all the salacious details.

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“What brush do you bend when dusting your shoulders from being offended?” — Kendrick Lamar

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “based on race, color, religion, sex and national origin.” Many of us recognize this familiar language, but the actual definition of “discrimination” remains nebulous. As New Yorker writer Vauhini Vara notes, the courts’ definitions for “discrimination” have evolved over time, along with social norms.

Employment lawyers like Kathleen Lucas are closely monitoring Ellen Pao’s sex-discrimination case against Kleiner Perkins Caufield & Byers because they believe the verdict could have big potential implications in the venture capital and tech industries. The outcome of Pao’s case may not have a direct impact on a firm’s culture, but it could give occasion for others who feel discriminated against to address inequities in the workplace.

Currently, Pao is the interim chief executive of Reddit. She filed this suit against her former firm in 2012, but the trial kicked off just last month. Pao is accusing her former firm of “allowing her to be sexually harassed by male managers, of punishing and eventually firing her when she complained, and of excluding her and other women from business meetings, dinners and promotions.” She is seeking $16 million for lost wages and potential future earnings.

This case is unique because it actually went to trial, so unlike mediation or a settlement, the public is privy to all the salacious details. Pao’s high-profile case has a little bit of everything: an uninvited former partner showing up at a female colleague’s hotel room in a bathrobe and slippers, an extramarital affair, precarious financial circumstances, and even a book of Leonard Cohen poems accompanied by suggestive drawings. Despite which side you agree with, it is hard to deny the common pattern of gender bias in Silicon Valley.

Bloomberg columnist Brad Stone notes, “[t]here are always two stories in every Big Trial: the case itself, with its conflicting sets of facts, and the wider narrative—the way those facts fit into the lives of millions of people outside the courtroom.” There have been other high-profile venture capital and Silicon Valley sex-discrimination cases prior to Pao’s case, but few cases have commanded such attention during the social media era and also been considered so pivotal to holding an industry accountable for sexism. Then again, just like punishing a few frat boys won’t alleviate institutional and systemic racism, Pao’s verdict won’t quarantine workplace cultures contaminated by sexism.

The venture capital industry is notorious for being a hard industry to break into, even harder if one is discriminated against. As UC Berkeley professor Jennifer Chatman points out, “the broad perception that Silicon Valley as a whole suffers from deeply embedded, systemic sexism insulates Kleiner Perkins from being viewed as unusual.”

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Rarely will there be a “smoking gun” in these type of cases. Should the definition of “discrimination” be interpreted to include the type of marginalization, prejudice, and implicit bias that females and minorities face in the workplace? Do complaints that ultimately focus on “subtle structural problems in the workplace” have any merit? In her New Yorker piece, Vara writes:

[S]ome legal experts argue that the doctrine guiding many legal decisions about discrimination still hasn’t caught up with the realities of workplace gender relations; they refer to ‘second-generation discrimination’ that is influenced by subtle, even unconscious, biases against women. The existence of such discrimination can be hard to prove to judges and juries, who typically require that plaintiffs prove that an employer had the intent to discriminate…

Melissa Hart, a law professor at the University of Colorado at Boulder, said that there appear to be more complaints these days ‘involving challenges to subtle structural problems in the workplace.’ In cases relating to this type of bias, plaintiffs have sought to bolster their arguments by introducing broader circumstantial evidence that the general cultures of their workplaces were hostile toward women.

Vara notes that judges and juries typically require that plaintiffs prove that an employer had the intent to discriminate. Even if one justifiably feels discriminated against, she may have a tough time in court proving there was the intent to discriminate. In the courtroom, an employee may struggle to satisfy her burden of proof for a discrimination case. But in reality, you know it when you see it. Clearly, it would be far more advantageous for both parties if these type of actions could be prevented long before they manifest themselves in the employee-employer relationship.

As Jason Knott, a partner at Zuckerman Spaeder who specializes in employment legal issues, told USA Today:

Kleiner is trying to make the point that it doesn’t have a ‘woman problem,’ it has an ‘everybody problem’ because nobody gets to that level… Pao’s team will have a difficult time proving she was discriminated against because the firm hasn’t presented any objective measure for what makes a good senior partner… There aren’t metrics; it’s the gut feeling of the partnership. Does this person have ‘the right stuff’ or do they not?

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Investigator Stephen Hirschfeld reiterates the same opinion – it wasn’t obvious what it took to become a senior partner at Kleiner. Hirschfeld states, “What was clear to me was that there was no real criteria. What this was, was a lack of transparency.”

Regardless of the verdict, to avoid showing discriminatory tendencies, firms should have objective measures of success for their employees. Transparency in the form of open communication, proper expectations, and objective measures are critical for success in the workplace. As U.S. Supreme Court Justice Louis Brandeis famously stated, “sunlight is said to be the best of disinfectants.” In other words, if the broad light of day could be let in upon our actions, it would purify us as the sun disinfects.

A black-box type of promotion process handicaps employees and promotes a discriminatory environment. This being said, subjective measures are not going anywhere; they are inherent in the dynamics of the employment environment. It is when subjective measures corrupt the employee review process that discriminatory acts are enabled to become pervasive in the workplace.

Many employees face discrimination even where no harmful intent of discrimination exists. I’d argue the majority of employees encounter unconscious racial and gender bias much more often than overt prejudice. As you are looking at firms and deciding on your long-term career prospects with employers, it is important to understand how you will be evaluated. No one wants to be the associate that is not offered partnership because she lacked the intangibles that were never communicated to her, had unrealistic expectations, or didn’t understand the promotion process.

We all hope to compete on a level playing field. Obviously, discrimination severely handicaps one’s chance of success in the workplace. A denied promotion based on someone’s “gut feeling” about you would certainly be hard to stomach. Unfortunately, many employees have faced this exact situation. No doubt, future candidates will face this prospect as well.

Open communication, proper expectations, and objective measures are critical for success in the workplace. If your firm lacks transparency in the promotion process, it could be an ominous sign of things to come as you progress in your career.

Earlier: High-Profile Sex Discrimination Suit Shines Ugly Light on Silicon Valley ‘Bro Culture’

Renwei Chung is the Diversity Columnist at Above the Law. You can contact Renwei by email at projectrenwei@gmail.com, follow him on Twitter (@renweichung), or connect with him on LinkedIn. 

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