Ellen Pao Verdict

Those who follow high-tech or financial news, and many others in the San Francisco Bay Area are aware that Ellen Pao, now the CEO of Reddit, sued her former employer, the venture capital firm Kleiner Perkins for sexual discrimination and retaliation. Contrary to popular misconceptions, she did not sue for sexual harassment. She alleged that she was not promoted due to her sex (remember, the correct word is sex, not gender – see my very first blog post, People Have Sex), and that she was retaliated against (fired) for complaining that she was discriminated against.

I try to avoid controversial or political topics, but this is an area about which I have considerable experience and expertise. By way of background and full disclosure, I was for several years a labor and employment lawyer. I litigated three different cases that are somewhat related to this case. Two were labor arbitrations where a male employee was alleged by a female employee to have sexually harassed her. The employer (my client) fired the male employees in both cases. One was a manager; the other was not. In those two cases the male employees exercised their right to arbitration and fought the discipline. In both cases I won the case, i.e. the terminations were upheld. So in those two cases I was on the side of the woman, proving that she was indeed harassed. In the case of the manager, the harassed woman, after the employer’s victory proving that it acted properly in quickly investigating the allegation and terminating the offending employee, then sued her employer for the same harassment. California law in this regard is crazy, in my opinion, because the employer is strictly liable if the offending person is a manager. Even though it was proven that the man was given regular and approved training in what is acceptable and appropriate conduct and what is prohibited sexual harassment or discrimination, and the company properly investigated the incident and terminated the offending employee, it is liable for actual damages to the victim (but no punitive damages).  The other case was a federal lawsuit from a black female who alleged that she did not receive a promotion due to her race. Since most of the other employees in the higher position were female, she could not credibly allege sex discrimination. I won the case on summary judgment in federal court. She appealed all the way to the Supreme Court (which refused to hear the case) losing at every step. She also claimed that, like Ellen Pao’s case, she was fired for complaining, but in fact she resigned, claiming she was was “forced” to resign because she could not work in that racist environment.

I have a further connection with the Pao case in that I know (slightly) the lead attorney for Kleiner Perkins, Lynne Hermle. She represented a company against a fired male employee’s lawsuit. It turned out that the employee was stealing the trade secrets of his former employer and I investigated that case as a trade secret theft when I was in the FBI. Hermle was gathering information in her civil suit while I was doing my investigation on the criminal side. The case ended up being the inspiration for Fatal Dose, one of my Cliff Knowles Mysteries. The employee lost his civil suit and was convicted of trade secret theft.

I was not surprised when Pao lost. I am aware that many women in high-tech are surprised and upset by the verdict, but they shouldn’t be. First of all, the trial brought out some sexual shenanigans, shall we call them, which many people, both men and women, found shocking or offensive. I will be the first to say that I do not put much stock in news reporting of such cases because my own experience with cases in which I was involved and know the facts is that reporting is often inaccurate or at least sensationalized. But based on that reporting, which was pretty consistent in various news outlets, Pao was a willing participant in much or all of it. Depending on one’s bias, it could look a lot like a calculated choice of sleeping her way to the top or older male bosses taking advantage of a young woman subordinate. In my personal experience, there are plenty of cases I know where the woman employee initiated or enthusiastically participated in the sexual relationship with a superior or coworker and in a few cases later used a threat of a sexual harassment lawsuit when she didn’t get her way or the relationship ended. I also know of cases where there was no sexual conduct at all but the woman alleged that there was. So if you are one of those who thinks the female is always the victim if there is any kind of inappropriate sexual conduct, you are simply wrong. Yes, women who allege such harassment are usually telling the truth and there is plenty of harassment by men of women that goes unreported. Some men are pigs and abuse their positions of power. It is also true that some women are attracted to men in positions of power or wealth. Women and men both like sex; the history of human population growth have established that fact. So set aside whatever feelings about whatever sexual conduct occurred, be it harassment or not, that you heard about in this case. My guess is that there was no such allegation in Pao’s complaint simply because of Pao’s own willing participation in such conduct. It’s irrelevant to the verdict.

So what about the alleged discrimination in promotions? This is much harder to prove than sexual harassment. Pao in fact received promotions and made a ton of money at Kleiner Perkins. She’s making a ton of money at Reddit, too, I’m sure. Proving financial damages could prove difficult, but that’s a separate issue from whether she was discriminated against. Still, I can imagine she was not a sympathetic character since she is wealthy and privileged by any measure. Her husband’s legal troubles were kept out of evidence, but it’s impossible to know whether they somehow contributed to a negative view. In my experience, promotions are granted or denied on such a wide variety of grounds that it is very difficult to identify a single factor that led to the promotion or the denial of promotion. The higher you go on the corporate ladder, the stiffer the competition is, and fewer rungs; there can be many candidates who are well-qualified. The skill set that was needed at a lower level may be less relevant at a higher level. In the legal profession, in private practice, one’s ability to make partner, or senior partner, will almost certainly have more to do with how many and what kind of clients you can bring in or retain than it does with your legal knowledge. I suspect that’s true in venture capital, too. That often boils down to how likeable you are. Remember what it was like in high school elections? Were the smartest kids, the ones most knowledgeable about government elected to be class president or student body president? No. It was the most popular kids, the best-looking, the one other kids thought would be most likely to throw the best reunion party in ten years. It’s really much the same in business and in government. For that matter, whether the jury found her likeable or not probably had a lot to do with it.

The comments by jurors after the trial seemed to bolster this view. Several jurors have been quoted as saying she didn’t get the promotions because of her personality, not because of her sex or race. I am not saying she wasn’t discriminated against or that the verdict was right or wrong. I am only offering my take on why the verdict went the way it did. My life experience tells me that almost no one thinks he failed to get a job or a promotion because of his own shortcomings, personality, or life choices. It is almost always attributed to an unfair attitude or discrimination. So my advice is that if you want that high-level job, bring in money, be likeable, and drink or play golf with the boss. Preferably all three.