Ellen Pao fails to prove gender discrimination in suit against Kleiner Perkins Caufield & Byers.

The Silver Lining in Ellen Pao’s Loss in Her Gender Discrimination Suit

The Silver Lining in Ellen Pao’s Loss in Her Gender Discrimination Suit

The XX Factor
What Women Really Think
March 27 2015 8:06 PM

Jury in Ellen Pao Case Doesn’t Find Gender Discrimination

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Ellen Pao leaves the California Superior Court Civic Center Courthouse during a lunch break from her trial on March 10, 2015.

Photo by Justin Sullivan/Getty Images

The jury returned on Friday with what appeared to be a verdict in the high-profile lawsuit filed by Ellen Pao against Kleiner, Perkins, Caufield, and Byers. Pao, who is currently the interim CEO of Reddit, accused her former employer, a venture capital firm, of gender discrimination. While the jury found in Kleiner’s favor in three of the four claims based on discrimination, the fourth—whether the firm had fired Pao in retaliation for her complaint—received only eight of 12 votes in Kleiner's favor, short of the necessary nine. As of Friday evening, the jury had been sent back for further deliberation by the judge, Harold Kahn, before a final verdict can be announced. (Update, March 27, 9:50 p.m.: The jury later returned with a vote for Kleiner on the last claim, giving the firm a total victory.)

While much of the public imagination was captured by lurid details of the trial—such as Pao’s claiming that she had been pressured into an affair by her colleague Ajit Nazrem—the real argument at the center of Pao’s case was that gender discrimination need not be overt in order to exist. The picture that Pao’s team painted was not of a Mad Men-style office rife with blatantly sexist comments and bosses openly stating that women weren’t good enough. Instead, Pao’s case rested on the idea that discrimination can take place in much more subtle ways, or even as the result of unconscious biases, and that men may not even know how sexist they’re being. Pao’s lawyers argued that women like Pao are caught in a lose-lose situation: that when they hang back they’re penalized for not being assertive enough, but that if they do display more confidence they are considered arrogant, while aggressive male colleagues are admired for their boldness. 

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Because of this, the case was always a long shot. While sociologists and other researchers might be convinced of the power of unconscious bias to hold back women and racial minorities, the public at large tends to treat that notion like it's poppycock. After all, if we accept that others may discriminate without meaning to, we have to accept we might do the same ourselves. The instinctive I’m-not-a-bigot reaction is why we routinely see polls showing, for instance, that most white people believe racism is no big deal while black people still think it’s a problem. Similarly, polling shows that women will more readily agree that gender discrimination persists in the workplace than will men. While there’s no telling right now what the jury was thinking in considering Pao’s gender-discrimination claims, this widespread skepticism of unconscious biases meant it was an uphill battle for Pao’s legal team from Day 1.

But even if the jury does return with a complete victory for Kleiner Perkins, the heavy media coverage of the trial, especially in the tech press, has started some important conversations about the subtle digs and unconscious sexism that keep women out of the top ranks of the tech industry. The jury may not have been convinced that Pao was discriminated against, but hopefully in the future, leadership in the tech world will put a little more work into treating women with respect, instead of subjecting them to double standards.