Ellen Pao Might Not Win, and That’s OK - Pacific Standard

Ellen Pao Might Not Win, and That’s OK

Regardless of the legal outcome, her lawsuit against a venerable venture capital firm stands to change the way Silicon Valley is perceived both inside and out.
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The Ellen Pao v. Kleiner Perkins sexual harassment and discrimination trial has been a very long time coming. It was coming before Pao filed suit in 2012, before she was made a junior investing partner in 2010, before she was hired as chief of staff for senior partner John Doerr in 2005.

It is the reckoning many women in Silicon Valley have been waiting decades for, and the revelations have been predictably unflattering and sometimes salacious: the all-male ski trip; the men rewarded for their competitive and aggressive drive, and the women punished for theirs; the male employee who allegedly tried to force his way into a female employee’s hotel room. Pao alleges she was pressured into a relationship with that same employee and passed over for opportunities and promotions because of her gender.

Few industries appear as openly confused about their own discrimination as tech, where the delusion of a meritocracy still survives despite all evidence to the contrary.

The stakes feel both very high—for the minority of women working in technology who are paid less and overlooked more—and very low—for everyone involved is, by any measure, paid very, very well.

But as the details have been revealed over several weeks of testimony, it’s become clear that Ellen Pao’s case is not the one on which women in tech should hang all their hope. There may never be one. Ideally, there will be many.

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Few industries appear as openly confused about its own discrimination as tech, where the delusion of a meritocracy still survives despite all evidence to the contrary. Homogeneity is baked in to the Silicon Valley workplace and business model, with “culture fit” and “pattern-matching” guiding personnel and investment decisions from start to finish, consistently and often explicitly privileging white men over everyone else.

Women make up more than 40 percent of all engineering graduates, but hold only around 15 percent of technical jobs in Silicon Valley. Just four percent of senior investing partners at venture capital firms are women. These numbers are not on the rise.

Implicit bias is tricky and resilient. It happens in ways that employment discrimination law has little capacity or will to regulate, and in ways that some of its perpetrators can’t even recognize.

The women who succeed in this environment appear to be particular anomalies. Kleiner general partner Mary “Queen of the Internet” Meeker, who defended the firm in court, was one of the only women in the boys club for many years, a powerful veteran of '80s-era Wall Street and the dot com boom. “Kleiner Perkins is the best place to be a woman in the business,” she testified—but also noted that she does not advise or mentor any women at the firm.

Facebook COO Sheryl Sandberg may have found personal success with her “Lean In” strategy, but not all of the women who heed her advice are as fortunate. By all accounts, Ellen Pao appeared to be leaning in. This has been a sticking point for Kleiner Perkins’ defense: Pao was not passed over because she is a woman, but because she was aggressive, territorial, and generally not likable—nevermind that men perceived to have the same traits were rewarded for them instead of punished. The harassment and discrimination are imprecise, complex, couched in judgments of Pao’s personality.

Implicit bias is tricky and resilient. It happens in ways that employment discrimination law has little capacity or will to regulate, and in ways that some of its perpetrators can’t even recognize. Women fleeing the tech industry may blame a male-dominated work culture, but can you prove its specific existence—let alone intent and malice—in court? Ellen Pao may not be able, but she’ll be far from the last to try.

In the midst of Pao’s trial, a former Facebook employee, Chia Hong, filed suit against the company for alleged gender discrimination and sexual harassment, among other claims. A former Twitter employee did the same, also alleging gender-based discrimination. Law firm Lieff Cabraser Heimann & Bernstein is openly courting women in tech who feel they have been discriminated against. These cases are not likely to solve or even significantly shift such deep cultural biases, but expensive trials are certainly a motivating deterrent for employers and a precipitating force for legislators.

In Pao’s case, a win could scare Silicon Valley into more equitable practices; a loss could further empower the magical thinking of the “meritocracy.” Regardless of the outcome, the most significant precedent of the Pao v. Kleiner trial might end up being that it was filed at all.

Even if Pao loses, the proceedings have revealed the thick masculine smarm that lurks in Silicon Valley. And after decades of taking a back seat to men in tech, it appears that women are finally and actually leaning in.

The Crooked Valley is an illustrated series exploring the systems of privilege and inequality that perpetuate tech's culture of bad ideas.

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