Silicon Valley: Ground Zero for Diversity Lawsuits after Ellen Pao

Jesse Jackson

The five-week-long and very salacious trail against Kleiner Perkins Caufield & Byers for alleged sexual discrimination against Ellen Pao went to the jury Wednesday.  The former junior partner is demanding $16 million for sexual discrimination and up to $144 million for punitive damages.  Her suit has paved the way for a coming tsunami of diversity litigation across Silicon Valley.

Kleiner Perkins’ lawyer Lynne Hermle finished her closing arguments Wednesday morning and then Ellen Pao’s lawyers, Therese Lawless and Alan Exelrod, made their rebuttals. Judge Harold Kahn gave the jury his final instructions to clarify the law and how it should be applied in this case. He also reviewed how to file the seven-page verdict form.

The jury of six women and six men was moved to a special secured interior room to deliberate. The location was chosen so jury members would not be required to move through public corridors that might expose them to improper contact with lawyers, the press or the public who might contaminate them with news reports or views on the trial.

The novel precautions for a civil trial are an indication of how high the stakes are running–not only for the litigants, but also the precedent the judgment will set for Silicon Valley tech companies. Last week a  sex bias lawsuit was filed against Facebook ,and three days ago a former engineer at Twitter filed a gender discrimination lawsuit alleging promotion opportunities are arbitrarily and unlawfully denied to women.

In their final summation, Pao’s lawyers argued that KPCB senior partners ran the firm like a boy’s club and “no woman was going to challenge them.” They blamed Pao’s supervisors for writing an unjustified negative review in 2012 as a “CYA” before dumping her.

Kleiner Perkins was blamed for failing to take reasonable steps to prevent gender discrimination. Pao’s dismissal from KPCB in October 2012, five months after she sued the firm, was alleged as retaliation for complaining to the managing partners about discrimination in late 2011 and early 2012, and for taking legal action.

Lead Pao attorney Alan Exelrod asked the jury: “And why did he want her gone?” His answer: “He wanted her gone because of her gender.”

Hermle, however, hammered on Pao’s e-mail paper trail to paint her failure to reach the top as her own fault, due to constant inter-personal relationship problems with her co-workers. “The only people you heard about that Ellen Pao did not have conflicts with were the people with whom she never worked closely.”

Hermle claimed Pao benefitted from the support and loyalty of famed investor and Kleiner Perkins’ managing partner John Doerr. Hermle tried to point out that Pao wouldn’t listen to Doerr’s advice that she work on her relationships with other partners. “One of the most meritless, frivolous allegations that you heard in this lawsuit, and there were a lot of them, was that Ellen Pao was a woman who was not mentored at Kleiner Perkins, and she did not play on a level playing field because of her gender.”

According to Hermle, Pao’s 2011 performance review warned that she needed to overcome several issues in order to get on track to become a senior investing partner. The review was a clear indicator that Pao wasn’t succeeding, Hermle said. “Even a fool could see that,” she said. “And Ellen Pao was no fool.”

Hermle demonstrated that there were several female senior partners at Kleiner Perkins, including tech guru Mary Meeker, who testified that she was invited as a senior partner to events that Pao–as a junior partner–felt discriminated for not being invited to attend. Hermle also documented that Pao was consistently paid more than her three male junior partner colleagues.

Hermle especially focused on financial motives by accusing Pao of twisting facts in order to line her own pockets. The jury was reminded that while at KPCB in 2011, Pao secretly tried to obtain a higher paying job at Google Ventures. “Once she understood that she wasn’t succeeding at Kleiner Perkins, and while her job search wasn’t working out, Ellen Pao turned to lawsuits to get the big payout she chose this path that she thought it would lead to a multimillion dollar windfall for herself,” Hermle thundered.

Wired Magazine commented that whatever the judgment, the trial has painted the work culture of Silicon Valley as “high-flying lifestyles are the norm, privilege comes in no short supply, and some of its most important players appear wholly unselfconscious about how the inside of their bubble looks to the outside world.”

At a recent Silicon Valley meet-up, Jesse Jackson’s and his Rainbow Coalition demanded that tech companies must meet numerical ratios for minorities and all gender types. He demanded the crowd chant again and again: “Beyond slavery, segregation and the right to vote, we need the fourth stage: access to capital, industry, technology, deal flow and relationships.”

To Jackson, Silicon Valley is now litigation ground zero for diversity advocates and their attorneys.

This article has been updated with minor corrections.



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