A rare thing is happening in San Francisco – a gender discrimination lawsuit is actually going to trial, before a jury. The trial involves Kleiner Perkins Caufield & Byers’ former executive Ellen Pao, who alleges she was denied access and promotions based on her gender.
Her allegations include stories about the behavior of male executives who held “all male” events and created an overall male-dominated environment at Kleiner, one of the most prominent venture capital firms in the Silicone Valley. Pao alleges that during her time at Kleiner, she received varying performance reviews that ranged in their commentary from criticisms for being too aggressive to criticisms for being too meek.
Pao’s lawsuit could serve as a bellwether in the continuing conversation about bias against women in the male-dominated technology and finance industries, particularly among the elite tech and venture capital companies in the Silicon Valley of California. The thrust of Pao’s complaint is that she was not “one of the guys” and her female status undermined any chance she had to reach the top of the heap at Kleiner.
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specifically Title VII. Interpretations of Title VII gender discrimination have led to a complex legal landscape that often seems to elevate technical arguments over substantive concerns and genuine workplace realities.
In 2011, the Supreme Court weighed in with its opinion in Wal-Mart v. Dukes, a Title VII case brought on behalf of 1.5 million female Wal-Mart employees alleging that an internal Wal-Mart policy of managerial discretion led to a climate where women were consistently overlooked for promotions as most of the managers with discretion were male and favored male employees. Wal-Mart has an anti-discrimination policy and employs a large number of female employees, particularly at the lower, non-managerial level. There was no allegation that Wal-Mart practiced intentional discrimination against women through its employment policies. Rather, the Wal-Mart system of promotion and advancement relied on the discretion of its managers who were predominantly male.
Statistical evidence showed that the male managers promoted male employees in greater numbers, and other evidence showed that male managers valued certain traits in employees when considering which employees to promote, traits typically associated with male employees, making it more difficult for female employees to advance. The Supreme Court gave a de-facto stamp of approval to discretionary-style management systems like Wal-Mart’s, even when the evidence indicated men prosper disproportionately under such a system.
So how does the Wal-Mart case relate to Ellen Pao and Kleiner?
The question is whether Title VII is equipped to deal with the effects of gender bias in a seemingly appropriate system of performance review and evaluation. If an all-male culture prefers male traits and values certain male-dominated interactions (the age-old problem of the men’s locker room and the golf course), are women faced with a choice of acting more male to succeed in a given corporate structure? And if this is the case, can women successfully act male enough to gain the discretionary praise of a biased employer? And more importantly, should they?
One of the most interesting aspects of the Pao v. Kleiner trial is the jury composition, which is equally mixed on gender and diverse on age and race. How will a diverse jury view Pao’s allegations that her success at male-dominated Kleiner was undermined not by her actions but by her gender, which kept her from ascending to the top of male-dominated Kleiner? After all, gender bias is a co-ed sport and played in mixed teams.
Pao’s case will not resolve the evolving tensions in the tech workplace or in any workplace where we are charged to work together and respect each other’s talents and skills regardless of our own bias. But it does illustrate that modern problems of workplace discrimination are bias-based – much harder to find and much harder to fix. It may be time to ask whether Title VII is a viable mechanism to level the playing field.
Catherine Ross Dunham is a professor of law at Elon University School of Law.