Gender Bias and the Law: What the Ellen Pao Case Says About Silicon Valley

    By | Small Business

    Ellen Pao has made headlines for the second time this year after a hasty departure from her post as CEO of Reddit, the online entertainment and news website.

    This came only a few months after she committed to appealing the verdict of her gender discrimination suit against a former employer.

    The reasons behind Pao’s departure from Reddit are opaque. Some suggest it was the result of a mishandled AMA controversy. Others suggest that the deluge of sexual harrassment and death threats played a role. Regardless of the reason, Pao had to make another hasty and public departure from a large tech firm. She left quickly and Silicon Valley looked on with their hands in their pockets.

    Until 2012, Pao was a partner at the venture capital firm Kleiner Perkins Caufield and Byers. She left her position in 2012 and filed a sexual discrimination suit against the company.

    The lawsuit filed by Pao says that she was pushed out of her place in the company after she ended an affair with another partner, Ajit Nazre. Her testimony states that the environment in the office became unfriendly towards women. She claimed that Nazre and name partner Kleiner Perkins retaliated against her.

    Pao also suggested that the firm repeatedly denied her promotions and assigned her tasks that were below her position between 2005 and 2012. She sought $16 million in damages from her former employer.

    Pao lost the case. The jury believed that her negative performance reviews suggested that she would not warrant a promotion regardless of the environment she worked in. The jury, made up of six men and six women, did not believe Pao had any evidence that she was a victim of sexual discrimination.

    Sexual Discrimination and the Law

    The sexual discrimination laws in the United States are vague at best. According to the U.S. Equal Employment Opportunity Commission, sexual harrassment “can be illegal if it has a negative impact on the employment of the people of a certain sex and is not job-related or necessary to the operation of the business.”

    Sexual discrimination laws make it easy for businesses to practice discrimination as long as it can prove there is a pretense. Businesses are legally prohibited from overtly preferring one gender to another. Companies are also prohibited from discriminating in the form of wages against another gender, race, religion, etc.

    Yet, women who work full-time all year still earn only 77 percent of what men earn in the same positions. These pay gaps often go unexplained, and therefore easier to negotiate should they be legally contested.

    Gender Bias in the Silicon Valley

    Sexual discrimination laws are enforceable primarily when a company is egregiously discriminating against a specific gender. A successful court case requires a paper trail and a host of witnesses. Silicon Valley is an insular world dominated by highly intelligent people. It is unlikely that today’s firms would openly institutionalize these practices.

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    This leaves women like Ellen Pao out in the cold. Instead of receiving support for having the courage and resources to stand up for herself and other women, she finds herself forced out of high-profile positions when she makes too much noise.

    Pao’s case is different from the other powerful women in Silicon Valley. While she must endure many of the same misogynist comments that her compatriots Sheryl Sandberg and Marissa Mayer must face, she has a different approach to dealing with them. Rather than working from the inside out, Pao would rather stage a revolution.

    Instead of rewarding her innovative attempts at reducing sexual discrimination both online and offline, her colleagues hide her away in an attempt to avoid the airing of their dirty laundry. Silicon Valley would rather maintain its pretense of a meritocracy than admit its real shortcomings.

    As women like Pao realize that they need to shout louder to be heard, technology companies will need to make good on their promises to diversify. Technology leaders are in a position of both economic and cultural influence. Their mission statement is to change the way the world works.

    While technology leaders are happy to change the way people use the Internet, the entrenched social policies at the workplace cannot are not changeable through hacking or innovative design.

    Silicon Valley is perfectly poised to create societal change. Its ethos is “move fast and break things.” Its goals are to interrupt and disrupt the status quo, to create huge change in the world.

    Disrupting the status quo is precisely what Ellen Pao is trying to do. She is just one member of Silicon Valley taking on some of the most difficult issues in America, and in the world. If only a few of these innovators begin to see equality as a right and not an employment benefit, Silicon Valley could make huge waves in America and around the world.

    About Michael Prywes

    Michael Prywes is an attorney admitted in New York State. He is also a former media professional with a background in film, video, art, music, Internet, and law. Michael has served as an advisor to a number of production companies and film festivals, as well as having been involved in the drafting of agreements and negotiations with many companies guiding the future of media and technology convergence.

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