Employment attorneys differ on the legacy of Ellen Pao case

The outcome of the Ellen Pao lawsuit against venerable Silicon Valley venture capital firm Kleiner Perkins Caufield & Byers will have repercussions far beyond the plaintiff and the defendant. The question is, what will those repercussions be?

The stunning verdict Friday, which found that Kleiner in no way discriminated or retaliated against Pao, will almost certainly cast a shadow over future employment cases filed against Valley companies.

Not surprisingly, the courtroom in San Francisco where the case was tried was filled with employment attorneys curious about the outcome and implications.

Felicia Medina, managing partner of the San Francisco office of Sanford Heisler Kimpel, was one of them. Medina said the Pao trial has put the Valley on notice. She had this to say after the verdict yesterday:

Despite the jury’s decision today, Ellen Pao’s case is a win for any woman facing gender discrimination and harassment in the workplace, in Silicon Valley and beyond. The curtain has been pulled back, providing a rare glimpse into the lack of equal employment opportunities for women in Silicon Valley.

Very few gender discrimination cases actually make it to trial, and other women who have experienced discrimination will hopefully be influenced to come forward, thanks to Ms. Pao’s courageous step.

This point is repeated by Institute for Women’s Leadership CEO Rayona Sharpnack, who said she’s worked with 10 female executives in circumstances similar to Pao’s over the past 3 years, and all of them eventually decided to walk away from filing a lawsuit.

“For every one courageous female leader who is willing to fight for retribution in the courts, there are a thousand more who walk away in silence,” Sharpnack said in an email response to VentureBeat. “In the year 2015, it seems insane that we as a nation are still struggling with the inability to surface and remove both conscious and unconscious forms of discrimination like the ones Ellen Pao revealed at Kleiner Perkins.”

Others fear that the verdict will simply legitimize the discriminatory practices of Valley companies. Debra Katz, founding partner of D.C.-based, civil rights and whistleblower law firm Katz, Marshall & Banks, LLP called the verdict “stunning.”

“The sexist conduct that came to light in this case was disgraceful but apparently business as usual in Silicon Valley,” Katz said. “Men will continue to discriminate with impunity after this verdict.”

“A defense verdict in a high-profile case like this will have a chilling effect on other high-level female executives who have been grossly underrepresented in boardrooms and held back in their careers by glass ceilings and worse,” Katz said.

Pao claimed she was punished and eventually fired in 2012 from her job as junior partner at her former firm, one of Silicon Valley’s most famous venture capital firms, for questioning the firm’s treatment of women. Her lawyers argued the firm judged male and female employees differently in an illegal double standard.

The Kleiner Perkins attorneys, on the other hand, had claimed that Pao complained about discrimination only after she could see that she would be dismissed from the firm for other reasons.

Employment attorney Julius Turman of San Francisco’s Reed Smith pointed out before the verdict yesterday that that is a behavior seen over and over in discrimination cases.

“Time and time again in employment law we see people who are not performing who exaggerate their claims or complain only when a decision is coming to a head,” Turman told VentureBeat.

“As a defense attorney I have to wonder that if things were that bad, why didn’t she complain earlier?” Turman said.

Still, the attorneys VentureBeat spoke with before the verdict Friday were hesitant to say which side had the upper hand. Sanford Heisler Kimpel’s Medina said she felt that both legal teams did what they needed to do during the trial.

When I talked to Medina before the verdict Friday, however, she said she felt that the Kleiner side was vulnerable. “Yes, I think that if you just sat in on the trial for a couple of days you would have heard lots of bad facts about Kleiner,” Medina said.

“But remember that they have the easier job here because the burden of proof is on the Pao side,” Medina said, “so they can make a lot of noise and depict her as difficult to work with, or as territorial, or as out of her league.”

Medina said the Pao side needed to present “a preponderance of evidence, that is, a 51 percent likelihood that she was denied promotion because of her gender.”

That hill proved too tall to climb, especially as Kleiner’s lead attorney Lynne Hermle did an effective job of calling into question the real motivations behind Pao’s complaint.

In the end the plaintiff could not convince the jury that Pao was denied promotion because of complaining about gender discrimination, nor that she was fired because of her gender, nor that she was fired because she complained of discrimination, nor that Kleiner failed to provide a means of redress for Pao, nor that Kleiner retaliated.

The outcome of the case isn’t likely to sully Pao’s reputation much. Her comments after the verdict Friday (the “battle was worth it” if she helped women and minorities) were well received, and now she returns to her job as CEO of Reddit.