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Why Ellen Pao’s case against Kleiner Perkins is no slam dunk

March 3, 2015, 4:21 PM UTC
Ellen Pao walks to a courtroom in San Francisco Superior Court in San Francisco
Ellen Pao walks to a courtroom in San Francisco Superior Court in San Francisco, California February 26, 2015.
Robert Galbraith — Reuters

To read about and even to witness the trial underway in a San Francisco courthouse, you’d think Kleiner Perkins soon will be writing a very large check to its former employee, Ellen Pao. The former investor and chief of staff to the legendary John Doerr is now interim CEO of the content site Reddit. (Unsurprisingly, a messy, vibrant, all-over-the-place debate rages on Reddit regarding the trial.) She is suing Kleiner Perkins, which fired her in 2012, for gender discrimination and is asking for $16 million in damages, the result of the economic impact she says her termination caused her.

(Doerr is scheduled to take the stand this morning at 9 a.m., Pacific time.)

Things seem to be going badly for Kleiner—at least from the choicest details that bubbled up from the trial. A Pao peer once organized a ski trip that excluded women. Another peer, with whom Pao previously had an affair, lewdly propositioned a third peer. And win or lose, a portrait is emerging of Kleiner Perkins as a place where no one much liked each other. Asked at one point why the backbiting appears to have abated, Ted Schlein, a top Kleiner partner, said he supposed “there was peace in the partnership,” implying the harmony was unusual.

The problem with relying on reports from court, entertaining though they may be, is that by nature they tend to sidestep what might be the most important elements to keep in mind. To wit, in order to win, Pao must prove gender discrimination. In other words, as the plaintiff who is suing her former employer, Pao must prove that her gender was a “substantial motivating factor” in her termination, says Melinda Riechert, a Palo Alto labor lawyer with the well-known litigation firm Morgan Lewis.

To be clear, Pao hasn’t alleged sexual harassment. Some of the behavior described in court amounts to allegations of sexual harassment against various Kleiner partners for words and deeds directed at Pao and a female colleague. But that’s not what Pao is suing over. It also is not sufficient for her to convince a jury she was discriminated against. She must convince them she was discriminated against because she is a woman and that the discrimination harmed her economically. Riechert, who isn’t involved in the case and is relying on her knowledge of it from press reports as well as having attended opening statements in the trial, finds it interesting that the judge has allowed testimony of behavior that didn’t involve Pao. “This case seems to be about other people,” she says.

Now, Riechert defends companies accused of gender discrimination for a living. So consider her observations with that in mind. But she has identified what she calls “bad facts” from Pao’s perspective. John Doerr, for example, has been shown to have repeatedly advocated on Pao’s behalf, a fact that mitigates discrimination against her. Women had been in senior positions at Kleiner, even if Pao hadn’t been. Few Kleiner partners were invited to an all-male dinner hosted at Al Gore’s apartment, suggested that it can’t be proven Pao was singled out for exclusion.

The verdict in the case will come down to whether a jury agrees that a “preponderance of evidence” suggests Pao was discriminated against for being a woman. Kleiner Perkins can’t possibly emerge from the trial with a pristine reputation. But that doesn’t mean it is necessarily going to lose. It doesn’t mean Kleiner will win either. But it’s helpful to remember that trials ultimately conclude according to the facts as the jury understands them, not the most interesting bits the rest of us gab about.