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How Ellen Pao’s trial could affect these other sexism cases

April 2, 2015, 4:00 PM UTC

On Friday, Silicon Valley’s high-profile gender discrimination trial against venture capital firm Kleiner Perkins ended in a sweeping loss for former employee Ellen Pao.

But while Pao’s historic case might be over, it’s far from the end of gender discrimination claims against major tech companies. During Pao’s trial, two female tech workers filed separate lawsuits against Facebook and Twitter.

Chia Hong, a former product manager and technology specialist who filed a lawsuit against Facebook two weeks ago, alleges that her manager harassed and discriminated against her because of her gender and Taiwanese nationality, and that she was replaced by a less qualified man after being fired for complaining about the mistreatment. Hong has hired employment law firm Lawless & Lawless, which helped to represent Pao in her case against Kleiner.

Three days later, Tina Huang, a former Twitter engineer, filed a proposed class action lawsuit against the social media company that accused it of arbitrarily promoting employees without clear guidelines, which disproportionately benefited male employees. She also claims she was put on leave and eventually fired for complaining to management about the issues, although Twitter says she quit voluntarily.

The narratives in Hong and Huang’s lawsuits are eerily similar to Pao’s, but will their cases turn out the same way?

“My sense is that it might dissuade the plaintiffs” from taking their own lawsuits to court, said Chandra Russell, an employment attorney at Farella Braun & Martel who frequently represents employers in discrimination cases.

Taking a discrimination case to trial is a very long, exhausting, and expensive process. Few people would want to endure it – even if they think they have a strong case. For employers, going to trial is also a huge risk. Although Kleiner prevailed in the Pao case, the trial exposed petty drama between the firm’s partners and arguably inappropriate behavior by senior male partners to more junior women.

Pao’s case, and more importantly her loss, are a lesson in just how high the legal bar is for plaintiffs to win a discrimination case. While the weeks of testimony and countless documents shown in the trial portrayed Kleiner’s internal culture as sometimes unpleasant, the jury didn’t find that it amounted to discrimination.

“It’s a cultural statement, right? It says a lot about the culture at this firm,” Russell said. “Culture and cultural problems don’t necessarily get you to a liability verdict.”

Hong’s complaints about her tenure at Facebook also hinge on incidents related to internal culture, like being belittled or ignored during team meetings, and being ordered to handle party preparations and serve drinks. To convince a jury, she would have to not only prove these incidents took place – Pao failed to in several instances – but also show that her gender was a significant factor in her poor treatment.

In other words, having a jerk for a boss doesn’t equate to discrimination or harassment unless that boss is specifically targeting women because of their gender.

In the case of Huang, the former Twitter engineer, her employer’s lack of clear policies could be both helpful and a challenge. Last summer, Twitter released a diversity report that showed men hold 90% of technical jobs and 79% of leadership positions at the company. So while Huang may be able to blame an opaque and arbitrary promotion process filled with veiled discrimination, she’ll probably lack clear proof that she had deserved a promotion. After all, if there were no clear guidelines, how can she say that she had met the requirements?

Pao, in her trial, faced a similar challenge as she compared herself to her male peers and looked for how she could rise in the ranks. But all senior partners gave her was vague advice to become a “thought leader” — a Silicon Valley buzzword for expert — and improving her relationships with other partners by “building trust.”

To avoid discrimination cases and establish some protection, Russell says she advises her clients to create guidelines and policies as early as possible. They’re the best defense.

But regardless of how strong the two new Silicon Valley discrimination cases may be, neither is likely to end up in trial, according to Russell.

“Trial is the last resort,” Russell said. “For the most part employers are willing to settle for a nuisance amount if that means avoiding incurring the [legal] fees” and public battle.