What are the chances that a 62-year-old white guy who works in a 20th-century skilled-trade occupation, with limited knowledge of the tech industry or venture-capital firms, would view Ellen Pao as anything other than entitled and overreaching for seeking equal footing with her male bosses?
Now that Pao's gender-discrimination lawsuit against Silicon Valley venture capital firm Kleiner, Perkins is over, and the frenzy of hot takes and quickie analyses has fizzled, let's look at a few key questions that went unasked by the throngs of reporters and producers who covered the five-week-long trial in San Francisco Superior Court.
For one thing, the case was not decided by a jury of Pao's peers.
Pao, a 45-year-old Chinese-American attorney and business executive who in 2012 sued her former employer, the Silicon Valley venture capital firm Kleiner, Perkins, Caufield & Byers for $16 million in lost wages and potentially as much as $144 million in punitive damages, is elaborately educated. You might even say that Pao — with an undergraduate degree in electrical engineering from Princeton, as well as J.D. and MBA degrees from Harvard — is hypereducated. While we don't yet know the exact background of every individual who sat on the jury (six men and six women), it's a safe bet that few, if any of them, have higher-education profiles that come close to Pao's. The elite status of Pao's education background mattered, since Kleiner's attorney, Lynne Hermle, argued the firm's personnel makeup of well-educated and high-powered financiers, lawyers, and technology experts produced a workplace culture characterized by ultracompetitiveness.
Pao's four-part claim that her career stalled at the 30-year-old firm, where the majority partners are men, because she was unfairly pigeonholed in ways that men were not, was nigh-impossible to prove in concrete terms. As Hermle outlined it, the definition of "success" at Kleiner, Perkins depended foremost on the sharpness of one's brain, astute interpersonal skills, and technical expertise. It followed then that if Ellen Pao, with a boatload of fancy degrees from fancy private universities, failed to advance at the firm, the fault was entirely Ellen Pao's, not any structural or leadership deficiency of the firm itself. On paper, this makes perfect sense.
Yet as anyone who has worked in a competitive white-collar sector during the past decade can attest, there are myriad cultural factors and subconscious elements that can come into play: Leadership and co-worker perceptions that fall under the soft skills definition of workplace performance metrics often make or break an employee's upward trajectory, even if those metrics can be gossamer. The elusive "perception versus reality" aspect, the squishy, subjective benchmarks of how one is judged within a workplace, can be hard to document and prove in evidentiary terms.
This isn't to suggest the jury members who sat through many grueling hours of testimony are dumb. It is to say that even in the moneyed playground that San Francisco has become, it would be a stretch to assume jurors can empathize with someone who holds three postsecondary degrees from two of the nation's most prestigious private universities. The "jury of peers" requirement is designed to produce a representative sampling of the community in which the trial is prosecuted. By this measure, the location of the trial — San Francisco, a city where the median household income is $65,519, far below Pao's starting salary of $220,000, and even farther below the billions in revenue under the firm's control — was fated to fall short in producing a jury pool of individuals who might empathize with Pao's claims that her career advancement stalled due to her gender. Further, according to reports, only one juror, an alternate, actually worked in the tech industry.
The "jury of peers" requirement generally seeks to prevent the exclusion of jurors based on national origin, ethnicity, or gender. And that was especially important in Pao vs. Kleiner, Perkins. But it was inadequate at ensuring the jurors would fully grasp the nuanced issues of class, gender, and race that lay beneath the surface.
Which brings us back to Steve Sammut, the 62-year-old machinist who was among the nine jurors who said they didn't believe Pao's claims that she'd experienced gender discrimination. Sammut, who is white, said during a post-verdict press conference last week, "All 12 of us felt that [Pao] was very driven ... We felt that she was someone who probably wouldn't take no for an answer and was pushing for her agenda."
Consider Sammuts' lack of awareness of the irony of his sentiment — that under U.S. employment laws it is not a fireable offense for a woman to be driven or to push for a specific agenda. Stereotypes about pushy professional women in general, and about Asian women in particular as alternately submissive or unreasonably strict and disciplinarian, were used subtly yet effectively by Kleiner, Perkins' lawyers. They correctly bet that the "average Americans" who constituted the jury would fall for the image they presented of Pao — that of a calculating, underhanded, cold, greedy, entitled upstart. Implicit in that depiction, though not explicitly stated by Hermle and her fellow defense attorneys, is the idea that Pao is a modern-day Dragon Lady.
Second, the ethnic composition of the jury, while apparently satisfying the "jury of peers" requirement, as well as the criteria of presiding judge Harold Kahn, doomed Pao's chance of winning. While the gender makeup was evenly split, the majority of the jurors were white. Also, the fact that none of the active jurors worked in the technology or venture-capital sectors created an occupational knowledge-gap that hurt Pao's chances.
These twinned points — the jurors' overall ethnicity and occupations — drove the outcome of this case. And for all the attempts by Pao's attorneys to prove that Kleiner, Perkins' male partners and general culture had blocked Pao's path to a top role, the more important variables were the jurors' lack of knowledge about the exclusive intricacies of the venture-capital world, the arcane rules about how to measure success in that setting, and the "exotic" figure presented by Pao. In other words, if you're a machinist like Sammut, your subconscious biases and beliefs around class and income levels, and race, inevitably informed your decision. This hard-to-pin down reality also drives the race and gender gap that exists across the technology sector and its funding engine, venture capital firms.
The best evidence of that dynamic was revealed after the verdicts were read. During the same posttrial press conference at which Sammut spoke, another juror, a black woman named Mashalette Ramsey, also talked with reporters. She had voted in favor of Pao on all claims, and spoke at length about how difficult the case was. According to the Los Angeles Times, Ramsey said, "I looked at how the men [at Kleiner, Perkins] performed, and I wasn't seeing differences huge enough to see it justify leaving Ellen Pao behind.
"I also felt Ellen had been pigeonholed into a chief-of-staff role, and I believe that was to keep her in that position," Ramsey added. The 41-year-old juror ended her comments to the reporters by saying, "I'm going home emotional."
Pao lost the case, but she successfully illuminated the fraught presence of class, race, and gender biases in America's corporate workplaces — and the legal framework that can fail spectacularly at excavating beliefs, perceptions, emotions that can negatively impact employees' experiences.
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