Silicon Valley Gender Bias Trial Brings Spotlight to Gender Discrimination

By Eric B. Meyer

I intended to begin the week with a post about a company’s legal obligation to predict — yes, predict — an employee’s mental fitness for duty.

Then, I started on a brief tangent on Ellen Pao, the former partner of a Silicon Valley venture capital firm, who just lost a highly-publicized gender discrimination claim against said former employer.

And a few hundred words later, that brief tangent became its own blog post — this one. (If you want a wild lawsuit brought by an airline captain who claimed that his former employer was negligent by failing to predict that he’d have a manic in-flight episode, come back tomorrow).

Today’s news is Ellen Pao, but will it be tomorrow’s?

The Ellen Pao trial concluded late Friday afternoon with a jury finding that there was neither gender discrimination nor retaliation against her.

Following the verdict, counsel for the defendant noted that it “never occurred to me for a second that a careful and attentive jury like this would find either discrimination or retaliation.” However, the verdict in the company’s favor was not unanimous — it didn’t need to be. Still, that means a few fact finders concluded that Ms. Pao had been a discrimination/retaliation victim. Thus, defense counsel’s braggadocios statement contains some hyperbole.

However, viewing the Pao case in isolation, is this really a wake-up call for businesses?

Even in defeat, Twitter lit up with #ThankYouEllenPao to help raise awareness of gender discrimination in the workplace. Indeed, if a jury had found in Ms. Pao’s favor, the ensuing glut of 16 Million Reasons to Take Gender Discrimination More Seriously articles would  scratch the Internet.

And for good reason. If I ran a company, I’d take notice when a female partner prevails for big $$$ in media-spotlighted litigation. (Ms. Pao sought $16 million in compensatory damages, plus punitive damages).

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Still, notwithstanding the defense verdict, just as the sun rises in east and sets in the west, many commentators will grab the low-hanging fruit this week and call for employers, generally, to re-evaluate how men are women are treated in the workplace.

But, in a week or so, as news cycles adjust, few will be talking about Ms. Pao anymore.

So, why should employers take notice?

Because Ms. Pao’s case isn’t the only one threatening to undermine what many consider a chauvinistic environment in tech circles. Lauren Williams, writing at Think Progress, underscores this point:

That status quo is slowly crumbling, in no small part because of Pao’s lawsuit. Tech companies have been more open about their diversity problems and are making efforts to make workplaces more inclusive. And a slew of discrimination and harassment lawsuits have since been filed against Silicon Valley companies in the wake of Pao’s own.

Former Facebooker Chia Hong filed a lawsuit against the social network company last week for racial and sexual discrimination. According to the complaint, Hong endured sexist comments asking why she didn’t stay home with her children, she was ordered to serve male colleagues and organize parties, and said she was ostracized for looking and speaking differently. After bringing up the treatment to her superiors, Hong said she was fired and replaced by a man with less experience.

A Twitter software developer filed a similar suit seeking class-action status for the company’s promotion practices. (Twitter only hired its first female executive in 2013.)”

If a jury sides with the plaintiff in one of these other high-profile lawsuits, people will take notice. So, while Ellen Pao may not have been a wake-up call for employers, it’s not a full nine-minute snooze either.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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