What the Kleiner Perkins lawsuit decision says about gender discrimination in Silicon Valley

Ellen Pao lost her case against her former employer, but that doesn't mean women don't face real obstacles in the tech world.

Last Friday, the jury handed down a clear verdict absolving VC firm Kleiner Perkins in the historic gender discrimination case brought by former junior partner Ellen Pao.

I can't say I'm surprised by the outcome of the case. Ms. Pao was far from the "perfect victim" here, with apparent inconsistencies in her own testimony and actions that could have served to cast doubt on her claims. More to the point, in any real-world case like this, it can be extraordinarily difficult to prove that any single factor was the "substantial motivating reason" for a particular outcome amid a web of complex personal and business relationships. In closing arguments, Kleiner Perkins' lawyer put it this way: "Neither her gender nor any complaints was the driver in any of the events at issue here."

Critically, however, the jury agreeing that gender discrimination was not the "driver" of Pao's fate at the company doesn't mean that it wasn't a contributing factor.

The climate change analogy

To me, it's kind of like climate change. In most cases, it's extremely difficult to tie any particular storm or drought—from Hurricane Sandy to Typhoon Pam to the epic California drought to all of the various snowpocalypses—to the warming climate. Yet the scientific consensus and the statistical evidence seem to make it clear that climate change is playing a role in making these kinds of events more common and more severe.

Similarly, even if you allow that gender discrimination may not be the driving force in most individual decisions and results for women in technology, it seems equally clear that this kind of discrimination is real, widespread if not always virulent. It also seems hard to deny that sex discrimination at least subtly increases the likelihood of bad outcomes for women. 

Personally, I would argue that gender discrimination—like racism and ageism—plays a pivotal role more often than we like to think. But even when it doesn't, these kinds of attitudes and practices are still distorting the playing field in ways that have real effects but can be incredibly tricky to isolate.

Innocent and guilty

None of that means that the jury should have found Kleiner Perkins guilty of gender discrimination or retaliation. My point is that it's awfully hard to prove agency and causation in a case like this—there are always problems with individual cases, making it problematic to pin a ubiquitous structural and environmental situation on a single bad actor. Ironically, discrimination turns out to be a statistical issue as much as a personal one. Connecting those statistics to individuals is always difficult, but that doesn't mean there is no effect.

Still, from my reading of the case, it seems blindingly obvious that there are gender "issues" at Kleiner Perkins—though probably no worse than at most other VC firms (heck, probably no worse than at other tech companies, or other companies of all types).

So to return to the climate change analogy, you have to do what you can to deal with the effects of individual weather events.  But that's not enough. Although responding to climate change won't eliminate every unfortunate weather event, it still offers the best way to reduce the severity and impact of storms and droughts and snowmageddons.

Perhaps that's also true for gender discrimination. Given the outcome of this case, perhaps a better approach might be to address discrimination systematically rather than put so much focus on complex and messy individual cases.


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