This week, the high-profile trial of Ellen Pao v. Kleiner Perkins Caufield & Byers (KPCB) took place in San Francisco Superior Court. KPCB is a well-known venture capital firm in Silicon Valley. Pao is the interim CEO of Reddit and former junior partner at KPCB.
In 2012, Pao filed the lawsuit against KPCB. Pao alleged KPCB discriminated against her based on her gender because (1) she was passed for promotions, (2) male junior partners could earn more carried interest in KPCB funds than women, (3) the firm did not address her complaints of harassment by male managers, and (4) the firm fired her in retaliation for her harassment complaints. She was seeking $16 million dollars in compensatory damages for lost wages and potential future earnings.
Regardless of the verdict, this trial will invigorate the debate about what constitutes gender discrimination. The parameters of gender discrimination must expand to include the less overt forms of traditional gender biases.
Discrimination based on sex is prohibited by the Title VII of the Civil Rights Act of 1964. Title VII does not define the meaning of “discrimination.” Instead the Equal Employment Opportunity Commission and the courts have to define it. Over the years, the definition of discrimination has evolved over time to conform to social norms.
In the 60s, refusing to hire or promote married women or women with children while treating similarly situated men differently was considered illegal sex discrimination. The Supreme Court relied on this standard in Phillips v. Martin Marietta Corp, 400 U.S. 542 (1971). In Phillips, the Court reversed a summary judgment because it found that the two different hiring policies for men and women who have pre-school-age children were evidence of gender discrimination. Further, in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Supreme Court found that it was gender discrimination to delay a promotion for a woman because she was foul-mouthed, aggressive, and did not conform to feminine stereotypes of wearing make-up, dressing up, or being “charming.”
Today, gender discrimination in the workplace is less overt. For example, the Sony email leaks revealed that Charlize Theron, an A-list actress, was paid $10 million less than Chris Hemsworth, her male co-star, for The Huntsmen. The email leaks prompted her to negotiate for equivalent pay. Unequal pay among similarly situated men and women is subtle gender discrimination because of the secrecy surrounding salary and wage.
Although more women are working in finance and technology, it is undisputable that men still dominate venture capital firms in Silicon Valley. KPCB has about 20% of women in senior investing positions, which is actually better than the 4% average in other venture capital firms. While some women have broken into this male-dominated industry, it does not seem uncommon for them to experience subtler forms of discrimination because of double standards induced by gender biases. For instance, in Pao’s case, both Pao and a male junior partner at KPCB were characterized as aggressive, territorial and harsh in their performance reviews. However, these traits were seen more positively in the male junior partner than in Pao. Pao may actually be a difficult person. Regardless, a bigger issue is that women have to strike a “just right” balance of masculinity and femininity in order to succeed in a male dominated field. Acting too masculine may decrease likeability and acting too much feminine may lead to perceptions of incompetence.
Victoria Brescoll, a Yale researcher, found a significant relationship between power and volubility (amount of times people speak). Verbal participation gives the impression that the person speaking holds power. The study found that when men talk, men and women see them as powerful. When women talk, as compared to men who talked for the same amount of time, men and women see the female speaker as incompetent and unsuited for leading. The study illustrates how gender biases subtlety affect people’s judgments of men and women. How can women best demonstrate their suitability to lead or strike the perfect balance between masculinity and femininity in order to acquire leadership positions?
The comparison with a male junior partner was only one example of the indignities Pao alleged in her complaint. According to Stanford law professor Deborah Rhode, small indignities standing alone seem trivial, but cumulative small indignities seen together may indicate a culture of gender bias that would limit professional opportunities for women.
 Pao v. KPCB Complaint
 This past week, former female employees also sued Twitter and Facebook for gender discrimination and retaliation. Gender discrimination is widespread to high and low paying jobs in other industries. For example, in Walmart v. Dukes, 131 S. Ct. 2541 (2011), female store employees sued Walmart in a class-action suit for gender discrimination because male employees were constantly promoted over female employees despite the women’s positive performance reviews. However, the Court reversed the class certification. Without class certification, each woman has to pursue individual claims.