Ellen Pao may have failed in court, but she’s started an important conversation

The Ellen Pao versus Kleiner Perkins case in Silicon Valley has been wonderfully interesting to follow. If you haven’t been following it, the San Francisco case saw Reddit’s interim CEO, claiming gender discrimination by former employer and venture capital firm Kleiner Perkins Caulfield & Byers. In late March, a jury found in Kleiner Perkins favour, that discrimination hadn’t taken place.

Now that the dust has settled, there remains the unresolved issue of whether Pao will take up the Kleiner Perkins’ offer to allow her to walk away without costs if she foregoes an appeal. It is a good offer for her considering the legal costs she would have pay as the losing party in a court case would be considerable.

One of the most interesting effects of the Pao case is that many people used it as an opportunity to discuss gender discrimination in the tech sector. For a while now, people have been pointing to numbers that show declining enrollment of women in technology. Some want to say it is because women are not encouraged to do science and math. I think that is wrong, largely because the number of women entering into medicine and finance are proportionately much higher. In reality, women specifically avoid entering into technology industry because of the reputation of the industry as being hostile and not encouraging to women.

I myself used to work in tech for many years, in Silicon Valley. I could see the difference between how I was regarded and treated compared to my male peers with respect to promotions. Unfortunately, it is hard to take the subjective experience of discrimination and to prove that it exists in a court of law as the Ellen Pao case demonstrated. Courts do not deal with nuances and generalities – the evidence has to be clear. In order for a finding of discrimination to be made, there has to be some direct evidence that demonstrates someone was explicitly discriminated against on the basis of their gender. Often times it does not work this way.

With Pao’s case, there were no clear statements made by people at Kleiner Perkins indicating a reticence to promote Pao because she is a women and/or because she is Chinese. Rather, the language used was subtly discriminatory, such as “I don’t think she’s a good fit” or “I don’t think she works hard enough.” Today discrimination doesn’t work in overt and explicit ways. Those who discriminate have learned that they cannot be overtly discriminatory and must couch their discrimination in more subtle terms. It may be that we don’t even realize we have biases until they are demonstrated to us.

Generally, this was a hard case to for Pao to win. Sexual harassment and rape cases have often been hard cases to win, where a woman’s testimony is pitted against the testimony of a man. Gender discrimination in the legal system, even in clear, egregious cases, makes such cases harder to win. We can look at this sort of chilling effect in Canada with the Jian Ghomeshi case, where very smart women refused to press charges or come forward because they did not feel like they would get justice through our court system.

There is gender discrimination in tech industry. That discrimination is going to have an impact on the types of technologies and solutions that are developed. Indeed, we are already seeing this impact. There is also a shortage of talented people and yet women, who represent half the population are opting for other career choices, even in light of the great opportunity in the industry.

The question is then, how do we move this issue forward? Tracy Chou was recently featured in Wired magazine. She is a software engineer at Pinterest who has been trying to quantify the diversity issue. At a time where everyone is looking to track to data and numbers, she looked around and realized that no one is tracking data on this issue. She invited companies to report the number of female engineers they employ, and to date 200 companies have reported. This initiative has in turn put pressure on larger tech companies like Google, Facebook, and Microsoft, to report their numbers. As Wired says – “the numbers are bad..”

How bad is it? The New York Times says that “83% of Google’s employees are men.”

So now you are one of these companies faced with this issue, what do you do? Google for one seems to be taking active steps to change things. They are sponsoring programs to increase representation within the industry, and internally they have implemented a diversity training program to uncover hidden biases at work. The New York Times suggests that there is no evidence that this initiative is working. This being said, something is better than nothing in my opinion – especially when “nothing” has been status quo for far too long. Without experimentation and concerted efforts by management, we will not move forward.

Without Pao and Tracy Chou we still would not be talking about these issues. We need court challenges (even failed ones) and activism on the ground to move this issue into the mainstream and start making real progress towards a solution.

Monica Goyal
Monica Goyal
Monica Goyal, Entrepreneur, Lawyer and Innovator is the founder of Aluvion, a legal solutions company offering technology, paralegal and lawyer-driven solutions with a special focus on the quality, cost, and accessibility of legal services for both businesses and individuals. Monica began her career working as an engineer in R&D for companies like Toshiba, Nortel and Nokia while earning her Masters of Engineering at Stanford. Monica's history conditioned her to solve problems in a efficient and tech-savvy manner, an approach she brings with her to legal solutions. Monica currently sits on the Canadian Bar Association's Futures Initiative, and will be teaching a course on Legal Technology at York University’s Osgoode Hall. She was recently named one of 10 Women to Watch in Tech in the Journal of the American Bar Association.

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