For the past month, the most interesting show in San Francisco has been the trial of Ellen Pao’s sexual harassment and sex discrimination case against investment firm Kleiner Perkins. Pao, who engaged in a sexual relationship with a Kleiner Perkins partner early in her career, claims that the firm is a boys club in which women are excluded from investment meetings and trips because, among other things, they kill the buzz. She cites Colorado trips and meetings with big-shot partners like Al Gore as being male-only events and points to gifts like a book of erotically illustrated Leonard Cohen poems given to her by another partner. 
Kleiner Perkins says it wasn’t gender discrimination but, rather, Pao’s own personal failings that caused her lack of promotion to senior partner status and her ultimate termination. It argues that Pao’s romantic escapade was consensual and driven by her and that she did not have the leadership and communication skills needed to succeed in the business—perhaps a winning argument, but carrying the potential danger of the jury deciding that her failed leadership also was the result of a workplace poisoned against women.
The trial proceeded in typical fashion, with Pao’s lawyers leading off with hostile examinations of the company’s decision makers, laying the groundwork for Pao’s testimony. Pao then spent a full week on the stand as the defense lawyers tried to goad her into displaying the sharp-edged confrontational nature that is at the core of the company’s theory of the case. Pao requested almost $15 million in actual damages and asked for much more in punitive damages to prevent recurrence of the sexist conduct that was the heart of her case.
Before the curtain went down, the jury heard from Pao’s supporters, men and women who support Kleiner Perkins, and dueling experts regarding the company’s personnel practices and Pao’s alleged damages. Just like these cases have gone for the past 40 years, the jury then had to decide whether the adverse actions were due to performance or discrimination.
What kind of win was this?
After Kleiner Perkins had its reputation dragged through the mud for a month, on March 27, the jury found that the firm didn’t harass Pao, discriminatorily fail to promote her, or fire her in retaliation for filing her lawsuit, which was a win for the employer on all counts—unless you count the bad publicity, massive attorneys’ fees, and huge business disruption. This isn’t a win that anyone would long for. The real win is not getting sued.
If you think your risks of a sexual harassment claim are much different from Kleiner Perkins’, think again. Every day, I see discrimination and harassment claims filed against banks, retailers, restaurants, manufacturers, and law firms big and small. You’d think that after 50 years of legal prohibition of discrimination and harassment, these claims would go away, but they haven’t. You’d think people would know better than to make sexist remarks, give erotic gifts, or engage in office affairs, but they don’t. And they keep making the same mistakes as were featured in Pao’s suit:
- Office romances aren’t just between the two people involved, even if they are supposedly consensual. They often come back to haunt you, generally years later.
- Everything counts—every risqué gift, every joking comment, every poorly phrased evaluation. Each piece is part of a multiyear mosaic on which your fate will be based.
- Make your documented concerns specific—loose criticisms like “hard to work with” or “doesn’t have what it takes” are often weak pillars on which to base a discrimination defense. Employee concerns should be documented with specific, tangible examples.
Court watchers have been saying that this case will set a precedent, but it doesn’t. Every trial is decided on its own facts. Despite this verdict, the numbers show that sex discrimination is rampant in Silicon Valley, and more harassment trials are surely on their way. But this verdict might finally erase the 
reputation of San Francisco juries as generous slot machines, ready to pay any player. Over the past decade, San Francisco residents have seen the influx of new tech employees put a decidedly business caste over the old hippie milieu. This verdict could be a sign of that shift as much as anything else.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. He may be contacted at schickman@freelandlaw.com.
counts—unless you count the bad publicity, massive attorneys’ fees, and huge business disruption. This isn’t a win that anyone would long for. The real win is not getting sued.
If you think your risks of a sexual harassment claim are much different from Kleiner Perkins’, think again. Every day, I see discrimination and harassment claims filed against banks, retailers, restaurants, manufacturers, and law firms big and small. You’d think that after 50 years of legal prohibition of discrimination and harassment, these claims would go away, but they haven’t. You’d think people would know better than to make sexist remarks, give erotic gifts, or engage in office affairs, but they don’t. And they keep making the same mistakes as were featured in Pao’s suit:
• Office romances aren’t just between the two people involved, even if they are supposedly consensual. They often come back to haunt you, generally years later.
• Everything counts—every risqué gift, every joking comment, every poorly phrased evaluation. Each piece is part of a multiyear mosaic on which your fate will be based.
• Make your documented concerns specific—loose criticisms like “hard to work with” or “doesn’t have what it takes” are often weak pillars on which to base a discrimination defense. Employee concerns should be documented with specific, tangible examples.
Court watchers have been saying that this case will set a precedent, but it doesn’t. Every trial is decided on its own facts. Despite this verdict, the numbers show that sex discrimination is rampant in Silicon Valley, and more harassment trials are surely on their way. But this verdict might finally erase the reputation of San Francisco juries as generous slot machines, ready to pay any player. Over the past decade, San Francisco residents have seen the influx of new tech employees put a decidedly business caste over the old hippie milieu. This verdict could be a sign of that shift as much as anything else.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at 415-541-0200 or schickman@freelandlaw.com. D