We all recall the McDonald's hot coffee case: a woman sued after suffering burns when Mc Donald's coffee spilled in her lap. She was ridiculed because coffee is supposed to be hot and, no surprise, it burned her. The case was used for years as an example of a frivolous lawsuit.The truth, well exposed in a HBO doc called "Hot Coffee", exposes the facts of the case: the coffee at 180 degrees could burn flesh within 12 seconds; McD's had 700 known claims before hers, she was not "negligently" driving when the spill occurred; and the burns were severe, resulting 8 days of hospitalization and years of treatment including skin grafts. McD's lost because in the normal course of handling cups of coffee people frequently spill it and such spill should not destroy flesh. It was not the trivial claim that news media outlets and corporate interests made it out to be.
Now think of the Pao vs Kleiner Perkins case in which Ellen Pao claimed she wasn't promoted because of gender discrimination. Many considered her claim to be ridiculous because, after all, wouldn't that mean that every woman who doesn't get promoted has a claim? And what claim do men have when they don't get promoted? Isn't Pao's case a mundane one of the Disappointed (and perhaps entitled) Employee?
No. First, Pao was not just any worker bee. After preparing herself with a Princeton Electrical Engineering degree she went on to Harvard Law School, followed by a stint at a top New York law firm (not easy to do even from Harvard), then back to Harvard Business School before taking the plunge into the unchartered world of tech before many of us knew it even existed. Her resume includes companies and forerunners of companies you know today - like WebTv, Tivo, TellMe, etc. She identified Twitter when it was still in its garage /start-up phase with 20 employees and identified Marissa Meyer as a future superstar. As Pao's star rose, she was among a handful of women offered a job at Google, but instead took a Chief of Staff/junior partner position at the venture capital firm Kleiner Perkins working directly with one of its super, super stars, John Doerr. There, despite her introverted personality, her investments outstripped or compared favorably to those of her male colleagues, she gained board seats and brought business to the firm. And she made a lot of money.
But she was also asked to babysit, set up meeting rooms, take notes, and respond to senior men knocking at her door at night on business trips. She was disinvited to meetings, left off emails, socially ostracized, repeatedly called the name of the previous Asian person in her position, had her clients poached by colleagues, and was retaliated against when she made a claim of sexual harassment by a Kleiner colleague. And as for pulling up that chair to "lean into" the table? Once she took one of 4 power seats in the room. 2 of the 3 men in the other seats held a long, loud, expansive and specific conversation about a sex act competition reality TV show and which nationality of women they liked to have sex with the most.
Some of her experiences may be the norm in the rough and tumble VC world. And it is true that advancing to senior partner is hard for everyone. But her male colleagues - including the junior ones - were not asked to babysit and were, even by outside accounts, given more respect for their performance records.
Though Pao was a top earner in her class, Kleiner felt that she didn't have the skills to "own the room". This judgement about what someone is not is one of the most insidious killers of diverse contributions in the workplace. Pao received negative reviews after she made her claims about sexual harassment. Even then, the negative reviews were not about her achievements, but how she accomplished them - which of course is directly related to who she is personally - and that includes her gender and racial experience. The arguments against Pao's advancement at the firm were of the non-specific type that any member of an underrepresented group knows well: the kind that are not measurable and as such are hard to defend against. Too this, too that, not this enough, not that enough. Rarely "just right".
Ellen Pao is a profile in courage. She brought suit against Kleiner because she had the money, standing and arguments to do it. She refused to settle. Did you know that even after she lost the case they asked her to sign a non-disclosure agreement? What did they have to hide? Answer: the book "Reset". In it she boldly names and shames the lack of sexual harassment policies, the low number of women in the venture capital world (6%) and the challenges they face which differ both in degree and type from those experienced by men.
Pao lost her case. Her resources and attorneys were dwarfed by those of Kleiner Perkins. Though she praises her attorneys, I believe they made unforgiveable errors, an opinion shared by at least one juror who voted against her. To me her loss was less the loss of the partnership and more the loss of the equal opportunity to compete for it. The case should have focused on that. It's harder to prove that you've earned a partnership than to prove that someone threw a banana peel in your path because you were female. For example, an enslaved person would find it hard to prove that he deserved to be a lawyer, but easier to prove that he couldn't compete for it because it was illegal for him to read.
Ellen Pao has much to say about working women who challenge male supremacy. And if you don't believe her, read the blog post by Susan Fowler who experienced very similar things at Uber. Listen to Sallie Krawcheck, the founder of Ellevest, a brokerage focused on women investors, describe men mooing at her when she breast fed at work. Think about that for a second. Your daughter who has extraordinary math, reasoning and sales skills will be reduced to animal status by men when she's feeding your grandchildren because she dared to work and reproduce.
Pao said she sued because she believed herself to be a model plaintiff for the cause. If not her, then who? Still in many corners the Pao verdict was met with "eh" and "so what?"
Is it because coffee is supposed to be hot and women are supposed to finish second?