Kleiner Perkins and Sex Discrimination in a Male-Dominated Workplace: Don’t Be Afraid to Rock the Boat if Faced with Unfair, Illegal Treatment

The recent media reaction to the sex discrimination lawsuit filed against the Silicon Valley venture capital fund Kleiner Perkins Caufield & Byers has mostly focused on the impact such a lawsuit may have on other women in the venture capital field, and the controversy over a recent column in Bloomberg News arguing that such sex discrimination lawsuits may actually hurt women trying to enter male-dominated fields in the long-run. Less discussed have been the actual merits of the claim by Ellen Pao, a partner at the firm, and what such a lawsuit might mean for other women working in male-dominated workplaces. According to the court filings, Pao alleges that while she was at Kleiner Perkins she was sexually propositioned and harassed, and when she complained she was retaliated against by being excluded from team meetings and e-mail chains, among other practices. If the case goes to trial, most of the litigation, like with most other sex discrimination cases, will center around the factual basis for Pao’s claims — whether she can present enough evidence of sexual harassment, systemic (“pattern or practice” or disparate impact) discrimination, the creation of a hostile work environment or retaliation as she alleges.

A sex discrimination claim can generally be brought under three often interrelated theories, as well as for retaliation. The first is that of systemic discrimination. Pao alleges such a claim in her filings, arguing that Kleiner Perkins has systemically failed to advance female partners and provide them equal opportunities at the firm, including in distributing profits and board seats. The second theory that can be advanced is that of sexual harassment. Pao in her filings claims that after she ended an allegedly coerced relationship with a co-worker the co-worker retaliated against her by excluding her from board meetings and important email chains and refusing to share crucial client information with her. She also alleges that another partner gave her a sexually suggestive book as a gift and invited her to a private dinner, which she found to be an inappropriate advance. The third claim that can be brought is that of a hostile work environment, or a claim that a company has created and nurtured an environment where severe and pervasive sex discrimination is the norm. In her filing Pao claims that negative comments about women were made during board meetings, such as that female partners were “buzz” kills and that there was a general refusal of the management of Kleiner Perkins to seriously investigate her claims of harassment. A sex discrimination claim can also be based on any retaliation that a worker faces when he or she complains about discrimination in the workplace. Pao claims that not only did her co-worker who she rebuffed retaliate against her, so did other managers at Kleiner Perkins who allegedly attempted to transfer her to an overseas office and recommended that she marry her co-worker to stop the harassment.

Pao’s case as such presents an interesting example of the kinds of issues many women face when venturing into male-dominated fields, in this case venture capital, but equally applicably fields such as engineering, internet technology, manufacturing or academia. While the merits of Pao’s case are yet to be decided by the California Superior Court, she certainly presents some strong evidence that her workplace was not an entirely comfortable one for her and her female co-workers, regardless of the fact that Kleiner Perkins has one of the strongest records in Silicon Valley in terms of hiring and promoting female partners. While the antidiscrimination laws do not require a workplace free from problems, they do require a workplace that does not target women unfairly. While many women integrating male-dominated workplaces may face similar issues like those alleged by Pao, that certainly does not mean they deserve any less protection than women working in more gender-balanced fields. The sex discrimination jurisprudence is clear: a woman has just as much a right to feel comfortable, accepted and valued in a workplace as her male colleagues and doesn’t have to suffer silently in the face of unlawful employment practices just to “fit in,” or keep from rocking the boat.

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