Ellen Pao on sexism in Silicon Valley

August 21, 2017 5:17 AM

"This Is How Sexism Works in Silicon Valley My lawsuit failed. Others won’t." Ellen Pao: "I would sue Kleiner Perkins for sexual harassment and discrimination in a widely publicized case in which I was often cast as the villain — incompetent, greedy, aggressive, and cold. My husband and I were both dragged through the mud, our privacy destroyed. For a long time I didn’t challenge those stories, because I wasn’t ready to talk about my experience in detail. Now I am."
posted by gen (38 comments total)

They do start companies, but a "google" is like hitting the lottery, when vastly more female companies ramp up one will certainly hit unicorn time.

And as much as differences in gender are a huge hot button anecdotally I've always worked with really smart competent female software devs, but in my slight experience there seem to be significantly fewer sociopathic hyper driven women utterly without morals willing to (metaphorically (for the most part)) willing to slit any throat from behind for the slightest deal advantage.
posted by sammyo at 7:05 AM on August 21, 2017 [3 favorites]

This article is an excerpt from Ellen Pao's upcoming book Reset, due September 19. She may have lost her suit but it changed the discussion around sexism in tech, at least a little. Kleiner Perkins is a big whale and her courage in suing them was remarkable.
posted by Nelson at 7:09 AM on August 21, 2017 [5 favorites]

This part made me do a double take:

But Kleiner also had tremendous resources that I couldn’t match, and it made a difference. For example, I didn’t have time to go through all my emails to figure out which ones to give Kleiner, so during the discovery process we gave them practically everything, some 700,000 emails — most of which we could have legally withheld. Kleiner meanwhile handed over just 5,000 emails, claiming they didn’t have the resources to search for anything other than emails that we specifically requested. They did have the resources to pick over my emails, though — I heard they hired a team in India to read and sort through every single one. Their work would show: During depositions, they brought up everything from my nanny’s contract to an exercise I’d done in therapy where I listed resentments. Emails to friends, emails to my husband, emails to other family members, even emails to my lawyers.


What the actual fuck? Attorney-client communications? What were her lawyers doing? And as far as winning the actual case goes, has anyone read Zubulake? The case itself, or Zubulake's book -- which is as much about the underlying (and similar) employment discrimination case, as the electronic discovery law that came out of it. You go after all their communications -- including their back channels.
posted by snuffleupagus at 7:22 AM on August 21, 2017 [28 favorites]

...in my slight experience there seem to be significantly fewer sociopathic hyper driven women utterly without morals willing to (metaphorically (for the most part)) willing to slit any throat from behind for the slightest deal advantage.

That's part of male privilege. Men can do pretty much whatever they want and have something and/or someone to fall back on. Women, on the other hand, well, when we get called "aggressive" it can be a career-killer.

This is a huge part of the weakness inherent in telling women to "just step up to the plate more". As if we didn't already recognize that were a possibility, or as if we hadn't already tried that and seen it fail spectacularly in ways that I've rarely seen for men (in fact the only men I've seen it fail spectacularly for have all been minorities).
posted by fraula at 7:44 AM on August 21, 2017 [40 favorites]

[please note I am not arguing that it would be great for more women to be amoral back-stabbers]
posted by fraula at 7:48 AM on August 21, 2017 [11 favorites]

I really admire her honestly about the parts of this story that are a bit messy (for lack of a better word)— the fact that she was in a short-lived relationship with the man who would later harass her, the moment where she did tell another woman not to report. They are completely believable and don't make the rest of what happened to her any less shitty.

It's sort of like, you shouldn't have to be "the perfect person" (or the perfect victim) to be treated fairly by your employer. Being perfect is not a prerequisite to avoiding sexual harassment or discrimination. Bleh.
posted by Zephyrial at 7:52 AM on August 21, 2017 [30 favorites]

There is no such thing as a perfect victim in court. Any living, breathing human being can be smeared by a lawyer with access to all their email.
posted by potrzebie at 7:55 AM on August 21, 2017 [7 favorites]

I delight in seeing all-Ivy hedge fund and VC people suffer. They're individuals with immense talent, brains, and the finest educations the world has to offer, and they're using them to hurt people, hurt entire industries, even bring down countries for profit. For money. Rent-seekers. Why should I feel any different about this?
posted by 1adam12 at 8:43 AM on August 21, 2017 [1 favorite]

Why should I feel any different about this?

For the same reason transphobic jokes about Ann Coulter are disgusting and should be denounced. Sexual harassment and discrimination is evil, no matter where or to who it happens.
posted by NoxAeternum at 8:52 AM on August 21, 2017 [44 favorites]

Why should I feel any different about this?

Because this had nothing to with her job or her actions, and everything to do with her gender and how society and culture, and that of the financial and tech world in particular, denigrates it?
posted by zombieflanders at 8:57 AM on August 21, 2017 [15 favorites]

What the actual fuck?

If true--and clients don't always have the best grasp of the nuances of discovery--this is absolutely unbelievable. I mean, this is malpractice.
posted by praemunire at 8:59 AM on August 21, 2017 [6 favorites]

Woo, one woman with a privileged background gets screwed over, and a whole bunch of men... are fine and going to keep things up exactly as before! That'll show them! I don't see how that's anything to find any delight in. It would have been entirely right and proper for them to all have to go out and get real jobs. It is not right and proper for a woman to get sexually harassed and then have to go find other work while the ones who did or condoned the sexual harassment get ahead. It does nothing to improve the system, and it is probably making the system worse. The revolution does not start by ruining all the women and the POC first and then eventually maybe getting around to the white guys.
posted by Sequence at 9:03 AM on August 21, 2017 [23 favorites]

I really admire her honestly about the parts of this story that are a bit messy (for lack of a better word)...

I don't doubt the veracity of her account, but note that she is naming names, such as of some partners who were having extra-marital affairs. Or we learn that Ted Schlein has a preference for Eastern European "girls" and that he and his buddies took the first opportunity to ditch her in order to head to a "club" without her. It really doesn't take too much imagination to figure out what probably happened next.

I wouldn't be surprised if some of the guys named in the piece are still married and not too happy about all the gory details coming to light.

Maybe they are all slimeballs and deserve it, or maybe she's twisting the facts just like they did, who knows?
posted by sour cream at 9:05 AM on August 21, 2017 [2 favorites]

when vastly more female companies ramp up one will certainly hit unicorn time

If I could invest in Rent the Runway, I would.
posted by Leon at 9:25 AM on August 21, 2017

Maybe they are all slimeballs and deserve it, or maybe she's twisting the facts just like they did, who knows?

I'm pretty damn sure Ellen Pao and her lawyers know exactly the limits of libel law. And also: these people took her reputation and smeared it with shit in public. Why should she be kinder to them than they were to her?
posted by suelac at 9:47 AM on August 21, 2017 [28 favorites]

I'm pretty damn sure Ellen Pao and her lawyers know exactly the limits of libel law.

If Pao's account of the discovery process in her case is accurate, don't be so sure.
posted by Sangermaine at 9:50 AM on August 21, 2017 [3 favorites]

>Why should she be kinder to them than they were to her?

letthehateflowthroughyou.jpg
posted by Cpt. The Mango at 10:31 AM on August 21, 2017

If Pao's account of the discovery process in her case is accurate, don't be so sure

Point. Let me clarify: her publisher's lawyers, then. They must be well aware of the risks they take in this, and everything is likely to have been rigorously fact-checked.
posted by suelac at 10:45 AM on August 21, 2017 [3 favorites]

I cannot speak that intelligently on this particular case: I saw Reddit turn against her from the inside and never had much of a horse in that race. Tangentially, I would like some feedback on this point, tho: as pointed out above, women complain that a lot of the *real business* decisions happen on the golf course or at sports bars after hours and that women are (implicitly, explicitly) excluded from this. But what is the solution? Are men obliged to invite women to golf? Should it be illegal to discuss work at a restaurant? Must notes be taken and shown at a monthly meeting if work friends have a conversation? I'm not even doubting that this is a problem but I don't see what a solution could be in principle. Does anyone have any thoughts?
posted by koavf at 10:54 AM on August 21, 2017

Well, a solution in principle is to keep a divide between what's in the office and what's out of it, and to avoid developing an "old boy's network". And that's going to be hard work, and require a shift in culture.
posted by NoxAeternum at 10:57 AM on August 21, 2017 [19 favorites]

women complain that a lot of the *real business* decisions happen on the golf course or at sports bars after hours and that women are (implicitly, explicitly) excluded from this.

I invite you to consider whether this is incidental, or a feature.
posted by praemunire at 11:20 AM on August 21, 2017 [32 favorites]

But what is the solution? Are men obliged to invite women to golf? Should it be illegal to discuss work at a restaurant? Must notes be taken and shown at a monthly meeting if work friends have a conversation? I'm not even doubting that this is a problem but I don't see what a solution could be in principle. Does anyone have any thoughts?

There's been a lot written on this but the number one thing that men can do about this is sponsor/mentor women -- basically, men do need to feel obligated to invite women to golf and to restaurants and to count them among their alumni and friends.
posted by warriorqueen at 11:24 AM on August 21, 2017 [40 favorites]

Let's, just as a thought exercise, dial the golf/club/restaurant meeting situation down a bit, and talk about meetings that happen in hallways, on the way to other meetings (or the cafeteria, or whatever). Hallway meetings happen. It would be impractical to stop them from happening; we are, after all, social creatures.

That said, it is egregiously unprofessional for any meeting - hallway or otherwise - to continue for long when not all stakeholders are present, and doubly egregious for decisions to be made when not everyone who is supposed to have a say is there.
posted by Fraxas at 11:31 AM on August 21, 2017 [23 favorites]

Are men obliged to invite women to golf? Should it be illegal to discuss work at a restaurant? Must notes be taken and shown at a monthly meeting if work friends have a conversation? I'm not even doubting that this is a problem but I don't see what a solution could be in principle. Does anyone have any thoughts?

Powerful men who care about women's equality will ensure that women have the same access to them and their time.

I read a piece about a male CEO who liked to have one-on-one business lunches with his employees. However he noticed that when he had these lunches with a female employee people would gossip that it was an affair, putting those female employees in a lose-lose position. He decided the only fair solution would be to stop having one-on-one lunches with any employee regardless of gender. Instead he could easily shift to small-group lunches instead.

Men who don't care about gender equality can find endless reasonable-seeming excuses why it's impossible. Nothing you mentioned is a barrier to someone with good intentions. If you just happen to be doing the bulk of your decision-making in spaces that conveniently don't have any women, it's not an accident.
posted by Emily's Fist at 12:08 PM on August 21, 2017 [62 favorites]

Imagine if this was the case in anybody else's jobs. Imagine if I said that sorry, I can't get any code written except after hours at a bar. Imagine if a data entry clerk said they needed company-sponsored strip club visits in order to make their job happen. Imagine if your tech support insisted that they could only take the most important calls from the golf course.

Which is to say: Nothing about how they do business is obligatory. They do it because they can. If the legal system started telling them that they couldn't because it promotes discrimination in the workplace, then they'd find another way of doing it. If they want to keep working out of places that aren't their offices, they need to find ways to do it that are inclusive. That's their burden to figure out, not the general public's. If everybody else can do their jobs without resorting to other venues, we need to ask why it is that the people with the most resources somehow can't. These people have more than enough cash on hand to work things out on their own.
posted by Sequence at 12:17 PM on August 21, 2017 [20 favorites]

I don't doubt the veracity of her account [...] Maybe they are all slimeballs and deserve it

I mean, yeah, if her account is correct, they are indeed slimeballs.

Women can't win. When they speak up generally everyone yells at them to name names (to out the wrong-doers and protect the innocent), but when they name names suddenly people are super concerned if it's fair to the men. And those people can't even always pretend like the behavior isn't objectionable but that just maybe they're actually good guys deep down? Or that somehow being married still should give them extra cover?
posted by I'm Not Even Supposed To Be Here Today! at 12:27 PM on August 21, 2017 [22 favorites]

What...? Just what would be so crrrraaaaaaaaaaaaaaaaaaaaaaaazy about inviting women with the same professional relation to whatever crap you're going to yack about over golf to the fuckin stupid golf so that they can yack about crap, too, and take part in the stupid bullshit stab-yourself-in-the-eye-to-stay-awake golf game? Why's that such a brain bender? I worked temp at some gigor insurance company or something like that (I don't know, it was barely the 90s and I worked a million of these jobs and I was too bored to pay attn) in Minneapolis and half my job was dicking around with their huge wads of internal communications about some enormous golf retreat they were doing with everybody in the company and all their clients and whoevertheFUCK, omg, I don't know, I paid no attn because I wanted to die it was all so boring and they were all so proud and excited, I wanted to cry for them every day. But it was definitely everybody. All the men, all the women, all the husbands, all the wives. Everybody was going to this bullshit, and they were all just over the moon about it. It's appalling that bleeding edge silicon valley tech industry is lagging behind life insurance or whatever it was in 1992 Minnesota.
posted by Don Pepino at 12:27 PM on August 21, 2017 [17 favorites]

IANAL. It seems that there is an implication above that any communication between attorneys and their clients is privileged. That is not the case. Any legal advice that was provided would be privileged, but everything else would not be.

I'm sure Pao's attorneys are great, and fully understood how privilege works. Kleiner Perkins was able to spend/waste more money than Pao was on attorneys. As a result, a great strategy for KP would have been to fight as hard as possible in discovery to run up Pao's bills. By providing all 700K emails, Pao was able to avoid much of the cost of discovery.
posted by bigplugin at 1:33 PM on August 21, 2017 [3 favorites]

IANAL. It seems that there is an implication above that any communication between attorneys and their clients is privileged. That is not the case. Any legal advice that was provided would be privileged, but everything else would not be.

(1) Depending on the state, there are additional privileges that may apply in this context beyond attorney-client privilege, e.g., work product, documents-prepared-in-anticipation-of-litigation.

(2) Again, some variation among the states on the precise definition, but attorney-client privilege does not only cover legal advice provided by the attorney to the client. It may cover, e.g., any communication between attorney and client (either direction) made in the course of employing the attorney or for the purpose of providing legal advice. Emails from Pao to her attorneys discussing the facts of the matter. Emails from them to her discussing case strategy. Emails from them to her about how to conduct herself during her deposition. Emails from her to them explaining the context of a particular document they're looking at. Etc.

(3) In the context of a client hiring an attorney specifically to sue someone, as a practical matter, virtually any relevant communication that doesn't involve an independent third party is going to be attorney-client privileged unless there's a waiver. (Emails about where they're having lunch wouldn't be privileged but also wouldn't be relevant.)

Providing 700K unreviewed emails leaves you open to exactly the kind of character attacks that Pao says she experienced. It's one thing not to run up discovery costs unnecessarily; it's another to give up entirely, give the other side all the evidence it can possibly want, and get very little in return. If that's indeed what it was, it was a dumb-ass legal strategy and had the predictable results.

Since you're not a lawyer, probably better not to make claims about a technical area of the law? I seriously do not understand why people think they can make pronouncements about technical legal matters based on marathoning L&O or whatever.
posted by praemunire at 2:23 PM on August 21, 2017 [2 favorites]

praemunire, I can't imagine what your point is. I said that I trusted this was the case and it was a problem and allowed that it could be an explicit or an implicit policy. Either way, I'm asking for some solution to it.

It seems like all of these answers come from some change in manners or courtesy rather than a legal or policy solution. I suppose something can be written into some work statement that HR then has some capacity to enforce but I'm still not sure how that would be actually be done. Obviously, the actual solution would be persons in power (in this case, men) being deliberate about not excluding others who aren't in power (i.e. women) but that should always be true anyway. A structural solution would be not having hierarchical workplaces. But I still don't see how we can get rid of the golf problem unless those who are in power just decide spontaneously to be nicer.
posted by koavf at 2:28 PM on August 21, 2017

praemunire, I can't imagine what your point is.

No? A behavior that just happens as an incidental result of other, independent factors needs to be addressed differently than a behavior which reflects a deliberate strategy, whether explicitly reasoned-out by all participants or not.

Basically, your comment is treating this behavior (the taking of decisions) as something that just kinda happens to happen in settings that implicitly or explicitly exclude, in this case, women, and suggesting solutions that sound impractical or silly in that light, a gentle reductio ad absurdum. ("If we chat in the bathroom over the urinals, we'll have to file a report with HR!") You may genuinely not be aware of this, but this same rhetorical strategy has been deployed in connection with these topics for the past four or five decades. It looks pretty sad and threadbare the more we learn about how, e.g., men deliberately and consciously exclude women from access to power to this day. If you start from that position, you'll never achieve change.

HR manages to enforce expectations about conduct in many other aspects of business with reasonable (usually....more or less) effectiveness. "Don't conduct our business in environments that exclude non-white men, and do make sure that all relevant people are invited to events," while it requires some refinement, is not some impractical dream. There are fewer (not none) all-male golf clubs these days. There is no reasonable expectation that a woman be comfortable in a "gentleman's" club.
posted by praemunire at 2:47 PM on August 21, 2017 [7 favorites]

And anomalies in reviews were finally cleared up: It turned out that Ted had set up a process designed to make me look bad. He started with the standard procedure: I was asked to list people I had worked with; our outside consultant asked everyone on my list to review me; she organized their feedback and sent it to Ted. Ted then solicited negative feedback from phantom reviewers — people I had not worked closely with, who were not on my list, and whom he didn’t list as reviewers in the final document. The everyone-hates-you feedback Ted had delivered was in fact from a board-member crony of his and another venture capitalist I had not worked with much at all.

SCREAMING
posted by joyceanmachine at 3:09 PM on August 21, 2017 [7 favorites]

Also, for anybody paying along at home, this appears to be Pao's lawyer during the trial.

As a side note, Kleiner had Lynne Hermle from Orrick. My understanding is that Hermle is basically your first stop if if your Silicon Valley techbros are in trouble for being misogynist shitbags.
posted by joyceanmachine at 3:17 PM on August 21, 2017

HR manages to enforce expectations about conduct in many other aspects of business with reasonable (usually....more or less) effectiveness. "Don't conduct our business in environments that exclude non-white men, and do make sure that all relevant people are invited to events," while it requires some refinement, is not some impractical dream. There are fewer (not none) all-male golf clubs these days. There is no reasonable expectation that a woman be comfortable in a "gentleman's" club.

Yes, this.

I spend a lot of time at work-- I don't compartmentalise it in my brain as fundamentally different from my private life. I like my job. I have many many friends from work and when we socialise we often end up talking about work and I'm sure that many of those conversations would count as meetings in your context and certainly decision forming if not decision making. I would argue that those little informal meetings are much of how business works and you wouldn't want to get rid of them. But it is possible to be aware for the potential for abuse and for management and HR to set the tone.

In the past I worked for a Large Consulting Firm in a practice (tech strategy) where I was one of two women who were not in admin or HR. The socialising between the men happened nearly exclusively at events where women were going to feel very uncomfortable (outnumbered in a dodgy bar) or were not allowed (literally the locker room). It was frustrating because nobody sat down and tried to do anything wrong, but it really did hurt careers. The men involved just assumed because they didn't mean badly, it wasn't bad-- missed opportunities at assignments, news everyone but me knew about, clients who were invited to these events, whatever. The only way that company was going to change was if one of the partners set the tone and started inviting women, choosing settings which were more friendly to all people, etc. Nobody did that. When the women's association in the firm tried to discuss these issues, then naturally you got the response of "you're trying to outlaw all socialising" and it was extremely frustrating because that wasn't the point.

Today I work for a large international Scandinavian company and the difference is huge. There's a lot of socialising but it's evenly split between the genders and it's fairly across the board. I might miss one party and bit of news but I have access to many others. It isn't perfect, for sure, but the solution really resides in having the right tone about access to make most events welcoming to all attendees. It isn't perfect-- right now we have issues with having a kind of permanent expat group who often don't /aren't welcome to socialise with people in the local countries, but even then I can see management trying to address this by making sure everyone is invited to dinners and parties, and trying to find events everyone wants to do. It isn't about needing to be perfect, but about grappling with the problem and being on the way.

All of this is a digression regarding Pao. So glad she's taking this on. It's a hard fight, and they've been smearing her with everything they have.
posted by frumiousb at 3:40 PM on August 21, 2017 [13 favorites]

Mod note: One comment deleted; just go ahead and make your point about the case without further making-it-personal stuff.
posted by LobsterMitten (staff) at 6:30 PM on August 21, 2017

praemunire You're correct that my statement about privilege was overly broad, though we agree that not all communication between an attorney and their client is privileged. My point is that Pao is very smart, almost certainly familiar with the rules of privilege as a result of the job she had, and has the means and knowledge to hire extremely competent counsel. The assertion that the legal strategy was "dumb-ass" only makes sense if she had incompetent counsel, which I highly doubt.

Unless there was an important email that resulted in her loss that could have been withheld as privileged communication (which I don't think is the fact), the only difference in outcome if she had taken your advice to fight in discovery would have been that her legal bills would have been higher after she lost.
posted by bigplugin at 6:46 PM on August 21, 2017 [2 favorites]

So this is how the few people that control billions of dollars and decide which tech companies should live and die work. Great.
posted by ignignokt at 6:45 AM on August 22, 2017 [1 favorite]

Given that Exelrod is an author on the Rutter Guide to employment litigation, literally writing the book on it, we can probably give him the benefit of the doubt personally. But it's still a very odd thing to turn over attorney-client communication without reviewing it, as Pao implies happened. And also the marital privilege.

My point is that Pao is very smart, almost certainly familiar with the rules of privilege as a result of the job she had, and has the means and knowledge to hire extremely competent counsel.

More as a result of being a lawyer herself, which is a component of the job she had:

When I first got the three pages of specs for a chief-of-staff position at Kleiner Perkins in 2005, it was almost as if someone had copied my résumé. The list of requirements was comically long: an engineering degree (only in computer science or electrical engineering), a law degree and a business degree (only from top schools), management-consulting experience (only at Booz Allen or Bain), start-up experience (only at a top start-up), enterprise-software-­company experience (only at a big established player known for training employees) … oh, and fluency in Mandarin.

Which may also explain why she was allowed to make that call in directing the litigation a way a lay-client might not be, ethically. Even if she lacks the practical experience to make that a good idea. And perhaps why it's not malpractice if compromising privileged material was turned over. It's also been said by the attorneys in Zubulake that the ultimate result turned more on the jury's anger at Zubulake's treatment by UBS that was ultimately revealed by what material was finally made available, rather than the evidentiary sanctions imposed for spoliation. So maybe they decided whatever was divulged would play in their favor. But, it doesn't seem to have worked out that way, for all the usual reasons praemunire gave.
posted by snuffleupagus at 8:16 AM on August 22, 2017