Ellen Pao case shows how the moral landscape in the U.S. has changed

by philg

Part of Ellen Pao’s direct testimony in her lawsuit against Kleiner Perkins included that she was having sex with a co-worker whom she knew to be married (Business Insider). Presumably everything in Pao’s “case in chief” is intended to persuade the jury that they should be sympathetic toward her. Thus we can take this as a barometer of how times have changed in the U.S. If we were to go back 50 years, for example, it seems unlikely that a plaintiff seeking sympathy from a jury would have started out “So I was having a multi-month adulterous affair with a married guy at work…” Perhaps a public statement like that would be made on some sort of television investigative news program and the person confessing his or her part in what was then a crime would been shown with a face obscured in shadow but certainly nobody would have expected to be paid $2.2 million in 1965 (equivalent to the $16 million Pao seeks today, adjusting for inflation) after relating a tale of this sort.

Separately, I wonder what the jury will make of Pao’s complaints that “After she filed the lawsuit, Pao said the work environment at Kleiner Perkins became ‘extremely difficult and very uncomfortable. Partners were uncomfortable talking to me… if I went to their office they seemed nervous.'” (arstechnica) Maybe someone could sue General Motors and expect to keep working on the assembly line. The money sought from litigation would be coming out of the shareholders’ pockets, not the personal checking accounts of co-workers. But Kleiner Perkins is a partnership. Pao was essentially suing these people individually and then being surprised that it was hard to work with them after that. (There is some precedent for Pao’s expectation. Unlike some Scandinavian countries that have an administrative process for divorce (98 percent of Swedish divorces happen in this non-adversarial manner), in the U.S. the government encourages one parent to sue the other and then pays workers, such as judges, to express dismay at the resulting lack of cooperation between the litigants. We just finished analyzing some data from all 243 May 2011 divorce lawsuits in Middlesex County, Massachusetts. Only about 16 percent of the couples had filed a “joint petition” indicating that they had gone to a mediator rather than one running to the courthouse to sue the other. So 84 percent decided that a good way to embark on the next phase of a multi-decade co-parenting relationship was a lawsuit.)

Finally, after reading the news coverage of this case I am wondering if I myself might have a case against Kleiner Perkins. This New York Times article is typical: “Ms. Pao, who came to Kleiner with the dream of helping direct such a fund, graduated from Princeton with a degree in electrical engineering. She got a law degree from Harvard and worked for Cravath Swaine & Moore for two years doing international deals. She returned to Harvard for a business degree and worked for a variety of tech companies, including BEA Systems and Tellme Networks. Her geek cred is pretty unassailable.” In other words, a person who got an undergrad engineering degree and then never engineered anything has “geek cred” and, implicitly therefore, is entitled to be selected as a senior partner at Kleiner Perkins. What is the basis of the Philip Greenspun v. Kleiner Perkins lawsuit then? I have an engineering degree and have actually had jobs doing hands-on software engineering and electrical engineering. So the Greenspun geek cred should be at least as strong as Pao’s. Like Pao I have been inside the Menlo Park offices of Kleiner Perkins (not to have sex with a married employee, but to talk about some of their portfolio companies’ projects and to attempt to hector them into finding a team and building a startup around my “Mobile Phone as Home Computer” idea). As happened to Pao, the Kleiner Perkins partners with whom I spoke failed to recognize my potential to join them as a senior partner. Instead of issuing me $16 million in paychecks they escorted me to the front door and into my rental car.

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9 thoughts on “Ellen Pao case shows how the moral landscape in the U.S. has changed”

  1. Once you fill in her version of the details, it might have flown with a jury in 1966 (if not 1916). The evil cad who seduces innocent women has been a stock character for a long time and Ellen is trying to paint Ajit in this role, with Ellen starring as the innocent woman.

    1. He was pressuring her to have sex. She resisted for a long time but finally gave in. We all know (in 1966) that women are the weaker sex and that a cad may overcome them with his wiles.

    2. He told her that he had already left his wife. In 1966, she would have added that he had promised to marry her. Lying cad again.

    Now, by 2015 standards, her story is ludicrous. According to Pao, Nazre had not left his wife after all but she was unaware of this. When he said something like “don’t EVER come to my house or call me at home”, didn’t she wonder why? And if he didn’t say that, why didn’t she find out when she stopped by her boyfriend’s house and Mrs. N answered the door? The logistics of an “affair” with a married man who is still living at home are completely different than those with someone who is no longer living under the same roof with his spouse and would be obvious to even the most oblivious, and Ms. Pao is anything but oblivious.

  2. I don’t think that Pao’s lawyers are claiming it was somehow good that she was having an affair.

    Rather, when you have bad facts, it’s often better to disclose them in your case-in-chief, rather than wait for cross-examination. That way, it doesn’t
    look like you’re hiding anything, and the jury will not be surprised.

    The same strategy likely would been used either in 1966 or 2015.

    If anything, in 1966, a corporate defendant would have settled the case earlier, rather than having the embarrassment of a married executive having an affair.

  3. In Pao’s case, it’s not just a matter of getting unfavorable facts on the table before the other side brings them up. That’s true in a situation where, say for example, another driver has hit your car but it turns out that you had a couple of drinks too. Without the affair (and the retaliation after the breakup), Pao doesn’t have a case to begin with – it’s central to her case and there’s no way she could avoid bringing it up.

    That being said, she is attempting to spin this her way as much as possible – that she was the seduced, not the temptress, that she resisted until she was told that his marriage was over, etc.

  4. After law school, Pao worked as a lawyer for two whole years before going back to school for her MBA, then worked for a variety of tech companies. Did she ever work at one place long enough to actually accomplish something?

  6. I just realized that all this lawsuit will accomplish, beyond possibly adding a few million dollars to Ms. Pao’s account (as well as to her lawyers’), is to add (if it wasn’t already there) the perception that any woman executive is now an 8 figure liability for her employer. Ms. Pao may be completely innocent, but if she wins, the specific conditions of her alleged tort are laughably easy to recreate for someone with some planning ahead capacity, and pretty complicated to protect against, as an employer. Ergo, liability. Ergo, a huge “Don’t bother hiring” sign over every woman executive’s head. Thanks, Ms. Pao.

  7. In the old days, it was assumed that mixing men and women in a high powered workplace where people spent most of their waking hours was a bad idea that would lead to a whole soap opera of marriages breaking up, favoritism, jealousy, etc. It turns out that they were right.

    Ovi – or companies could hire ONLY (heterosexual) women. Or maybe they could have two separate but equal wings in the building, one for boys and one for girls, like some public schools used to have. But I doubt this is going to happen.

    As far as it being easy to recreate Ms. Pao’s situation, you could impose strict anti-fraternization rules between employees at different levels, as some universities have done. Then when their hormones acted up and people did it anyway, the employer could say that those involved were acting against company policy, fire them as soon as they found out and avoid corporate liability.

  8. Izzie L, if you have a robust anti-fraternization policy (no sex and limited social contacts between people at different “levels”), you can dial back the sexual harassment policies (we will police how you talk and your habits to make sure no one is offended). You pretty much only have to worry about people who are equal in the company, and if one or both of them can’t handle the situation as adults, you can move or fire them at that point. And anti-fraternization rules would prevent almost all quid pro quo sexual harassment.

    I agree with the other part of your comment. There is a wide array of social and economic policies where people said “don’t do that, you will just get bad result x, and the elites went and put in the policies and got bad result x. But its not like they can be changed or anything.

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