Gender Bias: Pao Lost the Trial But Not the War

Gender Bias Ellen Pao CaseThe jury was swift last week as it handed down a highly anticipated verdict against Ellen Pao after just two days of deliberation.

Pao, a former partner at Kleiner Perkins Caufield & Byers, sued the Silicon Valley venture capital firm alleging gender discrimination when she worked there, and that the firm denied her promotion opportunities then later fired her in retaliation for complaining about the discrimination.

Some of the more prurient details of the claim included women being excluded from a dinner with Al Gore because they “kill the buzz,” a men-only ski trip, and lewd conversations about women.

Court Battle is not the Whole War

While she may have lost the court battle, Pao didn’t necessarily lose the war. At a press conference Friday afternoon after verdict was announced, The New York Times reported Pao saying, “[i]f I’ve helped to level the playing field for women and minorities in venture capital, then the battle was worth it.” Media outlets around the country have observed that she may have done just that by fostering a nation-wide conversation about the treatment of women in the tech industry.

Amanda Marcotte over at Slate noted that Pao’s case “has started some important conversations about the subtle digs and unconscious sexism that keep women out of the top ranks of the tech industry. The jury may not have been convinced that Pao was discriminated against, but hopefully in the future, leadership in the tech world will put a little more work into treating women with respect, instead of subjecting them to double standards.”

But Pao’s story isn’t just for Silicon Valley. Change the name of the firm and the industry and the tale rings just as true. Pao’s story is the story of women in many fields, including attorneys. And the conversations she’s started in VC and tech are the time-worn conversations we have been having in the legal profession.

Bias More Implicit in the Legal Profession

It almost seems like the stories from California are a throwback to the phase of sexism we went through already in the legal field. Decades ago there were several prominent cases splashed in the legal news about inappropriate grabbing, business meetings at clubs that prohibited women, and other overt sexist acts.

The vestiges still exist. According to 2010 a report by the Women Lawyers of Utah, 37% of women who work at law firms said they “experienced verbal or physical behavior that created an unpleasant or offensive work environment.” 27% of those women described the situation as “serious enough that they felt they were being harassed.” And overall, 86% of women reporting harassment believed their gender was the reason they were harassed.

But lately, it seems as if sexism is more subtle, more difficult to prove.

In 2012, attorney Francine Griesing sued her former law firm, Greenberg Traurig, with allegations similar to Pao’s. Griesing alleged the “boys’ club” environment of the firm lead to systematic discrimination against women: undercompensating them, keeping them out of client pitches, and even incentivizing sexual relationships with their male superiors. The case was filed as a class action, with the Equal Employment Opportunity Commission’s “reasonable cause” finding to support class-wide claims. The firm later settled with Griesing for an undisclosed amount.

Disparate treatment of women in the legal profession is an open secret. Despite making up nearly half of law school classes and associates at large firms in recent years, the American Bar Association estimated in 2012 that women comprise only around 33% of the industry. A 2014 study from the National Association of Women Lawyers indicates that only 17% of equity partners are women. Furthermore, as of 2012, only 4% of the 200 top U.S. law firms have female, firm-wide managing partners, according another NAWL report.

In past interviews, legal industry consultant and former practicing attorney Deborah Epstein Henry has commented on the lack of female leadership in firms beyond partnership. Henry’s research has found that even firms that receive high ratings for gender equality lack female leadership on executive committees—noting women constituted only 20% of representation on these boards. “Until you have 30 percent representation of women on influential committees and boards—a critical mass—women are not comfortable voicing their opinions,” Henry has said.

Subjective Evaluation of “Fitting In”

The discomfort female attorneys express about feeling unsure whether they “fit in” the organization is similar to what Pao described. Pao was claiming there was a narrow band of behavior she was expected to exhibit. She was criticized both for being too timid and too aggressive, for speaking up too much and not enough.

Articles abound about the workplace dynamics that put women in a trick box that men don’t have to deal with, be it is whether and how they ask for a raise to how their hairstyles and the shoes they wear may impact success.

Similarly, women lawyers need to be aware that, “The personality traits ascribed to a good lawyer (competent, confident, and assertive) are culturally associated with masculinity,” according to a guide about gender bias from the American Bar Association. As I have written about before, lawyers—and especially women—must navigate the balance between strength, a positive trait associated with men, and warmth, a required trait expected of women.

Following the national trend, female attorneys also make less than their male counterparts. The pay gap is a complicated and insidious problem that will be the subject of another post in the near future.

Where there’s smoke, there’s fire. The legal industry definitely has produced a lot of smoke when it comes to the treatment of women. It is difficult to see through smoke, but clear vision—in other words, recognizing covert and overt gender bias—is the first step in taking action to improve our treatment of women. And doing that will better serve our clients and society.


Commission intern Lindsey Lusk of the University of Illinois College of Law contributed to this post.

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