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Almost anytime the subject of women in Silicon Valley comes up, people return to one particular case: the trial involving Ellen Pao. Pao was not on trial, but from afar it seemed as if she were. Pao charged the firm with creating an atmosphere of both insidious and overt sexism that stymied her career.
She also alleged that it had ignored the behavior of a male partner who had harassed several female colleagues, including Pao. On a business trip, he had shown up at the hotel room of a female colleague in nothing but a bathrobe and propositioned her. Pao had a brief relationship with him before she was married and, after she ended it, she said, the partner retaliated against her. Kleiner Perkins denied the accusations and vigorously fought them in court. It was early, around six, and the restaurant, a favored spot among investors and tech-company founders, was still mostly empty.
Pao was dressed conservatively, in khaki pants and a navy T-shirt, and as we talked she sat perfectly upright, her hands folded in her lap. She told me that when she entered the industry, in the late nineteen-nineties, women were vastly outnumbered by men, but the atmosphere was not as aggressive or money-obsessed as it is today.
Tech companies increasingly began competing with banks and hedge funds for the most ambitious college graduates. People were talking more about the cool things they had done than the products they were building. Before and after the trial against Kleiner Perkins, Pao was the focus, along with her husband, of negative media coverage, much of which at least superficially left the impression that Pao was a poor performer and a disgruntled former employee pursuing a vendetta.
Pao lost the case. But despite the result, the trial brought the subject out into the open. During the trial, two women filed gender-bias suits of their own, against Facebook and Twitter. They know all the potential negative consequences that can result. Four months after the Kleiner Perkins verdict, she resigned. Meanwhile, the tech industry continues to erect barriers to legal action.
A recent study by the law firm Carlton Fields Jorden Burt found that in recent years in Silicon Valley there has been an enormous increase in the use of arbitration clauses in employee contracts—a legal strategy pioneered by Wall Street firms, whereby disputes such as harassment must be settled through arbitration rather than litigated in federal court. The arbitration process is both shielded from public scrutiny and generally considered more favorable to employers.
Tech companies have also embraced the use of employee confidentiality and nondisclosure agreements. Ostensibly, such agreements exist to protect company secrets, but when they are too broad they prevent employees from comparing salaries or talking publicly about their experiences at work. Therese Lawless, who, in addition to representing AJ Vandermeyden, was one of the lawyers who represented Pao, told me that these strategies to limit the rights of employees to air grievances are especially harmful to women and minorities.
It is not a coincidence that the earliest gender-discrimination cases, as well as many of the newer cases against tech companies, were brought by women of color. The problem of racial disparity is often inextricably tied to gender disparity, and minority women may be doubly targeted, with both racism and sexism.