It’s a dirty little secret among lawyers and judges that legal disputes hardly ever go to jury trial anymore. As best I can determine, last year there probably were fewer than 20 jury trials in Maine federal court. I can’t count how many seminars I have attended in which this disturbing trend has been discussed. As Judge Hornby, an eminent judge on the district court wrote in an article eight years ago, “Trials have gone the way of landline phones…” The truth is we are not minting any more Atticus Finchs—if we ever were. Most cases are either thrown out for supposed lack of merit or, if they survive, are settled through alternative dispute resolution procedures by a mediator.
Which is why I was EXTREMELY surprised to read that a sexual harassment case involving some of the biggest names in Silicon Valley actually started trial in a California court room this week. Several years ago, Ellen Pao, a Harvard and Princeton-educated daughter of Chinese immigrants, garnered national attention when she sued Kleiner Perkins for sex discrimination.
You probably have never heard of Kleiner Perkins, but suffice it to say that it is the most prominent venture capital firm in Silicon Valley. It’s where Al Gore, the inventor of the Internet, landed after his unsuccessful bid for the presidency (and where he since probably has become a billionaire—no small consolation). And it’s where deals involving companies like Google and others have turned so many geeks into modern day tycoons.
When the suit was filed, I took particular interest in it not just because I represent women in similar (albeit less notorious) harassment suits, but also because one of the alleged harassers, Randy Komisar, went to college with me.
Anyway, Pao’s suit alleges that there was a hostile work environment at Kleiner Perkins towards women. Among other things, the suit mentions that for Valentine’s Day Komisar gave Pao a book of drawings of nude women, that another partner came to Pao’s hotel room dressed only in his bathrobe, that Pao was excluded from social gatherings limited to male colleagues, and ultimately that she was passed over for partner in favor of other men.
As is so often the case in these sex discrimination cases, Kleiner Perkins is represented by—you guessed it—a female attorney, Lynn Hermle. Hermle is a partner at a big San Francisco defense firm. I’ve seen her speak at several bar meetings, and she is a powerhouse.
It appears that Kleiner Perkins’ defense strategy is to belittle Pao. According to news reports, Pao has been portrayed as little more than a glorified secretary who never stood a chance to make partner—even though she is now the head of Reddit, a popular web news site. So much for a Harvard and Princeton education!
Of course, I have no idea how the trial will end; both sides surprisingly seem to have dug in for the long haul. Or maybe the case has gone to trial simply because both sides can afford to go to trial—something most working folks cannot.
But the case certainly underscores one thing—that no matter how high a woman rises, no matter how important her job, unfortunately as a society we still have not gotten past the point that women in the workforce can be treated as sex objects. When was the last time you heard of a woman showing up in her bathrobe and slippers at a male associate’s hotel room? Or giving a male colleague a book of nude drawings—for Valentine’s Day, no less.
Sexual harassment usually isn’t about sex; it’s about power. It’s about degrading women and putting them “in their place.” Over forty years ago, Helen Gurley Brown, who went on to become the editor of Cosmopolitan, wrote a book with the catchy title “Sex and the Single Girl.” A forerunner to “Sex and the City,” Brown’s book advocated that (in addition to enjoying a healthy sex life), women need to achieve financial independence.
It’s that independence that Pao was striving to achieve. And it’s that independence that she claims Kleiner Perkins tried to take away from her. If she’s right, Kleiner Perkins should wind up paying—big time.