Next Up for Silicon Valley After Pao Loss: More Bias SuitsMargaret Cronin Fisk
Kleiner Perkins Caufield & Byers’ decisive victory over Ellen Pao’s gender bias suit doesn’t mean Silicon Valley giants are off the hook.
More lawsuits alleging gender discrimination, sexual harassment and retaliation are already in the pipeline.
Cases against Twitter Inc. and Facebook Inc. filed in California state court during Pao’s trial may indicate the thin end of the wedge, said professor Joan Williams, of the University of California Hastings College of Law in San Francisco.
“I don’t think it’s a coincidence,” Williams said in an interview. Pao’s lawsuit “has brought a lot of attention to issues of what’s going on with women in tech and venture capital.”
Tina Huang, a former Twitter software engineer, filed a class-action complaint against the company March 19 in San Francisco, claiming that women are systematically blocked from promotions. About 79 percent of the leadership of Twitter is male and the company didn’t name a woman to its board of directors until December 2013, she said.
“Promotion opportunities at Twitter are by managerial fiat,” she said in the complaint. “Employees are tapped on the shoulder for advancement.”
In the software engineering division, while she worked at the company, “every member of the top level principal and senior staff engineer positions” was male, she said. Huang worked for Twitter from October 2009 to June 2014.
Huang seeks to represent all current and former female Twitter employees in certain software engineer jobs who had been “subjected to Twitter’s continuing policies and practices of sex discrimination.”
Jason Lohr, her attorney, said he doesn’t know yet how big the group of women may be. He declined to comment on how many may have tried to join the suit.
Jim Prosser, a spokesman for San Francisco-based Twitter, didn’t immediately respond after regular business hours Friday to an e-mail seeking comment on the lawsuit.
Chia Hong, a former technology partner at Facebook, sued the owner of the world’s largest social network March 16 in state court in San Mateo County, south of San Francisco. She claims she was “belittled at work and asked why she just did not stay home and take care of her children.”
Her manager, who she also sued, ordered Hong “to organize parties and serve drinks to male colleagues,” she said in the complaint. Hong said she was given poor performance reviews and ultimately fired after complaining.
“We work extremely hard on issues related to diversity, gender and equality, and we believe we’ve made progress,” said Bertie Thomson of Facebook in an e-mail. “In this case we have substantive disagreements on the facts, and we believe the record shows the employee was treated fairly.”
Therese Lawless, Hong’s attorney and also a lawyer for Pao, didn’t respond to a request for comment.
David Lowe, who represented a Tinder Inc. co-founder in a gender-discrimination suit last year against the dating startup, said publicity over the Tinder case spurred calls to his firm from other women working at tech and start-up companies.
“The women felt they were being victimized as women because it was such a male-dominated culture,” Lowe said. He added the complaints were resolved without filing lawsuits.
Lawsuits like Pao’s, no matter the result, encourage other claims, said Lowe, citing his experience representing Whitney Wolfe in the Tinder suit.
Wolfe claimed in a Los Angeles state court complaint that Tinder’s top executives sent her a “barrage” of sexist and inappropriate e-mails and text messages. The case settled in September for $1 million, according to Forbes. Tinder settled the lawsuit without admitting any wrongdoing, Rosette Pambakian, a company spokeswoman, said in an e-mail. She declined to comment on the amount.
Many gender bias complaints will be resolved without trials, or even lawsuits, said Kay Lucas, a San Francisco employment lawyer who attended much of the Pao trial.
The risks of litigation already have drawn the attention of some employers, Lucas said.
“During the course of this trial I’ve had three mediations for gender discrimination in Silicon Valley,” she said.
The Pao jury may have reached its verdict faster because California courts require only nine of 12 jurors to win in a lawsuit. The same rule can also put a company being sued at a disadvantage, according to Lowe.
“In federal court, it has to be unanimous,” he said.
Lawyers say the benefits of California law make its courts more attractive than filing claims with the U.S. Equal Employment Opportunity Commission or suing in federal court.
“California is viewed as a good environment, where an employee’s claims are going to get a fair hearing,” said Lowe, whose partner, Alan Exelrod, was a trial counsel for Pao. In some states, “business interests and insurance companies” have limited the ability of employees to pursue bias claims, he said.
Williams said “it’s malpractice for a plaintiffs’ lawyer to bring an employment case in federal court in California.”
Sex discrimination complaints filed with California’s civil rights agency increased 61 percent from 2011 to 2014, according to data published by the state Department of Fair Employment and Housing. The 12,434 complaints fielded by the agency last year encompass pregnancy, sexual orientation and identity, as well as gender bias and harassment.
Complaints about retaliation, spanning an array of discrimination categories including race, age and disability as well as gender, rose 60 percent to 12,344 in 2014, according to the data. The annual report’s data isn’t broken down by industry.
Filing a complaint with the agency is required under state law before an employee can bring a lawsuit.
The Pao case should also bring changes in human resources policies at many tech and venture capital companies, Lucas said.
Testimony at trial showed “there wasn’t an HR person,” at Kleiner Perkins, she said. “There weren’t HR policies.”
Kleiner said after the Pao verdict that it’s committed to diversity and that 20 percent of its partners are women.
(An earlier version of this story was corrected to replace the attribution for a statement about federal court bias suits.)