When venture capital firm Kleiner Perkins Caufield & Byers hired an outside investigator to look into a complaint of sexual harassment in December 2011, the investigator asked to see the firm’s equal-opportunity-employment policy. The firm’s COO at the time, Eric Keller, said he couldn’t find it.
While that doesn’t mean Kleiner had never had an EEO policy, it either didn’t exist at that time or was lost over the years.
This could be a crucial point in Ellen Pao’s ongoing employment lawsuit against her former firm. While the Kleiner defense team has picked apart Pao’s evolving motivation and strategy in the case — showing that she may have only started complaining about the firm’s lack of HR policies and training late in the process — it doesn’t make her complaint invalid.
Today, Keller took the stand. Asked if it’s true he couldn’t find the policy in late 2011, he said it was. Asked if that meant no policy ever existed, he said it definitely did not.
Then Kleiner’s lead attorney, Lynne Hermle, produced the elusive Kleiner EEO policy. Except there was one very important detail: This policy was created and put into place in 2012. Kleiner had hired an outside lawyer, Gary Gansle, to write it, after it couldn’t find an existing policy at the time.
In our interviews with employment lawyers to get context on the Pao case, they point to this issue as a glaringly big point against Kleiner’s defense case.
For instance, Atlanta-based attorney Lorene Schaefer, president of the Workplace Investigations Group, said, “I’ve been practicing law since 1990, and have done close to 1,000 investigations, and I have never conducted an investigation where they have not had an anti-harassment and EEO policy. Ever.”
But Schaefer’s perspective is not shared by all. Stephen Hirschfeld, the San Francisco-based attorney who investigated both Trae Vassallo’s and Ellen Pao’s complaints about harassment and discrimination at Kleiner in late 2011 and early 2012, testified in the Pao case that it is not unusual for smaller firms he works with not to have HR policies.
In his role as head of operations at Kleiner, Keller led the company’s human resources functions.
In late 2011, HR issues at the firm suddenly became dramatic. In a single day, Pao went to Keller’s office and told him about her relationship with partner Ajit Nazre, whom she alleges had discriminated against her after their romantic relationship ended. And then 10 minutes later, Trae Vassallo arrived in his office with a tale of overt sexual harassment from Nazre — he had made unwanted advances at the door of her hotel room in New York one night, dressed in a bathrobe.
After Pao submitted a memo about gender issues at the firm, she and Keller met again. There, she asked for four things.
She wanted cash for the damage to her reputation and the emotional distress. She wanted to stay on her board seats and to be compensated for those positions. And she wanted to be sure she would be compensated at least as well as Nazre, her alleged harasser who had been fired over the Vassallo complaint. As she was leaving, she said one more thing, according to Keller:
“She said, ‘I think it’s going to be very difficult for us to resolve the issues on the basis of what I’ve laid out here,'” he said. “She said, ‘The damages to me and my reputation have been very very significant.’ And I said, ‘What do you mean?’ And she said, ‘Eight figures.'”
Keller said he took this to mean anywhere between $10 million and $99 million dollars as a payment.
When Keller went to hire an investigator to look into both Vassallo’s and Pao’s complaints, he chose a lawyer who is often hired to protect employers from litigious employees. On his own website, Hirschfeld calls himself a lawyer who works “on behalf of management.”
Keller insisted Pao was obstinate and wouldn’t easily cooperate with Hirschfeld. Her lawyer, Alan Exelrod, argued this was because she knew he was, by default, on the side of management.
Hirschfeld’s bio also notes: “Steve routinely counsels management about ways to prevent costly and protracted litigation.”
Didn’t work this time, though.
This article originally appeared on Recode.net.