As an employee-side employment lawyer, I am used to saying to my clients, “If you feel you have been discriminated against, I believe you, but feeling discrimination and proving discrimination are two different things.”
And as I and other employment law colleagues — mostly women — watched Ellen Pao wither under the intense cross-examination from Kleiner Perkins’ attorney, Lynn Hermle, we knew in our gut that the case might not go well for Pao.
And yet, juxtaposed with Ellen Pao’s less-than-steady performance under cross, there was substantial evidence of her above-average work performance within a work environment riddled with sexism, and eventually retaliation, both of which should have given more jurors pause in reaching their verdict.
Is it really possible for a sexist and retaliatory environment not to be the legal cause of Pao not getting promoted and eventually being fired? Why didn’t more jurors side with her?
One answer lies in our inability to see two sets of facts at the same time. If we become emotionally attached to one set of facts, we may literally and figuratively ignore the other set of facts. The image at right, depicting both a man playing a saxophone and a woman’s face, is a classic optical illusion with double meaning. We can only see one image at a time. Yet, after realizing the double meaning, we know they are both there.
Why is it so difficult in human dynamics to grasp that two forces may be operating at once? It was possible, but apparently by the juror vote count not probable, to see the evidence as showing that while Ellen Pao had challenges at times getting along with her colleagues, at the same time she was treated worse than the men, for what appeared to be sexist and retaliatory reasons.
I submit that many of us do not want to see the dark truth that discrimination — not just sexism, of course, but all the “isms” — still persist in many workplaces. It feels better to the majority of people to emotionally attach to the “good facts” that would indicate that Pao just was a “bad fit” for Kleiner Perkins because of her personal flaws. And, moreover, that the vaunted VC firm whose expert testified ranked first in numbers of women (and yet still a dismal 20 percent) was filled with good guys who would not knowingly discriminate.
So while the truth really does lie somewhere in the middle, the outcome reflects a tendency to deny discrimination unless there is no other plausible reason. This perpetuates the illusion of equality. If someone wants to only see nondiscriminatory motivations in employer behavior, there are usually facts to satisfy that reality. And there are lawyers like Lynne Hermle who masterfully develop a cohesive and compelling narrative — even if it is only part of the story.
But here’s the good news.
There is no doubt that a “win” for Ellen Pao would have been better for other women seeking legal redress, but given the enormous attention to the issues she raised, this case has already empowered women to say “enough.” They are doing it in lawsuits against Facebook and Twitter. They are doing it in social media. They are doing it in print media — like the group of female tech workers who placed a full-page ad thanking Pao in the Palo Alto Daily Post.
Sometimes losing is winning, in the long run. Think Anita Hill. Think Proposition 8. Think Hillary Clinton (okay, too soon to tell on that one).
But seriously, social change and personal transformation often start with adversity on some level. How about that other Ellen? Ellen DeGeneres had her share of adversity when she was one of the first media personalities to “come out” as gay in 1998. That seems so long ago now.
The law is still a vehicle for social change, and the antidiscrimination statutes in California are exactly the same today as they were before the verdict. This “loss” has absolutely no precedential value.
What the aftermath of this case will mean is that many employers will improve their human resources practices, including creating more objective measures of success in performance reviews — a glaring issue in the Pao case — and will otherwise do everything in their power to avoid a public jury trial.
If there is one point we can all agree upon, it’s that Kleiner Perkins did not come out with a better reputation than it had before this case was tried. All employers have matters they would rather not have aired for public consumption. Very few employers can afford the literally six to seven figures in attorneys’ fees and costs to defend a case in court.
Litigation is brutal. Pao vs. Kleiner Perkins showed us that. But good cases most often settle and with able counsel, they settle early with more defense dollars going to the wronged employee than to the employer’s attorneys.
Susan G. Bluer is a partner in Bluer & Bluer LLP, a San Francisco-based firm she founded with her cousin, Mark Bluer. They have a record of success at trial and in pre-litigation negotiations.
This article originally appeared on Recode.net.