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Ellen Pao Speaks: 'I Am Now Moving On'

"My experience shows how difficult it is to address discrimination through the court system."

Re/code

Over the past three and a half years, I have pursued a legal case against Kleiner Perkins for gender discrimination and retaliation. Seeking justice in the courts has been painful for me personally and professionally, and for my family. I am now moving on, paying Kleiner Perkins’ legal costs and dropping my appeal. My experience shows how difficult it is to address discrimination through the court system.

Our society is struggling with workplace discrimination and harassment. These often happen in subtle but highly hurtful ways. Many businesses today are ill-equipped to prevent or address problems that arise. Human resources is a company-oriented function — when you can find it at all. Some businesses are now making changes to prevent discrimination — and importantly measuring and talking about it. But we have a long way to go, as women and minorities continue to make up a small fraction of the management at our most lucrative and productive companies.

In the absence of effective internal company solutions, one option is the legal system. Since bringing my case, I discovered that the court system today is not well-designed to address these issues, either. First, to win in California court, discrimination has to be intentional and a substantial motivating factor for different treatment. This standard is vague and hard to prove; there could also be other factors like racial or age discrimination, personal animus or unconscious biases. These all add up to excuses that can prevent a finding of discrimination or retaliation. Second, harassment and discrimination claims have to be filed within one year under California law. Contrast that with three years for property damage claims and four years for breach of contract claims.

The deck is stacked against plaintiffs in other ways, as well. From the first day of trial, I saw how hard it was going to be to win when every potential juror who expressed a belief that sexism exists in tech — a belief that is widely recognized and documented — was not allowed to serve on the jury.

The disparity in legal, PR and financial resources is also tremendous — and the primary reason for my decision to now focus my efforts outside court. I was lucky to have the resources to bring my case this far. I personally spent significant amounts on expert fees, lawyer costs and Kleiner’s costs. I was at risk of paying much more, as Kleiner asked the court to make me pay nearly $1 million in its expert costs and court fees. Many other costs were borne by my lawyers.

But even then, we could not match Kleiner’s deep pockets, and the imbalance of resources impacted the entire process in ways large and small. Some examples are:

  • Kleiner had three times as many lawyers and paralegals working at any given time that we knew of. They also had full-time jury consultants observing most if not all of the trial.
  • Kleiner pursued expensive procedural actions that delayed the court case for well over a year.
  • In discovery, I handed over almost all my emails, since I didn’t have the resources to review and protect my private and privileged messages. Kleiner had teams of people review every document and protect their emails. I sent nearly one million pages; they sent fewer than 10,000.
  • We did not buy deposition videos, full court transcripts or daily access to trial testimony — all of which Kleiner was easily able to afford and did obtain.
  • I had neither the time nor resources to talk with reporters or journalists. Kleiner reportedly had four full-time PR people plus their defense lawyer arguing their points and providing information and their perspective to the press in real-time during the trial. Their efforts contributed to online aggression against me personally, and even toward my family, leading to what is now viewed as the one of the largest trolling attacks in history.
  • Kleiner spent at least five times more on expert witness fees than we did. Even hiring experts was challenging for us; Kleiner’s clout in Silicon Valley made it difficult to get experts and other people to testify openly on the stand.

Several reporters complained to me after the trial about Kleiner’s PR tactics and the lack of balance in the information and perspectives available. I’m certain that the reporting about my case, which was extensive, was affected by Kleiner’s PR campaign, and I fear the trial was, too. Under court rules, jurors are instructed not to read any press reports about the case. In the old days, it might have been feasible for jurors to fold the newspaper and turn off the television. Today, I find it hard to believe that jurors can stay away from the Internet.

My case continued for several weeks, and the courtroom and outside hallways were filled with reporters and photographers producing news stories, opinion pieces, video reports, liveblogs and tweets on a daily basis. One alternate juror in my case tweeted during the trial and deliberations, sometimes including a popular hashtag. And the judge himself admitted to reading headlines throughout the trial.

Ultimately, I cannot afford to continue this battle and risk having to pay additional costs if I lose on appeal. I already must pay Kleiner for its legal costs, as awarded by the court, plus 10 percent annual interest. Forcing plaintiffs in civil rights actions to pay for defendants’ costs is just wrong. With my resources and fortitude, and the strength of my case, I still cannot afford to take further legal action.

Even the courts do not provide a level playing field, and it is hard to afford justice. I hope future cases prove me wrong and show that our community and our jurists have now developed a better understanding of how discrimination works in real life, in the tech world, in the press and in the courts.

I have a request for all companies: Please don’t try to silence employees who raise discrimination and harassment concerns. Instead allow balanced and complete perspectives to come out publicly so we can all learn and improve. I and many others are eager to hear more stories being shared by women and minorities. I turned down offers to settle so I can keep telling mine. We need to keep telling our stories and educating people on how it can be that women and minorities form such a small fraction of our investor base, our tech workforce and our leadership.

I am grateful for the support from everyone who reached out to me to share their stories or support, from my scrappy lawyers, and from my friends and family. Going forward, I am optimistic that our efforts will drive change to improve the work situation for women and minorities. Personally, I plan to continue moving these issues forward by writing, investing and working in the technology industry.


Ellen Pao is a former partner at Kleiner Perkins Caufield & Byers, and former interim CEO at Reddit. She can be reached on Twitter @ekp.

This article originally appeared on Recode.net.