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Silicon Valley sex discrimination case includes subtle forms of sex discrimination

Last month, a sex discrimination trial began in which Ellen Pao, a former junior partner at venture capital firm Kleiner, Perkins, Caufield & Byers, has alleged that Kleiner Perkins refused to promote her and forced her out because of her sex.  The trial will include evidence of lurid sexism but, perhaps more interestingly, will also include evidence of subtle forms of sex discrimination.

During the trial, Pao’s lawyers plan to present evidence that male partners of the firm sometimes treated women in overtly sexist ways.  For example, a male partner, Ajit Nazre, once allegedly knocked on the hotel room of a female employee while he was wearing nothing but a bathrobe.  Nazre also allegedly sexually harassed a female employee at a meeting when he rubbed her with his leg under the table.  Another male partner gave Pao a book of erotic poetry and nude sketches.  Still another male partner allegedly told Pao that women “kill the buzz.”

While this is certainly powerful evidence of a sexist firm culture, Pao’s lawyers also plan to introduce more subtle evidence of sex discrimination that is actually more common in the workplace.  For instance, Pao claims that she was criticized for being too passive and not speaking up enough.  But she was also criticized for being pushy and speaking up too much.  These contradictory critiques of Pao’s performance are a commonly cited problem for women who are trying to climb the promotional ladders in workplaces like this.

Laurie Rudman, a psychologist who has studied gender bias in the workplace, has found that women who speak directly and self-promote themselves are seen as more capable employees because of those traits while, at the same time, they are penalized for these traits.  Rudman believes that these women are penalized because of ingrained attitudes about how women are supposed to act.  Women are expected to be more passive than men but passivity often is detrimental to advancement in certain professions, such as venture capital.

Courts have long recognized that discrimination against women because they do not behave the way women are “supposed” to behave is a form of sex discrimination.  For example, in Price Waterhouse v. Hopkins, a U.S. Supreme Court case from 1989, there was evidence that partners in the accounting firm Price Waterhouse told Ann Hopkins that, in order to advance, she needed to be less “macho,” and “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”  The court held that it was sex discrimination for Price Waterhouse to penalize Hopkins because she did not conform to the way some men in the firm thought women ought to behave.

If you believe that you are a victim of sex discrimination, either because of overt evidence of sexism or more subtle evidence of sexism in the workplace, you should contact an experienced employment lawyer to learn more about your rights.