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In 2012, American lawyer and executive Ellen Pao filed a lawsuit for gender discrimination against her former employer, Kleiner Perkins Caufield & Byers. The case went to trial in February 2015. On March 27 2015, it was announced that the jury had found in favour of Kleiner Perkins on all counts.

Causes of action

The original case was filed under the California Fair Employment and Housing Act and contained 3 causes of action:

• Employment discrimination based on gender:

  12940. It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:

(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

• Workplace retaliation:

  (h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

• Failure to take reasonable steps to prevent gender discrimination:

  (k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.

Following her termination the complaint was amended and a 2nd count of retaliation, termination, was added. In addition to a demand for actual damages of $16 million there is a plea for punitive damages.

Trial

The trial is heard before a jury of 6 women and 6 men drawn from diverse employment and ethnic backgrounds and Judge Harold E. Kahn at San Francisco Superior Court. Kleiner Perkins is represented by Lynne Hermle and Pao is represented by Alan Exelrod of Rudy Exelrod Zieff & Lowe. She is also represented by Therese Lawless of Lawless & Lawless.

Pao’s suit alleges that: men were paid more than women at Kleiner Perkins, men were promoted ahead of women, men were allowed to serve on several boards of directors while women were only allowed to serve on one board, and women who experienced sexual harassment had little support. Alan Exelrod, Pao's lawyer claimed that KPCB had promoted only one woman to senior partner in it's 40 year history. Kleiner Perkins denied the allegations and alleged that many of the claims were stale.

It is a trial to a jury of 12 who, under the rules of the court, are permitted to submit written questions to witnesses. The judge is also permitted to question witnesses. Witnesses have previously been disclosed and deposed prior to the trial and transcripts of their depositions are available to counsel for the opposing sides and may be compared to the testimony of the witness in the courtroom. There are hundreds of exhibits consisting of documents and emails which the court has audio-visual equipment to display to the witness, jury, and audience.

Plaintiff's case

The plaintiff presented her case first, leading off with testimony by Tracy “Trae” Vassallo, a successful senior partner who had been employed by the firm, who testified about sexual harassment by Ajit Nazre, the married man who is alleged to have engaged in retaliation against the plaintiff, after she ended their consensual sexual relationship.

The testimony and cross-examination of the plaintiff occupied most of the second week. For the most part the plaintiff's case, and her testimony, involved actions by the defendant and its employees which disadvantaged her in the workplace such as inappropriate gifts, invitations, or conversation; positioning of sitting at meetings or office space in the defendant's offices; contradictory evaluations such as "too bold," "too quiet;" and failure of collegiality by junior and senior partners resulting in exclusion from meetings and information about investing opportunities. One cited example of this was an all-male dinner held at former Vice President Al Gore's apartment. Another was the failure to give her a board seat at RPX Corporation, an investment by the firm that she and general partner Randy Komisar had worked on was an issue. According to the plaintiff, despite the defendant hiring an outside investigator, Stephen Hirschfeld who was characterized as "antagonistic", it failed to adequately address the gender issues and harassment which had impacted the plaintiff and other women in the workplace.

The plaintiff called Allison West of Employment Practices Specialists who strongly criticized defendant's investigation of gender issues at the firm,

Defendant's case

First witness for the defense was David Lewin, professor of human resource management at UCLA, who testified as an expert witness regarding Ellen Pao's job search and prospects. The defendant then called Mary Meeker, a senior partner in the firm and a highly successful woman with extensive Wall Street experience. According to her, "Kleiner Perkins is the best place to be a woman in the business." John Doerr, one of Kleiner Perkins's top venture capitalists and Pao's former boss, when asked about Pao being fired rather than promoted, replied that of the approximately 25 people who had been hired into the same level position as Pao, ("junior partner") only five were promoted, while the other 20 were similarly dismissed. "The junior partner is an up-or-out role. We have no lifetime junior partners." - John Doerr

Kleiner has a larger, albeit low, ratio of women in the company, with 11 female partners and 20% of its staff female, than most other VC firms, which are 7-11% women, based on surveys done in 2011 & 2013.

Punitive damages

Defense lawyer Lynne Hermle asked Judge Harold Kahn to dismiss punitive damages, but Judge Kahn declined the request and ruled that here was sufficient evidence from which a reasonable juror could conclude that Kleiner Perkins engaged in intentional gender discrimination and that Pao may be awarded punitive damages. If she is awarded punitive damages it could push the total towards $160 million.

Punitive damages can be as much as nine times the figure awarded for compensatory damages and are meant as a punishment for the discriminating party. Under California law, they can be awarded in cases where the defendant is found to have acted with "malice, fraud or oppression", and are usually reserved for the worst of the worst behavior.

Partial list of witnesses

• Chi-Hua Chien (for the plaintiff)
• Andrew Jody Gessow
• Stephen Hirschfeld (defense witness)
• Aileen Lee (for the plaintiff)
• David Lewin, professor of human resource management at UCLA
• Mary Meeker
• Ellen Pao, the plaintiff
• Tracy “Trae” Vassallo, a senior partner employed by Kleiner Perkins Caufield & Byers
• Allison West of Employment Practices Specialists
• Rhoma Young

Jury instructions

Plaintiff's claims:

1. Kleiner Perkins discriminated against Ellen Pao because of her gender.
2. Kleiner Perkins retaliated against her because of conversations in December 2011 and her memorandum in January 2012.
3. Kleiner Perkins failed to take all reasonable steps to prevent discrimination against her.
4. Kleiner Perkins retaliated by firing her after her conversations and memorandum.

There are no sexual harassment claims.

The standard of proof is preponderance of the evidence. The standard is met if the proposition is more likely to be true than not true.

Claim 1 must be proven before claim 3 can be considered.

Ellen Pao was an at will employee who could be fired without warning at any time for any reason or for no reason but not for the wrong reasons such as a statutory exception where "actions or inactions were substantially motivated by gender discrimination and/or retaliation”. "Substantial motivating reasons and factors are more than remote or trivial motivating reasons and factors."

Compensatory damages are an estimate of her past and future lost earnings. Other, more complicated and technical, compensatory damages are reserved for future determination if there is a favorable verdict for plaintiff.

If the jury feels the defendant's actions involved malice, fraud and oppression they may consider punitive damages after the initial verdict is returned. There is a 7 page verdict form.

Closing arguments

Alan Exelrod made the closing argument for plaintiff, saying defendants leaders “ran Kleiner Perkins like a boys’ club.” Lynne Hermle made the closing statement for defendant, focusing on the issues of the numbers of women employed and the allegedly discriminatory events. According to her, plaintiff was fired because, while she is an excellent executive, she is not able to perform in venture capital at a senior level. Therese Lawless presented the rebuttal on behalf of the plaintiff:

“Women will be judged in one way and men in another. That’s not how it works in this country.”

Submitted to the jury

The case was submitted to the jury about noon on March 25, 2015. A verdict is expected in a few days. A unanimous verdict is not required, only support of 9 of the 12 jurors.

Verdict

The initial verdict was announced shortly after 2 p.m. on Friday, March 27. The jury found 9-3 in favor of Kleiner Perkins on the first 3 claims. The jury, which found 8 to 4 in favor of Kleiner Perkins on the fourth claim of retaliation by termination, was directed to continue to deliberate on that claim as the finding did not meet the required threshold of 75%. The jury deliberated for a short time then returned a final verdict of 9-3 in favor of Kleiner Perkins on all claims.

1. ^ Cite error: The named reference Complaint was invoked but never defined (see the help page).
2. ^ GOVERNMENT CODE SECTION 12940-12951
3. "Judge Says Pao Needs to Do Better to Prove Case for Punitive Damages" Liz Gannes Re/code March 17, 2015, accessed March 18, 2015]
4. Shalene Gupta (March 5, 2015). "Meet the jury that will decide Silicon Valley's biggest sex bias case". Fortune. Retrieved March 6, 2015.
5. 4th entry from the bottom "Liveblog: Day Three of Ellen Pao on the Stand" March 11, 2015
6. "Ellen Pao Lawsuit: Tech Startups on the Stand - Re/code". Re/code.
7. "Ellen Pao Suit Against Kleiner Perkins Heads to Trial with Big Potential Implications". The New York Times. Retrieved 2015-03-06.
8. "Ellen Pao vs. Kleiner Perkins: Opening arguments touch on sex, power and money - San Jose Mercury News". Mercurynews.com. Retrieved 2015-03-06.
9. "Ellen Pao lawyer: Kleiner Perkins 'not a level playing field'". Usatoday.com. 2015-02-26. Retrieved 2015-03-06.
10. "Ellen Pao Lawsuit Day 2 - Re/code". Re/code.
11. http://www.theguardian.com/technology/2015/mar/13/ellen-pao-gender-lawsuit-silicon-valley
12. Cite error: The named reference DefendentBrief was invoked but never defined (see the help page).
13. "The Depressing Gender Gap at the Nation's Top 71 Venture Capital Firms [SLIDESHOW". Observer. Retrieved 2015-03-06.
14. "Man Ellen Pao accused of retaliation had bonus docked". Usatoday.com. 2015-03-02. Retrieved 2015-03-06.
15. Liz Gannes (February 24, 2015). "VCs in Bathrobes, Women Asked to Play Secretary, Angry Texts: Day One of Pao v. Kleiner Perkins". Re/code. Retrieved March 8, 2015.
16. Heather Somerville (2 February 2015). "Ellen Pao seeking $16 million in sex discrimination lawsuit against Kleiner Perkins Caufield & Byers". San Jose Mercury News. Retrieved 20 March 2015.
17. "At Kleiner Perkins Trial, Randy Komisar Accuses Ellen Pao of ‘Politicking’" Liz Gannes Re/code March 17, 2015, accessed March 18, 2015]
18. http://usa.chinadaily.com.cn/epaper/2015-03/12/content_19792994.htm
19. See live blogs for the first two weeks of the trial at http://recode.net/tag/pao-trial/ accessed March 16, 2015
20. "Expert Slams Kleiner Perkins’ Investigation Into Pao’s Allegations" Re/code March 16, 2015
21. Elizabeth Weise (March 16, 2015). "Mary Meeker: No discrimination at Kleiner Perkins". USA Today. Retrieved March 17, 2015. it wouldn't have been hard for her to find a new job and quickly make up any potential lost income
22. "Liveblog: Mary Meeker Testifies in Pao/Kleiner Perkins Case" March 16, 2015
23. ^ Heather Somerville (4 March 2015). "Ellen Pao trial: Doerr says tech, VC firms would do better 'if they hired more women'". San Jose Mercury News. Retrieved 19 March 2015.
24. Heather Somerville (20 February 2015). "Ellen Pao, Kleiner Perkins face off in $16M sex discrimination trial". San Jose Mercury News. Retrieved 23 March 2015.
25. http://www.bbc.com/news/technology-32019790
26. http://www.usatoday.com/story/tech/2015/03/23/ellen-pao-kleiner-perkins-sex-discrimination-160-million/25214583/
27. http://www.theguardian.com/technology/2015/mar/13/ellen-pao-gender-lawsuit-silicon-valley
28. ^ Davey Alba (19 March 2015). "Kleiner Witness Says Ellen Pao Was 'a Bit Too Opinionated'". Wired Magazine. Retrieved 20 March 2015.
29. http://www.usatoday.com/story/tech/2015/03/05/ellen-pao-kleiner-perkins-stephen-hirschfeld/24453557/
30. http://www.theverge.com/2015/3/9/8146253/kleiner-perkins-ellen-pao-pattern-matching
31. ^ Liz Gannes and Nellie Bowles (March 24, 2015). "Live: Closing Arguments in Ellen Pao's Gender Discrimination Case Against Kleiner Perkins". Re/code. Retrieved March 24, 2015.
32. ^ Liz Gannes and Nellie Bowles (March 25, 2015). "Live: Day Two of the Ellen Pao v. Kleiner Perkins Case Summations". Re/code. Retrieved March 25, 2015.
33. Andrea Peterson (March 24, 2015). "The sex discrimination trial that rocked Silicon Valley is almost over. Here's what you need to know". The Washington Post. Retrieved March 25, 2015. If the jury rules in favor of Kleiner Perkins, Pao will get nothing. To issue a verdict, nine jurors out of 12 must agree on whether or not there was discrimination.
34. Liz Gannes and Nellie Bowles (March 27, 2015). "Live: Ellen Pao Loses on All Claims in Historic Gender Discrimination Lawsuit Against Kleiner Perkins". Re/code. Retrieved March 27, 2015. That's the full verdict. No on all claims.

• Gender discrimination lawsuits