Ellen Pao’s Trial Stood for Many Earning Far Less

(WOMENSENEWS)– In the case of Ellen Pao vs. her venture capital firm employer, the jury has ruled against her. Still, San Francisco was riveted by the testimony in her gender discrimination and retaliation case against Kleiner Perkins Caufield and Byers.

And despite the outcome, Pao exposed male bias in the venture capital sector, where a recent study found that in 2013 women made up only 6 percent of partner positions, a steep decline from 1999.

Whether one believes Pao or her employer, by coming forward and telling her story of inappropriate gender-based workplace conduct, Pao spotlights the issue of persistent sex discrimination in the workplace more than 50 years after federal civil rights laws prohibited such conduct.

While Pao spoke of working conditions for high-income professional women, the gender-based hostility she described is actually more pernicious for my female clients who earn low wages.

Women from marginalized communities are extremely vulnerable to discrimination and harassment and are often deeply and quite reasonably afraid to speak up about it. Unlike Pao, another job is not an automatic option if they are terminated. An Arkansas motel worker was fired just for talking with a reporter.

Women who are undocumented immigrants have been threatened with deportation for objecting to sexual harassment and assault at work. Transgender women have been outed and demeaned for simply living as their authentic selves. Pregnant women have been terminated because of stereotypes about what work they should and should not be doing during pregnancy.

Eighteen percent of women (15 percent of millennials and 23 percent of baby boomer women) say that they have been discriminated against at work, according to a December 2013 report from the Pew Research Center. And 43 percent of those women say that the discrimination has negatively affected their career.

It’s Worse in Non-Traditional Fields

Looking more closely at certain fields, where women are underrepresented, shows even greater discrimination and also the different (and worse) experiences of women of color.

A recent UC Hastings study of women of color in science, technology and math shows that 100 percent of the women interviewed reported gender bias. Black women were more likely than other women (77 percent compared to 66 percent of all women) to report having to "prove themselves" over and over. Asian women reported more pressure than did other women to adhere to more traditionally feminine roles and to experience more "push back" when they did not. Latinas reported being pressured to perform more administrative support work for their male colleagues (such as filling out forms and organizing meetings). Both black and Latina women reported being regularly mistaken for janitors. Women from other marginalized communities such as women in the LGBT community also suffered higher rates of workplace discrimination.

A 2015 Center for American Progress report, "Paying an Unfair Price: The Financial Penalty for LGBT Women in America," shows that almost 30 percent of women who identify as bisexual and 23 percent of lesbians live in poverty (for heterosexual women the number is 21 percent). Black and Latina lesbians in same-sex partnerships are more likely to be poor than their white counterparts. The report finds that workplace discrimination plays an important role in keeping LGBT women in poverty. Transgender women face additional challenges and report high rates of workplace discrimination and harassment.

Women with disabilities also suffer discrimination. As of February 2015, women with disabilities have an almost 16 percent jobless rate compared to about 6 percent for women without disabilities and 5.6 percent for all people without disabilities, according to the Bureau of Labor Statistics. Once on the job, women with disabilities are often not given the modest reasonable accommodations they need, leading to job loss. A 2005 report from the Federal Equal Employment Opportunity Commission identifies best practices for state employers, including recruitment and hiring and reasonable accommodations.

Long Way to Equity

While women have undoubtedly made progress in the workplace over the last 50 years, we still have a long way to go to achieve equity. Women continue to work in stereotypically "female" jobs, receive less pay then men for the same work and are discriminated against because of pregnancy and care-giving responsibilities. Women from marginalized communities experience multiple forms of discrimination, and 25 percent of women report they are sexually harassed at work. 

We have laws on the books prohibiting gender discrimination, pay discrimination, pregnancy discrimination, and sexual harassment but that is not enough.

A series of Supreme Court decisions have weakened the protections available for employees in the workplace, including making it harder to prove sexual harassment by a supervisor and more difficult to show retaliation. For example, in Vance v. Ball State University, the Supreme Court held that, for purposes of showing a company liable for sexual harassment by a supervisor, the supervisor would have to be able to take "tangible" employment actions, like terminating his victim. Thus, a supervisor who subjects a victim of harassment to an undesirable work schedule would not count.

Even in California, a state Supreme Court decision makes it more difficult to show the employer’s motivation for allegedly discriminatory employment decisions (perhaps the reason Pao lost her gender discrimination case). These changes deserve a legislative fix at the federal level and at the state level. But in addition to more protective laws, employers must adopt effective anti-discrimination policies and train managers to ensure implementation.

Certainly the conduct that the Kleiner Perkins jury heard about – comments about women being excluded from workplace events because they would "kill the buzz" and a partner giving Pao a book of "erotic" poetry and sexual drawings for Valentine’s Day — should not be accepted in the workplace regardless of whether it legally rose to the level of discrimination or retaliation.

For all the issues it dredges us, Pao’s lawsuit prompts a closer look at the measure of women’s equality and finds it fallen short of the promise of the Civil Rights Act of 1964, which forbids discrimination on the basis of sex as well as race.