The “Elephant in the Valley” – Gender Discrimination and Sexual Harassment in Silicon Valley

/

As we discussed in last week’s blog post, the Pao v. Kleiner Perkins gender discrimination lawsuit has opened up a broader conversation about the issues women face in the tech industry. Inspired by this conversation, a group of women with experience working in the industry decided to put some real data to the anecdotal evidence of widespread sexism and discrimination. The group recently published the results of the survey online under the title “Elephant in the Valley,” and the results largely substantiate what was becoming clear in the aftermath of the Pao lawsuit: Ellen Pao’s case was illustrative of a much larger issue of gender discrimination in tech.

In this posting we’ll talk about the aftermath of the Pao case, the Elephant in the Valley survey, and what it means for women working in the tech industry and in the broader workforce. If you’ve been discriminated against at work based on your gender and would like to understand more about your legal rights and options, please contact Eisenberg & Baum. We have a group of experienced employment discrimination attorneys who can explain your rights as a victim of discrimination and help you decide the best way to address your particular claim.

The Pao Effect

Even before the jury reached a verdict in the Pao case, Ellen Pao’s story and lawsuit were having an effect outside of just the case itself. The case was very high profile, covered by major media outlets and the subject of broad discussion on social media. Soon after Pao filed her lawsuit, two other women filed suits alleging gender discrimination by major tech companies. Chia Hong filed a lawsuit against her former employer, Facebook, and Tina Huang filed a class action lawsuit against her former employer, Twitter. The fact that these cases came so soon after Pao only magnified the issue of harassment and unfair treatment of women in the male-dominated tech sector.

Though Pao ultimately lost her case, Fortune reported that, based on interviews with several Silicon Valley area plaintiffs attorneys, there was an appreciable “Pao effect” that continued even after the loss. Some lawyers saw a dramatic increase in the number of women coming forward with discrimination complaints, while others observed that gender discrimination clients seemed more emboldened and determined to shine a light on illegal practices at their job. Pao’s single case seems to have encouraged more women to come forward with their own discrimination complaints and has sparked a much broader conversation about gender discrimination in the tech industry .

Elephant in the Valley Survey and Findings

Inspired by this new discussion, a group of women with ties to the tech industry, including Trae Vassallo, a witness for Ellen Pao in her case against Kleiner Perkins, began a project called the Elephant in the Valley to gather hard data on what was becoming an apparent trend of gender discrimination across an entire business sector. Together, the team created a survey that they distributed to over 200 women working in a wide range of tech businesses. The women surveyed generally had at least 10 years of work experience, with many holding high positions of power at tech and venture capital companies. The vast majority of the women polled were from the San Francisco Bay and Silicon Valley area.

What the survey revealed was an astonishing amount of respondents who had experienced sexual harassment and other forms of gender bias and discrimination at work. Here are a few of the key results from the survey:

  • 60% of respondents reported having been subjected to unwanted sexual advances at work
  • 60% of women who reported sexual harassment to their employer were dissatisfied with the action taken
  • 39% of respondents who said they’d been sexually harassed did nothing because they were afraid it would have a negative impact on their career
  • 90% of respondents reported having witnessed some sort of sexist behavior at offsite events and conferences
  • 84% reported having been told they were too aggressive at work

On top of the survey data, the Elephant in the Valley also collected women’s stories and posted some of them on its website. Here are just a few of the stories provided:

  • “The first time I travelled with a new CEO he made an advance. I turned him down. After that, I was never asked to travel with him again. This impacted my ability to do my job.”
  • “When I am with a male colleague who reports to me the default is for people tend to defer to him assuming I work for him. As soon as they know that is not true they look to me. I have also had male colleagues say to me that once a woman is pregnant she is irrelevant.
  • “There is a VC networking group called “alpha” as in male, of which I am the only female member and was “invited” only after specifically asking. VCs have fly-ins, fly-fishing trips etc to which only guys are invited.”

What’s Next?

The point of the Elephant in the Valley was to continue to raise awareness and further the discussion of the issues of gender bias and discrimination in the tech industry.

This exercise isn’t merely to empower those women who may be the direct victims of the types of discrimination and inequity revealed by the survey, but to make an entire industry, especially men, aware of issues that are significantly impacting a significant portion of its workforce and leadership. What comes of this new focus on the treatment of women in the tech industry and beyond will depend on everyone involved. Tech employers can no longer turn a blind eye to the issues of gender bias, harassment and discrimination at work. The issue is too well known and its victims now too empowered for their concerns to be ignored. The victims themselves have had the door opened for them by plaintiffs like Ellen Pao and can take encouragement from the Elephant in the Valley project. If you have been subjected to sexual advances at work or left out of meetings or events because you’re a woman, you now know that you are not alone and you do not have to endure this kind of behavior. We encourage you to report incidents of harassment and discrimination to your employer and contact an attorney.

Eisenberg & Baum’s attorneys have decades of experience handling gender discrimination and sexual harassment cases. We offer free initial consultations for employment discrimination claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.

The Pao v. Kleiner Perkins Gender Discrimination Lawsuit

/

If you follow tech industry news (or news about high profile employment discrimination cases, like we do), you may be aware of a recent case from California that highlights what many observers believe is a deeper discrimination issue in the tech industry. In Pao v. Kleiner Perkins, a female employee of a Silicon Valley venture capital firm alleged a widespread and long-term pattern of gender discrimination that led to her being denied promotions and compensation and ultimately cost her her job. The venture capital firm defended its practices and ultimately prevailed, but the case has opened a broader discussion about the role and treatment of women in Silicon Valley and other areas. In this posting, we’ll talk specifically about the Pao case and its outcome. Next week, we’ll follow up with a broader discussion of sexual harassment and gender discrimination in Silicon Valley.

The Background of Pao v. Kleiner Perkins

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins matter. Ellen Pao, the plaintiff in Pao v. Kleiner Perkins, obtained degrees from Princeton as well as Harvard’s law and business schools. Before joining Kleiner Perkins Caufield & Byers, she worked for seven years in the tech industry, including jobs at Microsoft and BEA Systems. Kleiner Perkins is one of the largest venture capital firms in Silicon Valley. They’ve provided financial backing for some of the biggest names in technology, including Facebook and Google.

When a position as chief of staff for one of Kleiner Perkins’ managing partners opened up in 2005, Pao applied for and got the job. Less than a year after starting the job, Pao alleges she was pursued by a male colleague and eventually engaged in a relationship with him. According to Pao, she did not let the relationship go on very long before she broke it off. It was after she broke off the brief relationship that Pao alleged the discrimination against her began. First, according to Pao, the colleague with whom she engaged in the relationship began leaving her out of meetings, emails and other business decisions. Starting in 2007, Pao began reporting the alleged retaliation and discrimination by her colleague to her manager and other leaders of the firm. Pao alleged that despite her complaint, her male colleague was not disciplined but was eventually promoted to senior partner while she was encouraged to drop the complaint.

For the next several years, Pao says she continued to complain about the conduct of her colleague, now senior manager, whom she claimed continued to retaliate against her for breaking off their past relationship. Meanwhile, she says she started to receive poor performance reviews, which directly impacted her compensation and ability to get promoted. Apart from the continued issues with her male colleague, Pao also claimed she’d received a book of poetry as a Valentine’s gift from a senior partner that included sexual drawings and content. She also alleged that she and other female members of the firm were left out of multiple dinners involving firm partners, with one partner explaining that the women would be “buzz kills.” After years of internally reporting what she believed were discriminatory and retaliatory acts by her male colleague and the firm leadership, Pao decided to sue Kleiner Perkins in May 2012. In October of the same year, Kleiner Perkins fired Pao.

In response to Pao’s allegations, Kleiner Perkins argued that it was more committed to diversity than its fellow venture capital firms, citing statistics that showed it employed a greater proportion of women than other firms. As for Pao’s failure to be promoted, Kleiner Perkins argued she was not alone, and many other junior partners, including male partners, had also been passed over for promotion during the same time. According to Kleiner Perkins, it had given Pao a number of opportunities and tools to succeed at the firm. The firm used the performance reviews, among other evidence, to argue that Pao was a difficult co-worker who was ultimately unable to make it as a senior partner in venture capital.

Pao’s Legal Claims

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins claims. In her lawsuit, which Pao brought in California state court, Pao claimed Kleiner Perkins violated several provisions of the California Fair Employment & Housing Act. The provisions are similar to those found under the federal Civil Rights Act and other state laws designed to protect workers from discrimination based on gender and other protected characteristics such as race, religion and ethnicity.

Specifically, Pao alleged three different, but related violations of the California law:

  1. Under California law, it is illegal for an employer to discriminate against an employee based on their gender in matters of compensation and other employment terms. According to Pao, Kleiner Perkins denied her a promotion and compensation, and ultimately fired her, because of her gender.
  2. California law also prohibits an employer from retaliating against an employee because they’ve filed a discrimination complaint. Pao claimed that she was denied a promotion, compensation and other opportunities at work because she had complained about discriminatory conduct by her male colleague and others at the firm. She also alleged that her firing was in retaliation for filing a lawsuit against Kleiner Perkins.
  3. Finally, California law requires employers to take all reasonable steps to prevent gender discrimination and harassment. According to Pao, her internal complaints of discrimination and retaliation were met with inaction at best as her male colleague was allowed to discriminate against her for years.

Based on these alleged violations, Pao sought $16 million in damages, including damages for back pay and lost future earnings. The trial began in February 2015.

The Outcome of Pao v. Kleiner Perkins

The following is our understanding, interpretation and opinion of the Pao v. Kleiner Perkins outcome.The jury in the case deliberated for two days before returning a verdict in Kleiner Perkins’ favor on all counts. Nine of the twelve jurors (the minimum required to reach a verdict in a civil case in California) believed Kleiner Perkins’ version of events, that Pao’s own performance led to her inability to get promoted and eventually her termination and that she had not been retaliated against for raising discrimination issues.

Though Pao lost, many believe her lawsuit has shined a light on a long overlooked issue in Silicon Valley and the tech industry: the underrepresentation and unequal treatment of women. We’ll talk more about these issues and the impact of Pao’s case beyond the verdict in next week’s blog post.

If you’ve been discriminated against at work because of your gender, please contact Eisenberg & Baum. We have an experienced group of employment discrimination attorneys who are ready to help you. We offer free initial consultations for gender discrimination claims and bill on a contingent fee basis, so yo
u won’t have to pay us unless we win your case.

Retaliation for Reporting Misconduct at Work

/

Finding the courage to oppose discrimination at your job can be hard. To do that with the threat of being fired or demoted hanging over you can make even the most courageous employee reconsider whether they should speak up. Unfortunately, it’s not uncommon for an employer to retaliate against an employee who reports or speaks out against discrimination at their job. That’s why anti-discrimination laws like the federal Civil Rights Act and the Americans with Disabilities Act and the New York State Human Rights Law have built in protections for people who report discrimination in the workplace.

So how do you know if you’ve been wrongfully retaliated against at work and what can you do about it? In this posting, we’ll talk about some of the legal protections against retaliation as well as your rights and legal options if you believe you’ve been retaliated against. If you’d like to talk about your own retaliation case, please contact us. We have decades of experience helping victims of employment discrimination and retaliation recover damages and other relief from their employers.

What Is Retaliation by My Employer?

You likely know that it is against the law for an employer to take adverse action against an employee based on certain characteristics like gender, age, race or religion. Many of the same laws that protect individuals from workplace discrimination also protect employees from retaliation for opposing unlawful discrimination. We’ve talked before about what is retaliation in the context of a sexual harassment lawsuit, but the idea is similar across any type of discrimination claim. Generally, in order to demonstrate you’ve been retaliated against at work, you must show three things:

  1. You are a covered individual under the law,
  2. You engaged in a protected activity, and
  3. Your employer took some adverse employment action against you because of that activity.

Let’s take a look at each of these elements in more detail.

Who Are Covered Individuals?

The protection against retaliation given by federal and New York anti-discrimination laws applies not only to the employee who claims they’ve been discriminated against but anyone who may participate in a discrimination investigation or proceeding. So, even if you’re a witness to a discrimination case, you are protected under the law. The protections against retaliation in anti-discrimination laws apply only to individuals taking part in an investigation or claim of discrimination that is covered under that law. So, a witness to a sexual harassment claim would be protected from retaliation under state and federal laws, but an individual who reported theft of office supplies would not be covered.

What Is Protected Activity?

Individuals can be protected from retaliation for a number of different activities related to a discrimination claim. Reporting a discrimination claim and other opposition to discrimination qualifies as protected activity as long as you have a reasonable, good-faith belief that the activity you’re opposing is actually unlawful discrimination. It doesn’t matter what the final outcome of the discrimination claim is. You can’t be retaliated against if you opposed discrimination on a good faith belief that it was unlawful. If you’d like to learn more about what qualifies as unlawful discrimination, check out our discussion of the topic in our prior post on wrongful termination. Even you weren’t the one reporting the discrimination, simply participating in a discrimination investigation or claim is considered protected activity under the law. So, serving as a witness or providing a statement during an internal investigation would be protected.

What Is Adverse Employment Action?

The final key element of a retaliation claim is that your employer must have taken some adverse employment action against you because of your involvement in the discrimination case. The first thing that may come to mind when you read “adverse employment action” is getting fired, and certainly if your employer fires you because you’ve participated in a discrimination claim or investigation, that would qualify as adverse employment action. In the broader sense, though, adverse employment actions could include any number of attempts by your employer to discourage you from participating in the discrimination case. For example, if your employer demotes you, gives you a bad performance review, cuts your benefits, or threatens you with these types of actions, it could be considered retaliation if it is tied to your participation in a discrimination investigation or case. The action must have some significance to your employment terms, though, and cannot be a simple slight or off-hand remark that has no effect on your employment.

What Do I Do if I’ve Been Retaliated Against?

If you believe your employer retaliated against you because you reported or took part in a discrimination claim, you should contact an attorney immediately. An experienced employment discrimination attorney can advise you about the merits of your claim, the best way to pursue it, and the protections you have as a complainant. Depending on the facts of your case, you may have the option of filing a lawsuit or bringing a claim with an administrative agency like the EEOC, the New York State Division of Human Rights or the New York City Commission on Human Rights. You could be entitled to a variety of remedies, from getting your job back to recovering lost wages.

Contact Eisenberg & Baum for a free initial consultation on your case. Though we’re based in New York City, we have attorneys licensed in many states throughout the country and we can also become admitted pro hac vice with local counsel in other states where we are not currently admitted, so we can help no matter where you are.

When Does Sexual Harassment at Work Become a Crime?

/

Sexual harassment can have devastating effects on an employee. It can affect the employee’s performance at work, their ability to move up through their organization or even keep their job, and their overall mental and physical well-being. We’ve talked in a number of previous posts about how to recognize when you have a sexual harassment claim at work and what types of remedies you can expect. Sexual harassment is illegal and can be the basis for a civil lawsuit by an employee to regain lost benefits and pay and monetarily punish a responsible employer.

While employees have the ability to seek relief and damages for sexual harassment in the workplace, the laws providing for these remedies do not make sexual harassment a crime. That’s not to say, however, that the harassing conduct cannot also qualify as a crime. In this posting, we’ll talk about some of the situations in which sexual harassment can also be a crime and what a victim should do in those situations.

What Is Sexual Harassment?

Sexual harassment is a form of gender discrimination prohibited under both Title VII of the federal Civil Rights Act of 1964 as well as the New York Human Rights Law. New York City has also adopted its own law prohibiting sexual harassment. The definition of sexual harassment across these laws is very similar: sexual harassment consists of unwelcome sexual conduct that either creates a hostile work environment or is used a basis for employment decisions.

Sexual conduct, for purposes of sexual harassment law, can include both verbal and physical actions, from requests for sexual favors to unwanted touching and sexual acts. For a more detailed discussion of what is sexual harassment, read our prior posting, “How Do I Know if I Have a Sexual Harassment Claim in New York?”

When Is Sexual Harassment Also a Crime?

In some instances, such as rape, it may be obvious to a victim of sexual harassment that the conduct they’ve endured is not only illegal workplace discrimination but a crime. In other situations, such as when an employee has been verbally harassed, it may not be as clear. Whether conduct at work is considered a crime depends on the local criminal laws where you live and whether the conduct meets the definition of a crime under those laws. Below we outline a few examples of the types of crimes under New York law that can be violated when an employee is sexually harassed at work. These crimes can vary from basic misdemeanors to violent felonies, depending on the severity. As a result, the punishments could range from a simple fine to many years in prison.

Rape, Sexual Abuse and Forcible Touching

You likely know that forced sexual intercourse without a person’s consent is considered rape and is a crime. The law also criminalizes other types of sexual contact with a person without their consent. Under New York law, the crime of sexual abuse can include any touching of a person’s intimate body parts without their consent, whether that touching is over or under the victim’s clothing. Similarly, forcible touching is a crime when the perpetrator intentionally and forcibly touches the victim for their own gratification or to degrade or abuse the victim. Again, the touching can be over or under the victim’s clothing. In the context of sexual harassment in the workplace, criminal conduct could therefore include pinching or groping, as well as more severe non-consensual sexual acts, by a co-worker or supervisor.

Assault

The physical contact between a harasser and their victim may not always be of a sexual nature. In some instances, harassing co-workers or supervisors can seek to intimidate their victims through pushing, hitting, or other physical conduct. When an employee is injured as a result of this conduct, the harasser can commit the crime of assault under New York law. Assault can come in varying degrees of severity depending on the intent of the assailant, whether they used a weapon, and how badly the victim was injured.

Menacing

Even if a victim is not injured by their harasser, if the harasser physically threatened them, their actions could be criminal in New York. The crime of menacing, under New York law, occurs when a person intentionally places their victim in fear of imminent injury or death by physically threatening the victim. The menacing act must be physical, not just verbal, and could include showing a weapon or other threatening gestures.

Stalking

Sexual harassment often involves a pattern of behavior, like repeated phone calls or texts. This type of repetitive conduct can fit with the definition of criminal stalking. Stalking, under New York law, is when a person intentionally engages in a course of conduct that makes the victim reasonably fear for their safety or the safety of someone else. The conduct behind stalking might include physically following the victim, repeated unwanted calls or messages, or following the victim’s activities online. Even seemingly innocent gestures like sending a gift could be part of a stalking case if the overall context of the harasser’s behavior would reasonably lead to the victim fearing for their safety.

Unlawful Imprisonment

Unlawful imprisonment, or false imprisonment, may not sound like it can apply to workplace sexual harassment, but in fact there are some situations where it can. Simply put, unlawful imprisonment is the restraint of another person. Specifically, under New York law, a person commits this offense when they intentionally restrict someone else’s movement in a way that substantially limits their liberty. The restriction could be either confining the victim or moving the victim from place to place. In the case of workplace sexual harassment, the harasser could intimidate their victim, either physically or verbally, into staying in a location like an office, a car, or hotel room in order to subject them to offensive conduct.

What To Do If You’ve Been the Victim of a Crime

If you believe you’ve been the victim of not only discrimination but criminal conduct and want to pursue charges, report it to your local police department immediately. Unlike a civil sexual harassment claim which you can pursue individually, the state is responsible for investigation and prosecuting criminal matters and will assist with your criminal claim. We also encourage you to contact Eisenberg & Baum if you need help understanding your legal rights and remedies as a victim of sexual harassment. Our attorneys have decades of experience handling sexual harassment cases in New York and are ready to help you with your claim. We offer free initial consultations for sexual harassment claims and bill on a contingent fee basis, so you won’t have to pay us unless we win your case.