It's going to take a much bigger lawsuit than Ellen Pao's to fight sexism in Silicon Valley

Ellen Pao lost.

Pao, the former venture capitalist and current interim CEO of Reddit, sued her former firm, Kleiner Perkins Caufield & Byers, for allegedly failing to promote her because of her gender, then retaliating by firing her after she sued them.

What this case proves, really, is that it’s hard to litigate sexism. Really hard.

When I say sexism, I don’t necessarily mean specific things like losing your job because you are a woman — the evidence on that point was pretty mixed here, which is why it went to trial instead of getting settled years ago. I mean the subtler things. Things like networks and attitudes that predispose people toward hiring and promoting people who look like themselves. Implicit biases.

The jury voted “No” on all four claims that Pao brought against her former firm, even after there was some confusion and the jury was sent back to deliberate on the fourth and final one (which is about whether KPCB retaliated against Pao after she filed her lawsuit).

In an emailed statement, KPCB partners said that, “today’s verdict reaffirms that Ellen Pao’s claims have no legal merit. We are grateful to the jury for its careful examination of the facts. There is no question gender diversity in the workplace is an important issue. KPCB remains committed to supporting women in venture capital and technology both inside our firm and within our industry.”

The firm should be celebrating. However, this isn’t a pure win for them. For one thing, a lot of the firm’s dirty laundry got aired. Among other things, there was some evidence that some pretty clearly sexist things went on at KPCB during Pao’s time there.

But sexism is everywhere. Pao and her lawyers failed to prove that any or all of the things that happened to Pao legally constituted discrimination.

You can spend years in court and not be able to prove specific instances of bias. But it’s there. The boys club has existed in most industries, and to some extent still does, particularly at the top.

Pao’s case was about some very specific claims, but what it represented wasn’t a KPCB problem. It’s a Silicon Valley problem. And, as with other industries, real change probably won’t come until a whole wave of women stand up to do something about it.

Bloomberg View’s Katie Benner wrote this last week, in regards to Pao and Chia Hong, who just filed a similar lawsuit to Pao’s against Facebook:

But if you look at finance and media, two former professional boys clubs, it took big class action suits with big, expensive settlements — notably against Morgan Stanley and Newsweek — to shake things up and reset baseline expectations for appropriate behaviour at work.

Changing the culture without massive, expensive legal consequences is probably impossible. There just aren’t enough women around.

KP has made a big point of the fact that it has many more female VC partners, proportionally to the size of the firm, than the industry as a whole. They actually are pretty good, comparatively. At KP, women make up 20% of partners. In venture capital in general it’s 6%. SIX PER CENT.

This is an industry that is pretty good at numbers. 6% doesn’t prove any one person or firm is sexist, but it does say pretty clearly that the industry as a whole has a problem. You don’t need a jury to tell you that.

You may, however, need to win a massive class-action lawsuit to fix it.

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