As Jury Deliberates Pao V. Kleiner Perkins, Allegiances Aren’t Always Based On Gender

“The jury is six men and six women, so this probably won’t be quick,” a man in a suit said to a female colleague as they shuffled out of the court.

They were among the dozens of others who have been watching the Ellen Pao Vs. Kleiner Perkins Caufield & Byers trial play out in San Francisco Superior Court’s Room 602 for the past five weeks.

The closing arguments from both the plaintiff and the defendants wrapped up just before noon on Wednesday. After the bailiff escorted the jury back into the deliberation room, there was pretty much nothing more for the public or the press to see until the verdict comes in.

The jury, which must have consensus from at least nine members to return a verdict, likely has been engaged in some difficult discussions over the past day and into this morning. But it’s reductive, and likely very wrong, to think that the deliberations are boiling down to a standoff of women versus men.

It’s tempting to parse the courtroom, whose audience size has waxed and waned depending on the day’s witnesses, along gender lines.

A small group of prominent women in technology have been in attendance on some key days of the trial, tweeting support for Pao and disdain at Kleiner’s defense. And ask one of the handful of casually dressed men who have become familiar faces in the courtroom’s back rows what brings him in as a spectator, and he’ll tell you he is decidedly pro-Kleiner and that he thinks it is actually men who have the short end of the stick in today’s corporate world.

But scratching below that surface, it’s clear that allegiances aren’t so cleanly divided. A tenured professor who says she’s experienced years of insidious sexism in her decades-long career at a San Francisco university started attending the trial in support of Pao, but is now rooting for a Kleiner Perkins victory. An older male lawyer who has been coming into the courtroom regularly during his free time expected to find a “frivolous feminist lawsuit,” but now believes that Pao has been gravely wronged and that Kleiner should pay big. It’s not only the grown-ups who are having flip-flops in opinion:

If one thing has become clear in the past five weeks, it’s that Pao Vs. Kleiner is a complicated case, with conflicting testimonies and reams of evidence that can be interpreted in different ways. The jury has a tough decision on its hands. Here are the four claims on which it must rule yes or no:

  1. Was Ellen Pao’s gender a substantial motivating reason for Kleiner Perkins’ not promoting her to the levels of senior partner as well as general partner? [This is the gender discrimination element to the case.]
  2. Were Pao’s conversations in December 2011 and her January 4th 2012, memo to John Doerr, in which she complained about the alleged gender discrimination she encountered at the firm, a substantial motivating reason for her not being promoted to senior partner and general partner? [This is the retaliation part of the case.]
  3. Did Kleiner Perkins fail to take all reasonable steps to prevent gender discrimination against Ellen Pao? [This can only be answered yes by jurors who answered yes to question 1 — after all, if there were no gender discrimination, the question would be moot.]
  4. Were Ms. Pao’s conversations in December 2011 and her January 4th 2012 memo a substantial motivating reason for Kleiner Perkins’ decision to terminate Pao’s employment in October 2012? [This is also under retaliation.]

If the jury agrees that the answers to any or all of those questions are yes, they must then decide whether or not she was also “harmed” because of it — this is where “punitive damages” come into play.

Determining why certain people get ahead in the world of venture capital is nearly as nuanced and murky as the modern environment for gender relations.


Pao’s lawyers argue that she has lost out on some $16 million in lost wages and income, and if punitive damages are awarded they could amount to nine times that — meaning that Pao could stand to receive up to an additional $144 million. You can see the full seven-page verdict form that jurors have received here, and the instructions provided by the judge here. If the jury decides damages should be awarded, the trial will go into a “phase two” in which numbers are hashed out.

As Fortune’s Dan Primack wrote in a very sharp column today, “the verdict may hinge on whether or not Pao convinced the jury that her investing track record – or at least her track record in bringing deals to the partnership – was clearly deserving of a promotion.” The truth there could be hard to suss out, as determining why certain people get ahead in the world of venture capital is nearly as nuanced and murky as the modern environment for gender relations.

The closing arguments from Pao’s legal team asserted that she was held back from advancing at Kleiner because of her gender, and that she was retaliated against because she spoke up about the biased culture at the firm. The closing arguments from Kleiner said that Pao was not promoted because she just wasn’t good enough to get to the next level, and that once she realized she would not get ahead as an investor, she decided to create this legal complaint for an eight-figure payout.

As many have said, no matter which way this pans out, it seems that neither Pao nor Kleiner will emerge as a stereotypically triumphant winner. This legal case has been a long and ugly one, with major aspersions cast on both sides. Whoever receives a favorable ruling will probably at best walk away with a sense of vindication-meets-utter-exhaustion.

Since there may be no real winner on the plaintiff or defense sides, it could be that the real winner here will be the larger plight of women in business and technology. Regardless of which way the jury goes, if Pao Vs. Kleiner Perkins elevates the default perception of these issues above the simple dichotomy of pitting “women against men,” that will have been a very good start.