Gender Discrimination Cases Suffer Token Set-Back.
Ellen Pao, the superwoman of the finance and tech world, has suffered another indignity added to those she endured while working for venture capitalist firm Kleiner Perkins. Having lost her gender discrimination case at trial, the Court awarded the employer its fees and costs as the prevailing party. Now Pao, probably emotionally and financially exhausted, has agreed to drop her appeal and pay the court ordered fees. The employer had sought over $900,000 and was awarded less than $300,000 by the Court.
Gender Discrimination Suits: It’s Not Over — Women Will Fight Back.
The Pao v. Kleiner Perkins case brought good evidence to a bad case. That is, the evidence in the case would have supported the cases of many women who had cleaner employment histories than Pao.
The Jury essentially believed Kleiner Perkins that Pao was not a collaborative participant in the work flow, and that she was “territorial,” putting self-interest over company interest. Also, she had an affair with the man she said participated in creating a hostile work environment, and seemed in deposition to evade admitting that consensual relationship with the co-worker. Finally, her mentor, an upper level executive who supported her advancement, took the company line at trial to say Pao was not promotable.
But the trial also exposed considerable gender disparity in the population of upper executives. The inference for women as a class, if not for Pao as an individual, is that gender bias is operative as a matter of statistical proof. Women need not apply. Women angry at the glass ceiling after proving themselves superior candidates may be ready to act as class representatives.
Gender Discrimination Plaintiffs Should Not Be Deterred by the PAO Post-Trial Award of Fees and Costs.
The general rule in Fair Employment & Housing cases filed in California is that the prevailing defendant is not entitled to fees and costs unless the Plaintiff’s prosecution of the case was without reasonable basis to believe in the merits of the case. This standard punishes the Plaintiff who files and prosecutes for an improper purpose. But it is the Defendant Employer’s burden of proving that fees and costs are due.
In Williams v. Chino Valley Independent Fire District, the Court held that Code of Civil Procedure Section 1032(b) is preempted by Government Code section 12965(b), a subsection of the Fair Employment and Housing Act [FEHA} that places the decision to award costs within the discretion of the trial court. That “discretion” can be abused however, and in my opinion, the trial court did abuse its discretion in awarding Kleiner Perkins several hundred thousand dollars in fees and costs.
In Christiansburg Garment Co. v. EEOC 434 U.S. 412 (1978) the Court held that a prevailing defendant can only recover its fees and costs by showing that the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate after it clearly became so.” The Full Christiansburg Decision. The public policy recognized by the Courts is that the “double standard” of making it more difficult for Defendant’s to recover fees and costs encourages Plaintiffs (and their counsel) to be aggressive in rooting out the incidents of discrimination that may operate “below the surface” in the work relationships.
This Is Not a Gender Discrimination TKO.
The same underlying practice of systemic exclusion of women from advancement is visible in other “information age” companies operating at high levels of expertise and salary, including, sadly, the upper management levels of major law firms. World Trends in Gender Bias. See also, Gender Bias in Law Firms. Resolute women paying both blood and treasure to obtain their degrees, and who then pay their entry level dues, and establish their work credentials, will not passively accept an arbitrary limit on their opportunity for advancement and reward. When a woman sees a man of lesser capability get the promotion for which she applied, she, or one of her similarly situated sisters, will sue. If an employer wants to defend against such suit, the proactive solution is to open the door for all capable applicants without regard to gender.
The Court quite simply “got it wrong” in my opinion. I respect that the Court sat in judgment of the law and was the doorkeeper to the evidence. To disagree is not to disrespect. But it seems to me that Ellen Pao and her attorneys did an enormous public service in her brave fight against the mega corporation of Kleiner Perkins. Her case raised the understanding of how extremely well educated and experienced female executives face a continuing double standard. Her case included evidence of discrimination and she put down hundreds of thousands of dollars and her reputation in a passionate, good faith belief in the merits of her case. She was reasonable in that belief, and the evidence she presented supported that reason. It was simply wrong as a matter of law to award Kleiner Perkins even one dollar of fees or costs.