After less than 72 hours of deliberation, the jury in the gender discrimination lawsuit against Kleiner Perkins found the powerful Silicon Valley venture capital firm not liable for all four of Ellen Pao’s claims, including retaliation and failure to prevent retaliation. There was a dramatic, last minute upset when Judge Kahn realized there was a miscount on the fourth claim. They needed nine out of 12 jurors for a decision and only eight voted "no." They went back into deliberations and came back with nine out of 12.
There was a dramatic, last minute upset
Among Pao's claims, the gender discrimination claim was the most consequential. On that, 10 of the jurors voted "no." The fourth claim was around her termination from the firm in October, 2012. Pao alleged raising concerns about gender bias and filing this lawsuit in May of 2012 were a "substantial motivating reason" for Kleiner Perkins to fire her.
Pao, now the interim CEO of Reddit, was seeking $16 million in lost wages and potentially $144 million in punitive damages.
In a statement following the decision, Pao said that she was grateful for being able to tell her story:
I want to thank my family and my friends for your love and support during this very challenging time. I’m grateful to my legal team for getting me a day in court, and to everyone around the world, male and female who have reached out and expressed support in so many different ways, and who’ve told me that my story is their story too, and that they’re grateful to me for telling my story. I have told my story, and thousands of people have heard me.
If I’ve helped to level the playing field for women and minorities in venture capital, then the battle was worth it. Now’s the time for me to get back to my career, to my family, and to my friends. Thank you all very much.
In its statement, Kleiner Perkins said Pao's claims had no legal merit:
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."
When Pao first filed the suit in 2012, breaking ranks by refusing to settle, the case sparked discussion about the tech industry as a self-described meritocracy. Silicon Valley feminists "needed a win," but this was not the case.
Jurors had seven pages of questions to answer
Pao was seeking $16 million in compensatory damages for lost income because she was not promoted and terminated after filing this lawsuit. The six men and six women who decided this case were given 14 pages of instruction and a seven pages of questions to answer to determine liability, so it took awhile to read their responses.
Judge Harold Kahn had put off telling the jury how much Pao's Reddit stock options are worth, as well as the estimated loss of carried interest until they got to the compensatory damages part of deliberations, if they got there at all. Carried interest refers to a share of the profits in Kleiner Perkins' individual funds. Kleiner would have argued that the money Pao stands to make at Reddit should be taken into account to assess lost wages. The plaintiff's attorneys would have argued that if she had been made a general partner, she would have been given carried interest, just as the male colleagues who were promoted. The other significant number the jury would have needed to decide punitive damages is the financial worth of Kleiner Perkins itself.
Earlier today the lawyers were arguing before Judge Kahn about whether compensatory and punitive damages should be split into two phases. Kleiner Perkins lawyer Lynne Hermle argued for two phases.
Pao was seeking damages on four claims:
1. Kleiner Perkins discriminated against her because of her gender by failing to promote her and/or by terminating her employment.
2. Kleiner Perkins retaliated against her by failing to promote her because she complained about gender bias at the firm
3. Kleiner Perkins failed to take all reasonable steps to prevent gender discrimination against her.
4. Kleiner Perkins retaliated against her by terminating her employment because she complained about gender bias at Kleiner Perkins and/or filed this lawsuit.
Instructions to the jury put strict limitations on the second and fourth claims. The jury could only consider conversations that Pao had in December of 2011 (the first time she explicitly mentioned gender bias) a formal memo she gave Kleiner in 2012. The conversations were with billionaire Kleiner Perkins partner John Doerr, Pao's former mentor. The instructions to the jury were careful to note that Pao was not making a claim for sexual harassment.
"Pao's experience was not representative of women in the tech sector."
Over the course of the month-long trial, the intricacies of the case made it clear that Pao's experience was not representative of women in the tech sector. Kleiner Perkins was likewise not representative of the VC industry. In 2015, the firm was 20 percent female, compared with an industry average of 6 percent. It was also shepherded by billionaire John Doerr, who advocated for gender diversity before the suit was filed. Nonetheless, the scenarios Pao described — being left out of meetings, relegated to office house work, judged by a double standard, the obligation to be likable — were very familiar.
Even before the jury began deliberations, her lawsuit seemed to have had an impact. A few weeks into the trial, a gender discrimination lawsuit was filed against Facebook by Therese Lawless, one of Pao's attorneys, and a class action lawsuit for gender discrimination was filed against Twitter.
Update March 27th, 4:38PM: to note a last-minute miscount of the votes in Ellen Pao's fourth claim; again at 5:20PM with the jury's decision after the miscount; and a third time at 8PM with Pao's statement.
Catch up on all our coverage of the trial here.
Here is the verdict form given to the jury on Wednesday: