When is a gender discrimination lawsuit not about gender discrimination? Always. Gender discrimination cases are proxies for challenges to existing social norms that support unearned privilege. A claim of gender discrimination is a charge that there is bias, both conscious and unconscious, that perpetuates the status quo. Ellen Pao’s suit against the venture capital firm Kleiner, Perkins, Caufield & Byers (KPCB) was such a case.
Pao sued KPCB alleging gender discrimination, retaliation and failure to prevent discrimination. In March, a jury decided that KPCB was not guilty of the allegations made by Pao, who recently filed an appeal. It may be that the statutory provisions were not violated, but it is clear that Pao did indeed suffer harm.
The harm that the law does not capture is the harm suffered when one is not a member of a privileged group but wants to participate in activities beneficial to that group, such as employment and advancement at a venture capital firm. Pao lost her case because the harm she suffered was oppression, not discrimination.
Broadly speaking, discrimination requires that an individual or organization have readily identifiable animus (or hostility) towards another individual. We look for an evil actor who targets one individual to discriminate against another for illegal reasons. Oppression, on the other hand, does not require that there be an evildoer with particular animus. Rather, as one scholar argues, oppression is the experience of being pressed between two forces and barriers such that they work together to restrict or prevent one’s mobility.
As a minority woman at a firm and in an industry in which most employees are white and male, Pao was caught between two choices, neither of which were attractive. One choice was to try to conform to the norm, i.e. to mimic the “bro” culture that seems to permeate much of Silicon Valley; to do this meant to tolerate inappropriate sexual advances and demands, tolerate the denial of career advancement opportunities, change her office location to accommodate her harasser, suffer retaliation when she did complain, tolerate lower compensation than that awarded to her male counterparts, and to suffer these aggressions in silence. In sum, her first choice was “to man up.”
Attempts to “man up” often lead to charges of insincerity and inauthenticity. It is, after all, difficult to authentically be a “bro” when you are not one. Her alternative was to resist inappropriate advances, to speak out against the culture, to demand access to social activities that advance one’s career, to challenge the norm, and make the “bros” uncomfortable. Her second choice, in bro lingo, was to be “a bitch.” In due course this led the men at KPCB to conclude, based on their discomfort, that Pao just wasn’t a “good fit.” In seeking to press against the constraints of KPCB’s culture, to resist her oppression, Pao lost her job.
Pao’s ethnicity should not be overlooked. What was she thinking, this Asian woman, to fail to conform to society’s idea of what an Asian woman should be? According to social norms, she should have been passive, willing to serve, humble and grateful for being allowed to join the firm at all. Her unwillingness to stay in her place and to challenge the social hierarchy meant that there was no other acceptable space for her to occupy. The firm was unwilling to change the hierarchy to make space for her. Ironically, there is growing evidence that venture capital firms, and businesses more generally, are more financially successful when there is more diversity in leadership. The firm may actually have lost money in its unwillingness to make room for Pao.
This harm, these choices that are not choices, continues to plague women, as evidenced by lawsuits against Facebook and Twitter. Women practicing law have to navigate the line between being fierce negotiators on behalf of their clients and being deemed to be too aggressive and ambitious. When negotiating on behalf of themselves for raises or promotions, they walk this same line. Any woman demanding more—whether it is respect, money, position or time—runs the risk of challenging the status quo and thus risks being pressed back into her designated social space.
The issue in Pao’s case is not whether she was legally discriminated against, although cases such as this one highlight the inadequacy of the law in redressing the harm that goes unnamed but characterizes the experience of many women in the work force, particularly those in male-dominated fields. The law can do a better job of providing those who want to challenge their place in the social scheme with more effective tools to do so. Perhaps the question the law should be asking is not whether there was discrimination, but rather whether the actions undertaken, regardless of motive, result in the subordination of another based on her gender, race, ethnicity or some combination of all of these characteristics.
The larger societal issue is how to begin to see the patterns of oppression that need no individual animus to replicate themselves. Until we can see, recognize and acknowledge that the harm suffered is oppression, not discrimination, the lives of women in the workplace will continue to be filled with Faustian choices.
Sean M. Scott is senior associate dean and a professor at Loyola Law School, Los Angeles, where she teaches Race, Gender & the Law and other courses.