Late one afternoon in March, when the jury was out and the lawyers were bickering about something or other, Ellen Pao opened her laptop and checked her Gmail. The former venture capitalist—who had recently become a household name in Silicon Valley by suing her ex-firm, Kleiner Perkins Caufield Byers, for gender discrimination—scrolled down her browser window, not clicking on anything. She looked vacantly at a list of already read emails before assuming her usual gaze: staring straight ahead, unflinching, at the empty witness stand.
At that moment, for the first time in the contentious and complex trial that I’d been covering day in and day out for a month, I felt overwhelmingly sad for Pao. She was searching for a distraction from the grinding courtroom drama in which she was the unusual star, but she was coming up empty. She looked so vulnerable and lonely, so completely on her own.
She would lose her battle, of course. Pao, now the interim CEO at Reddit, had filed her lawsuit against Kleiner in 2012, and had waited nearly three years for her day in court. Over 24 grueling days of testimony, before an audience of between 20 and 200 inside the courtroom and the millions reading the deluge of stories online (this would become the largest tech story of the year), Pao watched dispassionately as details about her character, her sex life, and even her “genetic makeup” were used to eviscerate her case. She wanted $16 million in restitution and nine times that in punitive damages. In the end, she was awarded not one cent.
Much has been written about how even though Pao lost—the jury of six men and six women denied all four of the counts before them—she actually achieved something bigger: a new public awareness of the biases, both conscious and unconscious, against women working in tech. I’ve even made this argument a few times myself. But let’s not delude ourselves: Pao’s loss is an insult to every woman in Silicon Valley. Not because she had a strong case—she didn’t—but because of how she lost it. The trial, while unique and peculiar, began to feel universal to many working women in Silicon Valley. We could see ourselves in Pao; we recognized the subtle slights from her mostly male coworkers; we understood intuitively what the defense’s ad hominem attacks on her personal life represented.
Pao’s suit sparked a “conversation” only because it offered fresh hunks of tabloid meat for journalists to chew on: a scorned woman, a powerful employer, a scandalous affair, a wealth of double-crossing and deceit. This was hot stuff. Now that it’s over, it’s back to business as usual: stat-filled “women in tech” stories that are as dire in their prognoses as they are toothless in their prescriptions for change. That makes me angry—I think it should make everyone angry.
I have no idea whether Pao should have won her case (I changed my mind daily depending on which side’s lawyer spoke last), but to watch the foibles of her work and sex life be used to undermine and destroy her professional credibility was terrifying. And while there aren’t any neat lessons to draw from what happened in that stuffy sixth-floor courtroom, the trial did expose truths about the self-image of venture capital firms. They see themselves as untouchable mavericks—renegade brothers-in-arms who should not be shackled by intrusive HR policies or petty rules about what’s OK to talk about at work. Pao, the venture capitalists implied, should have been grateful that she’d been invited in at all.
This attitude, unsuprisingly, exacerbates problems. Pao talked about the confusion she felt when a Kleiner partner gave her a book of erotic poetry on Valentine’s Day and then, a few months later, told her that his wife was away for the weekend. Kleiner’s lawyer, Lynne Hermle, made much of Pao’s not reporting the incidents to her bosses, seemingly under the impression that the victim is responsible for policing the perpetrator. Not long ago, I found myself in a similar situation: During a dinner meeting, a well-known executive advised me to order dessert, because he liked “a woman with a little something to hold on to,” before casually mentioning (as they all apparently do) that his wife was out of town. Was my discomfort less valid because I never emailed him to let him know that I didn’t appreciate the come-on? Should I have informed his superiors? Perhaps. But I wanted to put it behind me, so I did just what Pao did: nothing.
One day, during a particularly brutal cross examination, Hermle pushed Pao to talk about an affair she’d had with Ajit Nazre, a coworker at Kleiner. “And, Ms. Pao,” Hermle inquired, her eyes fixed on the plaintiff, “you knew he had two small children at the time?” (The comment had little to do with the argument; the attorney just wanted the jury to know there were kids in the picture.) Pressing on, Hermle presented a series of texts—first romantic, then angry—between Pao and Nazre, who went on to exclude Pao from firm events and then sexually harass another female partner twice, acts that finally got him fired (but not before he was promoted to senior partner).
In questions that often ended with a needling “Didn’t you, Ms. Pao?” Hermle sketched out her version of the plaintiff for the jury: Pao was originally hired to do secretarial work; Pao acted “entitled”; Pao had slept with a married man. As the questioning proceeded, the attorney refined the nasty character sketch into a finished portrait: Pao was a morally loose woman who had cunningly collected spurious evidence in an effort to reap a payout.
This picture of Pao—while sophisticated and, to some extent, convincing—was also purposely skewed. Though Kleiner’s corporate counsel cast the plaintiff as a conniving woman who saved 700,000 pages of incriminating texts and emails, Pao didn’t start out plotting to sue her employer for discrimination and retaliation. She didn’t harbor hopes of becoming a firebrand. On the contrary, she was almost shockingly accommodating in her years with Kleiner. When her mentor, firm leader John Doerr, learned that her relationship with Nazre had turned nasty, he was inclined to fire the man immediately; Pao persuaded him not to. When Doerr suggested that a pregnant Pao turn down a seat on the board of RPX—a company that she was helping to take public—in favor of a male senior partner, she acquiesced.
But something along the way made her snap. She said that it happened when she heard about three administrative assistants at the firm who’d been sexually harassed. In her deposition videos from 2012, which Hermle cued up throughout the trial, Pao sat against a blank background and looked listless and dizzy. She stared at her lap and answered questions softly. She seemed disoriented, perhaps intimidated, and very much beaten down.
The Pao that the jury and the press saw in court was a very different woman. She sat resolute and poised, her face firmly forward, even as her former colleagues lambasted her on the stand. Kleiner’s team joked outside the courtroom that the plaintiff’s newfound composure was thanks to the speech coaches she’d hired. One wonders if the Pao of 2012 might have acted differently if she’d known how big her case would end up becoming. If she could have grasped the import of her fight—the way the news crews would multiply, how one group of women would take out a full-page ad in a Palo Alto newspaper that read, simply, “Thanks Ellen”—might she have demonstrated more strength in that deposition? Or, perhaps, did she already know how this would end? While she is being celebrated by many as a woman who stood up to abuse, she’s also now reviled by many in her industry.
Leaving the Battery, a tech-beloved private social club, one morning after the trial, I ran into one of the highest-profile angel investors in the business. He told me that no one was on Pao’s side anymore—not even women—and said that the takeaway for him and his colleagues is that VC work is too collaborative to be coed, that men and women should have separate VC firms. Pao had made things worse for women, he said.
Maybe so. But at least one woman on the inside foresees a different outcome. On the last day of trial, when Kleiner had all but vanquished its opponent, Hermle smiled and waved through the glass slats in the courtroom door at the reporters sitting in the courthouse hallway. Three charges against her client had been rejected; one more was soon to follow. Hermle’s team hugged and patted one another on the back. After the last charge was dropped, Pao gave a short statement about how she needed to get back to work now, and I imagined that sad in-box and the horrible slog of starting a life again. Hermle led her team over to an impromptu celebratory press conference. She ended it on a cheerful note: “See you at the next trial!”
Originally published in the May issue of San Francisco