Ellen Pao faces an uphill battle if she appeals her anti-discrimination case


Though Ellen Pao may have technically lost her anti-discrimination lawsuit against venture capitalist firm and former employer Kleiner Perkins in March, the consensus was that, symbolically, it counted as a win for lodging a dent in Silicon Valley’s institutional sexism.

“This case sends a powerful signal to Silicon Valley in general and the venture capital industry in particular,” Stanford law professor Deborah Rhode told the New York Times. “Defendants who win in court sometimes lose in the world outside it.”

Pao, now the interim CEO of Reddit, reportedly intends to appeal the jury’s decision.

Salacious details emerged throughout the case, including accusations that Pao was pressured into engaging an affair with a partner, and lost her job after the affair went south. More general claims were also made about Kleiner Perkins’ hospitality toward women.

Despite these details, it appears the appeal is going to be an uphill climb for Pao: According to Reuters, employers won 26 of the 31 anti-discrimination cases that reached a decision at trial in the past two years. And in Pao’s case, specifically, granular legal factors render her appeal even more unlikely.

“It’s going to be difficult,” Scott Skinner-Thompson, a law professor at NYU who specializes in anti-discrimination law, told Fusion.

Skinner-Thompson said that while it’s difficult to determine exactly how valid Pao’s appeal is before she’s filed her official grounds for doing so (so far, she’s only announced that she plans on appealing) and the nature of appealing a jury’s decision rather than a judge’s will make her case inherently more difficult.

“They don’t re-do the trial,” Skinner-Thompson said. “Even if in their heart of hearts they disagree with the jury’s ultimate factual determination, so long as the jury’s findings are supported by factual evidence, they won’t overturn it and replace their judgment for that of the jury.”

In other words, it doesn’t matter if the judges reviewing Pao’s appeal disagree with what the jury found — as long as the jury provides legitimate enough justification for their decision, the ruling will be upheld.

Kleiner Perkins had previously offered to waive Pao’s legal fees (amounting to near a million dollars) if she declined to appeal; the company did not respond to requests for comment.

UPDATE: Kleiner Perkins sent over a statement.

“A 12-member jury found decisively in favor of KPCB on all four claims.
We remain committed to gender diversity in the workplace and believe that women in technology would be best served by focusing on this issue outside of continued litigation.” – Christina Lee, KPCB

Michael Rosen is a reporter for Fusion based out of Oakland.

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