Like Anita Hill vs. Clarence Thomas, Ellen Pao Lost Kleiner Perkins Gender Fight But Women Gained

NEW YORK (TheStreet) -- Before there was Ellen Pao v. Kleiner Perkins Caufield & Byers, there was Anita Hill v. Clarence Thomas.

Both women lost their gender-related battles. But both also inspired important conversations about the treatment of women in the workplace.

A jury of six women and six men said Friday that Kleiner Perkins had not discriminated or retaliated against Pao, the 45-year-old former junior partner at the firm.

The four-week trial had received intense media coverage for its allegations of porn-star talk in business settings and exclusion of women from company events. Rather than invite a woman on a company ski trip, "Why don't we punt on her and find 2 guys who are awesome?" a Kleiner partner suggested in an email.

Yes, grownup partners at powerful venture capital firms actually talk like that.

Pao's defeat set off the usual nasty-grams on social media and in the odious commentaries posted at the bottom of news stories. A lot of it can't be printed here.

But among the PG13-rated misogyny was a remark from a Wall Street Journal reader who, commenting on a story about the verdict, suggested that if you must hire a woman "hire a really ugly one - the fatter the better." (The Journal later deleted the comment).

And then there were the four "anti-women psychos" who San Francisco Chronicle columnist Mark Morford had to ban from his Facebook fan page. "Can't imagine what women have to deal with," he wrote in a Tweet.

Even as the vitriol streams in from Pao-haters who are gloating at her loss, though, a more constructive conversation has been in motion ever since the trial began.

"The Pao case has been a month-long gender bias training to the world, and in a very high profile context," said Joan Williams, distinguished professor of law at the University of California Hastings College of Law in San Francisco. "The same thing was true with the Hill/Thomas hearings, which was a sexual harassment training to the world."

It was Hill who in 1991 was called to testify before the Senate Judiciary Committee in the Supreme Court confirmation hearings of Clarence Thomas. Hill said Thomas had sexually harassed her at two jobs, including the period when he was chairman of the Equal Employment Opportunity Commission. He had spoken about his sexual prowess and "such matters as women having sex with animals and films showing group sex or rape scenes," she testified.

Thomas denied her allegations and on October 23, 1991, took his seat as an associate justice of the Supreme Court.

Unlike the Pao trial, Hill's testimony was on live television, and viewers were transfixed. Critics attacked Hill with venom, but everyday workers began an extensive water-cooler discussion about sexual harassment. Legal claims soared as women began to understand that the behavior they were tolerating wasn't just humiliating and sometimes frightening, but illegal.

"She's still iconic for many people," said Joseph Sellers, a partner at the Washington, D.C., law firm Cohen Milstein Sellers & Toll. Hill, who is of counsel to Cohen Milstein's civil rights group, comes to speak to summer law clerks, said Sellers. "Some people have to look her up, and they say 'Oh my goodness, that's who she is.'"

Hill told me in an email several weeks ago that she wasn't familiar enough with details of the Pao suit to comment. But when I wrote about the 20th anniversary of the Clarence Thomas confirmation hearings in 2011, Hill sat down with me at her office at Brandeis University, where she teaches, and talked about the national conversation that her testimony inspired in the 1990s.

At first, she had been afraid that the brutal treatment she received before the Judiciary Committee and from critics would deter women from speaking out. "I had a sense that I'd made it worse for women because now they're going to be fearful going forward," she said.

Instead, while Hill was coming under attack from critics who called her a liar, and even left death threats on her answering machine, something began to happen that she hadn't expected. Sexual harassment stopped being a "private" problem that wasn't talked about. And as complaints rolled in, companies began to establish policies to deal with harassment.

"It started individuals talking about sexual harassment," she said. "Just the fact that we were talking about it and we weren't carrying around this shame about 'Well, we were not tough enough.'"


Up until then, said Hill, "We were always told, 'Just keep your mouth shut and just suck it up.'"

And as painful as Hill's experience was, it was instructive for women who were considering coming forward with complaints. Hill said that her testimony primed women on what to expect. "They knew what kind of language people would use to discredit them," including attacks on their character that had nothing to do with their charges, she said. Importantly, Hill told me she would do it again despite the attacks.

We would not have had the Hill discussion if not for a public government hearing that was televised live and viewed by millions of people.

And we would not have had the Pao revelations if she hadn't won a challenging fight to get into court. She had signed arbitration agreements with individual companies in Kleiner's portfolio, and Kleiner argued that those agreements disqualified her from a public hearing. The judge ultimately said that since she was suing Kleiner, and not its companies, she could proceed in court.

In the years that Thomas has been on the Supreme Court, a lethal combination of rulings has weakened employees' ability to litigate as a class (think Wal-Mart) and strengthened companies' ability to force workers into arbitration. Little wonder it took 24 years before we had such a public airing of gender issues again.

The system conspires to keep mistreatment of women out of the public eye. The workplace doesn't change when women settle, because settlements come with gag orders. And class action cases, which are the most reliable route to systemic change, have been severely restricted by the Supreme Court. Add to that the bandwagon of companies that won't hire you unless you sign away your right to sue, and you can understand why stories like Pao's are the legal system's version of an endangered species.

An impressive press corps -- mostly women -- were in the Pao courtroom during the four days I was at the trial earlier this month. They blogged, Tweeted and appeared on radio and TV to get the story out.

Women will of course continue to file gender cases, but most will be sequestered in arbitration where reporters get no public access to documents or testimony. It would be a big win if the reporters who worked so tirelessly on the Pao story were to keep digging -- even when litigation documents are under lock and key in the backroom justice system of arbitration.

It would be a shame if we had to wait another quarter century to have this conversation again. 

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