Most of the commentary on the Ellen Pao v. Kleiner Perkins jury trial has been focused on whether or not Pao will prevail on her claim of gender discrimination, but the testimony over the last couple of days has revealed that it’s actually Pao’s claim of retaliation that poses the highest risk of a jury verdict.
Under the law, Pao could prevail on her retaliation claim even if she loses her discrimination claim.
If you think about it, that’s not that surprising as somehow it just seems easier for a juror to believe that the partners at Kleiner Perkins changed their behavior towards Pao after she sued them than to believe that they intentionally discriminated against her because she’s a woman.
To prevail on her retaliation claim Pao must show three things:
1) she engaged in a “protected activity”,
2) Kleiner Perkins took an “adverse employment action” against her; and
3) her “protected activity” was a substantial factor motivating Kleiner Perkins’ “adverse employment action.”
Admittedly, I’m not in the court room, but I have been following the mainstream and social media coverage. In fact, it’s almost addicting and I’ve not been as productive as I normally am since the trial started. I’ve particularly enjoyed reading the tweets and live blogging of Liz Gannes and Nellie Bowles at Recode and the coverage by Davey Alba of Wired, Marisa Kendall of The Record, Nitasha Tiku of The Verge, Elizabeth Weiss of USA Today, and Jeff Elder and Deborah Gage of the Wall Street Journal.
Here’s how I see the case shaping up so far on Pao’s claim of retaliation:
It is undisputed that Ellen Pao filed her lawsuit against Kleiner Perkins on May 10, 2012. Filing a lawsuit clearly qualifies as “protected activity.” So — Check on that element of her retaliation claim.
It is also undisputed that Kleiner Perkins terminated Pao only 5 months later – October 1, 2012. Being fired is clearly an “adverse employment action.” So — Check on that element of her retaliation claim.
That leaves only the element of causation. According to Lynn Lieber, a California lawyer and member of Workplace Investigations Group, the California Supreme Court has not ruled on the causation standard for retaliation claims under California law. Ms. Lieber says the likely outcome when it does is that the the standard will be “substantial motivating factor,” which is the same as it is for FEHA discrimination claims. If not, she says the standard will be merely “a motivating factor.”
In the Pao v. Kleiner Perkins case, my reading of the commentary coming out of the courtroom is that Pao may well be able to prove the causation element of her retaliation claim even under the higher causation standard of “substantial motivating factor.” According to media reports, Pao’s supervisor testified this week that he didn’t start documenting her poor performance until 4 days AFTER she filed her lawsuit. That short time period between her protected activity of filing the lawsuit and the adverse action of starting to document her poor performance creates a strong inference of retaliation. Yes, Kleiner Perkins has attempted to argue (in its Trial Brief at pages 25-26 and during the trial) that Pao’s performance had been poor for some time and that “the decision to terminate Pao’s employment was made in 2011.”
In light of her supervisor’s testimony this week, I’m not persuaded by Kleiner Perkins’ argument and don’t think the jury will be either. The reality is that Kleiner Perkins had never placed her on a performance improvement plan or formally documented her allegedly poor performance until 4 DAYS AFTER SHE SUED THEM.