Part of Ellen Pao’s direct testimony in her lawsuit against Kleiner Perkins included that she was having sex with a co-worker whom she knew to be married (Business Insider). Presumably everything in Pao’s “case in chief” is intended to persuade the jury that they should be sympathetic toward her. Thus we can take this as a barometer of how times have changed in the U.S. If we were to go back 50 years, for example, it seems unlikely that a plaintiff seeking sympathy from a jury would have started out “So I was having a multi-month adulterous affair with a married guy at work…” Perhaps a public statement like that would be made on some sort of television investigative news program and the person confessing his or her part in what was then a crime would been shown with a face obscured in shadow but certainly nobody would have expected to be paid $2.2 million in 1965 (equivalent to the $16 million Pao seeks today, adjusting for inflation) after relating a tale of this sort.

Separately, I wonder what the jury will make of Pao’s complaints that “After she filed the lawsuit, Pao said the work environment at Kleiner Perkins became ‘extremely difficult and very uncomfortable. Partners were uncomfortable talking to me… if I went to their office they seemed nervous.'” (arstechnica) Maybe someone could sue General Motors and expect to keep working on the assembly line. The money sought from litigation would be coming out of the shareholders’ pockets, not the personal checking accounts of co-workers. But Kleiner Perkins is a partnership. Pao was essentially suing these people individually and then being surprised that it was hard to work with them after that. (There is some precedent for Pao’s expectation. Unlike some Scandinavian countries that have an administrative process for divorce (98 percent of Swedish divorces happen in this non-adversarial manner), in the U.S. the government encourages one parent to sue the other and then pays workers, such as judges, to express dismay at the resulting lack of cooperation between the litigants. We just finished analyzing some data from all 243 May 2011 divorce lawsuits in Middlesex County, Massachusetts. Only about 16 percent of the couples had filed a “joint petition” indicating that they had gone to a mediator rather than one running to the courthouse to sue the other. So 84 percent decided that a good way to embark on the next phase of a multi-decade co-parenting relationship was a lawsuit.)

Finally, after reading the news coverage of this case I am wondering if I myself might have a case against Kleiner Perkins. This New York Times article is typical: “Ms. Pao, who came to Kleiner with the dream of helping direct such a fund, graduated from Princeton with a degree in electrical engineering. She got a law degree from Harvard and worked for Cravath Swaine & Moore for two years doing international deals. She returned to Harvard for a business degree and worked for a variety of tech companies, including BEA Systems and Tellme Networks. Her geek cred is pretty unassailable.” In other words, a person who got an undergrad engineering degree and then never engineered anything has “geek cred” and, implicitly therefore, is entitled to be selected as a senior partner at Kleiner Perkins. What is the basis of the Philip Greenspun v. Kleiner Perkins lawsuit then? I have an engineering degree and have actually had jobs doing hands-on software engineering and electrical engineering. So the Greenspun geek cred should be at least as strong as Pao’s. Like Pao I have been inside the Menlo Park offices of Kleiner Perkins (not to have sex with a married employee, but to talk about some of their portfolio companies’ projects and to attempt to hector them into finding a team and building a startup around my “Mobile Phone as Home Computer” idea). As happened to Pao, the Kleiner Perkins partners with whom I spoke failed to recognize my potential to join them as a senior partner. Instead of issuing me $16 million in paychecks they escorted me to the front door and into my rental car.

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