Juror kerfuffle leads to high drama in Ellen Pao discrimination trial

A funny thing happened as the jurors walked to the courtroom. One juror changed his vote, throwing the whole verdict into disarray.

CNET News staff
5 min read

Ellen Pao leaves the courthouse after losing her sexual-discrimination case against Kleiner Perkins Caulfield & Byers. The case wrapped up on a chaotic note as jurors were asked to resume their deliberations after the initial verdict announcement.
Ellen Pao leaves the courthouse after losing her sexual-discrimination case against Kleiner Perkins Caulfield & Byers. The case wrapped up on a chaotic note as jurors were asked to resume their deliberations after the initial verdict announcement. Justin Sullivan/Getty Images

Talk about a cliff-hanger.

The San Francisco Superior Court on Friday turned into a scene that matched anything Hollywood screenwriters could dream up.

And that's just the jury verdict.

For a month, the technology industry obsessed over the he said/she said testimony in a lawsuit brought by Ellen Pao, a former junior partner with prominent venture capital firm Kleiner Perkins Caufield & Byers. Pao, 45, accused the firm of gender discrimination. She claimed she'd been denied a proverbial and literal seat at the table (she wasn't asked to an important business dinner with Vice President Al Gore). She also wasn't invited to a men-only ski trip to Vail, and she was denied a promotion to senior partner. All this, she said, happened because she's a woman.

After just two days of deliberation, the jury of six men and six women said they had reached a verdict. In a hushed courtroom filled with reporters waiting to tweet out the news, they ruled against Pao on all counts in her $16 million suit.

Except they didn't.

It turned out the jurors needed at least 9 votes out of 12 for each of the four claims they were tasked to deliberate. And while the jury did seem mostly unified and returned a vote of 10 to 2 on the major claims in favor of Kleiner Perkins, one of Silicon Valley's most prestigious firms, it ran into a problem on one claim.

That claim asked them to determine if Kleiner Perkins had fired Pao in retaliation after she began complaining to the firm, alleging unequal treatment because of her gender. Eight jurors voted "no" on that claim, one vote shy of the requirement. It turned out one of the jurors had changed his mind on the way to the courtroom, surprising the group.

So, while the Twittersphere blew up with the news Pao had lost and the press corps (nicknamed the "Paoparazzi") gasped, Judge Harold Kahn ordered jurors to resume deliberations, leaving open the possibility that the whole case could be turned on its head at the last moment. Two hours later, they returned a definitive verdict -- with the requisite number of votes -- and announced that Pao had lost on all counts.

The outcome continues Kleiner Perkins attorney Lynne Hermle's record for never losing a case at trial.

"Trials, like venture capital, are a team sport," Hermle said after the jury kerfuffle. "It never occurred to me for a second that a careful and attentive jury like this would find either discrimination or retaliation, and I'm glad to have been proven right about that."

Pao, addressing reporters after leaving the courtroom, thanked her family and friends for their support during a "challenging time." Fighting back tears, she said she would now focus on her job as interim CEO of the social network and news site Reddit. "I have told my story and thousands of people have heard it," Pao said. "If I've helped to level the playing field for women and minorities in venture capital, then the battle was worth it."

Pao didn't say whether she would participate in the Ask Me Anything, or AMA, sessions Reddit is known for hosting. But she did elaborate on her statement from the courtroom steps later in a series of tweets, saying "To support the entrepreneurs of tomorrow, we need to show leadership today."

Her tweet stream leads off with a pinned tweet she originally posted March 14, which quotes Martin Luther King Jr.: "Our lives begin to end the day we become silent about the things that matter."

While Kleiner Perkins walked away with a legal victory, it wasn't exactly a clean win given that the jurors and public got a behind-the-scenes look inside the normally secretive firm.

"It serves as a signal to employers that they still have to be careful and vigilant to make sure they're not allowing bias to intrude into their decision making or how they treat their employees," said Jason Knott, a civil litigator with law firm Zuckerman Spaeder, who has represented executives in employment disputes.

"It's certainly drawn more attention to the concept that there can be both conscious and unconscious bias in the way employers make promotion decisions," he added. "In that respect, it potentially could lead to a rise" in those kinds of cases.

Pushing for change

Pao was fired five months after she filed suit in May 2012. She claims that during her seven years at Kleiner Perkins, she was passed over for lucrative jobs compared with her male colleagues, was asked to sit in the back of the room at meetings, and was later punished when she complained about her treatment.

Pao testified that the firm treated women unfairly and "was not going to change unless I pushed it."

Her lawyers highlighted her qualifications, citing her bachelor's degree from Princeton University and her law degree and a master's in business administration -- both from Harvard University. Before joining Kleiner Perkins in 2005, she worked in business development for Silicon Valley companies including Microsoft.

Despite the verdict against Pao, the case could still have far-reaching ramifications in how companies throughout the tech industry hire and promote women. On average, about 30 percent of tech companies' workforce is female, according to diversity reports published by Apple, Facebook, Microsoft and Google. That percentage drops for women in leadership and technical roles.

Earlier this month, Facebook was sued by an ex-employee who claimed a litany of discrimination and harassment practices at the company. Last week, a former female software engineer at Twitter filed a proposed class-action lawsuit against the microblogging service for allegedly using a secretive promotion process that favors men.

"I think a lot of women recognize their story in Ellen Pao. It's the story of exclusion," said Marianne Cooper, a sociologist at the Clayman Institute for Gender research at Stanford University. "It may be that she lost the battle but wins the war."

Advocates are still hopeful about the level of attention around gender discrimination. Cooper thinks part of the reason Pao's case was unsuccessful was because some of the issues she raised were difficult to demonstrate in a courtroom. "It's a hard thing to prove all the double standards and unconscious bias," said Cooper. "Legal definitions of things don't always match the real world."

While many of the jurors took Judge Kahn up on his offer to leave the courtroom through a back door, a few stayed to answer reporters' questions about the verdict.

Steve Sammut, 62, a San Francisco manufacturing representative, said the jury thought Pao is smart and driven but were struck by her lackluster performance reviews. They "really stuck out," he said.

"We went back and looked at areas to improve, but they tended to stay the same through the years. Where we saw the same remarks for other individuals, we saw they tended to be addressed and then changed," Sammut said. "We thought she was intelligent. We felt that she did a great job during her five years as a chief of staff (for Doerr), but her reviews changed in the venture role."

Marshalette Ramsey, 41, a manager for the Bay Area transportation system, was the lone juror who voted in favor of Pao on all claims. She believes the entire jury thought that something happened to Pao, "but based on the evidence and the splitting of hairs, it ended up the way it did."

Written and reported by Terry Collins, Connie Guglielmo, Nick Statt, Rich Nieva, Rochelle Garner and Ian Sherr.