In Bradwell v. Illinois, (U.S. 1873), the Supreme Court declared that allowing a woman to practice law would surely destroy her femininity. According to the 8-1 decision, law is a man’s profession and women simply aren’t well-suited for such rigor. While that may seem archaic, it wouldn’t be until 1971 that the Court invalidated such discrimination by government against women. Reed v. Reed, (U.S. 1971). And while the Civil Rights Act of 1964 and various other laws have sought to end such discrimination, today’s United States women make only 78 cents for each dollar made by their male counterparts.
Although Bradwell was decided 140 years ago, there are those who believe such sentiments are still alive and well within some industries. In a federal lawsuit against Kleiner, Perkins, Caufield & Byers, Ellen Pao has prompted a discussion regarding whether such a culture pervades Silicon Valley. In her three-count Complaint, Pao alleges gender discrimination, sexual harassment, hostile work environment, and retaliation; the suit also makes reference to purported discrimination and harassment against multiple female employees of the firm, including assistants and other junior partners. Some highlights from the Complaint that suggest Pao’s allegations are broader than her personal circumstances:
“…male Junior Partners were allowed to add multiple Board of Director positions and sponsorships each year, while female Junior Partners were limited to just one. The difference in treatment affected compensation because investment sponsorships impacted board decisions, outside perceptions and ability to generate returns.” Compl. ¶ 24
“KPCB Managing Partners discriminated against women over time by allocating smaller carried interest percentages from its various investment funds to woman than to men” Compl. ¶ 25
Only male partners were invited to dinner parties and social events, some with influential clients and business associates. Compl. ¶¶ 29, 32,
“In December 2011, Randy Komisar, a Senior Partner, told Plaintiff that the personalities of women do not lead to success at KPCB, because women are quiet.” Compl. ¶ 33
Refusing to promote women comparable to men. Compl. ¶ 36
Virtually every state has passed laws similar to Minnesota’s Human Rights Act, which prevents adverse employment action by employers on the basis of various protected classes. Adverse employment action can include everything from not being invited to dinner parties with coworkers (such as Ms. Pao has alleged) to wrongful termination.
But laws meant to thwart the kind of discrimination alleged in Ms. Pao’s complaint are useless in a culture that glosses over their underlying meaning and purpose. Employers must take active steps to ensure that the importance of the sexual harassment and discrimination trainings that began surging in the 1990’s does not become passé. Sex discrimination and harassment will remain pervasive in America unless employers make their prevention and resolution a priority; for those who don’t, employees will continue to have substantial legal recourse.
Joshua Newville is an attorney and mediator based in Minnesota. He litigates employment and civil rights cases, serves as a mediator for civil disputes, and provides employment law advice.