Ellen Pao Says Kleiner Perkins Has Now Fired Her

I don't think we'll ever know whether she's right or wrong. She could quite possibly be in the wrong, but I increasingly doubt it the more I read.

Here's why: her firm acted like a massive dick.

First, making employees sign a non-disparagement, arbitration-only agreement (except as a term in a severance negotiation) is vile and should be illegal. You're effectively threatening to fire someone (or rescind an offer) if he or she doesn't give up a basic right.

All of these "Here's what rights you would have if we fired you, but you have to give them up to work for us" terms (non-disparagement, non-litigation or arbitration-only, non-solicitation of employees) are unethical and only exist because most people can't afford to be without an income. They are contracts under duress and should be categorically stricken.

Second, rather than arguing that the discrimination claims are untrue by bashing the employee's performance, the appropriate thing to do would have been to establish with actual data (not performance reviews, which can be fudged) that she wasn't experienced enough for the promotion, and that she would have been the least qualified person at that level if she had been promoted. The proper way to handle a bogus harassment claim (if it is that, and I doubt it given the way the firm has behaved) is to show the person's trajectory of promotions, and then show the average for a person of that experience, and to use hard data. "The average partner makes senior partner after 7 years. She was only here for 4." Or: "To make senior partner, we generally expect that a person bring in $20 million in business. She brought in $12 million." That's what you do if you're decent.

Also, the truth is that a company in that position will almost never need to air performance reviews. Unless this was a "lock-step" or expected promotion where it's professionally damaging not to get it, the onus is (or at least should be) on her to prove, using hard data, that she did deserve to get the promotion. If they were decent, they'd sit back and wait for her to make a case that she did deserve the promotion, and then argue against that.

Third, they are asking to have her pay their legal fees. They are a venture capital firm. When you're that rich, trying to scrounge money off of people who are quite possibly not rich is pretty debased: an inverse Robin Hood sort of thing.

Fourth, using performance reviews for anything other than direct feedback is immoral and, itself, constitutes legalized (but ethically illegitimate) harassment. If performance reviews are confidential between manager and employee, then that's how things should be. They should be direct feedback for mutual benefit, and nothing more. If they're aired to the public, that's wrong. That's effectively extortion.

Sad story for all parties really. Taints everyone. Reminds of the Florian Leibert case.

The danger of he-said/she-said contests is that peoples' perceptions (myself included) end up being biased heavily by their own attitudes toward power. This can be described as an emotional left/right that may or may not correlate with economics. (Many libertarians are emotionally leftist-- they despise centralized power-- but economically toward the right. They just happen to see governments as more of an enemy than corporations... and I disagree with them, but that's another story.) This whole mess is probably the result of a failed negotiation and we have no way of knowing who failed, miscommunicated, or did wrong.

If there isn't much hard evidence (and in this case, there's not) then people will tend to side with power if they're emotionally rightist and against power if they're emotional leftists. (I'm an emotional leftist, as you can probably tell.)

What you discover when you become a whistleblower is that about 70 percent of people are on the emotional right. They think they're in the center because they don't reject the whistleblower out of hand (instead, they complain that "she may be right, but she didn't use proper channels and I certainly want nothing to do with this matter.") That's not always a bad thing; the powerful entity is known, and the whistleblower is a total unknown, and people tend to be afraid of unknowns. It does, however, make it very difficult to be an effective whistleblower. Worse yet, an even larger percentage of people in positions of power (such as future employers) are on the emotional right.

White-collar employment culture is emotionally rightist in the extreme; if your ex-company says you weren't a leader and you say you were, they're often taken to be right and you're wrong. It's extremely unfortunate and wrong that it's this way, but I don't see how it could be any different (surprise: high-ranking people in powerful institutions tend to side with power) but it is something one needs to be aware of.

How are employment contracts for 6-figure jobs "under duress"? KPCB isn't obliged to hire anyone. It seems entirely reasonable that they should be able to choose their own terms, and, similarly, if employee candidates don't like those terms, they don't take the job.

What you've done here is subtly shifted the frame of the discussion. You make it sound like if she didn't sign the contract, she'd be fired. That's not at all what happened, is it?. As a prospective hire at one of the most "prestigious" VC firms in the country, this person no doubt had many options for where to work next. Kleiner extended her an offer and with it an employment contract, right? If she didn't think she could keep the promises in that contract, she should have gone somewhere else.

I'm also not sure what their being a "VC firm" has to do with who pays legal fees. The rules aren't different for "rich" firms and "poor" firms. People make frivolous claims to both kinds of companies, and larger companies shouldn't have to shoulder the legal costs of fending off bogus claims simply because they're larger. Obviously, if KPCB is wrong about what happened, it's they who will be paying the legal fees. What matters is who's right and who's wrong, not which side of the conflict is easier to caricature.

I have no opinion about the sexual harassment charge itself, nor do I think that "non-disparagement" clauses should (or even can) prevent someone from litigating a sexual harassment or discrimination charge, or even from making a case to the public about them. No doubt KPCB's lawyers want that clause to shut down the drama, but there's a public interest issue involved in firms forcing employees out due to sexual discrimination or harassment.

The reality here is probably that you don't know anything about what happened with Ellen Pao and Kleiner Perkins, but that this is a message board and so you feel it's appropriate to litigate the issue with cartoons. I wish you'd not do that. It makes us all dumber.

Late edit: 5 minutes of Google research suggests that non-disparagement clauses are not enforceable in matters of discrimination and, broadly, in public interest cases of all stripes; similarly (you may have already known this), where non-compete agreements are valid, they are still not enforceable when they directly harm the public interest.

The problem is what happens when all employers follow suit with this arbitration garbage and it becomes standard practice, which it is becoming. Employers have all the leverage in these cases.