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Shulman Kessler
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of employment law

Kill the buzz?

Fairness is hard. In a business, the hiring and treatment of employees can be viewed in many ways. It can be seen as important and the "core" of the business. Or it can be seen as problematic necessity, with an attitude of while we need them, they are not important. In every hiring situation, there are winners and losers. After all, if there is one position open, there can only be one applicant who "wins," while everyone else loses.

With employment discrimination cases, like that involving Ellen Pao, a partner at a Silicon Valley venture capital firm, defining and proving discrimination can be very difficult. Much of the rhetoric that surrounds hiring and promotions in a firm like that is self-serving and tautological.

Women are not promoted because they are too aggressive or too timid. They are not team players or are too dependent on others. They are too critical of others working under them or too soft and unwilling to make hard decisions to let poor performers go.

At times, it sounds like a realtor from the 1950s describing a redlined neighborhood, as "Someplace Negros would not want to live." One partner, in excluding women from a dinner, is alleged to have said that having women there would "Kill the buzz."

A trial like Pao's demonstrates the difficulty of proving subtle discrimination. Businesses like these are advised by expensive lawyers and understand when a conversation needs to be taken "offline," and made undiscoverable by litigation discovery.

When the curtains are pulled back on business like that of venture capital, it is often not a pretty sight. Decisions that are package for public consumption that appear to have a deep basis in fact can be found to have been made for any number of facile, petty, trivial and completely irrelevant reasons.

Because they are made by a supervisor or a partner, they are cloaked in a veneer of authority. They often are wrong, in addition to being decided for the wrong reasons, but at a certain level in many firms, errors by some are airbrushed away in a fashion similar to how the Russian press during the Soviet-era retouched photos of deposed members of the Politburo.

Pao's loss at trial is valuable for providing a view into a world rarely seen, showing that it is just as fraught with shambling, mendacious human conduct as a low-end retail store. But the hourly pay is much better.

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