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26 Mar 2015

Deborah Rhode, Stanford University, in National Law Journal (USA)

USA: Anti-discrimination law fails to address women’s experience in the workplace, says academic

“Opinion: Gender bias unchecked in venture capital firms,” 17 Mar 2015 [Subscription only]

The facts are...murky in Ellen Pao’s…sex discrimination lawsuit…But…a few points are clear. The venture-capital culture is out of touch with the realities of contemporary workplaces…And the premises of anti-discrimination law are out of touch with the realities of women’s experience, where much gender bias is unconscious and implicit, rather than overt and intentional…[T]he question the jury will need to resolve is whether, if Pao wasn’t an effective team player, how much of the fault lies with her and how much is attributable to a team that may not have liked being led by a woman?...These difficulties of proof point up the problems with prevailing doctrine. The basis for an employer’s decision must be judged either biased or unbiased, its justifications sincere or pretextual. Yet in life rather than law, legitimate concerns and unconscious prejudices are often intertwined…[W]e need better ways than litigation to address women’s underrepresentation….