I haven’t really followed the details of the recently concluded gender discrimination trial against a venture capitalist firm I’ve never heard of.
But the more I read about such cases, the less faith I have that legal action will ever do much to ameliorate gender discrimination (or any of the other sorts).
It’s easy enough for a business to content itself with discovering plausible justifications for its actions. It will likely find juries eager to accept those justifications, because jurors are no less subject to the sorts of biases and prejudgments that business owners and managers and co-workers are.
The question of performance is irrelevant, frankly, if a hostile work environment is the problem. (How can a woman “perform” adequately when she’s being set up to fail, or constantly harassed, or held dogmatically to a standard that is optional for her male colleagues?) So the one juror’s assurance that they were focused on her work performance is a splendid missing of the point.
Indeed, the “performance” justification is especially insidious. An employer may have all sorts of metrics by which (under-)performance may be described. Showing that a woman doesn’t measure up to the standard is as easy as choosing a standard . . . that the woman doesn’t measure up to.
It sounds so reasonable and objective and official that a listener would hardly think to ask whether and to what extent male employees are held to the same standard.
Enforcement of speed limits might be a useful analogy here: let’s say that a woman violates a speed limit and is caught and ticketed. The record says that she was driving ten miles an hour above the posted limit.
If she alleges discrimination, the record stands as an objective, measurable guide to her relative guilt. Any sensible person would look at it and say that she has not been victimized: she was ticketed for going ten miles over the speed limit. She broke the law, and the numbers prove it.
But as everyone knows, speed limit enforcement varies drastically, and the meaning of a ten-mile-an-hour excess is different in a 70mph zone than in a 25mph school zone. The supposedly objective criterion may be misleading if, for example, a particular locality had a habit of ticketing only those who were going 20mph over the limit; if a particular officer tended to let male ten-mile-an-hour violators off with a warning while ticketing female ten-mile-an-hour violators (“Well, you see, them women drivers just aren’t safe when they speed–a man knows how to handle himself”); or if a particular judge tended to vacate fines for men who showed up in traffic court while holding women to the letter of the law.
Even an objective criterion is subject to interpretation and selective enforcement.
Men and women tend to hold women to higher standards, to judge them more harshly when they fail to meet them, and to interpret supposedly objective information in a discriminatory fashion. This has been documented, over and over.
Even if it hadn’t been, one of the jurors’ own questions more than amply demonstrated this dynamic.
One juror asked if it was “professional to enter into an affair with a married partner?”
(“Teacher, this woman was taken in adultery” . . . all by herself. Guy? What guy?)
A married partner who solicits sex from a co-worker is not even a little bit creating a sexist work environment? But a woman who accepts his advances is unprofessional, yessiree.
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