The Bay Area’s tech, venture capital, legal and workplace investigator communities have all been closely watching Ellen Pao’s gender discrimination and retaliation suit against Kleiner Perkins unfold over the last few weeks.
If you haven’t been transfixed like I have, here is a brief recap: Pao worked as an associate partner at the prestigious venture capital firm from 2005 to 2012. In May 2012, she filed her gender discrimination lawsuit against Kleiner Perkins seeking $16 million in damages. She claims her married co-worker, Ajit Nazre pressured her into having an affair and, after she called it off, the firm passed her over for promotions and board appointments. In October 2012, Kleiner Perkins fired Pao; she claims this was in retaliation for her lawsuit. The judge presiding over the trial recently ruled that Pao can seek punitive damages, paving the way for her to ask for an additional $100 million.
Kleiner Perkins hired attorney Stephen Hirschfeld to perform an independent workplace investigation into two sets of allegations. Hirschfeld’s testimony at trial and the scrutiny that the attorneys for both sides applied to his investigation provide valuable fodder for independent workplace investigators and the companies that retain them.
Before investigating Pao’s allegations, Hirschfeld investigated the allegations of another female partner, Trae Vassallo. Vassallo claimed that Nazre made unwelcome sexual advances towards her (she testified at trial that Nazre came to her hotel room in a bathrobe). Hirschfeld concluded that Vassallo’s allegations of harassment were substantiated. Nazre was ousted from Kleiner Perkins following the investigation.
Hirschfeld next investigated Pao’s allegations of gender discrimination and concluded that they were unsubstantiated.
There are a number of markings of a good workplace investigation, chief among them that the investigation be prompt, thorough and impartial. In the Pao case, the spotlight was on impartiality and thoroughness. During the trial, Pao’s attorneys exploited key vulnerabilities of the investigation.
Impartiality
Pao testified that during Hirschfeld’s investigation of her claims, Hirschfeld told one of the witnesses he interviewed (a Kleiner Perkins employee) that he would like to work for Kleiner Perkins when his investigation was complete. If accurate, this testimony signals a concerning lack of impartiality and threatens the integrity of the entire investigation. An investigator who has aspirations of employment with the company for which he is conducting an investigation does not present convincingly as an independent and impartial outside investigator.
Additionally, the language and tone an investigator uses in drafting the investigation report can either bolster the impartiality of the investigation or cause it to appear biased. Allison West, the workplace investigator who testified as an expert during Pao’s case, noted Hirschfeld used language that showed a bias in favor of Kleiner Perkins; for example, Hirschfeld concluded it was “impossible” that John Doerr of Kleiner Perkins would not recall something accurately. An investigator is not an advocate for either side; it is crucial that an independent investigator carefully craft the language in his or her report to ensure the words used reflect the neutrality of the investigator’s role.
Thoroughness
Hirschfeld took detailed written notes during his investigation and before writing his report. However, at trial he departed from his notes, denying that things had happened quite as he had written them. The trial judge did not allow Hirschfeld to reinterpret or provide “context” to his written notes, instructing Hirschfeld to just read what he originally wrote. Investigators use different methods of recording what witnesses say during an interview—some take written notes, some type notes, some digitally record the interview and later summarize what was said. There is no one right way; however, whatever the method, an investigator’s record of an interview must be accurate and must support the conclusions in the investigation report. If not, the thoroughness of the investigation and the investigator’s credibility are subject to attack.
One of the most noteworthy pieces of evidence about the investigation involved a matrix prepared by Trae Vassallo (the other female partner who complained about Nazre). Vassallo gave Hirschfeld the matrix to show that investments by female partners outperformed investments by male partners. In support of her claim of gender discrimination, Pao claimed that three male partners were promoted but she was not. Hirschfeld did not mention the matrix in his report and he testified that the matrix was not important to his investigation of Pao’s complaints. West testified that the matrix should have been the starting point to evaluate whether men in comparable positions were evaluated and treated more favorably than women. It is possible Hirschfeld may have reached the same conclusion (Pao did not suffer gender discrimination at Kleiner Perkins) had he investigated the data presented in Vassallo’s matrix. But an investigation that ignores key pieces of information, without explanation, lacks the hallmark of thoroughness. An investigator needs to know when additional inquiry is necessary. From all appearances, Vassallo’s matrix merited additional inquiry.
Another of Hirschfeld’s actions that drew scrutiny during trial was his decision not to interview Ajit Nazre, the bathrobe-clad Kleiner partner who was the subject of both Vassallo’s and Pao’s complaints. Hirschfeld concluded that Nazre was not a credible witness. Hirschfeld may well have reached that conclusion after interviewing Nazre (if Nazre agreed to an interview) but opting not to interview a key player carries the risk that the investigation will appear incomplete.
With the Pao case drawing to a close, two lawsuits alleging gender discrimination (one a class action and the other brought by one of the attorneys representing Ellen Pao) were filed against Facebook and Twitter in the last few days. There is much to be learned from the Pao case, especially for workplace investigators called upon to investigate such claims of discrimination based on gender, race or other protected classifications.
Gabrielle Handler Marks is a workplace investigator, employment attorney, and co-founder of Hulst & Handler LLP.
