In a News & Observer op-ed, Elon Law Professor Catherine Ross Dunham examines California gender bias case Pao v. Kleiner and a recent U.S. Supreme Court case to illustrate the limits of current law in addressing questions of equal treatment and opportunity in the workplace.
Dunham’s March 23 News & Observer op-ed “Pao case shows challenges of gender bias claims” notes that the lawsuit of Ellen Pao, former executive at Kleiner Perkins Caufield & Byers, “could serve as a bellwether in the continuing conversation about bias against women in the male-dominated technology and finance industries, particularly among the elite tech and venture capital companies in the Silicon Valley of California.”
In the op-ed, Dunham details the area of law guiding gender bias cases.
“Gender discrimination suits are typically brought under federal law, specifically Title VII,” Dunham writes. “Interpretations of Title VII gender discrimination have led to a complex legal landscape that often seems to elevate technical arguments over substantive concerns and genuine workplace realities.”
Dunham writes that the U.S. Supreme Court, in Wal-Mart v. Dukes “gave a de-facto stamp of approval to discretionary-style management systems like Wal-Mart’s, even when the evidence indicated men prosper disproportionately under such a system.”
In the current legal landscape, Dunham suggests that the question in the Pao case is “whether Title VII is equipped to deal with the effects of gender bias in a seemingly appropriate system of performance review and evaluation.”
Dunham concludes by asking whether current law is sufficient for modern forms of gender bias in the workplace.
“Pao’s case will not resolve the evolving tensions in the tech workplace or in any workplace where we are charged to work together and respect each other’s talents and skills regardless of our own bias,” Dunham writes. “But it does illustrate that modern problems of workplace discrimination are bias-based – much harder to find and much harder to fix. It may be time to ask whether Title VII is a viable mechanism to level the playing field.”
More information about Elon Law Professor Catherine Ross Dunham is available here.