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Courts must evolve to handle discrimination lawsuits

Laissez Fair: The Invisible Backhand

There’s a gleeful, savage kind of backlash to women suing for discrimination. Hundreds of social media followers curl up on their couches in hungry anticipation, fingers itching over their keyboards, sniffing for the first sign of blood. Ellen Pao’s recent allegations against her former employer, venture capitalist firm Kleiner Perkins Caufield & Byers, are no exception.

#ThankYouEllenPao for sending a clear message: hiring women could cost your company millions from frivolous lawsuits,” was just one of many Tweets that turned a hashtag created by Pao’s fans into a sarcastic put-down. But why such smug satisfaction? Why is it so easy for us to self-righteously prey on these failures?

The problem lies in our primitive legal standards. Pao’s jury was asked to judge on the basis of one main question, “Was Ms. Pao’s gender a substantial motivating reason for Kleiner Perkins’ not promoting Ms. Pao to senior partner?”

It seems straightforward, except that no one, especially anyone with an Ivy League degree, would ever openly announce that gender was the reason for not promoting someone. Promotions aren’t like leveling up in a video game, where you collect coins until you hear a satisfactory “ding” and a bright yellow “Good Job” graphic pops up. It’s more like getting picked for gym teams in high school — the more you’re chosen, the more you play, the better a player you become. It’s an ambiguous, subjective and self-perpetuating cycle, and because we are conditioned to value certain types of people more than others, our ideal image of the high-achieving individual often looks more like the high-achieving white male. Displays of confidence in one person become arrogance in another. Mistakes dismissed as a learning curve for one person morph into unpromising failure for someone else. Yet in discrimination suits, we act as if the people involved are androgynous beings in some hypothetical genderless universe. We wonder, “Was this woman good enough to be promoted?” What we really should be asking is, “Why was she the only one not promoted?”

I think it’s perfectly summed up by the movie White Chicks. In the movie, two black FBI detectives dress as white women for a weekend at the Hamptons (if you haven’t seen it, don’t worry too much about the logistics). They get away with temper tantrums, rudeness and a sense of entitlement that would certainly have gotten them kicked out, if not arrested, under normal circumstances. Discrimination does not only make us love one person and hate another — it causes us to perceive the same reality in two different ways. Pao’s complaint is not that she wasn’t liked, but that she was disliked for qualities that many men also had. It’s entirely possible for a woman to be aggressive, territorial and unworthy of promotion and still suffer from gender discrimination if the men around her are valued despite having those same characteristics.

If you want a conviction for murder, you find DNA evidence. If you’re prosecuting bribery, you track down the money. Both of these fields have been bolstered by extensive research and refinement over the last few decades. But how do you prove discrimination? Ideally, sexist employers would just say, “I’m not hiring you because you’re a woman.” Ideally, we would be able to open up people’s brains, observe their neural pathways and victoriously pinpoint the sexist thoughts as they occur. But we don’t know what discrimination looks like, and it’s not restrained to a certain form. Our only evidence is its devastating consequences: the pathetic percentage of female executives, the lost economic growth of a handicapped workforce and the isolation suffered by millions of real people. You don’t have to see ultraviolet rays to get a sunburn and you don’t need to believe in gravity to know that stepping over the side of a cliff will cause you to fall to your death — but you certainly don’t jump off cliffs just because no one can point out where the gravity is.

It’s not enough to just observe and judge, watching victims struggle with impossible burdens of proof while more people continue to suffer. We need to actively detect sexism, whether it’s evaluating employers or calling out double standards in our own lives. Out of the millions we pour into our justice system, more must be committed to advancing this type of legal accountability, to seeking out fair results instead of leaning back and saying, “Prove it.” If not, then we are exactly jumping off that cliff, knowingly throwing ourselves toward danger just because we can’t see what’s making us fall. 

Lin Lan is a School of Arts and Sciences sophomore majoring in Economics. Her column “Laissez Fair: The Invisible Backhand,” runs on alternate Wednesdays.

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