No legal merit

A Letter

Ellen Pao lost her suit against Kleiner Perkins. The ruling was both infuriating and unsurprising, as was Kleiner Perkins’ response:

Today’s verdict reaffirms that Ellen Pao’s claims have no legal merit. We are grateful to the jury for its careful examination of the facts.

No legal merit. On this, they are probably right. The law has been constructed in such a way that only extremely blatant discrimination counts. More subtle sexism (and racism) can hide behind all kinds of gender- or race-neutral justifications which can never be wholly dismissed. So Pao wasn’t passed up because she was a woman, but because she wasn’t likeable. She wasn’t fired because of her lawsuit, but because she didn’t have what it takes. She was both too pushy and not pushy enough. She wasn’t a “thought leader.” The message here is you can discriminate all you want so long as you aren’t completely stupid about it.

The Times quotes Peter Fenton, an investor at Benchmark, in response to the ruling: “I really worry more that there will be a chilling effect on the risk-taking appetite toward getting diversity into venture. Kleiner took the risk and look what happened.” Ho boy. Let’s unpack that. Kleiner did not “take a risk” in hiring a woman; Kleiner hired a demonstrably competent and talented woman who even by their own testimony seems to have been pretty damn good at her job. The notion that every woman you may hire has some measurable risk associated with her—as if we’re all ticking discrimination lawsuit timebombs—is itself discrimination. The “risk,” if there even is any, isn’t located in the women a firm may or may not hire, but in the structure of their own organization. That is, the “risk” isn’t that a woman will call you out—it’s that you’re already committing acts of discrimination, consciously or otherwise, and just don’t know it.

The real risk, of course, is that firms cocoon themselves in their plausibly-deniable patriarchy and white supremacy and miss that the world has moved on without them. Arguably, this has already happened. (I sure as hell moved on, and that’s the valley’s loss, not mine.)

In happier news, The Verge reports on Amazon’s shameless enforcement of non-competes for low-wage temporary workers, and Amazon rapidly about-faces. Nevermind pageviews and reading time, let’s measure publishing success by the actual change we bring about. Metrics could include unjust laws repealed, despicable company policies reversed, social welfare improved, centimeters of sea level increase averted, pseudo-science rejected, reduction in atmospheric carbon, happy children, puppies with loving homes. I’m only half-kidding. Business metrics are critical, but they’re not why we pour our hearts into this work, and we can’t ever let the numbers obscure that.

At The Awl, John Herrman continues his role as publishing’s crankiest prophet with what will likely be a prescient take on Facebook’s new feature for hosting content directly on the platform:

Facebook is giving publishers the keys to its oldest product—the product it is spending billions of dollars to attempt to replace.

There are lots of good reasons for publishers to experiment with Facebook—or really, any of the other potentially ascendant platforms. There are an equal number of reasons not to grow dependent on any one of those platforms, however. I think a lot about how Amazon’s primary mechanism of disruption in the book industry was to capitalize on publisher’s dependance on book stores: publishers outsourced their relationship with readers to bookstores, then bookstores consolidated, and Amazon marched in and ate everyone’s lunch. The major book publishers today still don’t know who buys their books, and even the most avid readers give little thought to which publishers they buy. Digital publishers looking excitedly at Facebook should take care to avoid the same mistakes.

An interesting aside: media Twitter was understandably aghast at Facebook’s new initiative, while seemingly unmoved by similar patterns on YouTube. I suspect this is because we have feels about words that we don’t have with video. It’s worth noting that while the web has become the de facto distribution method for video, the internet—that is, the open network of hypertext documents—privileges words over images. HTML is words annotating words. Words are foundational to HTML; images and video are not. Even our relationship to images is driven by language: one can “read” a picture, and our interpretation of images is constrained by words. I’m tempted to think our angst about the economy of letters should be directed at the underlying economic concerns—of which publishing is only one victim—and away from the words themselves. The words will be fine.

The anthropocene. Man hands. The politics of unicode.