The facts are mixed and murky in Ellen Pao’s widely publicized sex discrimination lawsuit against Kleiner, Perkins, Caulfield & Byers, a leading Silicon Valley venture capital firm. But whatever the ultimate result, a few points are clear. The VC culture is out of touch with the realities of contemporary workplaces, where half the talent pool is female. And the premises of anti- discrimination law are out of touch with the realities of women’s experience, where much gender bias is unconscious and implicit, rather than overt and intentional.

This case offers a rare glimpse into the gender dynamics of venture capital companies. The picture isn’t pretty. The evidence at trial offered a wide range of what social psychologists term micro indignities—small acts of exclusion and devaluation that individually may seem minor but cumulatively create an atmosphere that is unwelcoming to women. Female junior partners were asked to take notes and left out of networking events. According to the plaintiff’s testimony, a partner explained that women were excluded from an intimate dinner at Al Gore’s home because they would “kill the buzz.” The partner denies making the statement, but whether he said it or not, the fact remains that women weren’t invited. It is also uncontested that a senior partner with whom Pao had an affair also propositioned one of her female colleagues; he arrived, unannounced and unwelcome, at her hotel room in his bathrobe and slippers. When the colleague complained to another partner at the firm, he told her that she should feel “flattered. “ Pao alleges that after she broke off her affair with the senior partner, he retaliated against her. She also claims that she was excluded from a major deal after returning from parental leave.

Whether such incidents are sufficient to prove gender discrimination is subject to dispute. Kleiner Perkins contends that it fired Pao for inadequate performance; she allegedly lacked the ability to “lead others, build consensus, and be a team player.” The firm also points out that it has one of the best records on gender among Silicon Valley VCs. Twenty percent of its senior partners are women, compared with an industry average of 6 percent.

But some of the firm’s negative characterizations of Pao suggest the double bind and double standard that often face aspiring women. She was criticized for being too “reticent” and “passive,” as well as for speaking up, demanding credit, and “always positioning.” Although she was faulted for being difficult to get along with and having “sharp elbows,” a male partner who was promoted was described in his reviews as “arrogant” and “overbearing.”

Pao’s case is a textbook illustration of the dynamic that social science research confirms; women who self- promote are viewed as less likeable, and behavior that is viewed as domineering but tolerable in a man is viewed as abrasive and disabling in a woman. Here, the question that the jury will need to resolve is whether, if Ellen Pao wasn’t an effective team player, how much of the fault lies with her. And how much is attributable to a team that may not have liked being led by a woman? If, as one partner at Kleiner Perkins claimed, Ellen Pao had a “female chip on her shoulder,” should the firm have been more interested in how it got there, and whether it needed to do something to address it?

A longer version of this essay appeared in the National Law Journal on March 17.

Deborah L. Rhode is the Ernest W. McFarland Professor of Law, the director of the Center on the Legal Profession, and the director of the Program in Law and Social Entrepreneurship at Stanford University. A leading scholar of women and law, she recently wrote What Women Want: An Agenda for the Women’s Movement, a book that explores virtually all of the major policy issues confronting women today.

Rhode is a member of the American Academy of Arts and Sciences and vice chair of the board of Legal Momentum (formerly the NOW Legal Defense and Education Fund). She is the former founding president of the International Association of Legal Ethics, the former president of the Association of American Law Schools, the former chair of the American Bar Association’s Commission on Women in the Profession, the former founding director of Stanford’s Center on Ethics, a former trustee of Yale University, and the former director of Stanford’s Institute for Research on Women and Gender. She