David Johnson is an attorney working in Silicon Valley. He is also a Lecturer at Stanford Law School, as well as at Stanford’s d.school (formally, The Hasso Plattner School of Design). David has tried cases in state and federal court; represented Apple, Cisco, Electronic Arts, Sankyo Pharmaceuticals and other tech companies; and has been a general counsel for private, public and non-profit companies.
David has given me very good advice over the years in regards to working in technology, and recently we had a discussion regarding the stories coming out of Silicon Valley about sexual harassment and gender discrimination, most notably in the context of recent stories about venture capital firms and tech companies. See also, The challenges of tacking sexual harassment among investors.
“The unfortunate reality is this: there is great risk of personal and professional harm in speaking hard truth to the very power that can cause that harm.” - David Johnson, Stanford Law School
Certainly, there has been an increasing awareness of the corporate culture at tech companies in the last few years. In one report, senior Uber executives allegedly co-mingled with sex workers during an employee entertainment outing. In another, a former Google employee was attacked by online trolls for speaking out about the sexual harassment she had endured whilst working for 4 years at the internet giant’s main offices in Mountain View. Most recently, a male Google engineer was fired for voicing his opinion that biological differences between gender were one of the reasons for the lack of diversity in high profile engineering jobs. Also, tales of the sordid actions of a venture capitalist at Binary Capital, alleged that Mr. Caldbeck had targeted female founders and used his position of power to continually harangue them with unwanted sexual advances.
As an example, David notes, a woman in a venture capital firm certainly understands the environment she is working in and is cognizant of a built-in bias against women. “It is well-understood that women often have to work better and harder than the men they are competing with, and develop superior ways to communicate their added value as a venture partner or as when holding a seat on a portfolio board.”
More specifically, I asked David: Do you think in general, that women often do not attempt to negotiate their position or salary and instead accept the first reasonable offer they are given?
“My best answer to this is that I’m not the person to ask! I’d suggest the appropriately titled book: “Women Don’t Ask,” by Linda Babcock and Sara Laschever.” David continued, “…for both men and women, it is important to first assess the level of the job, and their alternatives at that moment. In the entry to mid-level [jobs], companies often have several qualified candidates for a given position. Moreover, most companies have tightly constrained job families that limit salary ranges. Where one or both of these are true, their incentive to position bargain on salary with any given candidate is quite low.”
Regarding an employee’s alternatives, David adds: “If the employee really wants to work at that particular company, there is real risk in countering aggressively on a salary point. If the offered salary is reasonable, in my view the smarter play is usually to ask for some intangibles that are easier for the company to give, while signaling that, with those, you will be comfortable with the offered salary point. Then…secure the job, perform well, and build your reputation in the first year – at annual review, claim your additional value when you have more leverage.”
“It is well-understood that women often have to work better and harder than the men they are competing with, and develop superior ways to communicate their added value as a venture partner or as when holding a seat on a portfolio board.” -David Johnson, Stanford Law School
For senior management, the situation is quite different. “Negotiation for the total compensation package, including equity, expense accounts, and even available department budget is very important at the senior levels,” David says. He reminds me of Sheryl Sandberg’s telling of her own story: that she wanted to accept Mark Zuckerberg’s first offer to become Facebook’s COO. Her husband, the late Dave Goldberg, the CEO of SurveyMonkey, insisted that she negotiate. She ended up doing so, with a favourable outcome.
“In the C-Suite roles,” David noted, “being willing to negotiate a compensation package is not only about the comp per se but also about demonstrating strength, independence and self-worth.”
I related to David this story:
A couple of years ago, a Google employee circulated an internal spreadsheet regarding her salary and compensation, and thousands of employees added their compensation to this list, which ultimately resulted in a lot of people asking for raises and fairer pay.
I asked: How might a woman find out if she is being offered or paid less than a similar male colleague with the same experience? Do you think we should have public tax records such as in Norway or Finland to avoid these kinds of salary discrepancies between women and men?
“Personally, no, I wouldn’t favor a law requiring such publication in the US. I’d like to think there is a better pathway to solving the problem. The norm, in my experience, is that most people prefer to keep their compensation private, particularly within the company. Still, there is some information out there. In the US, public companies publish the details of compensation of senior management in SEC filings. For mid to upper level employees, there are good metrics available from consultancies that aggregate information in industry sectors. At the entry level, it’s likely that there are sources in social media, for example Glassdoor, that can provide strong clues to comp levels.”
The Cultural Biases of Gender Discrimination
I recall one of the best working environments I ever had was in San Francisco, where I was one of two females on the team. Although the company itself has since come to a demise due to the owner’s mishandling of taxes, my coworkers were open, funny and direct communicators.
My two managers at the time -- Chris, who now is a manager at an asset firm in New York City and Travis, who is now a product manager at eTrade Financial -- created a stress-free environment where our team was constantly collaborating. I recall initially that Chris had been concerned about me being the only female on the team and (somewhat) jokingly told me: “I don’t think many of these guys have seen a woman before,” as we were working in a male-dominated sector. But, my managers at the time created a company culture that was respectful of women. I recall an instance in which one of my male colleagues had said, “Hey Sierra, if I unwittingly make a sexist joke and it makes you uncomfortable, just let me know… ” It was an open, collaborative environment where we were not afraid to express opinions, where we gave each other advice and emotional support, and had carpooled together, ate together, and hung out together, but one thing in common that we had was that we were all direct communicators.
In fact, some of the harassment and discrimination I had faced in my career surprisingly came directly from other women, not men. I recall an article by Sallie Krawcheck on why women don’t help each other in the workplace.
I’m also reminded of the 2012 case brought by Ellen Pao against Kleiner Perkins. After initially reading through the online legal documents and case history, it seemed to me that this was actually a case about a workplace romantic relationship gone awry. Obviously when two colleagues have a romantic affair and one is the rejected party, then there’s going to be a degree of anger and frustration within both parties that makes working together very difficult and uncomfortable. Ellen Pao has also recently published an insightful account of her story in which she details senior partners getting the best seats on private jets, a starstuck partner excited about meeting a porn star, to women not being offered cookies at meetings; and although her story is filled with these accounts of "microaggressions", I'm not entirely certain these are necessarily indicative of gender discrimination, but perhaps more of a generalised type of workplace bullying that can be present in hierarchical institutions in which senior partners naturally are given more deals and better seats than junior partners, and perhaps even of nerdy men who might brag about meeting a female celebrity because it might be the only attention they have gotten from women they find attractive.
However, what seemed clear to me from her detailed account, and also in the legal documents, was that it was possible that many of the frustrations she had felt was due to a workplace romance that ended badly with a couple of the senior partners unsuccessfully attempting to reconcile the two parties, which then catapulted into a loss of team morale.
It also seemed to me that perhaps young women and men should be taught early on not to engage in workplace romances; however, this is a grey area, because there are many people who actually meet their future spouses at work.
Another consideration is that we expressly make the important distinction between gender discrimination vs. sexual harassment. In other nations, such as South Korea, gender discrimination is very visible and widespread. It is such an active part of the culture that many people believe it is simply normal there to discriminate against women on a national scale, in many sectors including, science, medicine and technology. I recall once attending a VC funding pitch session in Seoul as part of the management team for an EdTech startup, in which I was literally the only female there out of hundreds of people. When we were asked to present, the coordinator didn’t have enough chairs, and so specifically targeted me, the only female in the room, and asked me to sit in the back of the room. Of course, I did not comply, but I know many women in South Korea who wouldn’t have thought twice to sit in the back of the room if they had been asked.
Simply put, in South Korean culture, women are often frequently represented as either virginal future housewives or tawdry sex objects, and any woman attempting to start a business or work in a male dominated industry will face extreme discrimination against them. I spoke with a female engineer friend of mine, Hyekyung Hwang who has started her own co-working startup called Hive Arenaand she has told me that working in technology in South Korea is filled with gender discrimination on all levels - from women being denied funding, to South Korean VCs who won’t even meet with female founders, to many men in management positions attempting to take advantage of their female employees. Many women leave the tech, medical and science sectors, not because they aren't career minded, but due to the pervasive culture of gender discrimination in which they find no hope of justice nor retribution.
And then there is another spectrum of sexual harassment, in which an argument can be made for common sense. Although women who come forward with stories of sexual harassment should be treated with the greatest respect, and it is important that they tell their stories, I wondered about a couple of these cases in which a woman would meet up for drinks late at night with VCs or even go back to a hotel room to drink more wine with a male colleague? I wondered if perhaps both men and women could be coached to understand and avoid these types of sensitive situations?
I asked David if he thought these could be instances in which women could use their better judgment and simply not comply?
“No person, male or female, should be forced out of their way to accommodate or actively avoid the conduct of a harasser,” David began. “That said, of course there are normative lines beyond which responsibility becomes shared even when there is an imbalance of power. In terms of most professional-social situations, however, women are far more likely to be at the default disadvantage because, in the male-dominated corporate culture, there is the expectation that the women are the burdened party.”
As for my personal experiences, I recall a couple of times in the past when I had been asked by management executives at media and tech companies to meet them late at night for a drink as a first-time meeting. I simply told them that I was only available during the day; I never received a reply back. I only reserve meetings of that sort with people whom I trust and know well, or a group happy hour in which I will not be alone with a person I do not know well. I think there will always be the kind of predatory individual who attempts to instigate uncomfortable situations, and in my experience, with even a little bit of attentiveness, it’s fairly easy to spot them. I asked David if he thought that perhaps being aware of one's own instincts and common sense can be equally important in quickly recognising these kinds of situations in the first place?
“Well, sure, common sense is important in all aspects of life,” David says, “however, in the context we’re discussing, women are put into the position of having to be unduly cognizant of the inherent biases present in male-dominated industries, in order to first identify and then to be able to step away from those types of situations. This is what I mean by being the burdened party. Most men, and perhaps I’m included in this, most men don’t fully get the degree of that burden.”
From my personal experience, having worked in many cities, I would have believed the Bay Area to be a more ideal place to work for women, compared to places like Seoul, where gender discrimination is much more of a cultural norm. And yet, we see these stories coming out of the Bay Area indicating the problem is real there, as well, but perhaps less publicised – until now.
What is also becoming ever more visible is discrimination against women on the internet, especially in social media and discussion sites, and perhaps these roots in online culture have led to the growing widespread discrimination of women in real life, especially in the workplace. A female friend of mine had been a member of a popular and public discussion group site on reddit where many male entrepreneurs and businesspeople frequently visited to share stories about their lives. However, she had been banned from the group without notice because, as one of the moderators wrote:
This story is a bit ironic since Ellen Pao was, for awhile at least, the interim CEO of reddit. Although her case of gender discrimination was made very public, and she was invited in to lead the management team at reddit, they, themselves had possibly created an online culture at reddit that would tolerate open discrimination against women of this sort.
In the US, and in California specifically, there is a law against discrimination of women who want to become members of a public group or club. This was set as a precedent in 1987 when the high court ruled that rotary clubs in California must admit women and also in 1990, when a woman’s membership to a golf club had been revoked under her husband’s membership and the court ruled against the gender bias and discrimination.
So how is it that online, these same rules don’t apply? Or can they? Do you think sites like reddit, which has 1.6 billion visits in the last 6 months, is the 10th most visited site in the United States, and has just received another $200 million in VC funding, has a duty and responsibility to curb gender discrimination on their public subreddits that actively recruits members?
"I have to be honest here and say that I don’t deal much with reddit," David says, "and I don’t have an answer for this, in part because the question is quite broad; and in part because the law for internet communication in the US is different than in other countries. The law in the US provides a broad safe harbor from liability when social media companies elect not to edit content – thus, we see that sites avoid, or claim to avoid, editing content, as a result, that informs the degree to which they tolerate abuse."
As an aside, it also seemed to me that Silicon Valley could be said to have discriminatory views against people of both genders without engineering degrees or MBAs, resulting in a distinct bias towards funding people with those degrees. Some prominent VCs have publicly come out to criticise a liberal arts education.Whereas, in other nations, such as the UK, a liberal arts education that focuses on critical and analytical thinking and which could be applicable towards any sector, is more publicly valued.
Navigation of Interpersonal Dynamics
Aside from gender discrimination and harassment, I think one of the more common problems in the workplace is simply knowing how to effectively deal with difficult people. In an ideal world, everyone is polite and thoughtful and efficient at their jobs, but in reality, there are people who can be difficult to work with, always late or missing meetings without notice, have poor communication skills, poor listening skills, often suffer from “selective amnesia”, and cannot work in a team environment. Sometimes these people are difficult to spot straight away because they may have great résumés, or “interview well” in the short term. The reality is, how to effectively manage and deal with difficult people is one of the more challenging aspects of the workplace; so much so, that there emerged in startups the No Asshole Rule. I asked David how one can manage or avoid the stress that is created when having to deal with hostile or difficult people in the workplace.
“The truth is that we have to take ownership, and control our stress in the workplace. Much of the stress that we feel can be managed by our own attitude and behavior. One way to overcome these stresses, when working or communicating with difficult people, is to develop our tools for managing our reaction to what are called stressor events." - David Johnson, Stanford Law School
“With difficult or angry people, I’ve trained myself to develop and deploy several layers of emotional engagement or, more accurately, disengagement, so that certain externalities can be kept at bay, to minimize their impact on me...For people who simply don’t communicate well, or live up to their word,” David added, “I tend to document things, usually in email. This way, someone who is a poor communicator, or has selective amnesia, or even a cognitive bias, can be made to look back on the evidence of a conversation, so that there is no question what was expected of them and vice versa."
“Think of all the successful people you know,” David says, “they generally don’t let little things bother them. They note them, they are aware that these things occurred; its just that these things don’t get through. There is a Latin phrase in the law, well there’s a lot of them, but one of them is: de minimus non curat lex. ‘The law doesn’t deal in trifles.’ If we train ourselves similarly, we can reduce our stress reactions in many professional and personal situations.”
Navigation of interpersonal dynamics is one of the crucial aspects of a leader who sets the right company culture. However, there will always be people who are inconsiderate and rude, who act unprofessionally, and who are difficult to communicate with. They may even be dishonest and have a history of engaging in a negative feedback culture. Opportunity cost in economic theory is when you spend more time focused on negative events, so that you lose the opportunity to find like-minded individuals who share your goal.
David Johnson will be teaching Negotiation by Design: Applied Design Thinking for Negotiators, at the Stanford d.school this fall. He teaches Advanced Negotiation/Transactions at Stanford Law School every Spring. His online NovoEd course Introduction to Negotiation is currently in session and the next run begins in October 2017. You can sign up through www.novoed.com.
By Sierra Choi