Ellen Pao is a partner at Silicon Valley venture capital firm of Kleiner, Perkins, Caulfield & Byers.  She has recently filed a lawsuit against the company for sexual harassment as the Huffington Post reports.  Pao alleges that she was harassed by a senior partner in the firm who began excluding her from key meetings and withholding key information after she rebuffed his repeated advances.  The senior partner is no longer with the firm, but the trouble continues.  Pao is still working at the company.  She has not done anything to be fired and she hasn’t quit.

KPCB.com. No Claim to to Original Work

The Pao story brings into specific perspective an issue in employment that that many employers do not even conceive could happen.  Someone sues your company for discrimination, but is still working there.  Still facing you every day.  Still showing up for company parties, as Pao has done.  How uncomfortable!

It happens more often than you think.  An employee feels passed over for a promotion, or sexually harassed and talks to an employment lawyer who believes they may have a case.  The employee then files a complaint with the EEOC but doesn’t leave the company.  While uncomfortable, the employer lives with it since the EEOC is an administrative body investigating on its own.  And then, after the EEOC investigation concludes without resolution, the employee sues.

Now that the employer is spending money on a lawyer to fight an existing employee they invariably ask the question: “They are suing me! Can’t I fire them?”  And their lawyer will reply “No”, because, it would be discrimination to terminate an employee who is making a claim.  Whether the underlying claim has merit or not, the employer would certainly be violating the discrimination laws by letting the employee go with a lawsuit in play.

And, at the same time, the employee can’t really quit either unless they want to cut off their damages.  The only way an employee can quit in the face of discrimination without limiting their damages from that point forward is to be “constructively” discharged.  This means that the conditions at the workplace have become so bad that a reasonable person placed in the same situation would have no real alternative except to quit.  And, with the offending partner gone, that certainly is not the case for Ellen Pao.  So, she really shouldn’t leave.

The tension can become unbearable as both sides try to make it along that it often causes the employee to look for another job and the employer to look for a settlement just to get rid of the uncomfortable environment.

Just another twist on employment law you may not have been thinking about brought about by current events.