When venture capital firm Kleiner Perkins Caufield & Byers hired an outside investigator to look into a complaint of sexual harassment in December 2011, the investigator asked to see the firm's equal-opportunity-employment policy. The firm's COO at the time, Eric Keller, said he couldn't find it.
While that doesn't mean Kleiner had never had an EEO policy, it either didn't exist at that time or was lost over the years.
This could be a crucial point in Ellen Pao's ongoing employment lawsuit against her former firm. While the Kleiner defense team has picked apart Pao's evolving motivation and strategy in the case — showing that she may have only started complaining about the firm's lack of HR policies and training late in the process — it doesn't make her complaint invalid.
Today, Keller took the stand. Asked if it's true he couldn't find the policy in late 2011, he said it was. Asked if that meant no policy ever existed, he said it definitely did not.
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Then Kleiner's lead attorney, Lynne Hermle, produced the elusive Kleiner EEO policy. Except there was one very important detail: This policy was created and put into place in 2012. Kleiner had hired an outside lawyer, Gary Gansle, to write it, after it couldn't find an existing policy at the time.
In our interviews with employment lawyers to get context on the Pao case, they point to this issue as a glaringly big point against Kleiner's defense case.
For instance, Atlanta-based attorney Lorene Schaefer, president of the Workplace Investigations Group, said, "I've been practicing law since 1990, and have done close to 1,000 investigations, and I have never conducted an investigation where they have not had an anti-harassment and EEO policy. Ever."