How to be “credible” even if you're a woman... and other takeaways from the Berkeley sexual discrimination investigation

By Sarah Lacy , written on February 27, 2018

From The Gender Wars Desk

Last week, we published an in-depth investigative story about five women who were all driven out of a division of UC Berkeley’s IT department.

An on-campus investigation found that two men, Ben Gross and Riff Khan, were responsible for creating a hostile environment, based on gender.

It wasn’t much of a victory: Days after the investigation findings came out, the woman who brought the investigation, Vanessa Kaskiris, was $35,000 in legal debt and summoned to a meeting where she was laid off. Meanwhile, the two men found responsible suffered no ramifications and went on to work at two of the most highly valuable companies in Silicon Valley today: Gross is at Coinbase; Khan is at Palantir. They were even given going away parties, emails were sent “honoring” their work at Berkeley.

As we wrote, this wasn’t just the story of these five women. It’s the story of women in Silicon Valley writ large. The truth behind the so-called “pipeline problem”, the difference between diversity and inclusion, and a story of how bullying and sabotage can be just as disastrous for women’s careers as groping and propositioning.

Only, there’s a huge difference: If you sexually assault or proposition a woman, and are found guilty of that, you will likely get fired in this day and age. When you are found to be responsible for creating an environment where women are bullied, sabotaged, ostracized and called names like “little girl”, the industry standard isn’t to get fired. Berkeley noted that although the finding violates their rules and the discrimination protections of the U.S. Department of Education and of the Civil Rights Act, it’s up to the school’s discretion to take any disciplinary action.

We asked last week whether Palantir or Coinbase knew about the findings against Gross and Khan before hiring them. The companies chose not to comment on the record and, as far as we can tell, both men remain in their jobs. (Riff Khan appears to have deleted his Twitter and LinkedIn accounts though.)

As Ellen Pao’s case against Kleiner Perkins showed, it’s extraordinarily hard to prove a hostile work environment based on gender. Susan Fowler’s complaints to Uber HR likewise fell on deaf ears. No single example in and of itself is a smoking gun; it’s the sustained campaign of insults, slights, eye-rolls, lack of mentoring, lack of challenging opportunities to learn and grow, sabotage and ostracization that create an environment where women’s careers become derailed or stalled.

Since our story ran, we’ve been inundated with women saying they have been or are in these situations right now. We don’t have a lot of great news for them: None of the three institutions in question deemed this a fireable offense, even when the women risked retaliation and came forward and ultimately proved something that’s incredibly hard to prove.

We hope by shining a light on this, women might start to demand change. For those who do want to push for change, we wanted to dig into some of the broader take-aways from the Berkeley story, that jumped out at us re-reading the 80-page investigation, the many supporting documents, and half a dozen sources who worked at or near the Endpoint Engineering and Infrastructure group.

These are three things that nagged at me over the last few months I worked on this story: The nature of “Credibility”, the role male allies must play, and an argument that binge drinking cultures are inherently discriminatory.

How to be “credible” even if you are a woman.

The first is on the topic of “credibility.”

This has been a central problem with all of the laws on the book when it comes to sexual assault and sexual harassment: How do you get people to believe you? The reason that 2017 was such a dramatic shift when it came to sexual assault is that the default suddenly switched to believing women, at least in the public eye.

But what about when it comes to an internal investigation where the odds are the people conducting it want to protect the company more than they want to believe women?

Kaskiris didn’t have a lot of wiggle room in asserting her credibility, according to the investigation. Anything Kaskiris asserted that was disputed was seen as an overall knock on her general credibility. For instance, in her complaint she alleged that the men had gotten some 27% in raises, incentives and bonuses, and the women had gotten none. It turned out in the investigation that one of the women had gotten a small raise “in the 3% to 5% range,” and management claimed another one of the women would have gotten a raise if she’d stayed longer.

You could argue that still looks pretty lopsided. But that didn’t matter. The fact that Kaskiris’s facts didn’t match up exactly meant she was that much more unreliable in the investigator’s eyes generally.

It wasn’t just that Kaskiris’s credibility suffered when people disputed her accounts of things, astoundingly, when the accounts matched too well her credibility also suffered. Every single one of the women interviewed backed up Kaskiris’s larger points about discrimination. To the investigator, that raised red flags that they’d coordinated their stories. In the investigator’s words their “corroboration was diminished somewhat by indications of recent communication between those individuals.”

What it means to be an ally

As we wrote last week, it was chiefly the testimony of a male employee that led to the finding that Gross and Khan created a hostile work environment.

“I found Witness 6’s statements credible. He had been a part of the in-group in [EEI] so he was privy to information that others were not. … there was no clear motivations for him to be resentful and undermining [EEI] leadership. Supporting the complainant and former employees in this matter has the potential to create significant strain for him in the workplace.”

In other words, he had nothing to gain from making up claims. But it’s a strange assumption that the women who testified didn’t have anything to lose by coming forward, given how common retaliation is, that three of them still worked at UC Berkeley, and that Kaskiris lost her job days after the investigation findings came out. “There was no clear motivation for him to be resentful and undermining [of EEI]’s leadership” also strikes me as a gender-loaded phrase. Why does his gender mean he doesn’t have a motivation whereas any of the other women necessarily would have a motivation to be resentful or undermine the company’s leadership? As he testified, he also felt marginalized by the toxic environment and retaliated against by Khan after he complained about how he was treating the women.

What is the takeaway here for women who want to come forward? Without reaching out to the other women and gut-checking that Kaskiris wasn’t crazy, that they all had experienced this, that she had a case, her investigation wouldn’t have gotten as far as it did. But the fact that they had talked, that their exeperiences were so similar, and even used some of the same verbiage like “pigeon-holed” made their stories less credible in the investigator’s view.

It’s gendered and eye-opening that it took a man speaking up for there to even be a finding of wrongdoing here, despite the testimony of every single woman who had worked in the department. But it’s also a direct call to action for any men witnessing this kind of intimidation in the workplace right now.

We can get upset about it all we want, but this case shows that men have more credibility in organizations like this. That means they have an even greater responsibility. I get asked all the time how men can be better allies: Speak up. Because even if every woman in an organization says something happened to her, she may not be believed without you.

Are drinking cultures within organizations inherently discriminatory?

Another takeaway is the ongoing debate about drinking cultures in Silicon Valley.

Uber’s public excoriation, along with the stumbles of companies like Zenefits, SoFi and Binary Capital, has begun to change the idea of exactly how toxic drinking cultures are at startups. Before the stories of doing shots at sales meetings, sex in stairwells and cars, and Uber executives at Korean brothels, alcohol at work events-- even available during the work day-- was as mainstream and accepted as wearing hoodies and flip-flops.

When asked about the drinking culture in the investigation, Gross brushed it off. “They did not hold formal interviews in bars, but they did meet potential candidates informally to see if they would get along.”

Witnesses testified that the core team in charge of decision making at EEI went drinking as much as every evening, and sources we spoke to said this was frequently binge drinking, including getting cut off by bartenders occasionally.

The investigator determined that the drinking culture did more damage than good in the division’s culture. But she did not rule that it was inherently discriminatory.

I would have come to a different conclusion for a few reasons.

That the test for “getting along” being mandated drinking should raise a few eyebrows. Forget for a moment that it could feel exclusionary for someone who chooses not to drink, a pregnant woman, or a mother or father who wants to spend their evenings with their kids. A culture where you have to drink and go to bars to “fit in” has been proven to be more dangerous for women. A 2004 Cornell University study showed that when more alcohol is consumed as part of an office culture, the risk of gender harassment increases too.

“There are diminishing returns for women in professional settings to drink,” Kaskiris says. “Men get more easygoing, and friendly, and it opens doors for them. It’s the opposite for women. Drinking professionally hurts you. It creates opportunities for things to happen that you can’t argue against later because you were drinking.”

Another source who spoke on the condition of anonymity told us that in the case of EEI, the men were rewarded if they went drinking every night. “You got inside information and got to be involved in decisions that others weren’t,” this person said. “If it was one of the women, and you went, it was like, ‘Let’s see what this person is about, let’s test their knowledge.’”

This person said that even the women who came didn’t get the same advantages as the men who went drinking. They definitely suffered if they didn’t go to happy hours. “If you were a woman and you didn’t go then you were just talked about, they said you were not part of the team or didn’t know as much technically,” this person said. This person described the division’s drinking culture as toxic for everyone, but at least men could benefit by being part of it. Women were punished either way.

That was certainly backed up by the testimony in the investigation. There were plenty of examples in the investigation for when EEI’s drinking culture had created problems for the women. Nearly everyone testified that the drinks were “slam sessions” for trashing coworkers who weren’t there. Said one of the men: “He felt he had to go out , but they just talked shit about people all night and made sexually charged jokes.”

While Kaskiris refused to be ever be part of the drinking culture, Sarah Fernandez tried to fit in.

“Drinking was ingrained in the [EEI] identity and was part of how she assimilated,” according to her account in the investigation. “[Fernandez] felt that people were excluded from project decisions they should have been included in because decisions happened outside of work at bars.”

And yet, it backfired for Fernandez too. She was bullied over drinks into telling the team what her salary was and that Gross had committed to giving her a raise. That triggered an ostracization so juvenile that the men on the team wouldn’t even sit on the same side of the table as her in meetings. It also led to outright sabotage, according to one of the witnesses:

“[Khan] was ring leading an effort to make [Fernandez] uncomfortable and unhappy. [Khan] would call [EEI] the guys’ locker room. He said the girls were trying to fit in but could not keep up and did not have the skills. He said that [Fernandez] was trying to be a man and trying to break into the guys’ locker room. [Khan] said that they needed to shut [Fernandez] down, and [this witness] saw [Khan] restricting [Fernandez’s] access to [certain] systems, including what she needed to do her job... [Gross] did not resolve the access issues. [Fernandez] was smart enough to find workarounds and finish the project, but it pissed her off and she found a job elsewhere.”

Kaskiris was punished when she avoided the drinking culture; Fernandez was punished when she tried to be part of it.

And then there was this from the report:

“At one happy hour, [Zoey Lin] had a couple of drinks and was being open. She said, “[Riff], I know we have communication problems, is there any way you can treat me like not a woman, just a human being?” He said no.”

What the investigator determined is in exact opposition to these examples, what our sources (male and female) told us, not to mention the broader research about the link between drinking cultures and harassment:

“Although the evidence supported that many employees (male and female) discussed work at bars, as well as at off-site at lunches, and on-site after hours, the evidence did not establish that women were excluded from key project decisions because of the practice of discussing work at bars.”

We’ve repeatedly asked UC Berkeley what their policy is on interviews and decision making happening after hours in bars. They’ve refused to answer the question.

It’s one thing for the maverick, cult-of-the-founder-oriented, youth-obsessed startup culture to have a permissive culture when it comes to drinking. It’s another thing for a wonky IT group within a public university to look the other way unconcerned as witness after witness testifies that this was a core part of the office culture and these drinking outings were where a lot of the hazing and worst comments about women allegedly took root.

And yet, even in Silicon Valley drinking at work has come under pressure. Companies as un-bro-y as payment provider Braintree have kegerators in the office, trusting their employees to consume responsibly, which most likely do. WeWork brings the convenience of in-office beer to the startup masses as part of it’s hip decor and high speed WiFi. To cut the EEI team and even Uber some slack, alcohol at work wasn’t exactly verboten in Silicon Valley, and bonding over drinks after work is a cliche across industries.

And then 2017 happened. Stories of executives doing shots in meetings, having sex in stairwell, binge drinking and visiting Korean brothels lead to investigations, terminations and worst of all for Silicon Valley founders…. Decreases in valuation. One of the main recommendations of the Holder Report was that drinking be significantly curtailed at all of Uber’s corporate events. A trend of companies limiting or eliminating drinking at Holiday parties last year was dubbed by The Washington Post as “The Weinstein Effect.”

If Uber has a stricter code of conduct than your company-- or University in this case-- it may be a gigantic red flag.

Photography by Ward Long for Pando.