Ellen Pao will probably lose her discrimination suit. Here’s why.

Things aren’t looking good for Ellen Pao, the former Kleiner Perkins junior partner (and current interim CEO at Reddit) who’s suing the firm for $16 million.

Kleiner Perkins is one of the most famous VC firms of all time. One witness called it the Navy Seals of venture capital. So it’s easy to see how the outcome of Pao’s suit will affect the entire industry.

Pao’s broad complaint alleges she was discriminated against while working at Kleiner. Pao’s attorneys tried to portray KP as a having a locker room culture. They’ve pointed to incidents of sexual harassment against other partners.

Here’s why I don’t think Pao will win:

  1. If there was truly egregious (and malicious) discrimination at KP while Pao worked there, this never would have gone to trial. It’s easy to forget that this suit was litigated for three years before appearing in front of a jury.
  2. Pao’s workplace affair with Ajit Nazre muddied the waters. This isn’t at all to say that an affair at work should open you up to mistreatment. But if I’m on the jury, I’m wondering how much of Nazre’s treatment of Pao after the affair ended had to do with their romantic history, rather than her gender.
  3. Many of Pao’s attempts to portray discrimination at Kleiner don’t make the firm look good, but they’re far from smoking guns. For example, Pao took a cross-country jet trip with another partner and Daniel Ronsensweig (the CEO of Chegg, a Kleiner investment) where there was allegedly lewd conversation about Playboy, pornstars, and the like. Inappropriate? Yes. Illegal? No.
  4. Even the judge, who has given Pao’s side plenty of latitude, is doubtful about punitive damages. On Tuesday, Re/code reported that Judge Kahn said Pao’s side hadn’t made a claim for unspecified punitive damages. Although Kahn’s comment were about a specific motion Kleiner’s attorneys wanted to file, it speaks to the larger problem that much of Pao’s complaint doesn’t seem to meet the legal definition of discrimination, even if real discrimination occurred (I’m not a lawyer, though).

I’ll be very interested to see how long the jury deliberates on this case and what it decides. But if you asked me right now to guess which side will win this, I wouldn’t hesitate.