Gender Discrimination in the Workplace

Episode Notes

Transcript

Lawyer 2 Lawyer: Law News and Legal Topics

Gender Discrimination in the Workplace

10/14/2016

David Sanford: The dirty little secret in the legal profession is that the same problems that affect other industries are systemic within the legal profession. The ABA had a recent study, and we cite this study in our complaint, which notes that approximately 44%, 45% of law firm associates are females, and yet only 18% are equity partners.

Caroline Fredrickson: Happily the Lilly Ledbetter case was one of the few that Congress has been able to address in fixing a bad decision in terms of employment, a ridiculous decision, which said that Lilly Ledbetter should have known 30-odd years before that she was being discriminated against right from the beginning, otherwise she had to file her complaint within 180 days, a ridiculous ruling, but reflective of the fact that we have had a court system that’s fairly hostile, particularly to gender and race discrimination claims.

Kerrie Campbell: I believe it is high time that all of us as men and women of good conscience just ask ourselves, what are we going to do about this problem? It’s not as if the problem doesn’t exist. There is absolute informed unanimity that there is a serious gender pay equity problem in big law.

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Intro: Welcome to the award-winning podcast Lawyer 2 Lawyer with J. Craig Williams and Robert Ambrogi, bringing you the latest legal news and observations with the leading experts in the legal profession. You are listening to Legal Talk Network.

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J. Craig Williams: Hello and welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from sunny Southern California. I write a blog called May It Please the Court.

Bob Ambrogi: And this is Bob Ambrogi coming to you from just outside of Boston, Massachusetts, where I write a blog called LawSites, and I also co-host another Legal Talk Network program called Law Technology Now along with Monica Bay.

And before we introduce today’s topic we would like to just take a moment to thank our sponsor Clio. Clio is the world’s leading cloud-based legal practice management software. Thousands of lawyers and legal professionals trust Clio to help grow and simplify their practices. You can learn more about Clio at  HYPERLINK “http://www.clio.com” clio.com.

And Craig, we missed seeing you at Clio’s conference last week up in Chicago. It was a good time.

J. Craig Williams: I am glad you had a good time, Bob. I was watching some of your broadcasts.

Well, across the country women have been filing class action lawsuits over a male-dominated culture and alleged gender discrimination within the walls of their law firms.

Recently attorney Kerrie Campbell from Chadbourne & Parke filed a $100 million class action lawsuit against the firm on behalf of current and former female partners, alleging gender discrimination. In her complaint, Campbell alleges the firm was managed by an all-male five-member management committee that routinely discriminated against her and other women and that her compensation consistently fell below male counterparts.

Bob Ambrogi: In response to the suit, Chadbourne & Parke has stated in the news media, “Ms. Campbell’s complaint against the firm is riddled with falsehoods and, once the facts are fully presented, the firm is confident that her allegations will be shown to be completely baseless.”

J. Craig Williams: Well Bob, today on Lawyer 2 Lawyer we are going to take an overall look at gender discrimination in the workplace in addition to this particular lawsuit. We are going to be discussing litigation, debate over pay practices and other elements, the difficulty of proving gender discrimination, recent legislation, and what the future looks like for equality for women in the workplace, and to do that we have got a great line up of guests today.

First we have attorney David Sanford. He is Chairman and Co-Founder of Sanford Heisler, LLP. David was the lead counsel representing approximately 7,000 female employees in Velez v. Novartis. After a seven-week trial, Mr. Sanford secured the largest employment verdict in the United States history. David is currently representing attorney Kerrie Campbell in her gender discrimination class action lawsuit. Welcome to the show David.

David Sanford: Good afternoon. Thanks for having me.

Bob Ambrogi: And next we have attorney Kerrie Campbell, the plaintiff in the lawsuit against Chadbourne & Parke. She is a partner, I think right now called a partner in transition, but she can explain that to us in Chadbourne & Parke’s litigation department in its Washington DC office.

Over a 27-year career Kerrie Campbell has built a practice focused on all aspects of consumer product safety, risk management, regulatory compliance and related litigation and on reputation protection, defamation, libel product disparagement and First Amendment issues in litigation. Welcome to Lawyer 2 Lawyer Kerrie Campbell.

Kerrie Campbell: Thank you. I am very grateful to be part of the conversation.

(00:05:00)

J. Craig Williams: And our final guest today is attorney Caroline Fredrickson. She is the President of American Constitution Society. Before joining ACS, Caroline served as the Director of the ACLU’s Washington Legislative Office and as General Counsel and Legal Director of NARAL Pro-Choice America.

During the Clinton administration she served as a Special Assistant to the President for Legislative Affairs. Caroline is also the author of ‘Under the Bus: How Working Women Are Being Run Over’ from The New Press published last year. Welcome to the show Caroline.

Caroline Fredrickson: Thanks so much for having me.

Bob Ambrogi: Kerrie Campbell, I wonder if we can just start with you. The lawsuit that you filed last month, I think it was last month, in August, you filed a $100 million class action complaint alleging that the firm is run by basically an all-male dictatorship that pays women partners less and provides them fewer leadership opportunities than men. Can you give us the background and what led you to file this lawsuit?

Kerrie Campbell: I can try to do that, sure. I joined Chadbourne after a fairly lengthy and thoughtful process of about ten months of conversations with Chadbourne leadership and the management committee and various partners to move my practice to be able to grow it, and market it, and develop a brand that’s got a national strength and that a law firm with international capacity and a good litigation support bench could support.

And I of course made that decision very carefully and after trying to gather as much information as possible and didn’t take it lightly at all, because those of us who have been in law practices I am sure recognize that it’s a very complex process to move one’s practice from one firm to another and transition all of your clients and all of your matters to a new firm. So it’s certainly not something to be taken lightly.

And I felt like after extensive discussion that I had all the assurances that I was looking for and made the decision to accept Chadbourne’s offer to become an equity partner. That was the good part.

All right, so unfortunately —

J. Craig Williams: That was in 2014 and so what happened?

Kerrie Campbell: That was January 2014, and I am afraid that things turned out to be much different than what I have been told to expect, and I would say some rather shocking cultural differences that I was not accustomed to became apparent very quickly.

So although I had been assured and told that this was a culture of great transparency and open communication and dialogue, what I saw very quickly was that there was a distinct lack of transparency, that there was almost appall over discussion, and it became very obvious that any kind of conversation or effort to change things or have something different than the way it was before or to ask questions about practices or decisions made by the five-member management committee was very, very frowned upon. So that became clear fairly quickly.

And not too long after I had been there; of course, I was very, very busy working to serve my clients and doing all the things that you do to transition a practice and to integrate into a firm. At the same time, that first year — before the first year was over, information came out, which I guess is part of the firm’s process, and it came to my attention that I was at the very bottom of the point system, which translates to putting you at the bottom of the compensation system, and that was quite a shock indeed.

And I certainly made significant efforts to have productive conversations with management and with the managing partner Mr. Giaccia and with others in my office to address those concerns, to raise the concerns, and ask questions about how things were the way they were, and that didn’t go well.

And I think the allegations in the complaint really do speak to the experience of retaliation and the conduct, the backlash that I experienced as a result of raising what are I think very, very important, reasonable and valid questions that need to be addressed.

J. Craig Williams: Well, Caroline, let’s take a step back from this very specific instance and talk about the generalities of gender discrimination in the workplace. Can you give us a rough-and-tumble history of how this whole thing is coming to be?

(00:10:03)

Caroline Fredrickson: Well, I think it has always been, unfortunately; however, there are some interesting issues about how the law has developed around — once there was a broader recognition that gender discrimination should be illegal, even then when the laws were being crafted many women ended up getting left out.

And my book ‘Under the Bus’ tends to focus more on low wage women and women of color particularly, because they were the ones who were most subject to the exclusions in the laws; that don’t necessarily apply so much to the legal community. The Fair Labor Standards Act, which is minimum wage and overtime, as well as the National Labor Relations Act, which is the right to organize, and those laws had broad exemptions that were created to ensure that the Southern plantation owners could continue to have a largely African-American and very female population work for them without having to pay them minimum wage or overtime, without allowing them to join a union, very explicit conversation. It’s in the Congressional Record.

It shouldn’t actually be that shocking, it was a long time ago, but nonetheless, it’s still shocking to read, although certain conversations recently may seem more close in time than we would like to think, but still.

So lawyers haven’t so much been affected by that, but there has been — there were a whole another set of statutes that were more directly focused on sex discrimination, including Title VII and other protections for workers that have excluded smaller businesses. This can often have an impact on law firms so that the anti-discrimination laws don’t apply to companies with fewer than 15 employees.

And this has deprived a lot of workers with a very important tool, unless their state or locality has a stronger protection. And although, I think we often think of these smaller business exclusions as things that were meant to carve out small businesses, because somehow — they are somehow very different, I mean it was actually really specifically very race focus.

And again, there was this conversation about, some of the lawyers may be familiar with Mrs. Murphy’s Exemption and the Fair Housing Act; it’s a similar kind of a expression of racism that has affected women quite a bit, because they are caught up in the same exclusion. But again, very directly the conversation went to, why it is that people don’t — White people primarily shouldn’t have to hire people of a different race to work with them in a smaller environment.

So I think what happens is that the tools that we have are very weak, and I think we can get into a lot of the issues that the people who are litigating cases, which I haven’t done for a while, know for well, which is that the tools of litigation are quite weak for people who have been victims of discrimination, that the pleading standards have been made so much harder. The class action tool is much limited — more limited in its ability to be used.

Arbitration, forced arbitration being put in employment contracts, this is something where I think women have been particularly affected, and I think it’s something that — it’s a very important issue for people to talk about the way that arbitration and forced arbitration agreements have been used to hollow out our anti-discrimination protections, because much litigation is now focused on whether the arbitration clause is actually enforceable or not rather than going right to the heart of whether the women have been paid less or have not been — have been put at the end of the list in terms of the equity partners, as we have just been discussing.

J. Craig Williams: David Sanford, I wanted to ask you, this particular lawsuit with Kerrie Campbell against Chadbourne & Parke has drawn a lot of attention, has been written up in the Wall Street Journal and The New York Times and the National Law Journal and any number of other media outlets. Do you think that there’s an element of surprise among some sectors that employment discrimination can exist in an institution such as Chadbourne & Parke or is it pervasive across institutions of all levels?

David Sanford: It’s certainly pervasive across institutions at all levels. We have many cases that we are litigating and have litigated on behalf of women across the country. We have a gender discrimination case that is conditionally certified against KPMG, one against Merck Pharmaceuticals, others against other pharmaceutical companies.

The dirty little secret in the legal profession is that the same problems that affect other industries are systemic within the legal profession. The ABA had a recent study, and we cite this study in our complaint, which notes that approximately 44%, 45% of law firm associates are females, and yet only 18% are equity partners who are females.

And there’s a 2015 survey by the National Association of Women Lawyers which notes that female equity partners earn about 80% of what a typical male equity partner earns. So the median compensation for an equity partner for females is about $500,000 and for males it’s about $630,000. That’s a big difference per year. It’s about a $125,000-130,000 a year, and that represents about 25% of the median female partner salary.

(00:15:05)

So over a 20 year career, if you were to average that out, you are looking at about a $2.5, $3 million difference; with interest it’s undoubtedly much more than that. At Chadbourne in particular you have 20 non-partner attorneys who left the firm in 2015. 85%, approximately 85%, are female, 17 out of the 20. Why is that? What is really happening here?

Kerrie Campbell talks about, as she did moments ago, being in the bottom of the point system, which means that she is towards the bottom of the compensation system, and yet her originations were high relative to her male peers, who made a lot more money. Why is that?

And firms, law firms in general are able to get away with this because they have what I would call a black box system. There is a lack of transparency, as Kerrie mentioned, and people really don’t know how these decisions are made, but what we do know is that, at least in Chadbourne’s case, it’s made by 5 males, it’s made in secret, and people really don’t have access to a lot of the information that that committee uses to determine points and compensation. They don’t have access to the kinds of considerations that go into assigning points and thus compensation.

And as a result of that veil of being within that veil of ignorance people don’t speak out. Kerrie Campbell had the courage to step forward, to speak out, to challenge that system, and that’s what our lawsuit is all about.

Bob Ambrogi: Do we know if it’s systemic? 14 of the partners at Chadbourne, 14 female partners at Chadbourne & Parke wrote a letter to you, I guess asking to be disassociated with the lawsuit; I don’t know whether they were associated in the first place, but asking to be disassociated from the lawsuit. Does that suggest that perhaps this wasn’t a systemic issue at the firm?

J. Craig Williams: Well David, let me interrupt for a second just before we answer that question. We need to take a quick break and hear a message from our sponsor. We will be right back to the answer to that question after the message.

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Bob Ambrogi: Sorry, we had to just take that break. Welcome back to Lawyer 2 Lawyer. This is Bob Ambrogi and joining J. Craig Williams and I today are David Sanford, the lawyer representing Kerrie Campbell, partner at Chadbourne & Parke’s Litigation Department, who is suing them for discrimination. And also we have Caroline Fredrickson, President of the American Constitution Society.

And David, just asked you a question, I wasn’t sure — I think I might have also heard Kerrie speaking up there, but do you want to — either of you want to address that issue?

David Sanford: Well, I am happy to address it first if I could. I don’t think that’s the case. Whether or not the discrimination is systemic across the firm rests on a review of the numbers, either there is a disparity between the way in which female partners are paid versus men or there’s not. If there is, and if that disparity is viewed as being statistically significant by a labor economist, then the firm is going to have to explain why there is that statistical significance in compensation. They are going to have to explain it by reference to a nondiscriminatory reason, and I don’t believe they are going to be able to do that, so that’s first of all.

Second, with respect to the 14 individuals who signed on the letter, I think they signed based on a misunderstanding of what class actions are about. I don’t pretend to speak for each and every one of them. This is an issue bigger than any one person. It really is about a system of compensation, that’s what the case is about. If any individual does not want to participate in the case, she can opt herself out of the Equal Pay Act portion of the case; that is to say not opt-in at all, or she can opt out of the Title VII Rule 23 portion of the case.

So they may have understood that they were being forced into something they would rather not participate in, and that’s not the case. They have absolute, complete autonomy and independence to make decisions for themselves, and I completely and Kerrie completely respects any decisions they may make.

I can tell you, just as a corollary to all of that, there are other people who feel very strongly that what Kerrie did is the right thing to do. People who are female partners, people who are former partners at Chadbourne, people who are associates at Chadbourne and former associates, there’s a lot of goodwill and support for her that we have not publicized, but that I hope will become obvious as the litigation progresses.

(00:20:13)

J. Craig Williams: Well, Caroline, as you listen to this, you have definite knowledge about how difficult it is to prove gender discrimination. Tell us about those hurdles and what Kerrie is going to be looking at as she goes down the road in this case?

Caroline Fredrickson: Well, I mean, there are a lot of hurdles. I think certainly that the deck is stacked against plaintiffs generally, but employment discrimination I think is particularly hard, because of some of the things that I have mentioned there. The way that the courts themselves have helped raise the bar and making it more difficult through with the pleading standards.

If you look at the Lilly Ledbetter case and think about how the courts had interpreted the EEO language, how much time she had to complain. And happily the Lilly Ledbetter case was one of the few that Congress has been able to address in fixing a bad decision in terms of employment, a ridiculous decision, which said that Lilly Ledbetter should have known 30-odd years before that she was being discriminated against right from the beginning, otherwise she had to file her complaint within 180 days, a ridiculous ruling, but reflective of the fact that we have had a court system that’s fairly hostile, particularly to gender and race discrimination claims.

And so you can go through the whole list of, the Iqbal and Twombly decisions with pleading standards, that essentially make it so that victims of discrimination should know everything about why they are being discriminated against before they can even file their case. And again, I think class action mechanism, which has been very much limited for women to be able to join together and put their claims together.

For lawyers it’s a little bit different, because an individual claim is more meaningful in terms of its value. That pursuing a small group case or an individual case may be something that can go forward, but for many women who are victims of gender discrimination it’s not worth a lawyer’s time and they can’t afford to pay somebody unless it’s a class action.

And so those are just a few of the barriers, but the evidentiary burdens and so forth I think are tough, and I think the law firms being as secretive as we know they are, it’s very hard.

I think the other piece that has been touched on is, I think it’s hard, it’s really hard for lawyers, and it’s hard for the other women at the firm to necessarily put themselves out there. You worry about whether you are going to go to another firm or whether you are going to be able to attract business. You become, to a certain extent, notorious for having demanded fair treatment.

I think that women are often — they don’t benefit from speaking out. It’s not necessarily seen as a great advantage to have a strong-minded woman. And so I think that all those things together mean that I admire people like Kerrie for being brave and doing something that’s important for all women, for all women lawyers certainly. And I think we can look at the evidence, I can’t speak to the individual case, but the evidence of how women are graduating from law school in higher numbers than men, are doing extremely well, and they are just not making it into the partner positions, and they are certainly not making it into top equity partner positions.

And I can’t say that all of that’s discrimination, some of it is the structural issues that I think are somewhat attributable to discrimination of dealing with how able people are to combine a life outside the law firm with law firm work, but there’s a lot of discrimination, that’s the only way to explain those numbers.

David Sanford: Caroline, I must say that I disagree strongly with the undercurrent of what you just said. Caroline listed a parade of horribles that she thinks is a part of these cases and let me just give you another side, if I might.

We have been involved and are involved in litigation throughout the United States on a regular basis and much of that litigation involves gender discrimination. Right now, for example, we have cases certified by courts in gender discrimination matters against Merck, against Forest Pharmaceuticals, against KPMG. We have settlement, class-wide settlements against Qualcomm, Alcon, Daiichi. We had the Novartis trial, and the success at trial after six years of litigation. We recently had a settlement, class-wide settlement against Publicis.

My experience doing this just does not reflect what Caroline said. Sure, there are issues in litigation. Sure, people have concerns, they always have concerns, but I have represented so many women who have expressed those concerns, it’s a natural thing to ask about. They do the litigation and then they to a person wind up better off on the other end. They wind up maybe doing something they didn’t envision doing, but they are much better off.

(00:24:57)

Caroline Fredrickson: I don’t want to disagree with you on that. I don’t mean to say that it’s not possible to win, and I admire you, and I think it’s great what you are doing. I am just saying I think it could — it has gotten somewhat harder, but great lawyers with good cases can certainly. And I encourage women who feel like they are victims to go forward. I think we need more, and I think the more cases — the more we make the case that these cases need to be treated fairly. I don’t want to say that that’s not possible. I don’t want to discourage people from coming forward, if that’s the impression I left; I hope I didn’t.

J. Craig Williams: Does it say anything that so many of these cases have to go to litigation and are not able to be dealt with in a fair way within the workplace, whether it’s a big law firm or a big company or a small mom-and-pop shop somewhere when women raise concerns about their treatment and their pay equity and their involvement in management.

Kerrie, what was your experience here when you first raised these concerns, was there any willingness to kind of discuss or try and address them in any way?

Kerrie Campbell: I would share with you that the response was utter dismissal, utter dismissal, and there are a few points that I want to follow up on that Caroline had talked about. And when we talk about gender pay disparity, the fact of the matter, it’s an uncontested fact based on data compiled by the ABA and other organizations that the odd thing here is that the legal profession is the worst profession in the United States in terms of gender inequality. There is no worse profession in the United States, and this strikes me as a serious character problem, to put it one way.

Here we are, highly trained professionals who have gone to excellent educational institutions, and we have dedicated our lives to justice and equity and fairness and truth, and it is in our own profession where we have the worst offenders in terms of gender inequality, pay, power, promotion.

So I believe it is high time that all of us as men and women of good conscience just ask ourselves, what are we going to do about this problem? It’s not as if the problem doesn’t exist. There is absolute, I would say, informed unanimity that there is a serious gender pay equity problem in big law, period. No one disagrees with that.

Yet, when someone raises the issue we have sort of this knee jerk response of sticking the head in the sand, or pretending that it doesn’t exist, or wanting to sweep it under the rug, or frankly, I think a lot of women have simply gone on to something different or been treated unfairly and gone on to the next thing because they didn’t feel like they could do anything about it, or that they were fighting city hall, or that there were all of these other potential consequences for taking a stand.

What I am saying in 2016 is it is time for all men and women of good conscience to say enough is enough. This doesn’t make sense. We are not going to let it happen. And personally, I had to go through a process of deciding, what am I going to do about it? What am I going to do about it? And I decided for myself and for all the women who couldn’t or wouldn’t, and for my children who were grown and entering into the professional world, and for David’s two-year-old daughter, we have to do something.

We have to force law firms, law firm management to come to grips with this problem, look it square in the face and say, we are going to do something about it. And when they don’t, when they refuse to do that, when they dismiss you and they demean you, then they need to be held accountable legally in a court of law, and that is what we are doing.

And I am convinced. I am convinced based on all that we have heard since this lawsuit was filed, and we did not file it lightly, I am sure you can understand that, I am convinced we have only scratched the surface of the depth of the seriousness of the gender inequality and discrimination that is occurring and has occurred at Chadbourne, specifically, and hopefully this action will put an end to that, at Chadbourne and also have a positive impact in the legal profession overall.

And I will venture a guess, and maybe David is better equipped to address this, but I will venture a guess that by filing this lawsuit women are already going to do better, and already are going to be given better treatment, maybe some titles they wouldn’t have been given, perhaps they will get better bonuses this year and won’t it be interesting to see. All of that is good and all of that is not going to happen unless someone comes forward to say, enough is enough, we need to end this now.

(00:30:15)

J. Craig Williams: Well, we have just about reached the end of our program and it’s time to wrap up with your final thoughts and contact information. David, let’s start with you.

David Sanford: I am David Sanford, Chairman of my firm, Sanford Heisler. We have offices in Washington DC, New York City, San Francisco and San Diego.

J. Craig Williams: And your final thoughts?

David Sanford: My final thoughts couldn’t possibly do better than what Kerrie just said so eloquently, so I think I will leave it with her.

J. Craig Williams: Excellent. Thank you. Caroline, let’s turn to you.

Caroline Fredrickson: I am Caroline Fredrickson, President of the American Constitution Society. We are based in Washington and people can find us on the Internet at  HYPERLINK “http://www.acslaw.org” acslaw.org. And I would reiterate, I think Kerrie summed it up very well. I think it’s really important for people to raise the issue and to fight, to fight hard. There is so much work to be done to ensure that there is fair pay in the legal profession, and it’s a sad fact that we are not leading the way, that we are in fact at the end of the line.

J. Craig Williams: Thank you. And Kerrie, how can our listeners reach out to you and you can again sum up with your final thoughts?

Kerrie Campbell: Well, thank you. First, let me say that I am delighted and grateful to be part of this conversation, and I want to make a suggestion and a challenge to everyone who has any interest in this issue or who is involved in any way with gender issues, I want to suggest and challenge people that when something like this comes up, you can’t be neutral. You can’t stick your head in the sand and you can’t say, it’s not a problem, it’s not my problem, I just want it to go away.

People have to make a decision that they are either going to address the problem and fix it, or they are part of the problem. And that’s where I am on this issue after 30 years, I am going on 30 years of building a career in this profession that I find noble and that I love, we have a lot of work to do, and it’s time for everybody to get up and get going on this issue.

Bob Ambrogi: Well, thank you very much to everybody for taking the time to discuss this with us. It has really been interesting. We appreciate your time and appreciate your thoughts on this.

That brings us to the end of our show. This is Bob Ambrogi, thanks for listening. Join us next time for another great legal topic. When you want legal, think Lawyer 2 Lawyer.

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