Gender Discrimination in Biglaw

Episode Notes

Transcript

Lawyer 2 Lawyer – Law News and Legal Topics

Gender Discrimination in Biglaw

04/19/2019

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Deborah K. Marcuse: The conversation about gender discrimination in the workplace, and the legal workplace in particular, has been changing significantly over the last couple of years, I think as a follow up to the #MeToo Movement.

Kathryn Rubino: People who are going to these firms are more aware of the questions that they need to ask. It’s not enough to say anymore, look at our handful of awards that show that we are great to women or great on diversity issues, that only tells a part of the story.

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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: Welcome to Lawyer 2 Lawyer on the Legal Talk Network. I am Craig Williams coming to you from sunny Southern California. I write a legal blog named ‘May It Please the Court’ and have two books out entitled ‘How to Get Sued’ and a Christmas children’s book ‘The Sled’.

Before we introduce today’s topic we would like to thank our sponsor Clio.

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Over the years, the quest to obtain gender diversity within big law firms has been a difficult one. Just recently, on April 3rd, a $200 million lawsuit was filed against the Jones Day law firm by six former female associates alleging they were discriminated against based on gender, pregnancy and maternity. In response to the litigation, Jones Day has dismissed these claims, citing firm statistics highlighting their support of women employees.

But today on Lawyer 2 Lawyer we are going to take a look at gender discrimination in big law, we will look at the litigation, the current workplace environment in big law firms and educating firms and companies about gender and pregnancy discrimination as well as the importance of gender diversity within the workplace.

To do that, we have got a great line up of guests today. Here to discuss today’s topics is Kathryn Rubino. She is the Senior Editor for Above the Law. In 2013 Kathryn started writing a column for Above the Law, pseudonymously about her experiences in the legal industry and has authored guest columns at Corporette. She has written extensively about today’s topic.

Welcome to the show Kathryn.

Kathryn Rubino: Hi there. Thanks so much for having me on.

J. Craig Williams: And our next guest is Deborah Marcuse. She is the Managing Partner of Sanford Heisler Sharp’s Baltimore, Maryland office. She is a lead attorney in both the Jones Day and Morrison & Foerster gender discrimination cases.

Welcome to the show Deborah.

Deborah K. Marcuse: Thank you so much for having me.

J. Craig Williams: Deborah, I wonder if you could start us out please with kind of a background on what precipitated the Jones Day and Morrison & Foerster lawsuits and what the general basis for the allegation is against both of the law firms.

Deborah K. Marcuse: Well, I guess what precipitated both of them in a sense is that the conversation about gender discrimination in the workplace, and the legal workplace in particular, has been changing significantly over the last couple of years, I think as a follow up to the #MeToo Movement. And that movement started with a focus on sexual harassment in particular, but fortunately has broadened to a discussion of all of the different consequences of sex stereotyping the workplace and sort of related — all the consequences from pay and promotion to ultimately people getting pushed out or actually terminated.

And so in both of these cases you see what we hadn’t necessarily seen in, at least a lot of Sanford Heisler’s prior cases, which is younger lawyers, associates, instead of partners coming forward with these kinds of claims.

(00:04:47)

And in the Jones Day case, two of them who felt that they were able to come out under their own names, which I think both their sense that they were able to do this and the reception that they have had in so doing signals that we are in a different place in terms of there not being so much of a perception anymore, that coming forward with claims like these will redound to somehow discredit the people bringing forward the claims as opposed to the entities who are on defense side.

J. Craig Williams: Kathryn, you have written about some experiences you have had; as a member of big law firms myself I have seen some pretty horrible treatment of women, can you share with us some of the particular issues that you have seen?

Kathryn Rubino: Yeah. I mean at Above the Law we get a lot of information from people who are at their firms, but may be not ready to kind of pull the trigger on a lawsuit, who have various complaints, and I think that Deborah is right that in a post #MeToo era we are seeing a lot more people being willing to come forward and talk about it.

When I wrote about the most recent Jones Day complaint, which is actually the second I believe against Jones Day, when I wrote about it I got so many backchannel emails from people I either knew personally or just fans from the website saying yes, this is definitely what’s going on there, because they felt like they had a very similar experience from their time either at Jones Day or other big law firms. So you are getting a lot of kind of talking about and kind of that stuff behind the scenes.

And one of the things, at least from an Above the Law perspective that I think is particularly interesting about the case against Jones Day is really what’s under attack is their black box compensation system. The majority of big law firms of course are lockstep. If you are a second year, you get paid like a second year and everyone gets paid like a second year.

But at Jones Day, they take a different approach. Not only do they not share what you will necessarily be making after your first year at the firm, but they also discourage anyone talking about what they make. And that kind of lack of transparency and in fact, overt secrecy that they try to foster there really is an environment that is ripe for all sorts of biases to come out in decision making without obviously knowing specifically what’s going on in the case. But without that kind of transparency, there is just a lot of room for all sorts of unfortunate things to become part of the compensation question; people’s personalities, whether they — in the complaint they talk about women feeling that they were dinged in their compensation because they weren’t sparkly enough.

And this really kind of goes into all sorts of stereotypes about what women should be like, particularly in the workplace. And I think that’s really what’s interesting really about the Jones Day lawsuits compared to some of the other big law lawsuits because readers of Above the Law have hated the black box compensation system for years. We have written multiple articles trying to kind of crack it anonymously. People send us their compensation information, so that associates at the firm have more information so that they are aware of what the going rate is and how they kind of stack up, because without that information really people are — associates are really in the dark in sort of some of the worst ways.

J. Craig Williams: And to be fair, we have not invited or do not have with us today a member of Jones Day to response to it, but I do note that they have put out some press releases and Deborah, I will ask you for your response to these, but for example, they make a significant point that the percentages that they have, 70% of women promoted to partnership over the past decade had taken or were on family leave at the time of their promotion. 14 out of the 33 US lawyers promoted to partnership were women, 71% of those had taken family leave. Those types of statistics are out there, which sounds one side of the story, but Deborah, what’s the response to that?

Deborah K. Marcuse: I mean I think the response is in the allegations, in the complaint, where women from around the country had very, very different experiences. I think notable among these are examples that were given by some of the plaintiffs in the allegations of even at events that were focused on women being successful in the workplace, asking questions about how to be successful as the mother of children in a number of cases, or flagging where it seemed like there were partners who were not treating women or mothers this equitably, even talking about those things in supposedly safe spaces didn’t turn out to be safe for the women who came forward here.

(00:10:15)

So we often see statistics, certainly the allegations in the complaint present a very different picture and I think we are just going to have to see what unfolds in discovery.

One thing that I will say that’s striking from my perspective about Jones Day, I have never seen — it’s very striking how much of their secrecy they put out there on their website for everyone to see. So it’s sort of on the one hand this black box, but on the other hand they are very out there with their black box. They really embrace this as an ethos, also fairly subjective modes of making decisions about performance, which Kathryn can maybe speak to the broader big law context, to me this is pretty unfamiliar, uncommon, but Kathryn, do you feel that way as well?

Kathryn Rubino: Yeah. I mean I think that certainly at Above the Law, we are against kind of a lack of transparency, that’s why we do cover raise information and bonus information perhaps too much, but we do cover that, because I think it is really important.

And I think that particularly we get a lot of readers who are in law school and making decisions about what law firms to go to and no one thinks that they are not going to get the top of the compensation pile. And I think that for a certain type of person it seems appealing to say oh, you are not getting paid lockstep, you are getting paid based on how great your work is.

And everyone who is a lawyer, went to good law schools, was academically excellent their entire lives assumes that they are going to be the top of the pile, but that’s just not the way any of those numbers can possibly work, somebody kind of has to get below market in order for someone else to — or lots of people have to get below market of for a couple of people to get above market salaries.

And it is really problematic and I don’t think that people who are making the decisions to go to Jones Day either in law schools or as laterals are necessarily thinking about who you get placed on your first case with has such a giant impact as to whether or not you make the salary you thought you were going to make when you signed up with the firm, whether it’s in terms of the number of hours, about whether or not your personalities work and they give you more work or if they have any sort of expectations of you that may not be accurate.

So I think that it’s something that’s very important that associates need to be thinking about when they are making their choice of law firms, and as much as people — I think there’s a certain type of person who kind of bristles against the notion of lockstep compensation, But I really think that lockstep compensation in big law is a really great thing that allows work to be more equitably distributed, allows everyone to have an opportunity to get sort of the best and the worst of the cases. And I don’t think everyone necessarily realizes how important that will be until they are at a firm that doesn’t do lockstep.

J. Craig Williams: Deborah, let’s talk about how difficult gender discrimination cases are to litigate, and especially ones where you have highly paid employees presenting to a jury of people who are not as highly paid?

Deborah K. Marcuse: Sure. I mean I think that the real difficulties of these kinds of cases aren’t really — I think they happen before getting to a jury. I mean at this point none of these cases have actually gone to trial in terms of the big law cases that Sanford Heisler Sharp has handled. And I do think that at the end of the day juries are sympathetic to sort of basic ideas of — basic notions of equity, that it’s not right to pay two people differently for the same work based on their gender.

(00:14:45)

And I think also juries tend to be — they recognize — Kathryn mentioned something about people being perceived in ways that are inaccurate, and I think that that is one of the most frustrating things about sex stereotyping is this feeling — where you end up is this place where you could do anything objectively, you could demonstrate over and over again, for example, that you are incredibly committed to your job and yet somehow there can still be this perception of you as oh, she is a mother, she is not committed to her job, or other kinds of stereotypes that have absolutely nothing to do with what someone is actually like or the nature of their work.

And so I think if that is properly presented to a jury, even people who haven’t experienced something exactly like that, can understand how difficult it is to day after day be sort of trying to prove yourself in every way, and objectively succeeding, and have the reaction to you continually being driven not by what you are objectively doing or accomplishing, but instead by some set of perceptions about you that are ultimately driven by your gender or in particular your gender and the fact that you are a parent.

But these cases have a level of procedural complexity before you even get to this point that is also immense. In this case and in the Morrison & Foerster case we are not dealing with issues of is a law partner someone who can bring a case under state and federal discrimination law or no, which is a question revolving around whether that person is a partner in name only or in actual substantive ways.

We are also not dealing in these cases with arbitration agreements, which has certainly been a big topic in or around big law of late, and I will give a shout out to the Pipeline Parity Project, which is, even as the case law relating to arbitration goes in one direction, law students who are the ones who are going to have to take jobs as lawyers pretty soon are looking at the big law landscape and saying we are not going to tolerate some of these practices regardless of whether arbitration agreements are being upheld in court.

Kathryn Rubino: Yeah, just to echo your —

J. Craig Williams: Hang on just a moment Kathryn. We will get right back to you. Before we move on to our next segment, we are going to take a quick break to hear a message from our sponsor.

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J. Craig Williams: And welcome back to Lawyer 2 Lawyer. I am Craig Williams and we are joined by Kathryn Rubino, Senior Editor for Above the Law, and Deborah Marcuse, the Managing Partner of Sanford Heisler Sharp’s Baltimore, Maryland office.

So Kathryn, right before the break you were going to jump in and make a comment.

Kathryn Rubino: Yes, just to echo Deborah’s comments about the Pipeline Parity Project, for those who may not be following this, it’s a group of predominantly Harvard law students that have been organizing and putting a lot of pressure on big law firms that still has mandatory arbitration agreements. They have gotten several firms to change their policy and they have social media presence with hashtags as well as they are actually pounding the pavement and handing out leaflets in front of the offices of some of the firms that have refused to get rid of their mandatory arbitration policies in order to bring further attention to it.

Deborah K. Marcuse: And we should note that law is not the only industry where this is happening, I believe that Google has now rescinded its arbitration agreements, is that right, I think I remember reading about that recently? And so the tech industry is another one where, again, regardless of where the law is going, there are also extra legal considerations if your firm is trying to attract the best and the brightest and the response of the best and the brightest is we don’t want to be at a firm that wants to shield its violations of the law potentially from public scrutiny in these ways.

(00:20:13)

Kathryn Rubino: Yeah, and I think that that’s really been part of the positive outcomes of the #MeToo era. I think that arbitration agreements became a topic of current events, and even though you would think that the legal profession would always kind of care about arbitration agreements, I think that it really did make it a focus and really allowed people to rally against it and to be aware of the firms that they were applying to and what their position on mandatory arbitration was, because a lot of times people may not have even been thinking about whether or not the potential firms they had an offer from had arbitration agreements, that just wasn’t one of their considerations and now it really — it’s one of the big issues that we are hearing a lot of law students when they are applying to firms are really considering.

J. Craig Williams: Deborah, as we look forward in the litigation, what’s the ultimate resolution that you are after, what are the remedies that you seek and are we ever going to be able to change perceptions like the ones you have been talking about, what’s it going to take?

Deborah K. Marcuse: Oh, I think absolutely, it’s already happening and it’s not just because of litigation, there are firms that have taken affirmative steps to address issues like this because they recognize that it’s good for business and it’s the right thing to do. They are looking at perhaps rates of attrition or failure to successfully recruit the people that they want to recruit and they are saying what can we do to change this.

But I have definitely had students. My partner Kate Mueting and I taught a class at one point a couple of months ago at a law school and the students were asking us, you have got all these cases, but we are going to have to go get jobs at these places, what advice can you give us?

And it’s notable, a lot of law firms have — really almost every law firm has policies that may on the surface pass muster in terms of this looks like a good place. But people are realizing they really have to dig deeper and hear from actual people who are there what their experiences have been like and also see if there are other ways to sort of flush out what a law firm is really doing.

And I mean I have to say one thing that I said to them is increasingly you are seeing firms where people who have brought these cases are going. And to my mind what more striking sign of that a firm is a good place to be that it’s embracing people who are coming forward and fighting back against inequitable practices at perhaps a prior employer and then coming now and saying, this place is great, this place is what I had always hoped that my employer would be like to begin with. Some of us are very lucky and we happen on that great employer and an equitable employer early on in our careers, but for other people it takes some time to land.

I imagine, I don’t know Kathryn, it sounds like you are hearing from a lot of people that are pretty concerned about what their prospects are and how to tell whether a firm is really equitable.

Kathryn Rubino: Yeah, and I think part of the problem is that there is so much kind of contradictory information. Obviously you have a lawsuit against MoFo with seven plaintiffs and they also were named this week to the list of most family friendly law firms by Yale Law School, so there is a lot of contradictory information.

And I think that part of that’s also because of the nature of big law. Oftentimes different partners are siloed out and they may be the most wonderful, perfect, brilliant person at the firm, but it may not be somebody you ever interact with because of various assignments that you have got and you become sort of the property of a particular attorney, of a particular partner. And so I think that there is a lot of kind of contradictory information out there.

(00:24:45)

But I think that what is helping is that people who are going to these firms are more aware of the questions that they need to ask. It’s not enough to say anymore, look at our handful of awards that show that we are great to women or great on diversity issues, that only tells a part of the story. And I think that increasing awareness about the types of questions you have to ask and being aware, it’s okay if you lateral out of a firm because it’s not the right fit for you, whether it’s because of discriminatory issues or just because it’s just not the right fit for you and kind of increasing the mobility of associates really kind of helps that issue I think.

Deborah K. Marcuse: I mean it’s an interesting thing from my perspective. I don’t have the background that some of my colleagues even have of having a previous existence worked in big law. So perhaps my perspective on it is a bit jaundiced having come through — it’s the sort of outsider’s perspective, but I have to say I don’t necessary view those things as contradictory so much as indicative of the great distance that the industry has to go before it reaches true equity.

It is possible — I mean we just go through this sort of lawsuit at a time, but it is possible that the best law firms that are out there right now among the really well-known ones are the same ones that are having these problems, because the bar is just low at this point. But I think it’s being pushed upward by people who are willing to come forward and draw attention to practices that may be endemic to the industry, but also aren’t actually lawful, and that’s the push back we get sometimes is oh, why are you going after us, there are so many worse firms you could be addressing, and we take them as we find them.

And in some ways I think going to a place that is advertised as particularly friendly to women or to mothers and then experiencing something that is very contrary to that is almost — for certain of our plaintiffs has almost been a worst and more distressing experience than at least they imagine it would be at a place that didn’t represent itself as such a safe place, if you will.

J. Craig Williams: Well, ladies, it looks like we have just about reached the end of our program. I would like to take this moment to offer you both the opportunity to share your final thoughts as well as your contact information.

So Kathryn, I know that you were going to make a comment so I will turn it over to you first.

Kathryn Rubino: I think that these kinds of lawsuits and a lot of the other issues that we are seeing in the legal industry are encouraging, whether it’s getting rid of arbitration agreements, some firms are getting rid of partners that have been accused of inappropriate behavior and the transparency that comes with lawsuits. I think that these are all positives for the industry overall, but we still have an awful long way to go.

My contact information is [email protected] or on Twitter @Kathryn1.

J. Craig Williams: Great. Thank you very much. And Deborah?

Deborah K. Marcuse: I absolutely agree with Kathryn, I am incredibly optimistic as I see people who do feel able increasingly to come forward and address these issues, I think we are moving hopefully at an accelerated pace, toward a more equitable profession. And I so appreciate all of the people working toward this and in their different ways, from the Pipeline Parity Project to Above the Law, shedding light on all of these issues and helping people make career choices that will be successful for them.

So thank you so much for having me.

J. Craig Williams: Great. And would you like to provide our listeners the opportunity to contact you and where they can find you?

Deborah K. Marcuse: Sure, absolutely. I am embarrassed to say that I am not on Twitter, although I am told that I ought to be, but I am [email protected].

J. Craig Williams: Great and thank you very much. That brings us to the end of our show. If you have liked what you heard today, please rate us in Apple Podcasts. You can also visit us at legaltalknetwork.com, where you can leave a comment on today’s show and sign up for our newsletter.

I am Craig Williams. Thanks for listening. Join us next time for another great legal topic.

When you want legal, think Lawyer 2 Lawyer.

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