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Jones Day Says Female Lawyers’ Sex Bias Claims Still Lacking

Oct. 9, 2019, 4:11 PM

Female associates accusing Jones Day of systemic gender discrimination still lack factual support for their allegations, which actually perpetuate sex stereotypes, the law firm said in its latest pleading in the proposed class action.

The women also still haven’t sufficiently alleged their primary claim that the firm’s alleged “black box” compensation system had a disparate impact on female lawyers, Jones Day said in a separate Oct. 8 filing in the District of Columbia.

Nilab Tolton and five other named plaintiffs also still have failed to identify the Jones Day employment practice or policy they believe disadvantages women in pay and promotions despite being neutral on its face, the firm said in a supplemental memorandum in support of its motion for partial judgment on pleadings.

The alleged “No Whining” policy the women point to in their third amended complaint isn’t a firm rule prohibiting employees from reporting suspected discrimination. It’s an “admonition” not to grumble and “an exhortation to action,” the firm said.

The women’s attempt to “double down” on their charge that Stephen Brogan, the firm’s managing partner, wields such authority over pay and other decisions that it creates a disparate impact also is lacking, Jones Day said. What they really mean is that Brogan hasn’t acted to end the alleged firm-wide pay and other sex-based disparities. But failing to correct an inadvertent disparity affecting a protected class isn’t the sort of employment practice needed for a disparate impact claim, Jones Day said.

If that were enough, merely identifying a statistical disparity between protected-class workers and their counterparts would suffice for disparate impact bias. That’s “exactly the opposite of what the cases hold,” the firm said.

Jones Day said the new complaint similarly fails to remedy defects in the women’s Equal Pay Act claims. Unlike the women’s prior pleadings, it does try to identify male associates who were paid more than the named plaintiffs. But it still doesn’t include allegations that any male lawyers were truly similarly situated to justify comparing their pay, the firm said.

The pay bias claim instead is still founded on the women allegedly not receiving “so called Cravath market pay,” Jones Day said, referring to a pay scale set by law firm Cravath Swaine & Moore LLP. But the new complaint makes clear that at least one plaintiff’s alleged male comparator similarly was paid under the Cravath scale, according to Jones Day.

Sanford Heisler Sharp represents the women. Jones Day represents itself.

The case is Tolton v. Jones Day, D.D.C., No. 1:19-cv-00945, answer and defenses 10/8/19.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com