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Jones Day Women Say ‘Black Box,’ Other Sex Bias Claims Supported

Aug. 23, 2019, 5:50 PM

A lawsuit accusing the law firm Jones Day of classwide discrimination against female associates contains enough detail about its “black box” pay system and other charges to satisfy federal pleading rules, the six women spearheading the suit told a federal judge.

The class complaint identifies a number of facially neutral employment practices that unfairly affect female attorneys to support their claim of disparate impact bias, the filing in the U.S. District Court for the District of Columbia said. These include a subjectivity-driven performance evaluation system and a strictly enforced pay secrecy policy, the women said.

Jones Day’s “all-but-formal” “no whining” policy, which chills female lawyers from complaining about pay and other bias, also supports a class disparate impact claim, the women said in opposing the firm’s July 29 motion for partial judgment on the pleadings. Its practice of leaving final pay, promotion, and other significant decision-making in the hands of Managing Partner Stephen J. Brogran is another centralized policy that furthers the firm-wide sex discrimination, they said.

Those are all components of Jones Day’s discriminatory “black box” compensation system, according to the Aug. 22 filing. The lawsuit alleges that women, especially pregnant women and mothers, are treated worse than male lawyers in how they’re viewed and evaluated and thus paid and promoted.

The lawsuit also provides sufficient information to state claims under the Equal Pay Act, the women said. Federal law doesn’t require plaintiffs to plead a prima facie case or identify specific comparators to survive a motion to dismiss, they said.

Jones Day’s motion “strives to” confuse the court by holding them to summary judgment and class certification standards, the women said.

The class complaint also provides enough detail to establish the court’s jurisdiction over the proposed class’s claims under the District of Columbia Human Rights Act, the women said. They again pointed to Brogan’s alleged centralized decision-making.

The women have standing to pursue claims for class-wide injunctive relief because they seek to be reinstated into the jobs they would have held with Jones Day if not for its discrimination, they said.

Each of the six women also have adequately pleaded their individual claims against the firm, the filing said.

Sanford Heisler Sharp LP is representing the proposed class. Jones Day is representing itself.

The case is Tolton v. Jones Day, D.D.C., No. 1:19-cv-00945, opposition to motion for partial judgment on pleadings 8/22/19.

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