Posted December 5th, 2019.
By Braden Campbell
Law360 (December 5, 2019, 12:26 PM EST) — Six ex-Jones Day attorneys accusing the BigLaw powerhouse of underpaying female associates have urged a Washington, D.C., federal judge to let their suit move forward as a collective action, saying they’ve shown the firm’s opaque pay decisions hurt a class of female lawyers.
While they haven’t been able to compile statistical evidence of systemic sex bias without having finished discovery, the court should infer from their experience that other female associates have been similarly shorted by the legal giant’s secretive, top-down pay policy, the women said in a motion for conditional certification filed late Wednesday.
“Plaintiffs have presented more than sufficient evidence through their allegations and deposition testimony that there is a compensation policy that is applied to all female associates at Jones Day and that the policy results in unequal pay based on gender,” the women said.
Wednesday’s motion marks a new phase in the blockbuster suit, which alleges the firm’s “black box” system hides pay disparities that violate the federal Equal Pay Act. An order granting the ex-associates’ motion would let the named plaintiffs reach out to collective members, giving them a chance to opt in and have their claims heard together.
Plaintiffs do not need to prove the merits of their case to win conditional certification, but must instead offer evidence that they and a “similarly situated” group of lawyers were hurt by the same policy. Their complaint and a series of depositions filed alongside Wednesday’s motion “far exceed this standard,” the former associates said.
They note Jones Day sets pay “through a centralized process” helmed by managing partner Stephen Brogan, pointing to evidence including the firm’s website and its admission in an answer to the current complaint that Brogan approves increases in starting salaries. They also recalled in depositions being told there was “nothing [practice group leaders] could do” about their pay, and noted that Brogan signs the annual letters telling attorneys what they will earn in the coming year.
This policy has led the firm to underpay women, the associates said. While they have “limited access” to pay data because of the firm’s “enforced compensation secrecy policy and Jones Day’s refusal to provide firm-wide payroll data,” anecdotal evidence shows they and others were underpaid, the associates said. Named plaintiffs Meredith Williams and Jaclyn Stahl testified that they understood from their own pay and conversations with colleagues that “female associates, even top performers, were consistently paid under market.” The associates also named several male “comparators” who they said earned more money or bigger raises for the same work.
This evidence “far exceeds” the bar they must clear to win conditional certification and begin notifying the proposed collective, the attorneys said.
“Courts routinely grant conditional certification based on a similar evidentiary record, and often with far less evidentiary support,” they said.
Jones Day has denied both that it underpays women and that Brogan has absolute authority over pay decisions. Jones Day partner Terri Chase, who is representing the firm, argued at a hearing last month that the firm doesn’t have a single way of setting all salaries, and that the leaders of each office evaluate the workers under them and make salary recommendations.
An attorney for the former associates declined comment. A representative for Jones Day did not immediately respond Thursday to a request for comment.
The plaintiffs are represented by Deborah K. Marcuse, Kate Mueting, Paul Blankenstein, David W. Sanford and Russell L. Kornblith of Sanford Heisler Sharp LLP.
Jones Day is represented in-house by Terri L. Chase, Mary Ellen Powers and Beth Heifetz.
The case is Tolton et al. v. Jones Day, case number 1:19-cv-00945, in the U.S. District Court for the District of Columbia.
–Editing by Marygrace Murphy.
Update: This story has been updated with additional information.