Posted February 10th, 2021.
By Cara Bayles
Law360 (February 10, 2021, 2:11 PM EST) — Margy Kohn was in her second year at Columbia Law School in 1971 when she applied for a summer associate job at Royall Koegel & Wells. Even 50 years later, she says the job interview was memorable.
When her interviewer said Kohn would be working in the firm’s trust and estates practice, she told him what really interested her was litigation.
“He said something to the effect of, ‘Well, women are very good with details. And trust and estates is all details,'” Kohn tells Law360. When she pointed out that litigation also required being details-oriented — preparing with all the facts of the case — he insisted litigation involved “bigger issues.” Trust and estates was different, he told her, “Women are good at that.”
“The alarm bells went off my head. I was really surprised and shocked that I would be told that in an interview,” she said. “After I left, I wrote down what had happened in as much detail as I could, and I started to talk to classmates.”
Kohn’s peers recounted similar experiences; one of her friends was told, “If only you wore pants, we could hire you.” Eventually, 10 women who were studying law at Columbia and New York University sued BigLaw firms for discriminatory hiring practices. They were all represented by Columbia law professor Harriet Rabb, who was teaching a gender discrimination clinic. A New York Law Journal headline would later call Rabb “the Ms. who keeps picking on the ‘boys.'”
“I wasn’t afraid of filing a complaint. Maybe I should have been, but I wasn’t,” Kohn said. “I was a very feisty feminist, and I thought it was offensive. I was amazed that they would say something like that to me.”
Kohn settled with the firm in 1976. It agreed to a three-year quota: It would look at the proportion of women graduating from the law schools it recruited from and hire 20% more for its first-year associate class. For example, if women made up 25% of the class of the schools the firm recruited from, 30% of its offers would go to women.
Kohn did not go the BigLaw route, opting instead to be a litigator for public interest firms. But she recalls that as she was finishing law school, she went for another interview — her character and fitness assessment for the New York Bar. The attorney reviewing her file saw her then-pending litigation against a law firm, and he asked her, “Why’d you do that? That’s not going to help you get a job.”
For decades after Kohn’s win, it was rare for women to sue law firms for gender discrimination. In interviews with Law360, attorneys who brought those cases described humiliating trials, blows to their careers and a feeling of isolation born of being one of the few women at their offices and the only one to stand up.
But they paved the way for a generation of lawyers, and while gender parity in pay and rank is still a ways off, pioneers like Kohn can be credited for vast improvements in the legal industry.
“The change in law firm hiring practices has come only begrudgingly and at the point of a gun, not out of a sense of enlightenment,” said Emmet Bondurant of Bondurant Mixson & Elmore LLP, who represented a woman in a 1984 Supreme Court case holding that firms could be sued for discriminatory partnership decisions.
In recent years, such lawsuits have become more common. Some of the biggest names in BigLaw, including Jones Day and Morrison & Foerster LLP, have been sued by associates alleging they couldn’t get a promotion because of their gender.
The firms have denied those allegations in court. Jones Day has said the claims it discriminated against women relied on “stereotypical tropes,” and that it has an “inclusive work environment.” Morrison & Foerster said in court filings that the firm “is committed to treating its associates fairly.”
That litigation proliferated thanks to the #MeToo movement, which drew attention to sexual harassment, and because of a growing awareness of the wage gap, according to Andrew Melzer, an employment attorney at Sanford Heisler Sharp LLP.
Melzer, who has represented women suing Proskauer Rose LLP, Chadbourne & Parke LLP and Morrison & Foerster, says his clients owe a debt to the women who sued firms decades ago.
“We stand on the shoulders of the pioneers who did this before,” he said. “That obviously has enabled women to have the framework and the precedent to bring claims, knowing there were people before who faced this situation and stuck their necks out and were often successful in exposing and redressing unequal situations.”
Watching a new wave of litigation is bittersweet for the women who paved the way. The fear of stigma and loneliness is not as big of an obstacle anymore, and more legal protections exist. But the number of suits is also a sign that there’s a long way to go before gender parity is achieved in the legal industry.
“We have a very different set of employment protections today than we did in the 1970s,” Kohn said. “But I do think that discrimination is alive and well in the workplace, unfortunately.”
‘An Uncertain State of the Law’
Emmet Bondurant’s Atlanta law firm had only existed for three years when he heard the news in 1980 about Bob Hishon, one of his attorneys. Bob was planning to represent his own wife, Betsy Hishon, in a discrimination lawsuit against King & Spalding LLP.
Bondurant felt Betsy had a solid case. She’d been at the firm for eight years. She had twice gone up for partnership and been rejected, although, she contended, less qualified men had been promoted. She’d been a Harlan Fiske Stone Scholar at Columbia Law School. Her clients reviewed her favorably. And King & Spalding had never promoted a woman to partner.
Still, Bondurant felt “it was a bad idea for Bob to represent his wife.”
“They were family. But besides that, Bob was a tax lawyer, not a litigator,” Bondurant told Law360. “I tried to find counsel for Betsy at other firms in Atlanta, but had no success. There were no other firms or lawyers — many of whom I had great respect for — who were interested in antagonizing all the lawyers at one of the major firms in Atlanta.”
So Bondurant put a proposition to the Hishons: He would represent Betsy, if Bob promised not to get involved. They agreed.
It was a risky move for a young firm still finding its footing, still dependent on referrals from established players. Many attorneys at Bondurant’s firm had family or friends at King & Spalding. And opposing counsel in the Hishon case was Hamilton Lokey, a former state legislator and an old pal of Bondurant’s.
All that made the prospect of filing suit very awkward. But it was also daunting.
There wasn’t much case law bolstering their position, Bondurant said, and the question of whether one could sue a firm over partnership decisions was a matter of first impression.
“There had only been three prior cases, all brought by associates who had been terminated very early in their careers, long before they were considered for partnership. None of those had resulted in decisions on the merits,” he said. “It was an uncertain state of the law, but it was a claim we felt Betsy had every right to make.”
Bondurant says he tried to get King & Spalding to settle, telling a partner at the firm, “There’s no way you win this case.” Even if the firm won in court, he reasoned, it would be on the wrong side of history, and the case would be in every law school textbook. But, he recalls, the partner’s attitude was “dismissive — which was the polite way of putting it.”
So Hishon sued. The district court threw out the case on a motion to compel, finding that partnership promotions weren’t covered by Title VII of the Civil Rights Act of 1964. Hishon appealed, and an Eleventh Circuit panel majority upheld the lower court’s opinion, finding Title VII only covered employees, and they couldn’t overlook “the essence of a partnership — voluntary association.” That finding was “too glib” for dissenting U.S. Circuit Judge Gerald Tjoflat, because of King & Spalding’s “up or out” policy, which effectively fired associates who weren’t promoted.
Hishon appealed again, and the case went before the Supreme Court.
During oral arguments, Bondurant told the justices that such promotions would be covered under Title VII no matter what. But because King & Spalding enticed young lawyers to join the firm with the promise of being considered for partner after five or six years, one of Hishon’s perks as an employee was consideration for a promotion.
He was backed by Deputy Solicitor General Paul Bator, who reasoned that Hishon was still an employee of the firm as long as she was an associate, and in that role, she’d alleged she’d been treated differently from her male counterparts.
But Charles Morgan, who represented King & Spalding on appeal, argued that partnerships were protected by the constitutional right to freedom of association, especially partnerships between lawyers, who were entitled to certain exceptions because they were “essential to the enforcement of the Constitution.” He added that Congress, rife with attorneys, never intended to make them the subject to Title VII.
Justice Sandra Day O’Connor, the first and, at that point, only woman on the court, told Morgan that if lawmakers meant to exclude lawyers from Title VII, they would have.
“Congress knew full well how to write exemptions from Title VII, and put it in there,” she said. “You are asking us to just produce another one out of some abstract concept about lawyers.”
The court unanimously sided with Hishon, finding that partnership consideration was a perk of employment at King & Spalding.
“A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all,” Chief Justice Warren Burger wrote.
Hishon, who died 15 years after her high court victory, told The New York Times in 1984 that she was pleased with the outcome.
“I’m not typically one to march in a parade. But there comes a point, and I reached that point, where you have to take a stand,” she said. “I hope it will have a wide impact on women and minorities in the professions.”
By the time the decision came down, she had made partner at a different firm, O’Callaghan Saunders & Strum. She was “perfectly happy where she was,” Bondurant said, and the case settled without her seeking reinstatement at King & Spalding. Hishon went on to have a successful career in real estate law, although Bondurant said he’d be surprised if the litigation didn’t affect some of her relationships.
For his firm, the case had a lasting impact.
“I had many friends over at King & Spalding before the case began who cut off that source of referrals not only for me but for the firm itself. That was not unexpected, and we more than survived,” he said.
King & Spalding did not respond to a request for comment.
Bondurant said the case also affected his personal relationships with many Atlanta-area lawyers, who disagreed with the stance he took and “thought law firms should have been able to make decisions as arbitrarily as they always had.”
Still, Bondurant said he would have done it all over again, because “it was the right thing to do.”
Melzer said the case opened the door to challenging partnership decisions, and affected not only law firm promotion cases but academic tenure suits as well.
Over the past 36 years, Hishon v. King & Spalding has been cited in 18,780 federal court decisions.
One came out of a 2002 effort by Sidley Austin LLP to dodge an Equal Employment Opportunity Commission subpoena seeking to find out if the demotion of 32 equity partners at the law firm violated the Age Discrimination in Employment Act. The Seventh Circuit said the EEOC was entitled to compliance with a subpoena that would help clarify whether the demoted partners could be considered employees.
To get there, it turned to Hishon, finding that under that case law, “an employer may not evade obligations under federal law by plastering the name ‘partner’ on someone whose legal and economic characteristics are those of an employee.” The Sidley Austin case eventually ended in a $27.5 million consent decree.
From Plaintiff to Counsel
Nancy Ezold decided to sue her firm, Wolf Block Schorr & Solis-Cohen, on the day in 1989 when she was called before the associate committee and told she hadn’t made partner. She was surprised. She had been at the firm for five years and says she was the only associate to try a federal case, one that hinged on a difficult-to-prove oral contract, which she’d won.
But what surprised her even more was the committee’s unusual offer: If she agreed to take over the firm’s family law practice, they would make her partner the following year.
“I had no interest in family law. I’d spent years doing litigation, doing white collar criminal work, grand jury work, class action work,” she said. “No male that I knew of was told they could become a partner only if it was delayed a year and only if they took on the family law practice.”
She thought the choice to slot a woman for family law played into stereotypes, and she also thought the fact that they wanted her to head that department with no experience suggested management deemed her capable. She told the partners she wasn’t interested in that practice group, and “didn’t see any reason to wait a year under any circumstances.”
She started applying for other jobs and soon accepted an offer to become president and chief counsel of one of the firm’s clients, an environmental remediation company, she said.
She also reached out to Judith Vladeck, one of the best known labor lawyers in the U.S.
“I litigated for other people to correct wrongs,” Ezold said. “I truly felt I had to do that for myself.”
But that didn’t mean it was easy, according to Debra Raskin, who was a young associate at Vladeck’s firm at the time and worked on Ezold’s case.
“It’s no picnic, even before trial. You have your deposition,” Raskin said. “I’m sure the employers don’t like the idea of the other side rifling through their documents, but they rifle through the plaintiff’s life, their personal life. You are totally exposed.”
As a seasoned litigator, Ezold tried not to take it too personally and says she remained “pretty objective about it.” When Vladeck offered to find neutral territory where her deposition could be taken, saying she assumed Ezold didn’t want to go back to Wolf Block’s offices, Ezold recalls saying, “‘The hell I don’t! I have no reason not to go to Wolf Block. If they want it there, let’s go there.”
“Everyone in that firm must have known the deposition was taking place,” she said. “I remember stepping off the elevator into their suite, and people coming up to me patting me on the shoulder, patting me on the hand, saying, ‘Good luck.'”
Ezold won her bench trial, with U.S. District Judge James Kelly finding that she’d shown the firm’s reason for not making her partner — her legal analysis skills — were a pretext masking gender discrimination.
“The defendant promoted to partnership men having evaluations substantially the same or inferior to the plaintiff’s, and indeed promoted male associates who the defendant claimed had precisely the lack of analytical or writing ability upon which Wolf Block purportedly based its decision concerning the plaintiff,” he wrote.
But then the Third Circuit overturned the decision. It detailed several critiques of Ezold’s writing over the years and found that Judge Kelly, with his view “improperly influenced by [his] own judgment of what Wolf should have done … failed to see that the evidence could not support a finding that Wolf’s decision to deny Ezold admission to the partnership was based upon a sexually discriminatory motive.”
When Raskin got a phone call announcing the circuit court’s decision, she says, she called the clerk back a moment later, to make sure she’d heard it right.
“It sent me into a clinical depression for at least six months,” she said. “A judge’s decision when it’s a bench trial is very hard to overturn. I was flabbergasted.”
Ezold appealed, but the U.S. Supreme Court declined to hear the case.
By then, she was working for a small law firm — she didn’t think another BigLaw firm would have taken her after she’d sued one, and wasn’t sure she wanted to deal with that culture again. Soon after the appellate decision, calls came pouring in from plaintiffs who wanted her to represent them. She drummed up so much new business, she hung her own shingle.
“We’ve done pretty much employment discrimination cases from the day we opened our doors,” she said.
In the intervening decades, Ezold says, she thinks women have grown more savvy about recognizing harassment and discrimination, especially since the #MeToo movement began. But she is still disappointed by the pay difference between women and men at firms.
For example, Law360’s recent compensation survey found a disparity in hourly billing rates between men and women, with male partners’ median billing $30 more than the median $595 per hour that female partners bill.
“Is it better? Yes. Incrementally better,” she said. “Is it where we ought to be? No. Absolutely not.”
She takes so many of these cases on, Ezold said, because she believes “litigation levels the playing field.”
“We have gotten C-suite executives to come to our small firm to sit in our conference room before a court reporter and me and my associates and answer questions they’ve never had to answer before in their lives,” she said. “I think the law is advanced when these cases are brought. It is in my view one of the best ways to have the law be fairer to any minority. It gives you your day in court and a jury of the plaintiff’s peers try the case.”
A National Teach-In
During a 1991 Senate Judiciary Committee hearing on Supreme Court nominee Clarence Thomas, a panel of senators wanted to know why an attorney who had been sexually harassed by her boss would wait so many years to come forward.
Anita Hill had worked with Thomas at the Equal Employment Opportunity Commission eight years before. She alleged she’d endured sexually graphic conversations about pornography and Thomas’ “sexual prowess,” as well as pressure to go out with him. Now she was enduring questions about her motives.
“I was afraid of retaliation,” she explained during a televised hearing. “I was afraid of damage to my professional life.”
About a month later, the Civil Rights Act of 1991 passed. It expanded the scope of Title VII, allowing women to sue for pain and suffering and punitive damages, and to try their claims before a jury — until then, such cases were reserved for bench trials. President George H.W. Bush, who had vetoed an earlier version of the bill and threatened to do so again one week before Hill’s testimony, ended up signing it into law several weeks later.
That’s because the Hill hearings served as “a national teach-in for Title VII,” according to Alice Ballard, an employment law attorney who witnessed Hill’s enduring legacy in the courtroom.
That change in the law affected the case of Ellen Masterson, who Ballard represented. Masterson was twice denied partnership by her firm, LaBrum & Doak, in 1991 and 1992, and filed a lawsuit targeting both denials.
But because the law changed during that time, U.S. District Judge Clarence Newcomer adjudicated the Title VII claim based on her 1991 denial of partnership, and two other claims — one based on her 1992 denial and an Equal Pay Act claim that she was making less as an associate than her male counterparts — went to a jury.
Masterson had worked at LaBrum & Doak for nearly six years when she first went up for a promotion. She’d tried five cases before juries, and billed more hours in 1991 than most of the associates considered for partnership that year. And yet, she and the other woman up for partnership were turned down, and five of the six men under consideration were promoted.
Ballard says she was helped by several key factors that made Masterson’s “the perfect case.” There were comparators — men who made partner when she didn’t, who were no more qualified than she was. Masterson herself was “a very appealing person,” Ballard said. She was well-spoken and “very easy to respect and like.”
Masterson also had allies, including Leslie Miller, who had been a partner at LaBrum & Doak and was let go among others when the firm was having financial difficulties, according to court records. The six other partners who were let go at that time, all men, had problems that justified their spot on the chopping block. One failed to bring in business as he’d promised; another had his fees sent to him directly instead of to the firm. Judge Newcomer noted that Miller’s main offense seemed to be her gender.
There was also evidence of a culture of sexism at LaBrum & Doak. Miller testified that one of the firm’s partners had introduced her to two judges as “the broad we just hired.” Another partner had referred to opposing counsel as “fucking cunts,” Ballard told Law360.
Because of the change in Title VII, Masterson was entitled to a jury trial on the claims that arose from conduct in 1992. But on the eve of trial, Judge Newcomer abruptly announced he would decide the claim for the 1991 denial of partnership.
Ballard said that she’d had “no idea” the judge was going to decide the first promotion until right before the trial.
“I think we had all agreed to get some kind of an advisory opinion from the jury on the first promotion, and he said, ‘No, I’m taking it,'” Ballard said.
That made Masterson and Ballard a little nervous. “Generally speaking, we think of juries as being sympathetic to people,” Ballard said. “We had no idea that Judge Newcomer would end up being so sympathetic.”
The firm had argued that Masterson hadn’t drummed up enough business to make partner, but the judge found that reason was pretextual, and that she was “being judged by a standard that she was never given the opportunity to meet.” Masterson had brought in some clients, but unlike her male counterparts, she’d never been told that business generation was a requirement for partnership.
That and a “historical pattern of treating males and females differently” all supported “the conclusion that discrimination was the motivating factor in the firm’s decision with regard to Ms. Masterson,” the judge wrote.
The judge ordered not only that Masterson get $57,000 in lost earnings but that she be immediately made a partner.
“The reason it got so much attention was it was the first time a judge ever ordered a law firm to make an associate a partner. Usually, they just don’t do that,” Ballard said.
That published decision still holds up, Melzer said, and has been used to show that if someone has favorable evaluations from partners, that’s enough to show a candidate is qualified for partnership.
Ballard wasn’t sure whether there are more gender discrimination cases being filed nowadays, but she said that the case law and the practice have grown more sophisticated. Changes to Title VII, which used to be a far more technical statute, allowed attorneys and their clients to pursue more damages, drawing more trial lawyers to employment law, she said.
“The big difference now is that we have better trial lawyers who have honed their skills in this kind of case. And some of them are wildly successful in persuading juries discrimination has happened,” Ballard said. “Those people are helping everybody else. They get big verdicts, and that raises the average of what a case is worth.”
‘Moving in the Right Direction’
In many ways, Dawn Blackburn’s troubles with Mintz Levin Cohn Ferris Glovsky and Popeo PC, which began in 1999, highlight how gender discrimination suits have changed over the past two decades.
Blackburn had been working in Mintz’s Reston, Virginia, office just outside Washington, D.C., for a few months when her husband stopped by with their infant daughter. The firm’s managing partner couldn’t contain his surprise. Blackburn would learn he’d told their shared secretary that he hadn’t known Blackburn was a mother, and said, “That baby had better not get in the way.”
Three years later, Blackburn testified at trial about the abuse that led up to her termination, which she claimed was retaliatory.
One partner called her a “fucking idiot” and a “stupid bitch,” according to court documents. He would make her come into the office on a Saturday, when she didn’t have any work to do, she told Law360, to “make him coffee and sit around” until he dismissed her. He told her a story about an associate who, after returning from maternity leave, asked about a promotion. The point of the story, Blackburn said, was “pregnant women don’t make partner.”
Another lawyer told her that she had to decide if she wanted to be “a successful mommy or a successful lawyer,” she alleged.
Twenty years later, managers might know better than to say such starkly sexist remarks, which is both a blessing and a curse, Melzer said.
“It means things are going in the right direction,” he said, “but if it’s under the surface and that’s what’s motivating a decision, it gets harder to prove, too.”
At trial, Mintz painted her as an incompetent, disgruntled employee, trotting out witnesses who criticized her work.
That was a difficult time for Blackburn. The trial was a grueling series of accusations, and for the first time in her life, she had panic attacks.
“With every witness they called, it was as if I had lost my mind. I couldn’t do anything. I was a horrible employee. Never mind that they had harassed me. That didn’t matter,” she told Law360. “It was nerve-wracking and horrible, and I didn’t have anybody I could really talk to who was in the same boat.”
That, too, has changed in recent years. Now, when women sue their firms, they’re “not just a voice in the dark,” Melzer said.
“These aren’t necessarily single-plaintiff cases anymore. We have multiple people from the same firm coming together and filing cases,” he said. “It’s a positive development that it’s not one person against the firm.”
Blackburn won her federal jury trial, but both she and Mintz appealed. The firm tried to get the verdict thrown out, and Blackburn sought reconsideration of the lower court’s decision that she wasn’t entitled to punitive damages.
The Fourth Circuit sided with her, not only upholding the verdict but finding that “a prominent law firm, and especially a law firm with an employment law section in the relevant office, perceived the risk of violating federal law in retaliating against an employee.”
While the opinion was unpublished, it still set an important willfulness standard, Melzer said.
“It’s almost self-evident that a sophisticated BigLaw firm should know what the law is on discrimination and retaliation,” he said.
Blackburn ended up settling with the firm, and getting what she’d originally asked for during pretrial negotiations.
But the suit had a lasting impact on her career. She’s convinced she was blacklisted from the D.C. BigLaw scene, that Mintz attorneys advised their peers at other firms not to hire her.
“People would be curious enough to give an interview, and I would feel like it was a fit but I wouldn’t get an offer,” she said. “I kept feeling desperate, like this firm is going to completely alter my career. And they did. I haven’t been in private practice since.”
Mintz did not respond to a request for comment.
Blackburn had to move to Richmond to find work. She had always wanted to go in-house eventually but hadn’t planned to do it quite so early in her career.
Now, women who sue their firms for retaliation are able to make lateral moves to comparable firms. Three of the women with pending gender discrimination claims against Jones Day, for example, are now working at Orrick Herrington & Sutcliffe LLP, Call & Jensen, and Rutan & Tucker LLP.
That signals an improvement, according to Melzer. While retaliation still happens, he said, “filing a claim is not necessarily an automatic death sentence now” for a woman’s career.
“Even if people might not continue to work with their employer, some have been able to move on in the industry,” he said. “Our clients have had mixed experience, but generally have landed on their feet.”
Blackburn said she’s heartened to see that women “feel more empowered to say, ‘I’m not going to put up with this anymore, and I’m going to file suit,” and to see that juries are receptive to their claims.
“These law firms should know better. Just think of the $1,000 an hour they’re charging their clients not to do the same things they’re doing. That’s what’s stunning to me,” she said.
She said she hopes that conditions are improving for women lawyers, but thinks the legal industry has a ways to go.
“I still think the profession is made up of a good old boys’ network, so you know it’s still going on,” she said. “If you shine a light on it, it’s a great disinfectant.”
–Editing by Brian Baresch and Alyssa Miller.