Posted September 29th, 2020.
By Brandon Lowrey
Law360 (September 28, 2020, 7:41 PM EDT) — For attorneys filing gender bias lawsuits against their law firms, a difficult and almost inevitable decision awaits: Put your name on the lawsuit and invite personal and professional scrutiny, or abandon your claims.
That crossroads has confounded scores of litigants over the years — including those in at least two high-profile and ongoing bias battles between women and BigLaw firms. Many attorneys, when confronted with unmasking, have dropped their lawsuits or settled. Others have stepped forward and expressed no regrets.
But there can be repercussions for discrimination plaintiffs who reveal their identities. Attorneys Sherry William and Joshua Ashley Klayman were the only two women out of a group of at least six plaintiffs to put their names on a suit against Morrison & Foerster LLP, which claimed the firm placed them on a less lucrative “mommy track.”
Since then, the firm has fired William and won access to both attorneys’ current and historical job performance records over their protests.
A California magistrate judge ruled that William’s performance as a former associate at Freshfields and Klayman’s at Linklaters — where she now heads the firm’s U.S. fintech practice — could be key to the lawsuit.
“If plaintiff’s performance was exemplary, that would support her claim against defendant; if problems were noted in the time frame near to her employment with defendant, such evidence might support the defense,” U.S. Magistrate Judge Jacqueline Scott Corley said in an April opinion.
William and Klayman are among a slew of current and former BigLaw attorneys to retain Sanford Heisler Sharp LLP to pursue gender bias claims against their current or former firms. Sanford Heisler has tried to preserve its clients’ anonymity for as long as possible, contending the exposure and invasive examinations of women who come forward could have a chilling effect on future prospective plaintiffs in the male-dominated industry.
Yet experts say while that may be true, whistleblowers and alleged victims of bias are rarely able to remain secret for long.
In many cases, plaintiffs are easily identifiable to coworkers and clients from the facts in their complaints. And, as illustrated by several recent decisions, most jurists find the public’s right of access to the court system trumps most plaintiffs’ concerns.
“It’s almost impossible to remain anonymous if you’re suing a law firm,” said L. Camille Hebert, a professor who studies employment law, harassment and bias at the Ohio State University Moritz College of Law. “Even at big law firms, people are almost always going to be able to figure out who you are.”
In a case that Sanford Heisler is pursuing against Jones Day, Jane Doe 4 was one of several associates who sued alleging the firm wrongfully refused to promote her to partner. In court filings, she described a culture in which senior male attorneys sexualized her in the workplace and ignored her accomplishments. But when a judge told her that the public interest demanded that she identify herself in her lawsuit, she dropped her individual claims.
Her argument that Jones Day might retaliate against her failed to persuade U.S. District Judge Randolph D. Moss to let her remain anonymous.
Judge Moss wrote in his opinion that granting that request would do little to protect her, as the firm and many of its members already knew who she was. In fact, he said, it would unfairly harm Jones Day’s reputation if a federal judge ruled it was likely the firm would retaliate against its employee if she were named.
The Jane Doe 4 plaintiff was not made available to comment, and Jones Day did not respond to requests for comment.
Nilab Tolton, the lead plaintiff in the litigation against Jones Day, declined to discuss Jane Doe’s reasoning, but said that her own decision to identify herself in the lawsuit was difficult. She didn’t want her claim to fame to be that she sued her former employer, but she also felt obligated to champion the lawsuit because she believed in it.
“I remember thinking, ‘Do I want my kids, who are very young — like two toddlers — when they Google my name for the rest of their lives, for this to be the thing that came up?'” she said. “I would go back and forth on that, and I would think no.”
Ultimately, Tolton said she felt obligated to step forward because of the conduct at her former firm, and because of her privileged position as a Harvard Law School graduate and attorney. She said that if she could not step forward, it would not bode well for less privileged women.
Six women, including Tolton, former Jones Day associate Andrea Mazingo and four anonymous plaintiffs, filed the $200 million proposed class action last year against their former law firm.
They alleged women received lower pay, fewer opportunities, punishment for becoming mothers and unwanted sexual remarks that grew out of the powerful firm’s secretive “frat house” culture and the absolute authority invested in its managing partner. The complaint also alleges the firm cut off opportunities for attorneys who became mothers.
According to the complaint, senior male partners referred to Jane Doe 4 as “eye candy” to summer associates; repeatedly refused to acknowledge her leadership, toil and success on litigation; and promoted more junior male associates to partner over her without offering any explanation.
She also claimed she was punished after alerting the firm that a job applicant had written a “graphic hypersexualized blog post” about her, and asked for anonymity to protect her privacy and avoid discouraging future plaintiffs from coming forward.
Jones Day argued the plaintiffs weren’t entitled to anonymity, and that their hidden identities hampered the firm from interviewing coworkers and supervisors to mount an effective defense.
“Ultimately, this is not a close call,” the firm said in a May 2019 motion. “The Jane Does are not materially different from the countless employment discrimination plaintiffs who routinely file under their real names, including the named plaintiffs here who, rather than fearing publicity, have invited extensive media attention to themselves and their claims.”
In August 2019, Judge Moss sided with the firm, ruling that plaintiffs couldn’t proceed as Janes Doe.
“To permit pseudonymous treatment based on speculation of this type risks opening the door to similar treatment in any case in which a former employee alleges that an influential company or firm, with a large network of alumni, friends or business partners, engaged in loathsome misconduct,” Judge Moss wrote. “Opening that door, however, risks closing the door on broad, public access to the judicial process.”
In response, Meredith Williams, Saira Draper and Jaclyn Stahl shed their Jane Doe aliases. Jane Doe 4 opted to drop her individual claims and become a class member to preserve her privacy.
The “mommy track” lawsuit against Morrison & Foerster reached a similar crossroads in San Francisco, when a federal judge told parties last year that the plaintiffs, who are also represented by Sanford Heisler Sharp, would most likely have to give up their anonymity to proceed with the litigation.
In December, following settlements with five pseudonymous plaintiffs, two other plaintiffs opted to reveal their identities: Sherry William and Joshua Ashley Klayman.
The firm fired William days later.
Morrison & Foerster declined to comment on the case or William’s termination. However, in a February court filing, it claimed William misrepresented her experience when she interviewed for a sixth-year finance position at the firm and then underperformed.
Russell Kornblith, New York managing partner for Sanford Heisler Sharp, said that while fears that unmasking will be harmful to one’s career might be valid, that hasn’t been borne out in recent cases against BigLaw firms — the unmasked plaintiffs all found jobs as attorneys elsewhere.
Fears of landing on a blacklist may stem from an old-fashioned sense of obligation not to rock the boat in one’s own industry, Kornblith added.
“For a long time, the legal profession failed to shine the light inward on itself, and I think that was a net negative,” he said.
Yet it’s always difficult to say whether letting go of anonymity will result in harm in a particular case.
Sanford Heisler Sharp’s D.C. managing partner H. Vincent McKnight Jr., who specializes in government whistleblower cases, said that in False Claims Act cases, it’s pretty much a given that people will figure out who the anonymous whistleblower is at some point. It’s tougher, however, to measure the impact of an unmasking on one’s career.
“Do bad things happen? Anecdotally, it’s not unusual for them to have difficulty continuing to work in their chosen fields,” McKnight said. “Some have switched fields in order to have a viable work life. The whisper campaign is real. Being blackballed is real. Nobody says it out loud — you just can’t get a job, and you have every reason to suspect and believe it’s because you’re a whistleblower.”
Hebert, the employment law professor at Moritz College of Law, said the attention associated with these kinds of lawsuits can potentially be devastating for a career, though the recent #MeToo movement and associated campaigns may have fostered more sympathy for gender bias and harassment plaintiffs.
Tolton and Mazingo recently told Law360 that they are happier than ever with their careers and, although they lost some degree of privacy, they have been receiving shows of support from people they know and many they do not.
“We’ve received an absolute outpouring of support from the legal community and beyond, just from all over the country from individuals as high-ranking as former legal counsel to former presidents of the United States to women who are practicing law in small towns in Texas,” Tolton said.
Still, it’s a mixed bag, they say. Tolton said the publicity has made her a bit less outgoing, knowing other attorneys especially might know who she is from the lawsuit.
But both say they felt principled about their decision to be named plaintiffs.
“Normatively, I don’t think it should be taboo to share our stories, and I thought it was important for change to start with me and with us,” Mazingo said.
–Additional reporting by Hailey Konnath and Emma Cueto. Editing by Philip Shea and Emily Kokoll.