Posted February 4th, 2020.
By Vin Gurrieri
Law360 (February 4, 2020, 3:29 PM EST) — A group of female ex-associates accusing Jones Day of sex bias said the BigLaw powerhouse has resorted to “sleight of hand” to try to score sanctions against them, arguing the firm faulted them for ignoring data that wasn’t available when they filed their proposed class action.
Female lawyers chide Jones Day for “factual misstatements” about partner promotions to bolster its sanctions bid. (Getty)
On Monday, the former Jones Day associates asked U.S. District Judge Randolph Moss to let them lodge a sur-reply to a Jan. 24 filing from the 2,500-lawyer firm that supported its earlier motion to sanction the plaintiffs by nixing their lawsuit. Jones Day’s reply brief said the plaintiffs and their attorneys at Sanford Heisler Sharp LLP used “ostrich tactic[s]” by claiming the firm systematically underpays women despite knowing that some named plaintiffs earned more than their male peers.
According to the women, Jones Day’s Jan. 24 brief raised for the first time four purported facts pertaining to gender disparities in promotion rates at the firm that amount to “factual misstatements,” and the plaintiffs need to respond to those “multiple inaccuracies.”
“Defendant baldly mischaracterizes the nature of the information that was available to plaintiffs prior to filing this lawsuit and falsely represents to the court that that information refutes plaintiffs’ inference of pay discrimination at Jones Day. Not so,” the women said in their proposed filing. “Plaintiffs’ characterizations of gender disparities in Jones Day’s partnership promotions are accurate.”
The women are challenging data proffered by Jones Day that details the percentage of partnership promotions that women at the firm received in 2020 and the way that data was used to make comparisons to industry-wide promotion rates, as well as to the gender makeup of all associates at the firm, according to their motion.
Jones Day’s statistics about women being promoted to partner status includes data from 2020, which means the firm’s figures factor in promotions announced well after the women sued, the proposed sur-reply said.
“This sleight of hand is not inconsequential: Because the proportion of promotions allocated to women increased precipitously in 2019 … including 2019 and 2020 data paints an inaccurate picture of the data actually available to plaintiffs and which formed the basis for their inference of pay discrimination,” the plaintiffs argued.
The women initially sued Jones Day in April, claiming the firm fosters a sexist culture and uses a supposed “black box” compensation system that undercuts female lawyers in pay and promotions. The lawyers also claim the firm pushes women out when they have children. Jones Day has vigorously denied the allegations.
After Jones Day in December called for Rule 11 sanctions, the women responded in a Jan. 7 opposition brief accusing their former firm of trying to “suppress the disclosure of salary data and information it now condemns [them] for failing to obtain.” They claimed to have ample circumstantial evidence of mistreatment, including that the “hostility, harassment and gender bias” they’ve personally faced likely extends to pay decisions, and that Jones Day has “consistently promoted more men than women to its partnership.”
But in its Jan. 24 reply brief, Jones Day said the ex-associates’ claims are “speculative, attenuated, and often illogical.” It also argued that the women and attorneys had access to “a number of data points” that undermine their claims, saying that named plaintiff Andrea Mazingo earned more than her male peers in the firm’s Irvine, California, office and that named plaintiff Jaclyn Stahl knew that she earned a base $25,000 above market rates and that her male colleagues did not.
If accepted by Judge Moss, the women’s proposed sur-reply argued in part that the more recent partner promotion data Jones Day included in its reply brief paints a rosier picture of gender disparity than does data from before 2019 that was available to the women when they notified the firm of their suit.
As part of their proposed sur-reply, the women lawyers took issue with Jones Day’s contention that they ignored the fact that the firm’s promotion rates compare “favorably” to those of other top BigLaw firms.
“On the substance, there is no ‘industry standard’ safe harbor to Title VII or the Equal Pay Act, and Jones Day cites no authority for the disturbing proposition that it may freely discriminate so long as it does so no more than other legal industry employers,” the women said in Monday’s proposed brief. “This is simply not the law.”
Plaintiffs’ counsel Russell Kornblith of Sanford Heisler issued a statement to Law360 Tuesday questioning what he calls Jones Days’ “troubling” conduct.
“We have said it before and we’ll say it again: What is Jones Day trying to hide?” he said. “Our brief sets out that Jones Day has misstated its promotions data in an apparent attempt to obfuscate the truth about gender disparities. This conduct, on a Rule 11 motion, is troubling.
“More troubling, however, is Jones Day’s unwillingness to produce its compensation data,” he added. “If Jones Day is truly a great place for female associates, why won’t it produce this data?”
Counsel for Jones Day did not respond to a request for comment Tuesday.
The women 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, Yaakov Roth 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.
–Additional reporting by Braden Campbell, Emma Cueto and Andrew Strickler. Editing by Adam LoBelia.
–Update: This story has been updated to include additional background details and comment from plaintiffs’ counsel.