Posted April 12th, 2019.
Stephanie Russell-Kraft – Special Correspondent
- Firm recently filed class action against Jones Day
- “National conversation” about women’s workplace treatment has driven uptick in suits
When associate Nilab Rahyar Tolton left Jones Day in early 2018, she was still reeling from the effects of what she called implicit and explicit biases against women at the firm.
She said male partners commented on her appearance and assigned her secretarial-type work. After two pregnancies, Tolton said leadership paid lip service to the challenges of returning from maternity leave but then criticized her for not working enough, eventually suggesting she exit the firm.
“I thought I was going to try to process or find closure for myself or move on,” she said.
But several months later, she read a story about former Jones Day partner Wendy Moore, who was suing the firm for gender discrimination. Moore is represented by national plaintiffs’ firm Sanford Heisler Sharp.
“It became sort of a question of moral responsibility for me,” Tolton said of her decision to reach out to Sanford Heisler with her own story. Last week, she and several other former associates hit Jones Day with a $200 million proposed class action alleging gender-based pay disparities, sexual harassment, and a “fraternity” culture.
Jones Day has said the complaint paints a “distorted picture” of the firm and that the claims of pay discrimination are “without merit.”
“I would not have pursued a lawsuit in my individual capacity if I did not already see progress being made in this area by Sanford Heisler,” said Tolton, now an associate at Call & Jensen.
Sanford Heisler has emerged as the go-to law firm for female associates and partners in Big Law who say they’re undervalued, underpaid and marginalized at work. The firm continues to take up cases against some of the legal industry’s most powerful players, despite inherent challenges of these suits that have dissuaded other plaintiffs firms.
“We didn’t exactly seek it out,” said David Sanford, chairman and co-founder of the firm. “This happens to be something we’re doing more and more of because the cases that come to our attention are compelling.”
Founded by David Sanford and Jeremy Heisler in 2004, the firm has approximately 50 lawyers in six cities dealing largely with employment matters. It first gained national attention as lead counsel in a slew of employment claims against Novartis AG.
In 2011, the firm represented Proskauer Rose’s former chief financial officer, Elly Rosenthal, who alleged her male bosses marginalized her after she took leave for breast cancer treatments. And in 2012, the firm brought gender discrimination claims against Greenberg Traurig on behalf of female partners. Both cases settled.
In the past few years, what started out as a trickle has turned into a steady stream of gender discrimination claims against Big Law firms.
These include another headline-grabbing case against Proskauer by the former head of the Big Law firm’s Washington labor practice, which settled last year. Sanford Heisler has also sued Ogletree, Deakins, Nash, Smoak & Stewart, in a 2018 proposed class action under federal law and California’s Private Attorneys General Act. The proposed class action is now headed to individual arbitration while the PAGA claims are stayed. The firm filed a second PAGA suit in state court in January 2019, which is ongoing.
Another lawsuit against Morrison & Foerster over maternity leave-related discrimination is ongoing. The firm recently filed a motion for sanctions against Sanford Heisler, accusing it of bringing “frivolous” claims.
Those are just the public cases. The “vast majority” of the firm’s Big Law discrimination matters stay private because they are settled pre-suit, according to Sanford.
Kate Mueting, co-chair of the firm’s Title VII workplace discrimination practice, attributes the uptick in cases to the recent “national conversation” about pay equity. “A lot more women are recognizing their experiences as being discriminatory,” Mueting said. The surge in Big Law discrimination cases has also coincided with the #MeToo movement, which has put workplace sexual harassment in the public spotlight.
In 2016, Sanford Heisler had about five law firm discrimination cases, and today it has almost 30, according to Mueting. Approximately 15 percent of the firm’s discrimination cases are against law firms, she said. While Sanford Heisler hasn’t hired specifically to staff these cases, it has grown in the last four years.
Clients say they are attracted to the firm because of its mission. “For us to take the case, we have to believe in the client, we have to believe there’s a significant social justice aspect to the case, and we have to believe we have a good chance of prevailing based on the law and the facts,” Sanford said.
“The cases we’ve brought against Big Law are against firms that are great firms,” he added. “Jones Day is one of the most respected firms in America, and for good reason. What we have done is identify a problem, and insofar as these firms fix the problem, they’ll be even greater firms.”
Sanford Heisler’s litigation has already made an impact in Big Law, according to Deborah L. Rhode, professor and director of the Center on the Legal Profession at Stanford University.
“The fear of being sued or being exposed has caused many leaders to rethink billing practices, evaluation systems and reward structures,” said Rhode, who has served as expert witness in Sanford Heisler’s cases. “And there is new sensitivity to how penalizing women who raise problems has silenced critics and stifled change.”
‘Why Would You Go There?’
Attorneys at Sanford Heisler say they don’t expect their Big Law gender discrimination work to die down anytime soon.
“In 2015, I represented one or two lawyers’ discrimination claims, and right now I get at least one or two calls a week,” said Alexandra Harwin, co-chair of Sanford Heisler’s Title VII practice.
Harwin said potential clients have come to her after speaking with other lawyers who said they couldn’t bring certain claims against law firms. For instance, whether or not partners can be classified as employees, and are thereby covered by discrimination statutes, is a hotly disputed matter that many lawyers don’t want to touch.
“This is a giant headache, if you get into these very complicated legal questions that are also procedurally challenging,” said Deborah Marcuse, Sanford Heisler’s Baltimore managing partner and another co-chair of its Title VII practice.
Marcuse said she has heard of prominent plaintiffs firms that have made a decision not to pursue cases against law firms at all. “It was put to me colloquially, as, ‘Why would you go there? Are you worried about the consequences?’” Marcuse said.
Former Chadbourne & Parke partner Kerrie Campbell said she faced some of those barriers.
In early 2016, Chadbourne’s management committee asked Campbell to leave the firm’s partnership—according to Campbell, because she had raised concerns about gender pay disparities.
Humiliated, she sought advice from a lawyer friend who told her she might consider legal action against the firm for gender discrimination.
Over three months, Campbell met with nine different lawyers, many of whom said they were either conflicted or too busy to take on her case. Along the way, she spent tens of thousands of dollars on engagements that ended up going nowhere. “I had to find someone willing and able to take on Chadbourne and Big Law,” she said.
Finally, she was referred to David Sanford. He responded to Campbell’s email within the hour, and became her lawyer within a week, she said. In August of 2016, he filed a lawsuit against Chadbourne—now part of Norton Rose Fulbright—alleging the firm systematically underpaid its female partners. Two more women ended up joining the suit, and the case was settled in 2018 for over $3 million.
“I firmly believed that this case would make national news and make a difference for the good,” Campbell said. “David was different because he believed it too.”