Posted April 5th, 2019.
“I think the fear for me is in not holding powerful institutions and larger employers accountable, and in allowing law institutions like Jones Day to escape scrutiny,” lawyer and plaintiff Nilab Tolton said.
By Xiumei Dong and Lizzy McLellan
Andrea Mazingo and Nilab Rahyar Tolton.
No woman who sues her current or former law firm for alleged gender bias can expect her career to remain unaffected.
But two California-based law firm associates, who are part of a proposed class suing Jones Day, say more female attorneys should come forward about injustices they say they face in the workplace.
Nilab Rahyar Tolton and Andrea Mazingo, the two named plaintiffs in a proposed $200 million class action filed against Jones Day this week, said in an interview that the lawsuit has not yet harmed their legal careers, and they don’t expect it to—even though other women said going up against their former firms has come with a price.
Tolton is now an associate at California boutique firm Call & Jensen, while Mazingo joined Orrick Herrington & Sutcliffe, where she’s now managing associate for the firm’s Los Angeles office. Both said their current firms have been supportive, though they would not comment on whether Call & Jensen and Orrick knew during the hiring process about their plans to sue Jones Day.
Reached Thursday through a spokesman, Orrick declined to comment. Call & Jensen managing shareholder Julie Trotter also declined to comment.
“I think the fear here is not that the legal industry is unprepared, or not ready for switching the ball toward paid equity,” Tolton said Thursday. “I think the fear for me is in not holding powerful institutions and larger employers accountable, and in allowing law institutions like Jones Day to escape scrutiny.”
Both Tolton and Mazingo worked as associates in Jones Day’s Irvine, California, office until last year—Tolton beginning in 2010 and Mazingo beginning in 2014. The other four plaintiffs in the case are suing as Jane Does, after a federal judge in Washington, D.C., said they could proceed anonymously.
“Being blacklisted is not a concern for me because at some point someone has to speak up, and I feel a responsibility to do so,” Mazingo said. “The other reason is that I am fortunate to have a new employer who has agreed to let me pursue this matter in my personal capacity.”
Sanford Heisler Sharp is representing the six plaintiffs, who allege that Jones Day’s ”black box” compensation model, leadership structure and culture serve to systematically deny women equal pay and opportunity for advancement.
Jones Day has not responded to multiple requests for comment on the complaint.
Tolton alleged in the complaint that when she returned to the firm from maternity leave, she was greeted with a salary freeze, a negative performance review and fewer work opportunities. After a second maternity leave, she said, she was told to find a new job.
“I had a very troubling and concerning experience at Jones Day from the moment I started—asking about information relating to Jones Day’s policies as they apply to me and other women—and later when I took maternity leave and came back from maternity leave,” Tolton said Thursday.
Mazingo alleged she was denied mentorship opportunities, and that she was subjected to sexual harassment, as well as verbal abuse by a male partner at the firm when she took a weekend off for health reasons. She claims she was forced to leave the firm last year following that incident.
Deborah Marcuse, Sanford Heisler Sharp’s Baltimore managing partner and lead counsel on the case, noted the significance of bringing a complaint as a named plaintiff, when not all people bringing discrimination claims are willing to do so. If some plaintiffs are willing to go public, she said, it is likely to have more impact and can make others more comfortable joining the suit.
“It is [becoming] more common for [lawyers to] push back in this arena of pay equity, and for women and for men to also demand change in the workplace on this issue, because it ultimately affects everybody,” Tolton said. “It is important for me to put a face to this experience as it is common, if not universal among women in legal profession.”
Tolton and Mazingo have already found new firms since leaving Jones Day. But Washington, D.C., lawyer Kerrie Campbell was still practicing at Chadbourne & Parke (now part of Norton Rose Fulbright) when she sued the firm in 2016. Like the Jones Day associates, she was represented by Sanford Heisler Sharp. Campbell left and started her own solo firm while the case was ongoing.
The experience of suing Chadbourne directly impacted her career and practice, she said in an email interview, though she said that both have since changed for the better.
“Shunning is real and challenging. It was difficult to manage pending matters without support,” Campbell said, referring to the time directly after she filed her suit. She was not allowed to take on new clients during that time, she said, which, needless to say, makes it “hard to grow your practice.”
Staying at the defendant firm while litigation is ongoing does not appear to be typical.
Bonnie Porter, a former Boies Schiller Flexner associate who sued the firm in 2002, alleging that it routinely routed women away from the partnership track, told The American Lawyer in 2016 that the case had a “devastating” effect on her career. She left for another firm, but said she felt like even her colleagues at the subsequent firm viewed her differently because of the litigation.
“I thought people would look at me like, ‘Wow, she’s a really courageous person.’ Instead, it was ‘I don’t want to be tainted by her,’” Porter said in 2016.
Like Campbell, Philadelphia-based lawyer Francine Griesing also started her own firm after suing her former Big Law employer. In that suit, she alleged that Greenberg Traurig paid women lawyers unfairly, and that she was forced out of the firm after complaining about its pay practices. The case settled in 2013.
In an interview Thursday, Griesing said she could not discuss that suit or settlement. But she spoke about her experience representing other law firm and legal department employees who have brought discrimination claims.
“Sometimes both law firms and other legal employers are actually surprisingly supportive of people, men or women, who … are bringing these claims when they’re at a new employer. Clients are also surprisingly supportive,” Griesing said. “That’s not always the case, but I’ve seen it more than I expected.”
But that doesn’t mean it comes without consequence. Plaintiffs who sue their former employers still may find that certain companies will not hire them, for fear of getting sued later, Griesing said.
Campbell said she admires the women bringing claims against Jones Day.
“They have the guts to do what’s right rather than turning a blind eye to wrongdoing to collect a paycheck,” Campbell said. “Bringing a suit like this bears upon far more than the plaintiffs’ careers.”
Campbell reached a settlement with her former firm last year. She can’t discuss the terms, but it’s public record that the firm agreed to pay her $1 million, as well as $750,000 to another lawyer who joined the suit and $250,000 to a third. Sanford Heisler got over $1 million in attorney fees as well.
Her new firm focuses on representing clients in reputation protection, discrimination, First Amendment and product safety or risk management matters. Her work includes sexual harassment, retaliation, wrongful discharge and discrimination suits.
“In my experience, the journey is hard, at times lonely, incredibly important, worth it and ultimately empowering,” Campbell said.