Posted May 28th, 2019.
by LawFuel Editors
Lawyer David Sanford is an attorney who has brought gender bias lawsuits against major law firms. And he sees two key obstacles to the systemic changes required by law firms needing to create better gender representation.
But there are a couple of obstacles towards achieving the desired changes sought by most firms.
He spoke about his law firm specialty of gender discrimination in a recent podcast broadcast on Law.com.
A partner at Sanford Heisler Sharp, David Sanford has taken gender discrimination lawsuits against Manatt Phelps, Ogletree Deakins, Jones Day, Morrison & Foerster and others.
He discussed the growing number of gender bias lawsuits against major law firms who face the gender disparity issue and what they should be doing to avoid them, which sounds simple enough but is somewhat harder to achieve in reality.
These include the recent publicity over the Jones Day alleged ‘male brotherhood’ that we have reported upon previously, including allegation of a ‘black box’ compensation system that worked against women lawyers.
A complaint in April from six former Jones Day female lawyers has seen the firm go on the offensive, attempting to remove four of the complainants from pursuing the complaints pseudonymously.
Sanford says the ‘huge undertaking’ faced by Big Law is the systemic change required to address the gender bias issue, which is what many have been struggling with.
Jones Day has used two of its highest profile female attorneys—issues and appeals practice leader Beth Heifetz, Europe partner-in-charge Mary Ellen Powers, (right) both of whom are based in Washington—to defend the lawsuit on behalf of their firm.
“You’re asking people to give up power and give up money for systemic change,” he said, noting that typically those giving up both will be men.
The gender discrimination work was not planned, the firm mainly focusing on areas like race discrimination and the like. The tide started turning with a 2010 case that got a $253 million gender discrimination verdict at the time but in the pharmaceutical industry.
“You’re asking people to give up power and give up money for systemic change,” he said, noting that typically those giving up both will be men
In the #Metoo era, he says in 2017 he had almost 2000 people contacted him, accepting 200 people and one year later the ‘intakes’ was double that number. It became more competitive to take cases with the increase in enquiries, driven largely by the Harvey Weinstein cases.
People are more ready to take actions today with greater knowledge of what is happening in the #Metoo era and a greater awareness of rights has lead to greater knowledge on the part of law firms and victims of abuse or harassment.
Those suing see systemic issues that can lead to more significant outcomes. He takes a rigorous vetting process to determine whether there are supporting witnesses or documents and making a judgment on the client and whether they are articulate and credible, as well as being ‘relatable’ by a jury, although most do not get that far.
A lot of financial and other resource is invested in the process and so jurisidictional and other issues as well as ‘class wide’ issues that might be prosecuted are considered.
The common theme in terms of what he sees with the issue is the perpetuating of power by men in power.
Bad management that leads to disadvantaging women is an issue that sees men favored. There was a clear need to not only elevate the role of women in law firms, but to ensure they are elevated to positions of power within the firms. There can still be great disparity in treatment between male and female partners as a ‘seat at the table’ doesn’t necessarily translate into equal treatment.
When cronyism is ‘gendered’ there is gender discrimination. Unconscious bias is also a key part of what he sees.
WHen women have real power can turn the tide, but it doesn’t guarantee equal treatment or fair compensation.
Good Firms, Bad Practices
Many of the Big Law firms are admired by Sanford, with claims that have not been publicised and have positive outcomes, but “change is slow. Big Law is big business,” he says.
“To change systems in meaningful ways . . takes a while.”
Generally mediation resolves issues, around 80 per cent being solved that way.
While law firms are conservative and risk averse, they generally avoid litigation for all the reasons that create issues: cost, uncertainty, risk, publicity and more.
The ‘complicated issue’ is demanding systemic change, which is much more difficult and sometimes it cannot be obtained.
The gender issue has been around for a long time, he says. The differential between male and female partners has actually increased the gap. The simple solution is to raise female partner compensation, but it is also important to have transparency in pay and compensation criteria, better mentoring, bring them into pitches earlier, support them in their claims and efforts for origination and other such changes that may bring major change.