Law360 - Recent Bias Suits Against Law Firms And Lessons For 2022
Last year, employment-related cases against law firms continued to be pursued. In the few cases that were tried, employers prevailed. But, several individual cases against firms big and small were filed by attorneys and paralegals. Here is a summary of case updates and filings in 2021 and actions you can implement in 2022 to reduce your risk.
The Big Cases Against Big Firms
Most big cases — lawsuits with significant potential ramifications to the firms beyond just winning or losing the case — involved larger firms.
The case of William v. Morrison & Morrison & Foerster LLP LLP, originally filed in 2018 in the U.S. District Court for the Northern District of California, involve sex and pregnancy discrimination claims against MoFo. Women returning from maternity leave allegedly were denied assignments and business opportunities, because of stereotype-driven perceptions that they lack commitment to their jobs. In 2019, the firm reached settlements with five of the plaintiffs, while two remained.
In 2021, the summary judgment motion filed with respect to the claims of plaintiff Sherry William succeeded only as to her retaliation claims. Her remaining claims include violation of the Family and Medical Leave Act, and Title VII and state law claims for gender, pregnancy and maternity leave discrimination.
Plaintiff Joshua Klayman's case also was pared down by a summary judgement decision in favor of MoFo as it pertained to a 2016 denial of a promotion. Another claim related to a failure to promote in 2017, however, will proceed to trial, as well as her FMLA and Equal Pay Act claims. With respect to her 2017 promotion, the court ruled that issues of material fact existed as to whether she should have been denied promotion based on her limited practice area when she was praised and encouraged to focus on her niche practice.
Meanwhile, Jones Day, which has been subject to several suits, has fared well so far.
Tolton v. Jones Day, brought before the U.S. District Court for the District of Columbia in 2019 as a proposed class action and involving six plaintiffs, went out with a whimper last year when the last of the remaining plaintiff voluntarily dismissed her claims in late June.
Another 2019 case before the same court, Savignac v. Jones Day, filed by two former associates in the appellate group continues. The core issue in the case is whether Jones Day discriminated against Mark Savignac and violated the FMLA and its nonretaliation provisions when it failed to provide him with the same leave as it provided to women, and then terminated him after he complained about it. The Jones Day policy provided for 18 weeks of leave to biological primary caregivers and to adoptive parents who were primary caregivers, but only 10 weeks for biological fathers.
Jones Day's allegedly inflammatory press release in response to the initial complaint led the plaintiffs to amend their complaint, with court approval, alleging additional retaliation claims. The court is currently deciding whether to bifurcate discovery to allow only discovery on the liability claims to proceed while holding discovery on the damages phase until after dispositive motion practice on the merits has concluded.
Last year also saw a new development in Jones v. Fox Rothschild LLP, a sexual harassment case against the firm brought in 2019 by a former legal assistant. The case, first filed in the U.S. District Court for the Southern District of New York and subsequently transferred to the U.S. District Court for the District of New Jersey, had received significant publicity because of its scandalous nature and the abrupt firing of the accused attorney. But in 2020, most of the claims were dismissed with leave to amend within a certain time frame.
Instead of amending the complaint, the plaintiff filed an appeal that was unsuccessful. Yet, in July 2021, well beyond the approved period in which to do so, the plaintiff tried to amend the complaint. The court has not yet ruled on that submission.
Meanwhile, King & Spalding LLP was vindicated in November last year by a quick jury verdict in its favor on a state law claim by a former attorney claiming that he was fired because he raised ethics concerns. In Joffe v. King & Spalding in the Southern District of New York, the plaintiff alleged that firm lawyers made misrepresentations on behalf of a client. Post-trial motions, and his parallel claim under the Employee Retirement Income Security Act, are pending.
The case includes an unusual COVID-19-related issue. The plaintiff objected to the judge's decision to exclude all nonvaccinated jurors. The plaintiff's original objection related to the impact of that decision in relation to a proposed exhibit reporting on the plaintiff's request to conduct in-person depositions of two former King & Spalding employees at a time when COVID-19 was running rampant; the exhibit was later excluded from evidence.
The Not-So-Big Cases Against Big Firms
Some of the big firms listed above also have new employment cases filed against them by individuals. For example, in Kosmala v. Fox Rothschild, filed in late 2020 in the Superior Court of New Jersey, County of Bergen, a former associate claimed that she was fired by the firm due to pregnancy
In defending the case, the firm explained that she was fired because her outside work as a licensed realtor created a potential conflict of interest. But the plaintiff alleged that she informed the firm about the license before she started work there and even helped her supervisor search for homes for her elderly parents. Discovery in the case is ongoing.
Meanwhile, a 2021 case filed against Jones Day by a former paralegal, Thomas v. Jones Day in the U.S. District Court for the District of Massachusetts, has been referred to mediation.
The former paralegal alleged national origin, race and sex discrimination, and retaliation, under state law. She claimed that she was harassed and belittled when she complained about having to work unpaid overtime to complete her assigned tasks, which she said were more voluminous than those given to the firm's largely white female support staff.
The firm has defended by stating that her performance was "middling," that she required significant coaching, and was actually terminated for lying to a partner.
A 2021 lawsuit against Morgan Lewis & Bockius LLP was filed and promptly settled. In Young v. Morgan Lewis before the U.S. District Court for the Eastern District of Pennsylvania, the plaintiff — an administrative and database assistant — had alleged a violation of the Americans with Disabilities Act and retaliation.
She was hospitalized and a doctor recommended she work from home part-time; however, she alleged that Morgan Lewis would not accommodate that request made during the period July 2019 to January 2020, and ultimately terminated her employment as a result of the COVID-19 pandemic.
Finally, a new case was filed late last year by a paralegal against Wilson Elser Moskowitz Edelman & Dicker LLP in the U.S. District Court for the Northern District of Georgia.
The plaintiff alleged that she had a psychiatric disorder that the firm failed to reasonably accommodate; instead, the firm terminated her employment in retaliation for complaining and did not make insurance coverage available as required by COBRA. She is seeking relief under the ADA discrimination and retaliation provisions and under COBRA.
The Big Cases Against Smaller Firms
Whether law firm partners are employers and therefore not covered by employment discrimination laws is an open issue. So the claim by a law firm partner in Miller v. Levi & Korsinsky LLP, accusing the firm of discrimination based on her sex, familial status and caregiver status, could have larger ramifications.
The plaintiff in the case made the following core allegations: After her promotion to partner, she never received a pay increase; her annual bonuses were equal to or lower than bonuses received by male junior attorneys she supervised; partners made sexist and discriminatory comments; she was stripped of handling complex cases; and she was fired for reasons that were a pretext for discrimination and retaliation.
The firm initially defended by filing counterclaims for faithless and disloyal service and tortious interference, which were dismissed by the court. The case, filed in 2020 in the Southern District of New York, is ongoing.
Meanwhile, Silvers Langsam & Weitzman PC made news late last year when it won a jury verdict in a sexual harassment case, Hayes v. Silvers Langsam, in the U.S. District Court for the Eastern District of Pennsylvania. The original complaint included a retaliation claim which the plaintiff voluntarily withdrew prior to trial.
Other Cases of Note
In Christensen v. Howard & Howard Attorneys PLLC, before the U.S. District Court for the Northern District of Illinois, a summer associate claimed that she faced sexism and bullying before the firm failed to hire her full-time.
Although the court allowed her sex discrimination claim to proceed, it dismissed her harassment claim, finding that the conduct she alleged was "unprofessional and inappropriate" but not severe enough to support a legal claim. The case then settled last year.
Another case with an overlay relating to the COVID-19 pandemic was filed last year by an attorney who worked as director of business law for Stern & Eisenberg PC. She alleged discrimination based on sexual orientation, sex and age, and violation of the ADA and the ADA's retaliation provisions for requesting an accommodation to work from home.
The plaintiff was laid off in March 2020 and her job duties allegedly were distributed to others who needed work. A motion to dismiss all claims except the retaliation claim is currently pending.
Private Employers Are Not Alone
At least two cases were filed in 2021 by attorneys against their public employers.
In the first case, Majovski v. City of Los Angeles before the California Superior Court for the County of Los Angeles, an LA city attorney alleged that she was denied a promotion due to her gender, and was subjected to retaliation after she complained about her pay, in violation of applicable state law. The case was submitted to a mandatory alternative dispute resolution program.
In the other case, Maswoswe v. Monty Williams before the D.C. District Court, a former U.S. Department of Justice attorney sued the agency alleging discrimination based on race, sex, caregiver status, pregnancy, childbirth and lactation due to childbirth, as well as retaliation.
The plaintiff allegedly was recruited from a big New York City law firm but, after she announced her pregnancy, was treated differently. Upon her return from maternity leave, she allegedly was subject to discrimination and, when she complained of discrimination in connection with a poor annual performance review, she was abruptly terminated. Following an unsuccessful mediation, a scheduling conference has been set for later this month.
How You Can Mitigate the Risks in 2022
The above cases show that law firms big and small are not immune from employment discrimination claims. An overwhelming number of plaintiffs in recent cases are women, and many of the claims related to alleged discriminatory treatment while pregnant or in connection with taking or having taken maternity or disability leave.
Some of the cases — particularly Miller v. Levi & Korsinsky, the case by a former law firm partner pending in the Southern District of New York alleging discrimination and retaliation — could have implications for other potential plaintiffs, in the legal industry and beyond.
In addition, Rule 8.4(g) of the American Bar Association's Model Rules of Professional Conduct, which has been adopted in some form in approximately 20 jurisdictions, provides that it is professional misconduct for a lawyer to engage in conduct that the lawyer "knows or reasonably should know is harassment or discrimination on the basis of [sex and other protected categories] in conduct related to the practice of law."
Comment 4 to the rule explains that conduct related to the practice of law includes "operating or managing a law firm or law practice." So, an attorney may be facing a disciplinary investigation, in addition to defending a lawsuit, for alleged discriminatory or harassing conduct.
Of course, law firms cannot stop undeserving plaintiffs from filing lawsuits; however, they can reduce the stream of cases filed against them by reviewing and updating their practices and procedures in all areas. Of particular importance are salary and promotion practices as well as leave policies.
As we begin the new year, now is a good time to conduct this review. With updated policies, law firms are better positioned to avoid complaints, quickly resolve any claims of merit, and focus on what they do best — representing clients, rather than defending or representing themselves in connection with employment-related claims.
Reprinted with permission from the January 6, 2022 issue of Law360. © 2022 LexisNexis. Further duplication without permission is prohibited. All rights reserved.