In the #metoo and #timesup era, law firms are learning they are not immune from pay discrimination claims. In recent years, female partners have made headlines with lawsuits alleging that they were paid less than their male partners. The claims have been brought both as single plaintiff lawsuits and as class actions under Title VII, the Equal Pay Act, and state anti-discrimination laws.
Firms sued include Chadbourne & Parke (later merged with Norton Rose Fulbright), Proskauer Rose, Winston & Strawn, and, ironically, employment defense boutique Ogletree, Deakins, Nash, Smoak & Stewart, P.C. The pleadings make a couple of things clear.
First, some of these women spent years complaining internally in an effort to resolve their pay disparities before suing. Only after multiple unsuccessful efforts to get pay equity did these women resort to litigation. Their years of seeking a resolution without suing is a reminder that it takes enormous strength and courage to sue your employer.
Second, the concerns for retaliation are real. Several plaintiffs cited a litany of retaliatory acts both for the early internal complaints and subsequent lawsuits. The suit originally filed against Proskauer Rose was filed as a “Jane Doe” lawsuit. The plaintiff did not reveal her identity until filing an amended complaint. When Connie Bertram finally identified herself, she added a laundry list of retaliatory acts that included being locked out of firm files, excluded from opportunities to pitch for business, and being black-balled from the firm’s annual partner retreat. Dawn Knepper, the lead plaintiff against Ogletree, alleged that she was never invited on any business pitch to a prospective client, was excluded from speaking opportunities to potential clients, and was subjected to a hostile work environment.
Third, in most cases the female attorneys cite extensively to data maintained by their firms to show that many women are out-performing their male peers on objective performance metrics but still being paid less. Connie Bertram, for example, alleged that the firm set the pay of a new male partner 65% higher than Bertram’s pay even though his client originations were approximately 37% lower than hers. Bertram also alleged that the firm paid another male partner 55% more than she received—even though his client originations, billable hours, and total hours all were significantly less than hers. Similarly, Dawn Knepper alleged that she had credits higher than a male peer in each of the five categories measured by Ogletree Deakins. But she still was still paid approximately $100,000 less.
The law firms have fought back aggressively and denied liability. But the parties to the Chadbourne & Parke lawsuit entered into a $3 million settlement in March 2018. Bertram and Proskauer also settled her lawsuit for an undisclosed amount. The suit against Ogletree Deakins remains pending.
For the female attorneys courageous enough to file these pay discrimination claims, the good news is that most firms will have documentation to help prove them. Generally, any law firm can run a report that provides data such as the business originated, revenue generated , the number of hours worked or billed, and the compensation paid for every lawyer in the firm. Many law firm even distribute these data to the attorneys, so it is often easier to gather this data than it might be in a private corporation.
When reports show that a female lawyer outperforms on all metrics tracked, the law firm has the burden to explain why the male lawyers are paid more than the female lawyer in that situation—something that may not be easy for a firm to do.
The women who contribute to the success of a law firm deserve to be equally compensated for their contributions. If it takes litigation to get that equal compensation, then kudos to the women who are willing to file these lawsuits. #timesup.