#MeToo Comes to Big Law
By: Sierra Smith
This year, two years after the #MeToo movement gained global popularity, thirteen female attorneys filed claims for gender discrimination and sexual harassment against two of the world’s largest law firms — Morrison Foerster and Jones Day. Six women filed a class-action gender discrimination lawsuit against MoFo and seven filed a similar suit against Jones Day.
In late 2017, celebrities and millions of people posted the hashtag #MeToo to reveal the extent of sexual harassment and assault. Deborah Marcuse, a Managing Partner at Sanford Heisler Sharp LLP, the firm representing the plaintiffs in both the Morrison Foerster (MoFo) and Jones Day suits, said it is no coincidence these claims come after the #MeToo movement.
“I definitely feel that seeing other women coming forward publicly with their claims is a primary motivating factor that helps new potential plaintiffs work up the courage to come forward,” Marcuse said.
The class and collective action against MoFo, brought by six current and former female attorneys, alleges the global firm practices systemic gender discrimination against female lawyers, particularly those who are pregnant or have children. MoFo has 17 offices worldwide. Of the six plaintiffs, four are currently employed in California offices, while two were formerly employed in Washington, D.C. and New York.
Jones Day, one of the world’s largest and wealthiest firms, with more than 2,500 lawyers and an annual revenue of nearly $2 billion, is facing a $200 million class and collective lawsuit on behalf of seven former female associates. Jones Day has 41 offices worldwide. Of the seven plaintiffs in this case, four were employed in California offices, while the other three were in Georgia and New York. The complaint alleges the best work at the firm goes to the men, and the men are paid better and promoted more often.
“People have been getting harassed in the workplace for decades. We just weren’t talking about it because we were scared of getting fired or experiencing worse discrimination and harassment because of it,” said Francesca Bitton, Policy and Communications Coordinator at Equal Rights Advocates.
Ruth Silver-Taube, a founding member of the Bay Area Equal Pay Collective and employment and labor law professor at Santa Clara University School of Law, said in a post-#MeToo era, women feel more comfortable coming forward about sex discrimination and harassment in the workplace.
“Even though [#MeToo] was directed towards sexual harassment, women are more willing to come forward, and because of that, law firms are paying attention,” Silver-Taube said.
The #MeToo movement has also given rise to an increase in the amount of legislation seeking to protect women in the workplace. Around 150 sexual harassment bills have been introduced in the past two years in state legislatures across the nation. The legislation covers rehire clauses, arbitration, nondisclosure agreements and more.
According to some experts, one reason Jones Day was able to cover up its sex discrimination was the firm discouraged employees from discussing their salaries.
“That kind of lack of transparency, and in fact, overt secrecy that they try to foster there really is an environment that is ripe for all sorts of biases to come out in decision-making,” Kathryn Rubino, senior editor for Above the Law, said on Lawyer 2 Lawyer, a Legal Talk Network podcast.
Although some firms may discourage employees from discussing their salaries, employees are legally permitted to discuss their pay under both California’s Fair Pay Act and the National Labor Relations Act.
“If people did speak out and felt comfortable speaking out, it would go a long way to discouraging employers from paying women and men unequally,” Silver-Taube said. “If you don’t know what someone else is earning, you won’t know that there is a discrepancy and that the law is being violated.”
The MoFo complaint alleges the plaintiffs and other similarly situated female employees are subjected to lower pay, delayed advancement, lack of developmental opportunities, higher standards and limited access to meaningful work. MoFo’s response to the $100 million lawsuit includes denying the veracity of the allegations and stating the allegations are inconsistent with the firm’s values, policies and practices. To support its denial, MoFo cites its status as one of the top family-friendly and women-friendly firms named by Yale Law Women and as a “Ceiling Crasher,” as named by Law360.
In the Jones Day suit, one plaintiff claims she left the firm after she was sexually harassed, subjected to verbal abuse and denied mentorship opportunities. The plaintiffs claim women are subjected to “sexist, sexualized comments and conduct” regarding their appearance. Female employees with children are either fired or regarded as being less committed to their work.
The complaint characterized the firm's social events as opportunities to “harass and humiliate female attorneys.” At a dinner, a male partner allegedly told three female summer associates to sing and dance to a Care Bears song. At a firm event hosted at a partner’s home, there was allegedly applause when a male summer associate pushed a female colleague into the swimming pool.
Currently, District of Columbia U.S. District Court Judge Randolph Moss has yet to rule on a motion to dismiss filed by Jones Day. In the MoFo lawsuit, Magistrate Judge Jacqueline Scott Corley granted a stipulation to extend discovery and continue case management statements until November 27th, 2019.
* Morrison & Foerster and Jones Day respectfully declined to comment for this story.
(Editor's Note: This article was originally published in the December 2019 [Volume 50, Issue 2] version of The Advocate.)