Lawyers for Morrison & Foerster claim that the firm’s track record of hiring, promoting and supporting women and working parents undermines a lawsuit which claims the firm discriminates against mothers and pregnant women.
Three female associates based in California sued MoFo last year for gender discrimination, alleging in a putative class action complaint that the firm routinely holds back mothers and pregnant women, pays them less than their male peers, and offers them fewer promotion opportunities. Three additional plaintiffs, including one who worked in the firm’s Washington, D.C., office and another who worked in New York, joined the lawsuit last month.
On Friday, MoFo’s lawyers at Gibson, Dunn & Crutcher made their first formal pushback against the suit, filing the firm’s answer to the complaint and a motion for a judgment on the pleadings in the cases of two of the new plaintiffs.
“Morrison is consistent in its commitment to fair and equal treatment of associates and others, without regard to sex, gender or parenting status. It is dedicated to working with each individual associate on his or her unique career path,” the firm’s lawyers wrote. “Setting aside the fact that each Plaintiff was treated fairly, each challenges highly individualized personnel decisions.”
Deborah Marcuse of Sanford Heisler Sharp, one of the lead attorneys for the plaintiffs, said the new defense filings made “conclusory statements that will be explored in discovery.”
“Our plaintiffs are not in a position to know more than we know now,” Marcuse said. “They and we have considerable anecdotal evidence” that MoFo doesn’t live up to the principles it touts, she said.
The original three plaintiffs—referred to as Jane Doe 1, Jane Doe 2, and Jane Doe 3 in court papers—have all claimed that they were inappropriately “reclassified” in MoFo’s associate seniority system and weren’t allowed to proceed with their class year at the end of 2017. The firm, however, contends that the decisions to reclassify those associates were made for reasons “legitimate and unrelated to sex, gender, or parental status.” The firm also contends that reclassification isn’t “considered a performance failure or deficiency and it is not a black mark on someone’s performance record.”
“Accordingly, the fact that an associate was reclassified has no effect on his or her bonus eligibility. And it does not prevent future advancement—Morrison associates have made partner after being reclassified,” the firm’s lawyers contend.
The firm also contends that Jane Doe 2 had received a “not progress” rating from the firm, a sign of underperformance. The firm claims that of the 12 associates to receive a “not progress” since 2014, Jane Doe 2 is the only one to receive that rating in the year that parental leave was taken.
“Plaintiffs incorrectly suggest that there is a standard operating procedure to hold back female associates or parents who take leave,” MoFo’s lawyers wrote. The firm claims that only 5 percent of women have been reclassified or not progressed in the past five years, only about 10 percent of associates who took parental leave were reclassified, and only 1 percent were not progressed.
“The vast majority of women who have taken leave were not reclassified or not progressed,” the firm’s lawyers wrote. “This is not only a signifier of the strength of Morrison’s programs to support and advance women and working parents, but a fundamental defect in the theory of this case.”
The firm further contends that Jane Does 4 and 5, who are challenging their terminations, were fired after “a sustained history of performance deficiencies.” The firm’s lawyers call discrimination claims brought by Jane Doe 6, who was passed over for partnership after taking multiple maternity leaves at the firm, “absurd.”
“She was hired with the knowledge that she was weeks away from taking maternity leave, and she took two additional maternity leaves during her time at the firm,” the firm’s lawyers wrote. “She was not penalized in any way for doing so.”
In their motion for a judgment on the pleadings, the firm’s lawyers argue that Jane Doe 4 released her claims against MoFo as part of a severance package. They also contend that Jane Doe 5 is pursuing claims that are time-barred.
A MoFo spokesman said that the firm would let the filings speak for themselves.
Read MoFo’s Answer: