When news broke this week that former Winston & Strawn intellectual property partner Constance Ramos has sued her old firm, she publicly landed among a group of female lawyers who claim in court that they faced sex discrimination in Big Law.
Beyond Winston & Strawn, a series of recent gender bias lawsuits from female lawyers have targeted Chadbourne & Parke—now absorbed into Norton Rose Fulbright after a deal that closed earlier this year—as well as Proskauer Rose, Sedgwick and Steptoe & Johnson.
Women at different stages in their careers, from the associate level to the nonequity and equity partnership ranks, have brought the claims, some of them are proceeding individually while others have sought to represent a class. Most of the cases are ongoing, but the suit against Sedgwick, brought by former nonequity insurance partner Traci Ribeiro in July 2016, has since settled, and Ribeiro has found a new home at Foran Glennon Palandech Ponzi & Rudloff.
Despite their differences, the cases hit upon similar themes. In general, the suits allege that women at the firms received lower pay than male counterparts for work of similar quality, that they received fewer promotion and business generation opportunities and, in some cases, that they were subjected to sexual harassment. Led by former equity partners Kerrie Campbell, Mary Yelenick and Jaroslawa Johnson, the case against Chadbourne, for instance, alleges that the firm was run by an “all-male dictatorship,” which resulted in lower pay and less decision-making power for women partners compared to their male counterparts.
“To Chadbourne’s male leadership, camaraderie and networking among male attorneys outweighed the superior performance and impressive revenue generated by the female partners represented in this action,” the female former Chadbourne partners alleged in a second amended class action complaint filed in August.
The women and a proposed class of Chadbourne lawyers are represented by a team at Sanford Heisler Sharp led by name partner David Sanford. Chadbourne, defended by Proskauer’s Kathleen McKenna, has forcefully denied the allegations and has sought to have the case thrown out.
Where Things Stand
While the Sedwick case is now finished in light of a settlement, the other four Big Law gender discrimination cases are moving ahead on differing timelines.
Of the pending suits, the proposed class action against Chadbourne in New York federal court is the longest running, having started with an initial complaint by Campbell in August 2016. Next came the Proskauer suit, lodged in May 2017 by an unnamed equity partner in the firm’s Washington, D.C., office who has proceeded as a Jane Doe plaintiff. The Steptoe suit, like the case against Chadbourne, is a proposed class action and was filed in June by former associate Ji-In Houck in Los Angeles federal court. Ramos’ complaint against Winston & Strawn, brought in California state court, is an individual action, as is the Proskauer suit.
Winston & Strawn has yet to respond to Ramos’ complaint, though it has retained Lynne Hermle of Orrick, Herrington & Sutcliffe to lead its defense, The Recorder reported on Monday. Steptoe, Proskauer and Chadbourne, meanwhile, have all struck back at the complaints lodged against them.
In August, Steptoe, defended by David Reis and Dipanwita Deb Amar of Arnold & Porter Kaye Scholer, fired back at Houck’s gender bias allegations and filed a motion to send the case to arbitration and to dismiss the complaint.
Lawyers for the former Steptoe associate, led by Lori Andrus of Andrus Anderson, responded later in August and slammed the firm for trying to bury the claims in a secret proceeding. On Monday, Andrus lodged a motion for conditional class certification, arguing that Houck was subjected to pay practices and performance reviews that are uniform across Steptoe’s U.S. offices. The firm has yet to respond to that motion.
Overlapping Lawyers and Issues
As The American Lawyer reported in September, the women who brought the Chadbourne and Proskauer cases—all current or former equity partners at the firm who, in turn, contributed capital to the firm and held an ownership stake—face an early hurdle of showing the court that they qualify as employees under the federal Equal Pay Act. Since that question hasn’t been answered by the federal judges considering the cases, much of the back-and-forth in the Chadbourne and Proskauer suits up to now has focused on it, with the firms arguing that the women lawyers were business owners who should be excluded from the anti-discrimination law’s protections.
Based on court papers filed in the two cases, the courts will likely look to answer the question with an application of the 2003 U.S. Supreme Court ruling in Clackamas Gastroenterology Associates v. Wells, which evaluated a similar inquiry about how to define the term “employee” in the context of the Americans With Disabilities Act. In Clackamas, the Supreme Court laid out a number of factors for lower courts to determine if someone counts as a business owner or an employee for the purpose of anti-discrimination laws—those factors include whether a person can hire and fire others, whether a person supervises others’ work, whether a person reports to a superior, and whether a person shares in the business’s profits and losses.
In the Chadbourne case, Manhattan U.S. District Judge Paul Oetken in June ordered the two sides to conduct limited discovery related to the Clackamas factors to determine if the women former partners “are ‘employees’ under the relevant federal statutes.” For its part, the Proskauer case has elicited competing briefs on the question of employee versus business owner and the application of Clackamas.
Representing the woman partner, Sanford—also the lead plaintiffs lawyer in the Chadbourne suit—has argued that the firm’s decision-making is centralized in the hands of an executive committee, which regulates the “substance of partner work” and “possesses dominion over” the woman partner’s employment.
But Proskauer’s McKenna—who is leading her firm’s defense, as well as Chadbourne’s—has fired back with a contrasting argument, maintaining that the woman lawyer’s position as an equity partner at the firm gives her all the privileges of a business owner. The firm argued that the Jane Doe plaintiff was admitted to the partnership with a vote, can provide services to clients without significant oversight from the firm’s management, and has financial ties to the firm’s success through a capital contribution and compensation based on Proskauer’s profits and losses. “If Doe were an employee, she would not be funding the firm’s business, have responsibility for its financial losses or enjoy these other rights,” Proskauer’s defense team wrote in a late-August reply brief supporting motions for dismissal and summary judgment. “Taken as a whole, there is simply no basis on which Doe could be construed to be an employee under Clackamas.”
Still, while defense counsel in the Proskauer and Chadbourne cases are pushing courts to recognize the women who sued those firms as business owners rather than employees, a defense along those lines in the other pending cases might be harder to mount. Houck was hired by Steptoe initially as a contract lawyer before being bumped up to a full-fledged associate role, earning a salary that was set by the firm. And Ramos served as an income partner in Winston & Strawn’s IP department—a position that afforded her a regular, set salary of $450,000 with eligibility for a bonus, according to her suit;