Over the past five years, we have seen a staggering increase in lawyers bringing claims against their employers. During that time, Sanford Heisler Sharp, LLP has represented lawyers bringing claims against over sixty AmLaw200 firms, as well as against corporations, universities, and other organizations where lawyers work in-house.
Fortunately for our clients and their employers alike, most of those cases have resolved confidentially; the lawsuits that hit the headlines are the rare exceptions.
Here, we provide an overview of some of the legal claims that we see arise frequently among our clients who are lawyers, as well as the legal protections that cover lawyers in the workplace and the process for lawyers and their employers to resolve claims confidentially.
Discrimination Against Lawyers in the Workplace
Lawyers experience the same types of discrimination as employees in every other type of workplace, including sexual harassment, hostile work environments, unlawful termination or constructive discharge, unequal pay, failure to promote, pregnancy discrimination and discrimination based on taking parental leave, and other forms of disparate treatment.
Pay discrimination is a common problem for lawyers who are members of protected groups, and at law firms this often entails the unequitable distribution of credit, opportunities, and resources. When law firms incorporate subjective or amorphous criteria into their pay decisions, such as “firm citizenship” or “overall contribution,” their ratings tend to disfavor underrepresented groups. Like other discriminatory employers, law firms often provide shifting, inconsistent, and pretextual reasons to justify their decisions to pay less to women lawyers, lawyers of color, and other minority groups.
Stereotypes and bias are even baked into processes that purport to be anchored in objective criteria. For instance, billable hours are often unevenly distributed at law firms; it is not uncommon for women lawyers and lawyers of color to be starved of long-term billable projects or have their hours slashed or written off, while members of the “in group” are flush with major cases and get full credit for all their hours. Systems that give credit for originating new clients or matters are likewise susceptible to abuse. Institutional clients and networks are often bequeathed to white male lawyers, while women lawyers and lawyers of color must originate cases themselves with less support and resources.
In addition to pay discrimination, we see numerous forms of discrimination against women lawyers who are pregnant or mothers. It is common to see law firms and in-house employers sidetrack women lawyers when they become pregnant or have children. Some see a dramatic and sustained reduction in the quantity and quality of work provided to them. Others have their performance reviews downgraded or their networking opportunities dry up after becoming pregnant or returning from protected leave. These experiences have predictable impacts on lawyers’ compensation and promotion opportunities. This can be particularly perilous for mid-career lawyers, who lose out on opportunities to be promoted to partner roles if they are denied high-quality case work that generates high billable hours.
Meanwhile, some attorneys who are pregnant or return from parental leave experience the opposite problem: they are staffed on incredibly taxing matters that make their lives unmanageable and are denied reasonable accommodations for pregnancy or breastfeeding. For too many lawyers who are pregnant or new mothers, these experiences lead to constructive discharge (because they can’t tolerate the working conditions, as no reasonable person in their shoes could) or unlawful termination (when they try to keep up but cannot do it).
Legal Protections for Lawyers as Employees in the Workplace
Most lawyers, like most other employees, are protected by federal, state, and local laws that prohibit discrimination, harassment, and retaliation. Federal laws prohibit discrimination against employees based on specific protected characteristics, including sex (which encompasses sexual orientation, gender identity, and parental status), pregnancy, race, color, religion, national origin, age, and disability. Many state and local laws confer overlapping or additional protections, for instance by barring discrimination based on marital status or caregiver status.
Notably, over the past several years, many states have expanded their pay discrimination laws to make it much easier for victims of pay discrimination to vindicate their rights. The law has long required equal pay for equal work. But states such as New York, New Jersey, California, and Massachusetts have broadened their pay equity laws to mandate equal pay for substantially similar work, while also narrowing the defenses available to employers. New York and New Jersey now permit victims of pay discrimination to recover up to six years of back pay. In addition, New York allows employees with pay equity claims to recover up to four times their pay losses, and New Jersey imposes mandatory treble damages for plaintiffs who win their pay discrimination cases. With these strong protections on the books, we expect to see continued growth in pay discrimination cases brought by lawyers, against law firms and in-house employers alike.
In addition to the federal, state, and local laws that provide such protections for lawyers as workers, an increasing number of states have adopted anti-discrimination provisions as part of their Rules of Professional Conduct, the ethical rules to which lawyers must adhere to maintain their licenses to practice. More than two dozen jurisdictions across the country have made it an ethical violation for lawyers to engage in discriminatory or harassing conduct related to the practice of law. New York’s Rules of Professional Conduct, for one, prohibit lawyers and law firms from unlawful discrimination “in the practice of law.” Meanwhile, California’s Rules of Professional Conduct prohibit unlawfully discriminating or knowingly permitting unlawful discrimination in law firm operations, including in hiring, firing, and the terms of employment.
Many of the lawyers we have seen asserting discrimination claims over the last few years are partners at law firms. Supreme Court precedent makes clear that even equity partners in many cases meet the legal definition of “employee” and thus are covered by federal, state, or local laws that prohibit discrimination. Whether a law firm partner meets the legal definition of an “employee” generally hinges on how much control the law firm wields over the partner.
In our experience, the majority of Big Law partners are subject to enough control by their firms to make them “employees” and thus entitled to the protections against workplace discrimination and retaliation that federal, state and local laws provide. We see this especially where law firms are run by a small group of managing partners and where firms can hire or fire partners, regulate or supervise partner work, require partners to report to others in the firm, and pay partners based on performance rather than ownership interests. At a minimum, law firm partners are entitled to use the discovery process in litigation to try to prove that they are covered by anti-discrimination statutes. See, e.g., Campbell v. Chadbourne & Parke LLP, 1:16- cv-6832 (S.D.N.Y. June 14, 2017).
In addition to their claims under federal, state, and local discrimination laws, partners often have common law claims if they have experienced discrimination or retaliation in the workplace. Law firms owe a fiduciary duty to their partners, so partners who experience discrimination may have a common law breach of fiduciary duty claim. Lawyers who have signed onto partnership agreements and subsequently experienced discrimination or retaliation may also have claims for breach of contract and breach of the implied covenant of good faith and fair dealing, as well as fraudulent misrepresentation claims.
In-house lawyers are another group of attorneys who are increasingly speaking up about discrimination in their workplaces. We have represented numerous in-house attorneys, some while they are still employed in-house and others following a wrongful termination or voluntary departure. Courts have repeatedly recognized that in-house counsel are covered by anti-discrimination statutes and that their opposition to discrimination in their workplaces is protected by the anti-retaliation provisions of federal, state and local laws.
Resolving Workplace Disputes Confidentially
Disputes between lawyers and their employers typically resolve more easily than other types of employment cases. That is because lawyers and their employers often want many of the same things: to preserve their reputations and professional networks, to focus on serving their clients rather than being mired in an employment dispute, and to avoid the disruptions, burdens and public exposure that typically accompany litigation.
Thus, most of our discrimination and retaliation cases follow a predictable arc that does not involve a courtroom or any public filing. In representing a lawyer in an employment dispute, we typically first reach out to the law firm, company, or institution that employs them to open a confidential dialogue and offer the option of resolving the dispute out-of-court. Most law firms, corporations, and other organizations are amenable to this approach. In most cases, counsel for both parties exchange letters discussing the merits of our client’s claims and the defenses presented by the employer. Then, negotiations typically ensue, either directly between counsel or through a confidential one-day mediation facilitated by a third-party neutral.
These discussions typically culminate in a confidential settlement agreement. Most settlements involve the payment of a lump-sum to the lawyer to resolve their legal claims, often soon after the agreement is signed. In addition, in many cases employers agree to accelerate the return of capital (at a law firm), accelerate the vesting of stock (at a corporation), or provide other financial benefits. Many other terms are also negotiated. Most settlement agreements include a mutual commitment to confidentiality and non-disparagement, which can be critical in preserving a lawyer’s hard-won professional reputation. For lawyers who want to leave their jobs, it is common for us to negotiate time to transition to a new position, joint messaging to clients and colleagues about their departure, and an agreed-upon process to handle reference requests.
Conclusion
Claims brought by lawyers have risen markedly in recent years, particularly in the wake of the #MeToo, Black Lives Matter, and Stop Asian Hate movements. Lawyers who apply their advocacy skills to their own cases are great partners in presenting their claims, and they are often successful in achieving confidential resolutions that vindicate their legal rights while also preserving their hard-won professional reputations.