$90,000 Settlement Shows Discrimination in the Workplace Against HIV Positive Employees

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Can you be denied a job because you are HIV positive? Many LGBTQ+ employees and others who live with this diagnosis worry any time an employer requires a medical check. But a recent settlement shows that HIV discrimination is illegal under the Americans with Disabilities Act. Find out what you can do if you believe you lost a job because of your health circumstances.

Ex-Cop Faces Discrimination Based on HIV Status

In 2012, a former police officer, Liam Pierce, was denied a job with the Iberia Parish Sheriff’s Office in Louisiana after his pre-employment medical evaluation revealed he was HIV positive. Pierce had experience as a police officer, volunteer firefighter, and paramedic, and seemed well qualified for the position. The ex-cop had lost a previous job over a claim of misconduct. However, he and his employment discrimination attorneys said that misconduct had been addressed during his interviews. “They said it wasn’t a problem,” Pierce’s attorney said. Everything was “perfectly on track” for Pierce to become a deputy sheriff with the department.

But then Pierce underwent a pre-employment medical exam. He told the medical team that he was HIV positive. While he says the doctors told him having HIV didn’t disqualify him from the job, it didn’t take long for the sheriff’s office to deny him the job after the results of the exam were sent in. Suddenly, Pierce’s past misconduct became a problem — a pretense for the true basis for the denial: workplace discrimination against HIV positive employees.

The ADA and Disability Discrimination in the Workplace

The Americans with Disabilities Act (ADA) prevents employers from treating employers or applicants differently because of their medical disabilities. Unfavorable employment decisions could include anything from shift assignments to rejecting an otherwise qualified applicant. The ADA requires employers to provide reasonable accommodations to employees or job applicants who have a medical diagnosis or disability, unless the needed accommodation would cause significant difficulty, expense or “undue hardship” to the employer.

But plenty of medical conditions have no effect on an applicant’s ability to do the job at all. Employees and applicants may be able to manage their symptoms through medication or other treatments, or the expressions of the condition may not overlap with the needs of the job. In these cases, it is illegal for employers to treat an employee less favorably because he or she:

  • Used to have a condition
  • Has a history of health-related events
  • Has a current diagnosis
  • Is believed to have a permanent or lasting condition (even if false)
  • Is related to a person with a disability

HIV Job Discrimination Leads to $90,000 Settlement

Pierce’s lawsuit had to do with this form of asymptomatic disability discrimination in the workplace. After he was passed over for the job in 2012, his attorney helped him file a complaint with the Equal Employment Opportunity Commission (EEOC). In 2018, the EEOC said that Pierce had probable cause to bring a lawsuit based on what happened to him. Two years later, on April 24, 2020, he announced that the case had settled. Pierce is set to receive $90,000 in damages for his HIV job discrimination claim.

HIV Discrimination Based on Biases and Bad Data

Pierce was represented by the LGBTQ+ advocacy firm Lambda Legal. Earlier this year, the firm also won an argument in a similar HIV discrimination case against the U.S. Air Force. There, the 4th Circuit Court of Appeals upheld a preliminary injunction preventing the Air Force from discharging soldiers simply because they tested HIV positive. They also have 2 other lawsuits pending against other branches of the U.S. military.

HIV discrimination is especially challenging because many people are affected by decades-old stigma and bias against the disease. HIV is difficult to transmit and when treated can even be reduced to undetectable levels. Even in jobs where there are risks of contact with bodily fluids, the Centers for Disease Control says the risk of spreading HIV is “near zero.”

Still, many employers hold entrenched beliefs that people with HIV are somehow “dirty” or “bad.” Much of this stems from false information about the disease from the 1980s and 1990s. Those who are HIV-positive must also deal with homophobia and sexual orientation discrimination because HIV and AIDS were originally thought to primarily affect gay men.

Lawsuits that fight against discrimination in the workplace based on HIV status are important to help employees understand that the ADA protects them too. All too often, employees suffer the stigma related to this disease in silence, not realizing they have the right to demand better. At Eisenberg & Baum, our experienced employment discrimination attorneys know how to use the ADA and other state and federal anti-discrimination laws to protect HIV-positive and LGBTQ+ workers. If you have been turned down for a position because of your condition, we will help you explore your options, and protect your rights. Contact us today to schedule a free consultation.

ABA Ethics Committee Releases Discrimination and Harassment Guidelines in New Opinion

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Lawyers, specifically employment lawyers, are the ones who help employees fight back against discrimination and harassment at work. But what about when they are the victims of the behavior, or the ones doing the harassing? The American Bar Association’s Ethics Committee has released a new formal opinion that provides discrimination and harassment guidelines for lawyers, judges, and state supreme courts across the country.

ABA Sets Discrimination and Harassment Guidelines

The American Bar Association (ABA) is a nationwide organization that guides the practice of law across the country. One way the ABA does this is by issuing its “Model Rules of Professional Conduct”. However, the Model Rules themselves don’t affect anyone. Instead, they represent industry best practices, which individual states’ supreme courts can decide to adopt, adjust, or reject.

In 2016, after years of study and debate, the ABA House of Delegates voted to update Model Rule 8.4(g), which applies to discrimination and harassment. The current version of the model rule says:

It is professional misconduct for a lawyer to . . . engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

The official comments on the rule provide some important definitions:

  • “Discrimination” includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.”
  • “Harassment” includes “derogatory or demeaning verbal or physical conduct.”
  • “Sexual harassment” includes “unwelcome sexual advances, requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature.”

States Split Over Adoption of ABA Harassment and Discrimination Guidelines

Since the new discrimination and harassment guidelines went into effect, state courts and legal experts have been divided on whether to adopt the Model Rules for themselves. The most vocal opponents to the Model Rules said they unconstitutionally restricted lawyers’ First Amendment rights to free speech and free exercise of religion. Marc Randazza, a First Amendment attorney from Las Vegas, called the Model Rule, “a speech trap for any lawyer who sticks his or her neck out on issues that might be considered controversial.”

Opponents also said the Model Rule went too far, allowing a single inappropriate action to create grounds for attorney disciplinary action — even disbarment. Because of the controversy, as of June 2019, only two states had adopted the ABA’s discrimination and harrasment guidelines.

ABA Model Rules Hold Lawyers to Higher Standard

Title VII of the federal Civil Rights Act and state and local anti-discrimination laws set similar standards for employers across the U.S. These laws generally require employers to take reasonable steps to address severe or ongoing sexual harassment and discrimination that happens in the workplace. Single incidents, unless they are particularly serious, are not enough to trigger the obligation to respond.

The ABA Model Rules go further. As the recent ABA ethics opinion explained, “Although conduct that violates Title VII of the Civil Rights Act of 1964 would necessarily violate paragraph (g), the reverse may not be true.” The ethics opinion made clear that even a single derogatory sexual comment could violate the anti-harassment guideline. “The isolated nature of the conduct, however, could be a mitigating factor in the disciplinary process.” The opinion acknowledged that this held lawyers to a higher standard than the general public:

“Harassment and discrimination damage the public’s confidence in the legal system and its trust in the profession.”

What Counts as Discrimination and Harrasment Under the Model Rules

To provide guidance to state supreme courts considering adopting the ABA model discrimination and harassment guidelines, the Ethics Committee set out five hypothetical situations, and addressed whether each would count as discrimination or harassment under the rule:

Representation of Organizations Advocating for Discriminatory Policies: Not Misconduct

It is not misconduct for a lawyer to represent a religious organization challenging a local ordinance requiring schools to offer gender-neutral restroom or locker room facilities. Offering advice or advocacy on issues, even if others may disagree with the position, does not violate the rules.

Advocating Controversial Viewpoints at Lawyer Education Programs: Not Misconduct

It would also not be discrimination or misconduct to advocate against affirmative action policies while at a continuing legal education (CLE) program. While attendance at these programs is covered by the anti-discrimination rules, a general point of view is not harassment or discrimination, even if others might find it upsetting or offensive.

Participating in Advocacy Against Existing Anti-Discrimination Laws: Not Misconduct

A lawyer can also not be disciplined for participating in a religious legal organization that advocates in favor of allowing discrimination based on sexual orientation or gender identity. Even though the actions the organization advocates for are illegal under federal or state laws, pure advocacy is not harmful discrimination or a violation of the rule.

Unwelcome Physical Conduct by an Adjunct Professor at a Law School: Misconduct

An adjunct professor at a law school clinic who makes unwanted physical advances against the law student can be disciplined for misconduct. Even though his action took place outside the scope of representation of a client, it still qualifies as “conduct related to the practice of law.”

Law Firm Partner Makes Discriminatory Policy Planning Remarks: Misconduct

A partner at a law firm who makes discriminatory comments that the firm should not employ or represent Muslims as clients can be disciplined for misconduct because her behavior is “related to the practice of law”. This is true even if the person listening is not the target of the discriminatory comment.

Most states have some form of anti-discrimination policy included in their bar association’s code of professional responsibility, but few go as far as the Model Rules. In time, perhaps this ABA ethics opinion will quiet concerns about lawyers’ free speech, and shield attorneys from discrimination and harassment in the law offices, bar association programs, and social events that are essential parts of being a lawyer.

At Eisenberg & Baum, LLP, our employment discrimination lawyers know how to use model rules and industry standards to your benefit when discrimination or harassment happens at work. Whether you are an attorney at a big law firm or a clerk in the mail room, will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.

McDonald’s Sues Former CEO Over Accusations of Sexual Harassment

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Fast-food retail giant McDonald’s reported a lawsuit against their former CEO, Steve Easterbrook, over accusations of sexual harassment, violations of company policy against relationships with subordinates, and using the company email to send pornographic pictures to himself. Find out what happens when company efforts to avoid public disclosure of sexual harassment problems backfire.

Fast Food Giant Faces Frequent Sexual Harassment Problems

McDonald’s has faced more than one claim of sexual harassment in their fast food restaurants over the years. In 2018, workers walked out in protest of sexual harassment in the fast food industry. Last year, the Time’s Up Legal Defense Fund and other civil rights organizations brought 23 complaints against the company for sexual harassment of its employees, including several who were teenagers when their assaults occurred. However, all these complaints involved service-level employees at the business’s various franchise locations.

Then, in October 2019, a McDonald’s employee reported that she had been having a romantic relationship with the company’s CEO, Steve Easterbrook. The employee told the company that she and Easterbrook had been sending sexually explicit text messages, photographs, and at least one FaceTime call for a month, but that it had not been physical. She came forward because she was afraid that this relationship would violate company policy against fraternization and that she might get in trouble for consenting to the contact.

McDonald’s CEO Fired for Accusations of Sexual Harassment

McDonald’s hired outside lawyers to review the complaint and Mr. Easterbrook’s situation. As required by Title VII of the Civil Rights Act, the fast food company investigated the claims of sexual harassment and questioned Mr. Eastbrook about his conduct. He confirmed what the employee had said. The lawyers involved searched Mr. Eastbrook’s company phone and cloud storage account, but said they found no evidence of additional misconduct.

The company’s board of directors decided to remove Easterbrook from his position. But they gave him a golden parachute by avoiding firing him “for cause.” This meant he received a severance package of more than $40 million, including stock options and other compensation.  The board hoped that the compromise would avoid embroiling the company in a lengthy dispute and cause as little disruption as possible to the business.

New Accusations of Sexual Harassment Cast Doubt on Investigation

But McDonald’s sexual harassment problem didn’t go away with Easterbrook’s removal. In July 2020, new accusations of sexual harassment arose against the former CEO from another employee. According to the company’s SEC disclosure, this time the investigation included a review of the company’s corporate servers, where Easterbrook’s emails were archived. It revealed “dozens of nude, partially nude, or sexually explicit photographs and videos of various women, including photographs of these Company employees, that Easterbrook had sent as attachments to messages from his Company email account to his personal email account.”

This new disclosure cast doubt on the company’s previous investigation. Even McDonald’s own filings say the company’s initial review did not include a thorough search of Easterbrook’s email account. As Brandon L. Garrett, a law professor at Duke University School of Law, told the New York Times:

“One would think that it would be internal investigation 101 to look at all electronic records right away. . . . The concern, if an investigation doesn’t look at emails, is that it was a halfhearted investigation.”

That concern is consistent with McDonald’s stated intent to resolve things quickly and quietly. In 2017, McDonald’s made an internal statement emphasizing that top executives needed to attend anti-harassment training. Then in 2019, it updated its anti-harassment policy in response to employee complaints.

When executives are called out for misconduct by groups like the #MeToo movement or Time’s Up, their companies often try to quietly remove the problematic executive, rather than risk the bad press that comes with public disclosure of the allegations of sexual harassment. They may also make adjustments to internal training procedures or announcements within the company about anti-harassment policies to placate employees who raise concerns, and avoid letting the issue go public. This can sometimes address the individual employee’s concerns, but it seldom makes significant changes to corporate culture or toxic workplace environments.

Lawsuit Seeks to Protect McDonald’s Corporate Culture

That is why McDonald’s public disclosure of its lawsuit against Easterbrook is so unique. On Monday, August 10, 2020, the company sued its former executive for lying to its investigators, covering up his inappropriate relationships with employees, and committing fraud by transferring hundreds of thousands of dollars in stock grants to one of those employees during their relationship. The company hopes to reclassify his firing as “for cause” and “claw back” the severance compensation Easterbrook received.

Even though it is unusual for a company to publicly air its dirty laundry, the SEC disclosure doesn’t mean McDonald’s has turned a new leaf. The complaint clearly demonstrates McDonald’s attempt to protect its reputation. It emphasizes the company’s integrity, ethics, and values, and lays out efforts the company had taken in response to previous complaints that it had a sexual abuse problem. By filing this lawsuit, in addition to recovering the money it paid to make Easterbrook go away, McDonald’s hopes to distance itself from Eaterbrook’s relationships, and the accusations of sexual harassment that they caused.

At Eisenberg & Baum, LLP, our sexual harassment attorneys understand the strategies large corporations use to cover up the sexual harassment claims. We know how to leverage companies’ desire for privacy to help employees receive quick settlements when appropriate, and we aren’t afraid to file formal litigation when settlement isn’t an option. If you work for a large corporation and are facing a sexual harassment problem, contact us today to schedule a free consultation.

Olympic Coach and Figure Skating Organizations Sued for Sexual Abuse and Cover Up

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Figure skating abuse is not the phrase that conjures up the elegant images of prime athletes oft associated with the sport. Olympic figure skating has long been one of the most popular competitions in the Winter Games. But looking at the beautiful skaters, it can be difficult to remember that many of them are just teenagers. Over the past year, reports of sexual abuse and cover up coming out of the U.S. and France show that coaches and competitors often ignored the line between child and adult, creating situations where teen athletes couldn’t avoid becoming the victims of sexual abuse.

Figure Skating Abuse Allegations Lead to Skater’s Suicide

In June 2008, while participating in a figure skating camp in Colorado Springs, Colorado, at age 17, Olympic figure skater Ashley Wagner woke up to find her teammate John Coughlin on top of her. He was 22 years old at the time. He kissed her neck and put his hand down her pants. At first, she describes herself as being “paralized in fear.” She laid there, pretending to be asleep and hoping he would stop. He didn’t. Eventually she gathered the courage to grab his hand and tell him to stop. Thankfully, he did.

By the next day, everyone around her, including Coughlin, was acting like nothing happened, so she did too. She told two people she was close to, but not her parents because she had been at a party, drinking alcohol. More than a decade later, she told the USA Today:

“There also was this: I was a young skater coming up through the ranks in a judged sport. I didn’t want to stir the pot. I didn’t want to add anything to my career that would make me seem undesirable or dramatic. I didn’t want to be known in figure skating as the athlete who would cause trouble. And I genuinely didn’t feel like anyone would listen to me anyway. Everyone really liked this guy. I even liked him.”

Wagner would go on to receive a bronze medal in the 2014 Olympics and a silver medal in the 2016 World Championships, but that moment would continue to haunt her. Eventually, she reported what happened to the U.S. Center for SafeSport. Wagner’s story was one of three reports of sexual abuse against John Coughlin, who was himself an Olympic champion. The organization issued an interim suspension while it investigated the complaints. However, the next day, on January 18, 2019, Coughlin committed suicide.

USFS Representatives Seem to Blame Teenage Victims for Sexual Assault

Coughlin’s suicide has colored the way the sport talks about figure skating sexual abuse charges. While the U.S. Figure Skating (USFS) issued a statement emphasizing athlete safety education and awareness, its representatives have struggled to uphold that message. Mark Ladwig, an USFS representative, spoke in defense of Coughlin saying that sometimes in skating a man’s hand can slip onto a woman’s crotch during a lift. But on-ice hand placement had nothing to do with the allegations Wagner and her teammate Bridget Namiotka had raised against Coughlin.

A similar incident arose in December 2019, when the USA Today reported on an investigation into French skater Morgan Cipres, age 26. Cipres faced allegations that he had sent photos of his penis to a 13-year-old skater on the U.S. team. Gordie Zimmerman, owner of the ice rink where the two trained called the 13-year-old “dangerous”. Wagner said she had been contacted as well:

“I had people messaging me that the 13-year-old girl was instigating a lot, and I had to remind them that was basically shaming a child for something that she does not even have the brain development to be able to understand. . . . A 13-year-old is still very much a child.”

Olympic Coach Misconduct Leads to Lawsuit Alleging Cover Up

Nor can the trouble with sex abuse in figure skating be dismissed as children and young adults exploring their sexuality. Allegations have also come forward of sexual misconduct by Richard Callaghan, a long-time Olympic coach. Callaghan had worked with Tara Lipinski and Todd Eldredge in 1998. Around the same time, he was also grooming a 14 year-old boy, Craig Maurizi, according to the lawsuit Mr. Maurizi filed in the Federal District Court in Buffalo, New York, earlier this year.

Maurizi says he began taking lessons from Callaghan in 1976 at age 13. The abuse began the next year. His lawsuit says that Callaghan isolated him, offered him pornography and alcohol, and eventually had sex with him, all while Maurizi was still a minor. Maurizi said he developed a substance abuse disorder and an eating disorder as a result of Callaghan’s control and “constant” sexual abuse. The figure skating abuse and behavior continued for years — even after Maurizi had become a figure skating coach himself.

Maurizi wasn’t alone. Last year, the U.S. Center for SafeSport permanently barred Callaghan from the sport after Adam Schmidt and three other skaters publicly accused Callaghan of sexual misconduct. However, Callaghan appealed his penalty to an independent arbitrator, who reduced it to a simple three-year suspension.

That’s not enough, Maurizi says. He filed his lawsuit under the New York Child Victims Act, naming Callaghan, U.S. Figure Skating, the Professional Skaters Association, and the Buffalo Skating Club as defendants. The lawsuit says that Callaghan’s behavior was widely known within the skating associations, but willfully ignored because of his success as a coach. Mr. Maurizi told the New York Times:

“I need for Richard Callaghan to be stopped. . . . I’m committed to stop giving him the opportunity to abuse anyone else.”

At Eisenberg & Baum, LLP, we have that same dedication to stopping sex abuse when it happens. We have a team of attorneys who know what to do in the face of sex abuse in the context of professional and teenage athletes. If you have been abused because of your participation in a sport, we will help you get the justice and compensation you need to move on. Contact us today to schedule a free consultation.

Jacksonville Reinstates Anti-LGBTQ Discrimination Ordinance after Courts Struck It Down

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Cities all across America have passed anti-LGBTQ discrimination ordinances to protect their residents from hate. But these ordinances often face stiff opposition and even lawsuits from right-wing advocacy groups like Liberty Counsel. Find out what happened when one court in Florida struck down a local law, and how a recent U.S. Supreme Court case is coming to the Queer community’s aid.

Court Strikes Down LGBTQ Discrimination Ordinance Over Formatting

In 2017, after five years of public debate, the Jacksonville City Council passed the city’s Human Rights Ordinance (HRO). This ordinance, like other state and local Human Rights laws in New York and across the country, prohibited discrimination in the workplace and in residential housing based on sexual orientation and gender identity. However, the ordinance also included exemptions for religious organizations including hospitals and emergency shelters that did not apply to other forms of discrimination banned by the law.

But five years of debate wasn’t enough to guarantee even these limited protections to Jacksonville’s LGBTQ residents. After the ordinance became law, the right-wing group Liberty Counsel took the matter to court. They represented John Parsons, a Jacksonville resident, who said the new HRO injured his “personal bodily privacy, modesty and dignity,” along with Liberty Ambulance Service and Diamond D. Ranch. These businesses claimed that the HRO conflicted with their religious beliefs.

Liberty Counsel’s complaint was dismissed in late 2017. Senior Circuit Judge Michael Weatherby called their injuries “speculative” and insufficient to justify the action. However, the case pressed on through an appeal to the 1st District Court of Appeals in Florida.

Then, in May 2020, Liberty Counsel got what it wanted, if not for the reasons it had told the press. The appeals court struck down the LGBTQ discrimination ordinance, saying the way that it was passed violated state and local laws. The appellate decision didn’t address Liberty Counsel’s claims that the HRO was unconstitutional religious discrimination. Instead it focused on the practical problems with the bill’s formatting.

Because of a clerical error, the section of the bill that outlines which statutes and ordinances would be amended was missing. Without that language the 2017 HRO was just a promise to change the Jacksonville non-discrimination ordinance — not an actual amendment to the law. Because of this, the court of appeals struck the ordinance down, essentially telling the City Council to try again.

Jacksonville City Council Quietly Reinstates Anti-LGBTQ Discrimination Ordinance in a Video Conference

The up-side to the court of appeal’s use of a technicality to strike down the HRO is that it was easy to fix. About a month after the court issued its decision, the Jacksonville City Council quietly reinstated the anti-LGBTQ discrimination ordinance. Unlike the 2012 version, or even the 2017 law that passed, this one happened without public controversy or uproar.

Because of COVID-19, the City Council met virtually, via video conference. There were no public speakers, and no discussion among the councilmembers over reinstating the bill. The new human rights ordinance passed with a veto-proof majority of 15 to 4, and was signed into law, again.

Supreme Court’s Bostock Opinion Gives Allies a Tool in Defending the New Non-Discrimination Ordinance

It may seem like reinstating the ordinance will just give Liberty Counsel a chance to file a new lawsuit — maybe with stronger plaintiffs this time. However, since the initial complaint was filed in 2017, a much bigger decision has made any new lawsuit much harder to win.

In June 2020, the U.S. Supreme Court issued its opinion in Bostock v Clayton County, which consolidated three different workplace discrimination cases involving gay and Trans* employees. The opinion, written by Justice Neal Gorush, established a nationwide law that sexual orientation discrimination and gender identity discrimination are necessarily forms of sex discrimination under Title VII — the federal anti-discrimination law. While LGBTQ advocates may have preferred a more sweeping decision than they received from the conservative justice, they will undoubtedly use the language in Bostock to defend against attacks on state laws and local ordinances designed to protect LGBTQ residents in the future.

At Eisenberg & Baum, we understand the damaging affects of sexual orientation and gender identity discrimination. We know how to use federal and state laws as well as local ordinances to stop the harassment and diffuse toxic working environments. From our office in New York City, our employment discrimination attorneys travel nationwide, helping LGBTQ workers negotiate with employers who simply do not understand the recent changes to the law. We are committed to making our office a safe space for you and your loved ones. If you feel like your employer is using your sexual orientation, gender identity or expression against you, contact us. We’ll meet with you and help create a strategy that protects you against genderqueer discrimination.

Jones Day’s Pay Discrimination Cases Could Become a Collective Action

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The $2 million pay discrimination cases against the Jones Day law firm has been around for a while. Initially filed in April 2019, the case has progressed through rounds of discovery and survived a motion to dismiss by the employer. Now the women lawyers who filed the case are asking the court for provisional certification of their Equal Pay Act claims as a collective action. Here’s what that means for the rank and file lawyers working for the firm across the country.

Gender Discrimination Lawsuit Says Jones Day Treats Women Lawyers Worse

Last year, six women attorneys at the Jones Day law firm made big news by filing a lawsuit against their employer for gender discrimination, pregnancy discrimination and violations of the Equal Pay Act. As explained in an earlier blog post, the Complaint, filed in the United States District Court for the District of Columbia said the firm’s “fraternity culture” stood in the way of women associates’ career advancement, caused them to be paid less than their male coworkers, and face discrimination when they became pregnant or even asked about the company’s maternity leave policies.

The title of that document, filed on April 3, 2019, was “Class and Collective Action Complaint”. That title, and the portions of the Complaint that support it, mean that the six plaintiffs listed in the document aren’t just looking to be compensated for their own losses. Instead they are hoping to force Jones Day to make systemic changes in the way they set associates’ pay and address workplace discrimination complaints to improve the way all the women lawyers are treated in the firm’s offices nationwide.

Collective Actions Versus Class Actions — Why It Matters

Notice that the complaint has two parts: class action and collective action. That is because the federal statutes controlling gender discrimination and pay discrimination have different procedures to deal with systemic problems. Title VII of the Civil Rights Act and the Pregnancy Discrimination Act both use traditional federal class action rules. For a lawsuit to apply to an entire class of people (like all women employees of the Jones Day law firm), the plaintiffs in that case have to show four things:

  1. Numerosity — that there are so many people affected that it doesn’t make sense for them each to file their own lawsuit
  2. Commonality — that everyone in the class has been affected by the defendant’s actions in similar ways
  3. Typicality — that the individual plaintiffs who filed the lawsuit has the same interest and suffered the same type of injury as the rest of the people affected
  4. Adequacy of Representation — that the individuals and law firms involved have the ability to protect the interests of the class members

There are a lot of legal technicalities that go into whether a class will be certified, and many would-be class actions don’t end up applying beyond the individuals who filed them. However, a class action remains a powerful tool in cases where there is systemic gender discrimination against large numbers of employees.

Complaints under the Equal Pay Act work differently. Instead of allowing plaintiffs to file class actions on behalf of everyone in a similar situation, they instead use collective actions. The biggest difference between a collective action and a class action is that in a collective action, employees not already part of the case receive notice of an opportunity to opt in to the case. In a class action, those employees still receive a notice, but it informs them their claim will be included in the litigation unless they opt out.

Because of this, it is much easier to have a case certified as a collective action than a class action. A case will receive “conditional certification” as long as there are some facts showing that the individual plaintiffs and the potential opt-in plaintiffs all were affected by the same illegal policy or plan. Later on, after the parties have gathered more evidence, the court may review the certification, decide if the cases are as similar as they originally seemed, and if not, dismiss the opt-in plaintiffs claims “without prejudice” so they can file them separately on their own.

Jones Day’s “Black Box” Unfair Pay Practices Created Collective Action Claims, Plaintiffs Say

The women attorneys in the Jones Day case have asked the federal court for conditional certification on their Equal Pay Act claims. They say Jones Day’s firm-wide policies about compensation, salaries, and pay secrecy are the kind of illegal policies that collective actions are designed to protect against. According to the women, the compensation for all associates, regardless of geographic location or area of practice, are all based on the same criteria. Ultimately, all compensation decisions — including raises — are made by managing partner Stephen J. Brogan and two firm-wide leaders. This “black box” decision-making means that a decision in the collective action could be applied company-wide, without worrying about individual geographic considerations.

Jones Day’s lawyers are fighting back against collective action. They say that associate pay is determined through a multi-layered process and that dozens of attorneys weigh in on the decision. However, even they admit that local managers don’t have the final say, nor can they modify the Managing Partner’s final decisions.

And some of those decisions result in pay discrimination, say the plaintiffs. The data they have received in discovery so far shows in 23 cases out of 100, local salary recommendations were changed when they got to the Managing Partner, including 3 cases where male associates were given $20,000 – $40,000 raises. No female associate received nearly that much.

Now it is up to the federal district judge to decide if the Jones Day women lawyers should be allowed to opt in to a collective action to protect their rights to Equal Pay. If they do, it could mean the law firm will be required to completely rework how its associates are compensated, and more women lawyers could find their way to making partner.

At Eisenberg & Baum, LLP, we aren’t afraid to take on the big cases. We know how to use the tools of class actions and collective actions in federal court to help you and your coworkers fight your pay discrimination cases. If you are being paid less than you deserve and suspect equal pay violations, our employment discrimination lawyers will review your case and help you prepare a strategy to get the relief you need. Contact us today to schedule a free initial consultation and get your case started.