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.