Women have been graduating from law schools in greater numbers than men for the last seven years, but we are still woefully behind when it comes to fair pay. In 2020, among associates, women were paid on average 91% of what their male counterparts earned. Among equity partners, the average compensation for women was only 85% of male lawyers’ average compensation.
Women lawyers of color face an even tougher battle. The latest “diversity” statistics from the National Association for Law Placement (NALP) show a shocking lack of diversity persists at law firms nationally. For Black and Latinx women, equal pay seems especially out of reach.
With the passage of the Equal Pay Act in 1963, women were promised fair pay. That social contract has failed: women’s wages remain less than men’s across every single industry in the U.S.
Although the wage gap has shrunk, progress has stalled since 2007. At this rate, women will not achieve equal pay until 2111.
All the diversity training in the world can’t seem to fix this stubborn problem. Mentoring programs have limited impact. Aggressive recruitment efforts don’t translate into equity partner positions. You know what works? Litigation.
Women lawyers know their rights, and they are increasingly willing to demand equal pay when their firms fail to pay them fairly. These brave women refuse to be marginalized or ignored any longer. As a result, in recent years there has been a noticeable uptick in lawsuits against Big Law alleging violations of the federal Equal Pay Act and other statutes prohibiting gender discrimination.
Wins, Losses, and Draws
Here’s a look at some of the many high-profile equal pay lawsuits against major law firms in the last decade. Each case provides its own unique lessons.
- Ramos v. Winston & Strawn, San Francisco Superior Court, Case No. 17-561025. Central to this case was the partnership agreement, and its arbitration clause, which the California Court of Appeal found to be unconscionable and unenforceable. 28 Cal. App. 5th 1042 (2018).
- Knepper v. Ogletree, U.S. District Court for the Central District of California, Case No. 8:19-00060. After a change in venue motion, the firm’s arbitration agreement was enforced.
- Campbell v. Chadbourne, U.S. District Court for the Southern District of New York, Case No. 16-6832. Here, the defendant fought back with counterclaims brought against the departing female partner.
- Henderson v. Jones Day, U.S. District Court for the District of Columbia, Case No. 19-945. The judge initially permitted plaintiffs to use pseudonyms in this case.
- Bertram v. Proskauer, U.S. District Court for the District of Columbia, Case No. 17-901. Another case where plaintiff met the standard to proceed anonymously.
- Craddock v. LeClair Ryan, U.S. District Court for the Eastern District of Virginia, Case No. 16-011. The firm successfully moved this case to arbitration, but then lost. Then, back in federal court for enforcement of the award, the firm lost a battle to seal the award.
- Coates v. Farmers Insurance Co., U.S. District Court for the Northern District of California, Case No. 15-1913. Large companies’ legal departments can also be the target of equal pay claims.
- Griesing v. Greenberg Traurig, U.S. District Court for the Southern District of New York, Case No. 12-8734. This 10-year-old case shows that the landscape really hasn’t changed much at all.
Intersectionality: Race and Gender
If you are considering initiating litigation for pay equity, beware that questions surrounding the “intersection” of race and gender can be tricky, and judges haven’t always appreciated the complexities present in discrimination cases where gender plus minority status is in play. Sometimes, in fact, judges have been downright harsh in denying class certification in such cases.
Take Moore v. Hughes Helicopters as an example, where the Ninth Circuit upheld the district court’s denial of class certification, noting that mere “membership in a sexual or racial group does not justify a finding that a plaintiff will adequately represent all members of a particular group.”
But in Hicks v. Gates Rubber Co., the Tenth Circuit recognized an intersectional claim of simultaneous discrimination on basis of both race and sex. And in Jefferies v. Harris County Comm. Action Assoc., the Fifth Circuit said that discrimination “against black females can exist even in the absence of discrimination against black men or white women.”
These cases are decades old, but they remain good law.
Today courts increasingly recognize the validity of intersectional claims in our diverse society, but practitioners must still think carefully about the strength of their clients’ various claims when crafting a charge or complaint with class allegations.
In many instances, a proposed class representative may need to choose one claim over another, or abandon individual intersectional claims, in order to successfully certify a broader class.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Lori Andrus is a partner with Andrus Anderson LLP in San Francisco. She is a leader in equal pay litigation with nearly two decades of experience. She won a settlement of $4.1 million on behalf of a class of 300 female lawyers employed by Farmers Insurance who claimed they were victims of pay bias and is currently litigating an equal pay class action against The Walt Disney Company.