Daily Labor Report®

Jones Day Female Lawyers Want Nationwide Pay, Performance Data

July 9, 2020, 8:56 AM

Jones Day and a group of female lawyers suing for alleged systemic sex discrimination will ask a federal judge today to decide whether the firm must allow the women to review pay and performance evaluation data for more than 2,000 lawyers nationwide for possible evidence supporting their claims.

Nilab Rahyar Tolton, Andrea Mazingo, Meredith Williams, Saira Draper, Jaclyn Stahl, and Katrina Henderson say their broad discovery request is justified by the nature of their suit. It seeks to join other women who have experienced unequal pay and narrowed career opportunities through the use of a “black box” compensation system and other employment practices, among other sex-based bias.

Nationwide disclosure of Jones Day’s pay, evaluation, and personnel data is necessary for them to determine whether those systems, policies, and practices have a common discriminatory effect on female associates, the plaintiffs say in a letter brief filed July 3 with the U.S. District Court for the District of Columbia.

It is also needed to conduct a valid statistical analysis of how the firm pays and otherwise treats its female lawyers compared to their male counterparts, the letter filed in advance of today’s status conference says.

But Jones Day says the plaintiffs’ request is overbroad in its geographical scope, temporal scope, and the categories of data demanded.

The plaintiffs only worked out of its offices in Atlanta, New York, and California, the firm says its June 19 letter brief. It would be unreasonable and overly burdensome to require the production of pay and performance data for attorneys in any of its 11 other U.S. offices. It would also unreasonably intrude on the privacy interests of thousands of other current and former associates who aren’t participating in the suit, Jones Day says.

And the period for which pay and performance data is relevant to the plaintiffs’ allegations is tied to the statutes of limitations governing their claims, the longest of which is three years, Jones Day says. Its production should therefore mostly be limited to 2016, 2017, and 2018, the years at the heart of the plaintiffs’ claims, the firm says.

Pay and performance data discovery should be limited to the nearly 600 associates who worked out of the Atlanta, New York, and six California offices during that period, it says. It is irrelevant to the women’s claims “what associates in Pittsburgh or Minneapolis (for example) were paid,” Jones Day says.

The firm also says it should only be required to produce “numeric” evaluation data and not related “narrative” performance data. The latter is chock full of confidential client information, including “strategies” and “sensitive issues,” and can’t be turned over without first being substantially redacted, the firm says.

It has already produced “thousands of documents” and other discovery, including redacted narrative evaluation information for the plaintiffs and the 19 alleged comparators they identified in their lawsuit, Jones Day says. The time spent to perform that redaction work shows it would take the firm’s defense team approximately 600–700 hours to do a privilege review of narrative information for just the seven offices it believes the production should be limited to, Jones Day says.

Judge Randolph D. Moss’s resolution of the dispute may turn on his view of the firm’s contention that the discovery to date shows “associate compensation is driven principally by decisions made at the local office level.”

Jones Day’s position conflicts with the plaintiffs’ assertion that managing partner Stephen J. Brogan has a “totalitarian grip” on the firm’s pay and performance evaluation practices, including by enforcing a “no whining policy” that forbids female associates from raising sex-based inequities.

The discovery to date has in fact confirmed their position regarding Brogan’s unchecked powers, the women say. Jones Day’s characterization of its compensation decision-making process shouldn’t be allowed to limit the broad document production and other information gathering typically permitted in class cases, they say.

Federal courts have held that discovery in lawsuits under Title VII of the 1964 Civil Rights Act is “necessarily broad,” they say. Courts have further recognized “the need for company-wide discovery” in class actions, the women say.

The information they seek is in centralized databases and Jones Day has previously acknowledged that producing it is only “minimally burdensome,” the women say. A protective order would adequately shield the privacy interests of associates not participating in the case, they say.

Sanford Heisler Sharp LLP represents the women. Jones Day represents itself.

The case is Tolton v. Jones Day, D.D.C., No. 1:19-cv-00945, telephonic status conference 7/9/20.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Nicholas Datlowe at ndatlowe@bloomberglaw.com

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