Jones Day Women Say Evidence to Date Backs Equal Pay Class Push

A group of female lawyers suing Jones Day for alleged sex discrimination in pay and other key decision-making told a federal judge the evidence exchanged by the parties so far backs their request for conditional certification of an Equal Pay Act collective action, court records show.

Jones Day acknowledged in its opposition to their motion that it has the sort of centralized process for deciding associate pay that’s well suited to class treatment under the EPA, Nilab Rahyar Tolton and five other lead plaintiffs said Monday in a filing with the U.S. District Court for the District of Columbia.

The firm “admits pay decisions are made by no more than three firm-wide leaders,” including managing partner Stephen J. Brogan, the women say.

Though Jones Day opposed conditional certification and summary judgment on the Equal Pay Act claim on the ground that associate pay is set through a multi-layered process involving dozens of different attorneys, it doesn’t “assert that local managers have the authority to make final compensation decisions or that they can modify the Managing Partner’s final decisions,” the women said.

Rather, local partners simply submit salary recommendations, which are then reviewed by two firm-wide leaders, who make their own recommendations, which are then reviewed and approved or modified by Brogan, they said.

Some of the evidence to date shows 23 instances, out of approximately 100 salary decisions, where local salary recommendations were changed, and other evidence shows firm-wide leaders increased the pay of three male associates by $20,000 to $40,000, which was “substantially more than any female associate received,” the women said.

Because all pay decisions are ultimately made by two firm-wide leaders and Brogan, collective action certification won’t result in a loss of litigation efficiencies, as Jones Day contends, the women said.

But the court shouldn’t even get that far because it shouldn’t consider the evidence Jones Day points to in its opposition to class treatment, the women said.

Conditional certification is “a modest form of relief” that is routinely granted by courts nationwide, they said. Courts don’t consider competing evidence offered by a defendant at the conditional class certification stage, they said.

The governing standard is “lenient” and asks only if there is “some evidence” connecting the proposed class representatives’ claims to the circumstances of the other potential class members.

That standard applies even where some evidence has been exchanged in a case and governs up to the close of discovery, they said.

And a substantial amount of class discovery is still outstanding, including the production of crucial documents and the depositions of firm-wide leaders, Jones Day’s human resources director, and Brogan, the women said.

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, reply in support of amended motion for conditional class certification 7/20/20.