MoFo to Face Trial on Female Lawyers’ Sex, Pregnancy Bias Claims

Two female former Morrison & Foerster LLP attorneys who say they were marginalized, denied promotion, and otherwise discriminated against because of their sex, and for becoming pregnant and taking maternity leave will get a trial on most of their claims, the Northern District of California ruled.

Sherry William may be able to convince a jury MoFo didn’t advance her to the next associate level with the rest of her class because of her maternity leave, the court said. That “reclassification” may have also violated the Family and Medical Leave Act and the California Family Rights Act, the court added.

There likewise is a triable question on whether William’s low billable hours in 2018 and 2019 were caused by her being assigned less work because she took maternity leave, the U.S. District Court for the Northern District of California said Friday. Because the evidence could prove William experienced discrimination, a trial is also necessary on her claims of wrongful discrimination in violation of public policy and under California’s Unfair Competition Law.

And a jury could find Joshua Ashley Klayman was subjected to discrimination based on her sex and maternity leaves when the firm denied her promotion to partner in 2017, according to the court. Klayman has evidence that MoFo’s explanations that she was denied promotion because she was too focused on her nontraditional blockchain work, had substandard communication skills, and lacked the needed “chorus” of support for promotion were a pretext for bias, the court said.

There’s “ample evidence that Ms. Klayman’s blockchain work was both encouraged and praised by many partners,” said Magistrate Judge Jacqueline Scott Corley.

Klayman’s 2017 promotion denial may have also violated the FMLA, and a jury could further find MoFo interfered with her FMLA rights by asking her to work while on maternity leave, Corley said. The judge pointed in part to Klayman’s testimony that the firm’s director of attorney development told her regarding the promotion denial that several people accused Klayman of “acting like a martyr” by mentioning during conference calls she participated in while on leave that she had a baby on her lap.

A trial is also necessary on Klayman’s claims under federal and New York law that she was paid less because she is a woman. MoFo failed to show a sex-neutral justification for the pay differential, the court added.

Klayman, however, lacked evidence that her denial of promotion to partnership in an earlier year, 2016, was based on her sex or maternity leaves, according to the court.

MoFo established that it brought in a similarly situated male attorney as a “lateral partner” that year—while denying partnership to Klayman—because one of its major strategic initiatives was to create a private equity practice, Corley said.

Both women likewise failed to back their various retaliation claims, the judge said. But they can both continue to pursue punitive damages from MoFo, she added.

The trial date will be set for Aug. 16.

William and Klayman were formerly part of a group of lawyers that initially sued MoFo in April 2018 for alleged systemic discrimination against women at the 1000-plus-lawyer international firm. But five of the women settled their individual claims and the group subsequently dropped their classwide allegations.

Sanford Heisler Sharp LLP represents Klayman and William. Gibson, Dunn & Crutcher LLP represents MoFo.

The case is William v. Morrison & Foerster LLP, N.D. Cal., No. 3:18-cv-02542, 3/12/21.