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Jones Day Couple Can Pursue Dad Leave, Other Bias Claims (1)

Sept. 4, 2020, 5:59 PMUpdated: Sept. 4, 2020, 7:50 PM

Husband and wife lawyers suing Jones Day for alleged parental leave bias against new fathers and for other alleged sex bias and job retaliation can continue to pursue most of their claims, a federal judge in the District of Columbia ruled Friday.

Mark Savignac and Julia Sheketoff adequately state a claim for gender inequality in the firm’s policy of allowing male employees to take eight weeks less leave for the birth of a child than female employees may use, the court said. Jones Day’s rule regarding when new mothers may take eight weeks of leave for post-partum disability is unclear and could be read to apply automatically, as Savignac and Sheketoff contend, the court said.

If proven, that could amount to sex-based disparate treatment under Title VII of the 1964 Civil Rights Act, the Equal Pay Act, and the D.C. Human Rights Act, Judge Randolph D. Moss of the U.S. District Court for the District of Columbia said. Jones Day’s argument that the eight additional weeks it presumptively gives new moms is disability, not parental, leave raises fact issues that can’t be decided at the motion to dismiss stage, Moss said.

Parental leave policies that exclude fathers from the same coverage as mothers have been targeted in recent years, which led to settlements with JPMorgan Chase and Estée Lauder. The U.S. Equal Employment Opportunity Commission’s 2018 settlement with Estée Lauder was over its first lawsuit that targeted a policy that gave new mothers more than time than fathers.

Paid-time off policies are grabbing attention and have been targeted as the U.S. lags behind almost all developed nations for its lack of a national policy, as well as playing a role in the imbalance of power between men and women in the workplace.

Such cases revolving around parental leave call into question disparities that exist and the caregiving norms that are embedded in workplace culture and policies, said Vicki Shabo, senior fellow for paid leave policy and strategy at New America.

She said that disability leave for new mothers isn’t always an illegitimate reason to offer more medical leave to mothers, but the actual portion of leave to care for a child should be equal between mothers and fathers.

“Gender policies that don’t treat people of all genders equally with caring for a child exacerbate the implicit and explicit bias against women in the workplace and reinforce norms for the primary parent in the family,” Shabo said. She said gender norms at home and in the workplace contribute to a wage gap between men and women.

Timely Action

And Sheketoff acted in time to preserve her claim that she received a discriminatory performance review, and a bonus 80% smaller than the prior year, based on her sex, the court said. She failed to file a charge with the Equal Employment Opportunity Commission within 180 days of the alleged bias, but the agency’s work-sharing agreement with its local D.C. counterpart gave her 300 days to pursue her pre-suit administrative rights, and she met that deadline, the court said.

The charge she filed with the EEOC was deemed dual-filed with the D.C. Office of Human Rights, so she didn’t need to technically file with that agency to trigger the 300-day clock, Moss said.

Jones Day’s other challenges to Sheketoff’s sex bias claims under Title VII and the DCHRA are fact-based and don’t support a motion to dismiss, the judge said.

But her Equal Pay Act claimed failed because she didn’t allege that she did substantially equal work to the male attorneys she claims were treated more favorably than her, the court said. She doesn’t say that she worked as many hours as her male counterparts or otherwise worked as hard, the court said.

Sheketoff may replead that claim to try to bolster her allegations, the court said.

The court also dismissed Savignac’s interference claim under the Family and Medical Leave Act, because he concedes he wasn’t fired for exercising his FMLA rights, the court said. While an open question in the D.C. Circuit, the better-reasoned cases elsewhere support the proposition that a termination not ariting from a worker’s FMLA use or request fails to support a claim under federal law, the court said.

D.C. Law?

Savignac’s similar claim under D.C. leave law may continue under the different standard governing that law, the court said.

The couple may pursue all of their retaliation claims under federal and local laws, the court said.

It’s too early to say that Savignac didn’t reasonably believe Jones Day’s parental leave policy violates sex bias law, even if his belief is viewed through the lens of his “legal sophistication,” Moss said.

And Jones Day’s discharge of Savignac after Sheketoff had already left the firm could still be retaliation against her, the court said. The couple’s contention that she co-authored an email he sent questioning the leave policy is enough to allege she engaged in protected activity, the court said.

The couple met while clerking for U.S. Supreme Court Justice Stephen G. Breyer and worked together in Jones Day’s Supreme Court and appellate practice group. Sheketoff left the firm shortly before their son was born and Savignac was fired.

Savignac and Sheketoff represent themselves. Jones Day represents itself. The parties didn’t immediately respond to request for comment.

The case is Savignac v. Jones Day, D.D.C., No. 1:19-cv-02443, 9/4/20.

(Updated with additional reporting throughout.)

To contact the reporters on this story: Patrick Dorrian in Washington at pdorrian@bloomberglaw.com; Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Patrick L. Gregory at pgregory@bloomberglaw.com