Jones Day Lawsuit Over Dad Leave for Newborns Faces Crucial Test

A federal judge in Washington, D.C. on Thursday probed Jones Day and two former associates suing for bias on whether the law firm’s parental leave discriminates against biological fathers and if it retaliated against the couple for challenging the policy.

The international legal powerhouse and two of its former associates want the US District Court for the District of Columbia to decide an issue that could affect the ability of employers to designate leave mothers use after giving birth as disability related or at least how such leave should be administered. A ruling will determine which parts of the case, if any, go to trial.

The husband and wife attorneys suing Jones Day say the firm discriminates based on sex because fathers can’t take as much paid time off as mothers after a child’s birth. That’s because of a stereotyped notion that all women are disabled for eight weeks after having a baby, which is based on the assumption that biological mothers are a newborn’s primary caregiver, the couple said in their summary judgment brief.

Mark Savignac and Julia Sheketoff sued in 2019.

Firm Cites Medical Practice

Jones Day told Judge Randolph D. Moss that Savignac and Sheketoff, who met while clerking for retired US Supreme Court Justice Stephen Breyer, are wrong on the law.

The policy, which allows mothers to take eight weeks of disability leave to recover after child birth, isn’t facially discriminatory against men because it’s not based on sex, the firm said in its summary judgment brief. The policy is based on disability and being disabled is necessary for women to avail themselves of any portion of the eights weeks. A presumed period of disability for that length of time is consistent with medical and insurance standards as well as the expert testimony presented by both sides, it said.

Jones Day separately provides employees who are a new baby’s primary caregiver with 10 weeks of leave to bond with their new born, according to the brief. That leave is provided regardless of a primary caregiver’s sex.

Savignac’s demand for the full 18 weeks of leave potentially available to birth mothers wasn’t supported because he wasn’t disabled, the firm said.

Extra Leave ‘Special Treatment’

The couple, who are representing themselves, had said that the history of Jones Day’s approach to parental leave shows that its current policies were essentially implemented to deprive fathers of equal caregiving time.

The firm originally gave birth mothers a single period of leave that didn’t designate any of that time as disability-related, they said.

When Jones Day changed its approach in 1994 after the enactment of the Family and Medical Leave Act, it designated a period for birth mothers as disability-based leave that was “atypically long,” they had said. It did so to limit the period of caregiving leave available to fathers, they said.

Not all mothers are disabled for eight weeks following child birth and Jones Day can’t just presume that they are, the couple said. The law prohibits treating pregnant workers not just less equally, but also more favorably, they said.

Retaliatory Firing Claim

According to the suit, Savignac was fired six days after reaffirming in an email to Jones Day—and just two weeks after the couple’s baby was born—that the firm’s approach to parental leave denies fathers equal treatment. His termination was retaliation against Sheketoff as well, even though she had already left Jones Day by that point, in part because she was the one who first challenged its leave policies, they say.

Jones Day says it fired Savignac for acting unprofessionally and making an extortionate demand.

He said he would file a charge with the Equal Employment Opportunity Commission followed by a class action lawsuit unless it gave him the same 18 weeks of paid time off that birth mothers get and that the case would be tried in the court of public opinion, the firm had said. That and other aspects of his email reflected so poorly on his “judgment and character” that it could no longer employ him and it undercuts the couple’s contention that his email was protected activity under anti-retaliation law, it said.

Moss asked both sides what the proper standard is for determining the real reason Savignac was fired. He also wondered what evidence there is for sussing out the firing rationale, and whether a jury needs to review that evidence.

The firm won’t have any more evidence on the issue at trial than the court has before it now, Jones Day attorney Terri L. Chase said.

Besides the law firm, former managing partner Stephen J. Brogan, administrative partner Michael R. Shumaker, and Beth Heifetz, who is of counsel to Jones Day, are also defendants in the case.

Other claims still pending before Moss, on which Jones Day seeks to avoid a trial, include that the firm retaliated against the couple by issuing a press release after they sued, which they say attacked their character and damaged their professional reputations and a sex-based pay discrimination claim by Sheketoff.

Sheketoff and Savignac declined to comment after the hearing, and Jones Day didn’t respond to Bloomberg Law’s request for comment.

The case is Savignac v. Jones Day, D.D.C., No. 1:19-cv-02443, summary judgment hearing 10/12/23.