Tuesday, August 20, 2019

Industry Practices

via Unsplash

I've had a lot going on at the office recently, making it a bit difficult to find time to blog! I've also been finding this summer rather languid and listless-feeling, I've been wanting to laze around every weekend instead of writing or going out and about. I haven't even really been reading that much either, just watching a lot of TV shows or Youtube clips. (For the latter category, I've recently been obsessed with the delightful "Gourmet Makes" series from Bon Appetit. Claire is the best!) Between all that and my recent bout of writer's block, I don't think I'll be posting here too often in the next few weeks, unfortunately. Hopefully I get inspired to write more soon! 

There's recently been a bit of industry gossip, thanks to yet another employment discrimination lawsuit against Jones Day, a biglaw firm well-known for a somewhat... atypical... approach to associate compensation, which had also been a central feature in another high-profile gender discrimination lawsuit. The full complaint for this newer case can be read here, brought pro se (without the formally assistance of another attorney) by two former Supreme Court clerks, who are also a married couple, and who both previously worked at Jones Day, with some overlap in their respective tenures at the firm. The firm has made a possibly unwise public statement in response to this newer lawsuit. 

This particular firm is perhaps becoming a bit well-known for arguably heavy-handed responses to employment  discrimination litigation brought against them. Their full answer to the complaint in the other, larger-scale case can be found here, and it's... a lot. The firm is representing itself in that case, rather than hiring outside counsel. I suspect that means they'll do the same in this newer case as well. 

One of the primarily allegations in this new case is that Jones Day's parental leave policy, which sets different caps on the maximum amount of paid leave available based on whether the associate is the mother or father to a newborn, discriminates on the basis of sex. Mothers allegedly get a maximum of 18 weeks, while fathers allegedly get a maximum of 10 weeks.

In practice, most biglaw parental leave policies for attorneys have the same practical implications as this alleged Jones Day policy, though they're often framed in more gender-neutral language. A longer period, often in the zone of 14 to 18 weeks, is available to new "primary caregiver" parents, while a shorter period, as little as four weeks - the number at my previous biglaw firm - is available to "non-primary caregiver" parents. As an aside, regardless of the amount of leave available, it's also not uncommon for both primary and non-primary caregiver parents to take less than the maximum time allotted, for fear that it'd harm their future prospects at the firm. During my time in biglaw, one of my "non-primary caregiver" colleagues ended up taking four days. There are a lot of distressing facts about how parental leave is treated at biglaw firms.

What's been more interesting for me than the substance of the case is looking at reactions to it, primarily on Twitter (because the topic is maybe a little too niche to have gotten much discussion elsewhere). There's been a few larger Twitter threads about the case, including here and here. Note that there's at least one significant factual error in the second Twitter thread: Both plaintiffs in this case had three federal clerkships, one district court, one appellate, and one SCOTUS. That detail may or may not be apparent on the face of their complaint, but can be found from a little additional online research. 

It's a brave thing to do, to bring a case like this in one's own name. I can certainly vouch for how, as a junior attorney, I'd fear that there is considerable risk involved with making these kind of allegations publicly, and in your own name. For instance, when the court denied the use of a Jane Doe pseudonym to the last unnamed representative plaintiff in the other Jones Day case, she dropped out rather than continue litigating as a class representative and be forced to reveal her name in public filings. The legal profession is very small, and very prone to gossip, and it's difficult to predict how future employers would react.

There's one allegation in this case, captured in the above screenshot, that I find particularly befuddling and strange. I have a terrible eye for identifying how a photograph was edited, even when the "before" and "after" images are placed side by side. After looking closely, I still go back and forth about whether I think retouched photograph changed the shape of her jawline or her nose. What does seem obvious is that they changed the shape of her hairstyle, for the appearance of additional volume, which is just completely bizarre to me. That sort of relatively subtle change in hairstyle cannot reasonably be said to have anything to do with one's marketability as an attorney, or at least, I don't think so.

My previous biglaw firm likely did retouch our headshots a bit, including to remove obvious flyaway hairs or blemishes. But because the firm did not show us the "before" photos, we would never have had an original photo to use as the basis for an allegation like this. Based off the photos used on the website - it's common for biglaw firms to have a headshot and detailed public profile available online for essentially every associate and partner at the firm, which I think is fairly unique to our industry - my previous biglaw firm most likely was not editing our face shapes or hairstyles in order to make any of us more "conventionally attractive."  

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