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Sometimes a Girl Can't Win

Vivia Chen

July 20, 2010

18 Here's a hot tip for law firms that want to quash possible discrimination lawsuits by disgruntled women partners: Take those gals out of the income partner and of-counsel rank and give them equity--or something that kinda looks like equity.

In a big victory for Pittsburgh firm Dickie McCamey & Chilcote, the U.S. Court of Appeals for the Third Circuit ruled that Alyson Kirleis is barred from suing her firm for sex discrimination. The Legal Intelligencer says that the court based its ruling on her status as a shareholder and director, which "gives her the ability to participate in firm governance and a percentage of firm profits."

Reports the Legal Intelligencer:

The appellate judges issued a tersely worded, four-page, nonprecedential opinion that adopted the lower court's reasons for dismissing the case on summary judgment.

"We cannot agree that Kirleis is a mere employee of DMC, and our review of the record supports the district court's conclusion in this regard," Senior U.S. circuit judge Jane R. Roth wrote.

Because Kirleis was a Class A shareholder at her firm, the court said she had "the right not to be terminated without a vote by a supermajority of the firm's board." Hence, she couldn't "qualify as an employee under the multifactor test created by the U.S. Supreme Court." Only employees, reminded the court, have the right to sue for sex discrimination. (Kirleis argued that she should be "treated as an employee because her work is subject to the control of the firm's 13-member executive committee.)

I'm no expert on sex bias, but the ruling seems to bar claims of discrimination if you fall within the definition of equity, even though you might have suffered gender bias. Got that?

Indeed, Kirleis described some disturbing inequities at her firm that the court skipped over. Besides charging that her firm paid women lawyers less, she alleged:

[S]he was told by a male partner that a woman with children should relinquish her partnership and work only part-time. Kirleis, who has worked at the firm since 1988, also claimed she was told by another male partner that the role of women lawyers was to prepare lawsuits for trials that would be handled by male lawyers. The suit also included allegations that Kirleis has suffered retaliation since her suit was filed, and that Dickie McCamey's annual Christmas party is effectively closed to women "because of the sexually explicit nature of the entertainment including skits, songs, pornographic materials, and props."

Skits, songs, pornography--what fun! Who says the Mad Men era is dead? I love the series, but would women lawyers want to suffer the indignities that befall Peggy Olson in the pursuit of her career?

Look, I don't know if all of Kirleis's allegations are true, but I wish the court probed deeper instead of relying on a formalistic definition of equity. Does it take that much imagination to realize there could be inequity in the equity ranks? As any first-year law student knows, it's best to buddy up with those on the compensation committee or the executive committee. It's also a no-brainer that those committees tend to be populated by men.

The Intelligencer reports that Kirleis's "remaining options have now dwindled to statistically unlikely ones--seeking a rehearing before all 14 judges on the Third Circuit or petitioning the U.S. Supreme Court to take up her case."  (Her lawyer, Edward Friedman, told The Intelligencer that he intends to seek a rehearing before the full court.)

I don't see much of a silver lining in this case, but Cynthia Calvert, one of the founders of PAR (Project for Attorney Retention at Hastings Law School), finds one: "Although the law firm won the appeal, it may have lost the war to the extent its reputation and its ability to recruit and retain women lawyers have been damaged by the allegations."  

Let's hope the firm cares. To me, though, the case still points to the perils of suing for discrimination--at any level.

Do you have a happier view?

If you have topics you'd like to discuss, or information to share for The Careerist, e-mail chief blogger Vivia Chen at VChen@alm.com.

Photo: Carin Baer, Courtesy of AMC

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It sadden me to hear such claims against woman in high position within the law community. Her lost is a lost for all woman around the world. I wish I could have a happier view to share..

The Law Actually Says:
Large Partnerships are Barred by Title VII
From Discriminating Against Individual Partners


“It shall be unlawful for an employer: (1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin” – Section 703(a)(1) of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1).

Where does Title VII restrict its protections to “employees”? It does not; the text of the law prohibits an employer subject to the Act from engaging in specified discrimination against an “individual”. Yet many assert that large law and accounting partnerships should be presumed “exempt” from the moral principles of fairness embodied in Title VII unless a partner is deemed to have been an “employee” – a presumption that suffers any discrimination claim by a former partner against a partnership to become a protracted “pre-dispute dispute” over this semantic quarrel about status. The substantive issue raised by a discrimination claim – the conduct of the defendant – is seldom even reached in such “partnership” cases, because the time and resources devoted to the preliminary skirmish over “employee status” renders the exercise too costly to pursue. Whatever interests may be served by such a reality, “equality of opportunity” is not among them.

It is astounding that law firms continue to get away with claiming that a “large” partnership – one which has more than 15 employees and is, therefore, subject to Title VII’s rules – should be presumed to have some legal right to treat its minority or women partners discriminatorily with impunity because they are “partners.” There is nothing in the Act, its legislative history, the purpose of the legislation itself, or Supreme Court precedent which supports this immoral presumption and, to the contrary, a fair reading of each confirms that Congress really did mean to protect every individual’s employment relationship with a jurisdictionally significant business entity. The presumption of impunity is predicated upon faulty analysis by lower courts, featuring a plainly erroneous assumption that Congress’ use of the term “employee” when evaluating the jurisdictional applicability of Title VII to an employer entity somehow supplants the Act’s substantive provisions, and is coupled with an approach to such cases which confuses the nature of the entity “covered” by Title VII (here, a partnership) with the characteristics of those against whom a “covered” entity may not discriminate. The resulting caselaw and analysis ends up dissecting whether a “partnership” is somehow “special” and deserving of exemption from Title VII liability – but such discussions are misguided because partnerships are, by statutory definition, “covered” by the Act. For a “large” partnership, the actual statutorily relevant inquiry is just whether a “partner” in that “covered partnership” is an “individual” – the answer is always going to be “yes,” never “yes, but”.

Upon reading what the statute actually says, recognizing what Congress sought to achieve when enacting it, and acknowledging how the Supreme Court consistently has interpreted it, the plainly appropriate legal analysis under Title VII is as follows:

If an "employer" entity (as defined in '701(b) of the Act, 42 U.S.C. '2000e(b)) is jurisdictionally subject to the provisions of the Act (an inquiry defined by '701(b), (f), (g) and (h), 42 U.S.C. 2000e(b), (f), (g) and (h)), then that entity cannot engage in discrimination against individuals in their compensation, terms, conditions or privileges of employment, as stated in 703(a)(1), 42 U.S.C. 2000e-2(a)(1).

There is no other semantically permissible, historically supportable or morally defensible interpretation of the Act. As the Act is actually written, the argument that “a partner is not an employee” has relevance only for purposes of deciding whether the defendant partnership is large enough to be subject to the rules of Title VII. However, once that rubicon is crossed and the analysis shifts to whether the covered employer partnership has engaged in proscribed discrimination, the question of standing becomes not whether the plaintiff “partner” is an “employee” but, rather, whether the partner is an “individual.”

As written, if so read, Title VII does not allow a jurisdictionally significant law and accounting partnership to, for example, fire a partner for being black or female and then defend itself by claiming it has a right to do so because the fundamental principles of morality and fairness which Congress enacted in Title VII do not apply to it. To allow enormous business entities, which indisputably affect interstate commerce and have many times the necessary number of "employees" to yield coverage under Title VII, to engage in knowingly discriminatory conduct and then seek an imprimatur from the very congressional Act whose fundamental purpose is to prohibit such conduct is, plainly, repugnant. It is also wholly devoid of statutory justification and is, in fact, dependent upon an argument which erroneously substitutes a narrow jurisdictional "numerosity test" for what is clearly a broader substantive protection. It is time actually to read, and apply, the law which Congress actually wrote so that Title VII can finally be invoked to protect every individual employed within a jurisdictionally significant American business – even those who are “merely” minority and women partners in our largest legal and accounting institutions.

Some "disturbing inequities?"

Lets review the list:

1. unequal pay.

The mere fact that women are paid less is not an inequity. What would be an inequity is if people who make more valuable contributions have their compensation reduced in order to achieve make the statitistics between the genders even.

2. "She was told by a male partner that a woman with children should relinquish her partnership and work only part-time."

That's an inequity? His opinion may very well be a heartfelt one that mothers are valuable to children and should not be working a full-time job. Women can simply avoid this type of "inequity" by not having children. I'm almost 50 and don't have any, and yet I've managed to survive.

3. Kirleis also claimed she was told by another male partner that the role of women lawyers was to prepare lawsuits for trials that would be handled by male lawyers.

So, we are now up to 2 arguably sexist remarks by male partners in her entire career at a large firm with dozens of partners in nine states (http://dmclaw.com/).

4. The Christmas Party

Nearly every time I have a woman over to my crib, I learn about a new porn website or genre. One woman turned me on to pornhub, another to "gangbang creampies." There has been explosion in "porn addiction" among women:(http://www.washingtoncitypaper.com/blogs/sexist/2010/07/21/anti-porn-scholar-watching-porn-get-women-raped/). And nearly every time I am on a date with someone under 40 now, I end up getting dragged to a strip club.

The Christmas parties aren't closed to women - your confusing gender with social conservatism. I'm sure plenty attend nonetheless.

5. She was fired in retaliation.

Lets see how you would respond if your business partner sued you.

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The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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