Earlier this week, Wendy Moore, a former partner at Jones Day, filed a representative action against the law firm in San Francisco Superior Court, alleging a single cause of action pursuant to the California Private Attorneys General Act (“PAGA”) for alleged violations of the California Equal Pay Act, as amended by the Fair Pay Act of 2015, and related violations of the California Labor Code. The PAGA permits employees to bring civil suits to recover penalties on behalf of themselves and other aggrieved employees for Labor Code violations. Unlike class actions, PAGA claims can proceed regardless of whether the plaintiff can meet the requirements to certify a class.
Moore, who is represented by plaintiffs’ firm Sanford Heisler Sharp, filed this representative action on behalf of herself and other current and former female Jones Day attorneys in California. While Moore’s counsel, Sanford Heisler Sharp, LLP, have filed several other pay equity actions against major defense law firms in the last two years, this action is particularly noteworthy because of the nature of the claims alleged. Specifically, unlike other recent pay equity lawsuits against law firms, Moore’s case does not assert any class claims. Moreover, it does not allege a stand-alone cause of action pursuant to the California Equal Pay Act. Instead, Moore seeks to recover the underlying underpaid wages, in addition to PAGA penalties and attorneys’ fees, through her catch-all PAGA claim.
While it is impossible to guess at the reason for this strategy, the Complaint alleges that there are only five female partners in California, which would not satisfy the numerosity requirement for a class action. Also, plaintiffs often file their claims under PAGA rather than as a class where the plaintiff has signed an arbitration agreement which would result in the claim being sent to arbitration, possibly on an individual basis.
According to the Complaint, the firm’s purportedly male-dominated environment creates a “fraternity culture” in which male attorneys advance and female attorneys are treated as “second-class citizens.” Moore alleges that male partners mentor and assign work and clients to male associates creating a “patronage system” that offers fewer opportunities to female attorneys and results in systemic pay discrimination.
The Complaint alleges that Jones Day’s “black box” compensation system and “subjective performance reviews” result in female attorneys being paid less than their male counterparts for substantially similar work. According to Moore, associate compensation is not set by the typical lockstep system used by major law firms, but by a small number of male partners who undervalue and underpay female attorneys. Moore also claims that partner compensation is even more subjective and biased against female attorneys because it is set by a single male partner.
According to the Complaint, Jones Day perpetuates the alleged pay inequality at the firm through “an enforced code of silence,” which prohibits associates and partners from discussing their compensation. Moore claims that this “code of silence” hides pay disparities and prevents female attorneys from discussing or trying to equalize their compensation relative to male attorneys at the firm.
Moore also alleges that when she raised concerns about the firm’s “gender pay disparities” and “the ways in which Jones Day’s male leadership creates barriers to advancement for female attorneys,” she was told to stop working with the male partner who provided the majority of her work, excluded from partner events, and ultimately terminated.