As Chadbourne & Parke fights a gender discrimination lawsuit filed by three women in Manhattan federal court, part of its defense strategy is taking shape and shining a light on the challenges the plaintiffs face.  

In the firm’s motion to oppose certifying the case as a collective action, its lawyers argued the three named plaintiffs — current partner Kerrie Campbell and former partnersJaroslawa Johnsonand Mary Yelenick — were each paid differently because of their “unique experiences and roles” at the firm, but not because they were women.

“Plaintiffs do not, and cannot, point to a firm policy governing the payment of partner compensation that is per se discriminatory,” lawyers for Chadbourne, Kathleen McKenna and Evandro Gigante of Proskauer Rose, wrote in the motion.

The defense points to the challenges for women lawyers trying to prove discrimination: Chadbourne has argued its compensation policy was the result of a complex calculation of both hard figures, such as revenue generation but also softer factors, such as activities to enhance the firm’s reputation or instances of teamwork that yield positive results.

According to Columbia Law professor Suzanne Goldberg, it is “typical” for defense lawyers to fend off collective or class actions by focusing on how the plaintiffs are different from one another, and thus lack enough commonality to band together in a single lawsuit.

Goldberg declined to comment specifically on the Chadbourne litigation, but said lawyers face another hurdle: Unlike workers on a factory floor who perform more or less the same tasks, lawyers have highly specialized and variable skills, duties, and performance expectations.

“As a general matter, it is challenging for high level employees to prove discrimination because they are in jobs that are not duplicative,” she said. “The essence of being a senior person in an organization is that no one else is doing your job, so employers often respond to discrimination suits by arguing that the people who work with or for them are different from one another.”

In a 2011 Yale Law Journal article, Goldberg argued that contemporary discrimination law, which is based on direct comparisons between how employees are treated, does not reflect the complexities of how discrimination works. Importantly, current case law does not easily allow for claims of structural discrimination, in which the structure and dynamics of a workplace work to exclude non-dominant groups, according to Goldberg. Women can be discriminated against in complex and subtle ways, but if they can’t prove another person in the exact same position but with a different identity was treated differently, it’s hard for them to succeed in court, according to the article.

Goldberg said it tends to be more difficult for women in senior roles or management positions to win gender discrimination cases. This has become even more difficult in recent years, as forms of sex and gender discrimination have moved from the realm of overt actions to structural barriers and implicit biases, she added.

“On this view, however abusively an employer treats its employees, the bad acts do not present a discrimination problem so long as they are committed in an evenhanded fashion,” wrote Goldberg.

After Ellen Pao, a former junior partner at the Silicon Valley venture-capital firm Kleiner Perkins Caufield & Byers, lost at trial in March 2015 on claims of gender discrimination against the firm, Stanford Law professor Deborah Rhode remarked upon how the complex nature of contemporary discrimination makes it difficult to prove.

“Much of it is what social scientists call micro-indignities — small incidents that viewed individually may seem trivial, but when viewed cumulatively point to a practice of insensitivity and devaluation that can get in the way of work performance,” Rhode  toldThe New Yorker .

Chadbourne, however, is also mounting a more technical defense: It also argued that none of the women suing it are eligible to bring claims under the Equal Pay Act because they are or were partners of the firm, not employees. And it argues, Johnson, who was based in Kiev, not the U.S., would also not be covered under the EPA for this reason.

Read Chadbourne’s opposition to plaintiffs’ motion to certify the case as a collective action below, via Bloomberg Law.

[pdf-embedder url="https://bol.bna.com/wp-content/uploads/2017/03/memo-in-opposition_Mar23.pdf” title="Chadbourne memo in opposition to collective action certification"]