Decades-Old Gender Bias Case Marked Turning Point in Big Law

A decades-old settlement in Manhattan federal court serves as a measuring stick for how far Big Law has come in the fight for gender equality.

In May of 1977, Sullivan & Cromwell agreed to publish salary data to make it easier for women to compare how they fared in relation to men at the firm and to recruit, hire, and pay women on an equal basis with their male counterparts. The settlement — detailed in a New York Times article at the time — ended a gender discrimination suit brought by a woman who had interviewed at the firm but not been hired; Sullivan & Cromwell did not admit wrongdoing.

The case, Blank v. Sullivan & Cromwell, was part of a series of lawsuits and complaints filed in the 1970s that put law firms on notice that women expected equal treatment in the legal profession under the relatively new law, Title VII of the 1964 Civil Rights Act, which prohibited employment discrimination based on race, color, religion, sex, and national origin.

In 1975, Diane Serafin Blank claimed in a certified class action that the firm discriminated against her and other prospective women associates, solely because of sex. The case resulted in a settlement that called for a three-year review of Sullivan & Cromwell’s hiring, assignment, promotion and salary schedules of the firm to assure  the firm “will not pursue employment policies and practices which discriminate on the basis of sex.”

Blank “was one of the handful of cases that opened up the law firm world to women,” said Tomiko Brown-Nagin, a Harvard Law School professor who studied the case as part of her work on a biography of Constance Baker Motley, the Southern District of New York judge who oversaw it. “It was a tremendous case, a tremendous settlement that led to the recruitment of women as associates to law firms, led to attention to pay disparities, and led to the implementation of new norms regarding how women were treated at law firms.”

View the full settlement order from Motley below, via Bloomberg Law.

Blank_v._Sullivan___Cromwell_

 

Today, those issues continue to be relevant. Even as some firms are being challenged for their treatment of women — Chadbourne & Parke has been in the headlines recently as it battles gender discrimination claims from three of its former partners; Proskauer Rose was hit with similar claims last week (plaintiffs’ firm Sanford Heisler Sharp is handling both cases) — Big Law increasingly offers benefits designed to attract and retain female talent, including flexible schedules, remote work options, and generous maternity leave policies.  

But the question remains, how far have women come at law firms since the Blank settlement? Although much progress has been made, the answer is not far enough, according to the National Association of Women Lawyers, which publishes annual data based on a survey of the top 200 law firms.

In 2006, the organization issued a challenge to law firms to increase the number of female equity partners to at least 30 percent by 2015. At the time, women made up 16 percent of equity partners at firms. In the most recent survey from 2016, women made up 18 percent of equity partners and earned, on average, 80 percent of what male equity partners earned. Of the 73 responding firms, none reported having a woman as its highest earner.

“The movement is not what you would expect,” said the organization’s president Leslie Richards-Yellen, who noted that the progress for people of color is even slower.

Richards-Yellen said a number of factors have historically held women back at law firms, including the time necessary to have and raise a family and the way clients are passed from one “relationship” partner to another (a practice that can lead men to choose other men as their successors). But Richards-Yellen said clients are now a big part of the push for greater diversity of all kinds from their law firms and that law firms are — in response and on their own initiative — taking steps to remove obstacles that have disproportionately impacted women.

“Things like that are increasingly going to move the needle,” she said. “As are the numbers. Women are here.”

Indeed, women’s enrollment at law schools has skyrocketed over the past few decades. In 2016, for the first time ever, women made up more than 50 percent of first-year enrollment.  In 1970, when Diane Blank, the plaintiff in the Blank case, interviewed at Sullivan & Cromwell at New York University School of Law (the case is described in detail in a chapter by Cornell Law School Professor Cynthia Grant Bowman in the book “Women and the Law Stories”), women made up eight percent of total law school enrollment, according to data from the American Bar Association. By the time Blank filed suit against the firm in 1975, women represented nearly a quarter of law school enrollment.

Things changed quickly at Sullivan & Cromwell during that time as well. The U.S. Equal Employment Opportunity Commission, where Blank filed a claim before bringing her lawsuit, ruled against Blank in part because, according to Bowman’s chapter, although women made up 1 percent of the firm’s associates in 1970, they made up 12 percent in 1974. Today the firm continues to try to do better. The firm received a C+ from Bloomberg Law and Above the Law on gender diversity in 2016, with women comprising 38 percent of its associates and 18 percent of its partners. The firm now counts 33 women partners out of 173 total, or 19 percent. But in the last ten years, according to firm chairman Joseph C. Shenker, 28 percent of the people the firm made partner (20 out of 71) were women. Shenker also noted that women lead many of the firm’s practice groups and said women made up 43 percent of this year’s class of summer associates, up from 40 percent last year.

The firm also offers generous maternity leave policies, on site childcare, and office hours with women partners, among other initiatives, according to Shenker.  Several female attorneys at Sullivan & Cromwell have been promoted to partner while on maternity leave or after having children.

“This is critical to maintaining our excellence,” Shenker said in an interview with Big Law Business. “Our whole life blood is recruiting the best and the brightest from around the world.”

[Below, Shenker welcomes the firm’s 2014 class of associates and speaks to changes he sees in the legal market.] 

Karen Patton Seymour, a partner in New York and one of three women on the firm’s 12-person management committee, said the best endorsement she could give to the firm’s commitment to gender equality is her own decision to return to it after two stints in the Southern District of New York’s U.S. Attorney’s Office.

“Coming back is in my view a testament to the fact that S&C is a firm that is supportive of women,” she said. “I would never be part of an institution that I thought acted any other way.”

In the end, the Blank gender discrimination case is most famous for one of Judge Motley’s rulings. It came in response to a motion by defense counsel that she recuse herself because of her gender and her own experience with discrimination (Motley was the nation’s first African American female judge and handled cases for the NAACP before being appointed to the bench).

Motley denied the motion, writing:

“Indeed, if background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.” 

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