Systemic sex bias allegations by a group of female former Jones Day attorneys still have “fatal holes” and should be dismissed, the firm told the U.S. District Court for the District of Columbia.

The “supposed” no-whining policy described by Nilab Tolton and the five other named plaintiffs in their third amended complaint isn’t founded on any alleged sex bias by the firm, Jones Day said Oct. 31 in its latest filing in the parties’ pleadings battle.

Rather, the complaint merely claims that managing partner Stephen Brogan’s alleged discouragement of bias gripes locks into place pre-existing sex-based inequities, the firm said. The female lawyers only cite to news articles about gender discrimination in the legal industry generally, which “say nothing about Jones Day,” the firm said.

The women also only allege the no-whining policy prevents existing sex bias from being redressed, the firm said. A “failure to remediate” discrimination isn’t the kind of specific employment practice that can prove classwide bias under federal law, it said.

Eliminating the need to cite a specific practice “would inevitably lead employers to adopt quotas, which is what motivated the Supreme Court to require plaintiffs to plead and prove a robust causal link” in class bias suits in the first place, Jones Day said.

The women’s theory that sex bias at the firm flows from placing too much power “in the hands of one man"—Brogan—similarly has “two gaping defects,” Jones Day said.

First, they cite no evidence that male attorneys are paid more than women lawyers, “or that men are promoted in higher numbers.” The women also fail to link any of the sex-based disparities they allege to a decision by Brogan, the firm said.

They merely allege that “he is a man,” and therefore he must exercise his authority “in a sexist manner,” the firm said. The U.S. Supreme Court repeatedly has held “that a manager’s sex” alone doesn’t support an inference of discrimination. Otherwise, “any company with a male CEO” would be exposed to disparate impact class bias liability, Jones Day said.

The women continue to treat their pregnancy and promotion discrimination allegations “as afterthoughts,” Jones Day said. Their Equal Pay Act and several of their individual claims remain unsupported, the firm said.

Sanford Heisler Sharp represents the women. Jones Day represents itself.

The case is Tolton v. Jones Day, D.D.C., No. 1:19-cv-00945, supplemental reply in support of motion for partial judgment on pleadings 10/31/19.