Episode 9: In the Name of the Law
Can I sue? When to sue? How to sue? And more importantly, should I sue? Many Black women struggle with those questions even after they’ve fallen prey to racial and gender-based pay discrimination. In this episode, Manhattan attorney and law firm partner Lisa Alexis Jones, who has won and settled multiple pay discrimination cases, outlines factors to consider when debating legal action.
Due to the pandemic, this interview was recorded by Zoom and/or phone. A transcript is available below. In The Gap was created with the support of the Leonard C. Goodman Institute for Investigative Reporting and In These Times magazine. Contact the show at email@example.com.
CHANDRA THOMAS WHITFIELD, HOST: Welcome to In The Gap, a podcast about how and why Black women aren’t getting their green. I’m your host, journalist Chandra Thomas Whitfield.
WHITFIELD: Can you sue? When to sue? How to sue? And more importantly, should you sue? Many Black women struggle with those questions when they feel that they’ve fallen victim to racial and gender based discrimination on the job. Today on In The Gap, we delve into the legal side of things.
LISA ALEXIS JONES: There are differences in the federal level depending on what federal circuit you’re in. There’s also differences in the state level and what state law or city law is applied.
WHITFIELD: That’s our guest today, Manhattan based attorney and law firm partner, Lisa Alexis Jones. She has won and settled multiple pay discrimination cases. A 2009 analysis by employment law professor, Minna Kotkin, found that 73% of discrimination lawsuits fail. Now that number soars up to 96% in cases where multiple forms of discrimination is alleged, such as both race and gender. So we had to turn to Lisa Alexis Jones for some insight. She’s going to outline some of the many factors you should consider when debating whether or not to take legal action. Welcome to In The Gap Lisa.
JONES: Great. Thank you. It’s my pleasure to be here.
WHITFIELD: This is a huge issue and you know there’s a lot of emotion and anger. Sometimes that turns into wanting retribution, wanting that employer to be held accountable and, you know, in a very public and formal way. So let’s just start with when should you consider suing? What should be the foundation of you considering a lawsuit?
JONES: One of the factors that you should consider if pursuing a case either by complaining internally or by filing suit, I would use the barometer of “what is best for my career” on the short term and on the long term because these cases can be, particularly after you file suit, can be daunting from the standpoint of it being a public filing against the company, but it’s a public filing in support of you as well as against you. You want to be very careful where you are in terms of your career, what risks are you willing to take in terms of potentially righting the wrongs for you and for women who are coming behind you or working with you as peers. I think that is probably the most important aspect and the most important issue that you can consider second to “how is it going to affect my family.” And then you go to “well what type of evidence do I have that would support my position that there is a pay disparity between myself and my male colleagues who are doing substantially the same work that I’m doing for the same company and for the same division?” So that’s the second piece of it and that’s obviously more geared toward an analysis of what your case is about.
JONES: Then you kind of go down the list. “Can I afford to do it?” It takes money. “Do I have the time to do it? What is my end game?” I have a picture of Rosa Parks in my office and I just told someone this the other day, “Not everybody has to be Rosa Parks” and not everyone can be Rosa Parks. Sometimes you just have to deal with the situation as it comes to you and do what you can in small steps, small incremental steps. Just like sitting at the lunch counter, small incremental steps. For her, it was, you know, refusing to give her seat. From her perspective, a small incremental step that turned into a very big step. You have to look at it from that standpoint. If you look at it from the standpoint of “I am going to bring systemic change to systemic issues that predate you and have been going around since the beginning of this republic” then you will almost always be disappointed.
WHITFIELD: Like you said, everyone’s not going to want to be Rosa Parks and make that stand but what do you actually have to prove to even remotely have a strong case?
JONES: Well the plaintiff has to burden the proof. In Title XII cases and the Equal Pay Act cases under that statute, you have a burden of proof by preponderance of the evidence compared to a criminal case which the government has the burden to prove beyond unreasonable doubt which is supposed to be pretty high. Preponderance of the evidence is not that high. So what you would need is evidence of a pay disparity, and it really doesn’t matter how much that disparity is, that just goes to the weight of the evidence. But a significant enough pay disparity that infers that discrimination is afoot or can only be explained by discrimination as opposed to other non-discriminatory factors such as experience, such as the extent to which each person had the same supervisor throughout their career. Things like that that can be explained in other means and other evidence. So the problem is that more often than not, there is a black box in terms of compensation. That is you don’t know what your peers are being paid and you certainly don’t know what their salary history is in a way that will make an informed decision about whether you have the evidence to bring a lawsuit.
JONES: Eventually, you’ll get that evidence discovery, but unless you are very lucky… For instance there’s a suit going on in Denver with a law professor who as a result of a prior lawsuit brought by the EEOC and a consentatry brought by the prior lawsuit that required the university to internally disclose the salaries of all of the professors at the university. It was only as a result of getting that information through that process was this particular woman to glean and produce enough evidence to even make a good faith showing in terms of filing a complaint in the first place. More often than not, you don’t have that information. Sometimes you get lucky. More often than not, I think someone has printed something out and you just happen to see it on the copy machine. You’ll be in the situation where people are very open about their compensation. Maybe you know somebody really well. Other than that, that’s really the only way that you could find out. Essentially a black box and it occurs up and down the professional spectrum. A lot of cases that have been coming up lately that have been kind of these press cases, in addition to this woman in Denver and she was a law professor, are these law partners who have been filing suits against these very big law firms for pay discrimination. These are women who have a fairly high bargaining position, they are well-schooled in litigation and understanding these cases. They may have access to certain information because maybe they are on the compensation committee or know people on the compensation committee and even those women are having not easy times litigating and succeeding in litigation in those cases. You have a law partner who knows what she’s doing, has the resources to litigate it and still systemically there are pay issues that are rampant among large law firms.
WHITFIELD: So it really sounds like this is really an uphill battle and you need to be prepared for that reality.
JONES: Discrimination cases across the border are uphill battles. Particularly on the federal level, the courts have made it particularly easy to prevail. There’s something called a procedural mechanism called summary judgment and it is a tool used by judges, primarily, to widdle these kinds of cases out of the system and it’s been a pretty effective tool. That’s a motion that says “Look, even if everything Jane says is true. That there is a pay dipetch that John makes $10,000 more than Jane does, that even if that’s true, she still can’t prevail for a variety of reasons as a matter of law. One of the ways they are able to do that is to argue that they have, had or have, a legitimate non-discriminatory reason for why John is making $10,000 more than Jane is. And the employer doesn’t have to prove it. They have to present or proffer some evidence that backs that up, necessarily pertinent proof along those lines or purpose of summary judgement. So if a lawyer makes that proffer for instance as well maybe John has a larger book of business than Jane does, then the burden shifts to Jane to establish that reason is not true. Or that that reason, in and of itself, is evidence or a result of gender discrimination in the workplace. In my opinion, meritorious cases are kicked out on summary judgment in part because there’s just so many of these cases in the courts, there is a way for these courts to manage their caseload and dismiss a large portion of these cases. That’s also why you have to be mindful that you have to be open to settling, that there are going to be roadblocks to your succeeding with your lawsuit. But primarily, again from the very beginning, be very clear what your goal is.
WHITFIELD: It also has a lot to do with where you’re located as well. Certain states, I guess, have laws that are more supportive to plaintiffs.
JONES: There are differences in the federal level depending on what federal circuit you’re in. It’s also differences in terms of the state level in what state law or city law applies. So for instance, New York state and New York City have probably the most progressive local state laws in the country, Probably very close to the way California legislature has enacted statute as well. So, for instance, it’s a lower bar to prove gender discrimination and there’s also an equal pay act statute under the New York state and New York City laws. That burden is less than the burden you would have to prove under Title XII.
WHITFIELD: What about just the basis of gender?
JONES: Even on the federal level there are some circuit courts that are more progressive, I should say, than some other circuit courts of appeals. For instance, in the context of gender discrimination under Title XII and whether sexual orientation is a protected class for purposes of Title XII, the 2nd circuit which is based in New York and relatively progressive, has said “Yeah that sexual orientation is protected.”
WHITFIELD: How does pregnancy fit into all of this?
JONES: Pregnancy is a big issue. From the standpoint of taking leave and the extent to which that is derived in conscious or unconscious bias against that woman in terms of her contribution while she is out on pregnancy leave or maternity leave and then to the extent to which there is a bias that her child rearing responsibilities will compromise the hours that she works and the quality of her work. It’s a major issue in terms of issues surrounding promotions, issues surrounding assignment of work, issues surrounding assignment of clients and when you look at pay disparities in terms of trying to figure out. ... Once you get to the point where you’ve filed a suit and you’ve had some evidence at least to make a good faith claim to file a complaint, what you’re going to be doing in discovery is trying to get as much information about you and your comparators so that you can kind of have an understanding of “well why is it that John makes $10,000 more than Jane does.” I would venture to guess a woman who’s in the workplace who has been on maternity leave at least once and has reared young children, at least at some portion of her career, that that fact has played a role in the disparity.
WHITFIELD: Now is there something, I know you’re saying talks specifically regarding your case with a lawyer, but just in general are there certain things you should start collecting? What are just some of the things that you can do to just help yourself at least make it a more plausible option to file this suit?
JONES: From my experience, I think there’s essentially two issues. One issue is the way an employer will classify a job. So there may be circumstances or there have been circumstances where the employer has essentially classified jobs that historically have been employed by male employees differently than jobs that have been historically employed by women employees. Even though, essentially these employees reporting to the same individual, that their work hours are similar, although their duties might be dissimilar, the training and experience and education level for each of those positions are similar enough that the justifications for why the employer is classifying the male dominated jobs as far as the way they are classifying the female dominated jobs doesn’t really make sense. The problem though is that employers have been fairly successful at making the argument that the male dominated jobs are, for whatever reason, deserving of either a higher pay scale from the start or either aggressive and accelerated salary and compensation throughout the history of that person’s tenure at that position. That’s been an uphill battle, trying to change the way employers, the court and jurors kind of look at these jobs and why is it that they are segregated the way they are and the extent to which that segregation perpetuates pay disparity. Then you get to actual pay disparities between people who are actually doing the same job. Again, you have to go back to the history of your client, the plaintiff, the employee and the pay history of the individual you are comparing them with. And looking at who has been giving them their performance evaluations, what those performance evaluations have been based on, what the initial salary was from start and you can kind of plot a progression that sometimes will tell the story that the only reason that this pay disparity could exist is because of gender discrimination.
WHITFIELD: Well this issue is very heavy and sometimes it’s very disheartening. Is there any inspiration you could leave us with? Anything to inspire that it’s not all doom and gloom?
JONES: Women in the workplace are a force. For the most part, now we comprise 50% of the workplace. Black women in particular are a force in the workplace. So there are some things you can do and I think #MeToo is a perfect example of how the wins of social change were able to change social change perceptions and change policies much easier than litigation has. People have been trying to litigate these sexual harassment cases since 1964 when Title XII was enacted. And obviously it’s still going on to the extent that there is serious retaliation associated with bringing these cases to the extent that you were able to get some money out it, it was essentially hush money if nothing else. It was only kind of the wins of social change that was able to break that log jam a little bit. I think this is going to be true in that realm as well. One of the things that women need to start doing is when they get the job offer, negotiate. Negotiate. Negotiate. Negotiate because I would venture to say particularly in professions, in jobs where you do have an ability to negotiate, it’s not just “hey, well starting salary is $35,000.” What probably happens more often than not is that from the start, John is making more money than Jane because John probably had negotiated. They can only say “No.” or they can only say “We can’t do that but we’ll do this.” So as a matter of practice, women are going to have to start thinking along those lines. Negotiate your salary. Negotiate your compensation, your compensation package.
JONES: That’s the start. Again, to the extent that eternally there may be women’s collectives within the workplace or something like that, you might exchange information. To the extent that you’re sharing information with each other about your pay, that is the pay of women in the workplace, it gives you some ammunition, but obviously if you don’t have the comparators information it doesn’t really do you that much good. And so the black box is always going to be one of the main hurdles. So negotiate and also if you have a sense or if you have evidence that John is making $10,000 more than you and you have complained or you have raised the issue or you have raised issues about your own particular compensation, not in comparison to John or anyone else but just on its own merits based on your performance, your experience and your tenure and you’re still not satisfied, the good news is that you can leave. And eventually I think that starts catching up with employers. When you have Glassdoor, you have Yelp, all kinds of social media websites and prospective employees can look at your website. They can go to Glassdoor, and they can kind of get a sense of what your retention rate of female employees are for certain employers. You can certainly get a sense of what their track record is. Before you go, you’ve got an offer or you’re interviewing, ask to be interviewed or to talk to another female employee, to the extent that you can, outside of management and get the low down.
WHITFIELD: That’s an important gem to leave us with. Thank you so much Lisa Alexis Jones for joining us. Again, she is a partner in the litigation and dispute resolution and employment practices department at Manhattan based law firm Robinson Brog Leinwand Greene Genovose & Gluck P.C. Firm. Thanks again. You shared us some wonderful information that will be very helpful.
JONES: It’s my pleasure. Thank you for asking me.
WHITFIELD: Well that’s it for today, Our show was reported and produced by me, journalist Chandra Thomas Whitfield. This episode was edited by Christine Aldrige and House of Pod. Our music is Convoy Lines by Blue Dot Sessions. In The Gap was created with the support of the Leonard C. Goodman Institute for Investigative Reporting and In These Times magazine, which has been covering issues of equity and social justice since 1976. To learn more about In The Gap and the pay gap for Black Women, go to www.inthesetimes.com/inthegap.