A Maryland attorney said her federal lawsuit against King & Spalding should go forward to “redress the wrong done” by the firm’s “overt” discrimination against her when the firm said a first-year law student program was limited to “ethnically or culturally diverse” or “LGBT” applicants.

Attorney Sarah Spitalnick said in a filing earlier this month opposing the law firm’s Sept. 19 motion to dismiss in the U.S. District Court for the District of Maryland that she has standing to bring her claim because she suffered an injury “in fact” and it was not “self-inflicted” despite Spitalnick never applying for the program in 2021.

Spitalnick, who is now an attorney in Baltimore, was a first-year student at the University of Baltimore School of Law in 2021 when she saw an ad on a school job board seeking applications to the law firm’s 1L Summer Associate Leadership Council on Legal Diversity (LCLD) program.

“At the time of the defendant’s job posting, Ms. Spitalnick met all stated qualifications for the ... position aside from the requirement that she ‘must have’ an ‘ethnically or culturally diverse background or be a member of the LGBT community,’" her Nov. 8 filing stated.

“Whether or not King and Spalding believed it was promoting ‘diversity,’ the effect of its advertisement was to send a particularly toxic message to young lawyers: success in the profession is not a question of merit, but a function of skin color and sexual orientation, immutable characteristics that should neither constitute a bar nor a boon in the pursuit of a legal career,” the court document stated.

The document noted King & Spalding’s motion to dismiss was based on its argument that Spitalnick's claim lacked subject matter jurisdiction and failed to state a claim under the Federal Rules of Civil Procedure.

However, the document noted the Equal Employment Opportunity Commission issued a ruling that stated “there is reasonable cause to believe that [Spitalnick] was discriminated against because of her race and sexual orientation when she was deterred from applying for the summer associate position in violation of Title VII.”

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, sexual orientation and gender identity, among other factors.

The document stated that Spitalnick suffered an “injury in fact”—despite the law firm’s claims she was deterred from applying for the LCLD position and therefore never submitted an application for the position.

“This claim ignores the EEOC determination letter finding expressly that there is a reasonable basis to conclude that Ms. Spitalnick was the victim of racial and sexual discrimination because she was deterred from applying for the LCLD position,” the document stated.

“Put differently, the absence of an application is evidence of discrimination, not the other way around. Defendant ignores well-established law that plaintiffs who are deterred from applying for employment because of the humiliation of certain rejection have standing to pursue employment discrimination letters.”

It also stated King & Spalding “ignores both the EEOC finding, which at an absolute minimum, indicates there is a factual question that cannot be resolved on a motion to dismiss, as well as the applicable Supreme Court and Fourth Circuit precedent stating that, where an application would constitute a ‘futile gesture,’ a victim of discrimination need not go through the motions of submitting a pointless application to have standing and to be able to recover on the merits.

“Despite this precedent, defendant urges the court to dismiss the complaint on the grounds that plaintiff never actually applied for the job at issue, claiming that effectively deterring a candidate from applying for a position on racial and sexual lines operates to deprive the deterred candidate of her day in court."