Photo: Diego M. Radzinschi

Jones Day is again defending its long-running practice of keeping all compensation decisions confidential, doubling down on its pursuit of sanctions against the Sanford Heisler Sharp attorneys who are litigating a $200 million gender discrimination lawsuit against the firm.

In a new filing Jan. 24 in Washington, D.C., federal court, the firm asserted that the plaintiffs had ample opportunities to identify facts that disprove their "inferences" that it systematically underpays women, and it said its policy of concealing details of individual compensation predates the arrival of its first female Jones Day attorney in the early 1960s.

"When compensation is individualized and merit-based, confidentiality helps to promote collegiality by avoiding jealousy, bitterness, and anger (on the part of the lower-paid) and arrogance, superiority, and ego (on the part of the higher-paid)," the firm wrote. "It also prevents embarrassment both for those who make less than their peers and those who make more."

The six named plaintiffs—Nilab Rahyar Tolton, Andrea Mazingo, Meredith Williams and Jaclyn Stahl, who all worked for the firm in California, along with former Atlanta associate Saira Draper and former New York associate Katrina Henderson—have alleged that the black box compensation structure employed by the firm helps enable discriminatory pay.

But after Jones Day argued in a December sanctions motion that even cursory research should have induced them to put aside their claims, the firm has amplified its attack on the former associates and their own lawyers' conduct before they filed their lawsuit.

"Plaintiffs knew far more than they let on in their pleadings—and the facts they knew contradicted the inference that they claim to have indirectly drawn from plaintiffs' perceptions (from their limited vantage point) about the firm's 'culture,' its evaluation process, and its long-held belief that publicizing individual lawyers' compensation interferes with client service," Jones Day said in the filing.

The firm is again focusing on the question of whether its promise to pay associates "market-rate" pay equates to matching the salary scale adopted by Cravath, Swaine & Moore, after the plaintiffs pointed to how their own compensation failed to match Wall Street firm's widely publicized pay rates.

Jones Day argued that the plaintiffs knew first-year starting salaries did not equal Cravath's starting salary in all the firm's offices, that two of the California plaintiffs were earning more than the Cravath base salary while some of their male colleagues in the state were just earning the Cravath base, and that none of the plaintiffs could identify a single male associate outside of New York who was earning the Cravath base plus that firm's bonus.

Jones Day also looked to the plaintiffs' own salary histories and comparisons they offered to some of their unnamed male counterparts. It filled in the home offices of some of the males, in an attempt to demonstrate that all of the higher-earning men were based in New York, and that several of the four plaintiffs who worked in Irvine, California, out-earned their male colleagues with comparable experience.

"Discovery shows exactly what one would expect at a non-lockstep law firm: sex-neutral variation, as some women do far better than the average male (Mazingo, Stahl) and others fall below average (Draper, Tolton), depending on their individual performance," the firm said.

Jones Day also assailed the plaintiffs lawyers' alleged failure to even probe other former associates about compensation, given the contradictory information they already had at their disposal.

"It would be one thing if counsel had emailed former associates and got the cold shoulder. But counsel did not take even that basic step," the firm said.

"We have nothing to add beyond our filing in response to Jones Day's original motion," Sanford Heisler's Deborah Marcuse, partner and lead counsel for the plaintiffs, said in an email in response to a request for comment.

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