Jones Day Moves to Dismiss Claims by Supreme Court Clerks, Arguing that Parental Leave Policy Did Not Discriminate
In our last post, we analyzed the complaint that Jones Day ex-associates Julia Sheketoff and Marc Savignac filed against the firm. Sheketoff and Savignac, a married couple, allege that the firm discriminated against them and retaliated against Mark when he complained. They focus on the firm’s parental leave policy, under which new birth mothers receive 18 weeks of paid leave but new fathers receive 10 weeks.
Jones Day’s central argument is that its leave policies are not discriminatory. It explains that it gives all primary caregivers 10 weeks of paid leave, and that birth mothers can request 8 additional weeks of paid leave under the firm’s disability policy. It argues that it is not required to force new mothers to prove that they are in fact disabled to take the disability leave, and that it can reasonably presume that birth mothers are disabled for 8 weeks after childbirth. It also contends that its policy does not discriminate against Savignac, because, unlike a new mother, he is not reasonably presumed to have been disabled by giving birth.
Savignac and Sheketoff respond that the “disability leave” label for the 8 additional weeks is a “sham,” as further shown by the fact that Jones Day gives an extra 8 weeks to “adoptive parents, who incur no disability whatsoever.” They claim that the leave policy guarantees 8 additional weeks of leave to birth mothers without regard to whether they are actually disabled, and that it is therefore not drawn to cover only the period during which birth mothers are unable to work (which they admit would be permissible). Jones Day, however, contends that the adoption policy is a separate policy that does not discriminate based on sex (because the primary adoption caregiver receives 18 weeks of leave regardless of sex), and that this extra time is reasonable because of the additional time and financial demands of adoption.
As to Savignac’s claim that the firm retaliated against him by firing him when he complained, Jones Day says that a “reasonable lawyer” in his position would not have believed that the policy was unlawful, and that it fired him for “poor judgment and immaturity” reflected in an “extortionate threat to harm the firm” in the “court of public opinion.” But the couple responds that “reasonable attorney[s]” could view the firm’s policy as “sex discrimination” that is “not based on disability but solely because of sex.”
To resolve Jones Day’s motion, the court will have to grapple with whether the plaintiffs have sufficiently pleaded that Jones Day’s disability leave policy is a sham, and is in fact designed to give all new mothers (but not fathers) 8 additional weeks of leave regardless of whether they are disabled. Jones Day and the plaintiffs fundamentally disagree as to whether, as Jones Day contends, the policy is based on a “presumption”—birth mothers are disabled for 8 weeks without having to prove it—or, as the plaintiffs contend, it is a “substantive rule” under which birth mothers get 8 weeks of additional leave, and fathers do not.
In addition to deciding whether the plaintiffs can proceed on their “substantive rule” theory, the court will also have to decide whether Savignac and Sheketoff’s challenge to the policy was “objectively reasonable,” such that Savignac was protected from being fired as a result of his complaint.
We’ll be watching to see how the district court resolves these issues. In the interim, employers may want to review their own policies to see if they open the door to a “sham” argument similar to the one Savignac and Sheketoff are making. The plaintiffs and Jones Day agree that it is proper to give birth mothers a period of disability leave if they are in fact disabled, so employers should be attentive to whether their policies take that approach.