Supreme Court Clerks Sue Law Firm Over Parental Leave Policy

| Jason M. Knott

On Tuesday, married couple Julia Sheketoff and Mark Savignac filed an attention-grabbing lawsuit against their former law firm, Jones Day, for gender discrimination and retaliation. Jones Day is one of the largest law firms in the United States, and was the subject of a lawsuit filed earlier this year by female lawyers alleging a “fraternity culture.” 
According to their complaint, Sheketoff and Savignac each clerked for Justice Stephen Breyer, and then joined Jones Day’s prestigious Issues & Appeals practice as associates. They eventually each received half-million-dollar salaries. But all was not well.

Sheketoff alleges that Jones Day doctored her website photo to make her look more “Caucasian,” and that she received a negative performance evaluation after critiquing a partner’s work because she is a woman. She left the firm in 2018.
She and Savignac had their first child at the end of that year. They each raised issues with Jones Day’s parental leave policy, under which primary caregivers (whether male or female) receive 10 weeks of leave, and women who give birth can receive an additional 8 weeks of disability leave. For adoptive parents, Jones Day gives 18 weeks of paid leave.
Savignac asked for 18 weeks of paid leave, and the firm said no. Savignac then emailed the firm, stating that he found this practice to be illegal and that he opposed it. On January 16, 2019, Sheketoff and Savignac sent an email to Jones Day stating that the policy was inconsistent with the law, and that Savignac would be a “named plaintiff” in a lawsuit if the firm did not give him the treatment that it “gives to all women with new children.” 
Three days later, the firm fired Savignac.
Sheketoff and Savignac—who are representing themselves in the lawsuit—claim that the firm discriminated against each of them based on their gender, and that it retaliated against them by firing Mark when he complained about the firm’s leave policy.
Jones Day is not backing down: its managing partner, Steve Brogan, issued a statement calling the lawsuit “false and self-indulgent,” and said that it fired Savignac because of his “intemperate email” demanding that the firm give him 18 weeks of leave “or else.”
Sheketoff and Savignac’s claims present a number of interesting issues. 
For one, Jones Day does not seem to be disputing that it fired Savignac because of his email demanding additional leave. And federal law does prohibit employers from retaliating against employees for opposing discrimination. But that does not mean that Jones Day has conceded that it violated the law. “Title VII was not designed to ‘arm employees with a tactical coercive weapon’ under which employees can make baseless claims simply to ‘advance their own retaliatory motives and strategies.’” Mattson v. Caterpillar, Inc., 359 F.3d 885, 890 (7th Cir. 2004). Jones Day may argue that Sheketoff and Savignac were making a baseless claim that Jones Day’s parental leave policy was discriminatory, and that as a result they are not entitled to legal protection against retaliation. 
Thus, the merit of the couple’s critique of Jones Day’s leave policy is central to their allegations.
Jones Day’s policy distinguishes between “primary” and “secondary” caregivers, granting ten weeks of leave to all primary caregivers regardless of gender. Parental leave policies frequently draw distinctions between primary and secondary caregivers. Some companies are eliminating the distinction, allowing a fixed amount of leave for all new parents. This may be a reaction to recent allegations against employers that they were more stringent in granting “primary caregiver” leave to men.
But Sheketoff and Savignac’s complaint isn’t directed at primary vs. secondary caregiver leave. Rather, they allege that Jones Day discriminates by giving biological mothers “eight more weeks” of parental leave. The couple claims that although Jones Day “labels” the additional eight weeks “disability leave,” biological mothers are not actually required to establish a disability to obtain the leave. According to their complaint, there is “no legitimate basis” for “giving sex-based disability leave to employees who are not disabled.”
The EEOC’s Enforcement Guidance on Pregnancy Discrimination and Related Issues, however, states that “[l]eave related to pregnancy, childbirth, or related medical conditions can be limited to women affected by those conditions.” In Example 14, the EEOC describes the following scenario, which sounds quite a bit like the couple’s complaint:

An employer offers pregnant employees up to 10 weeks of paid pregnancy-related medical leave for pregnancy and childbirth as part of its short-term disability insurance. The employer also offers new parents, whether male or female, six weeks of parental leave. A male employee alleges that this policy is discriminatory as it gives up to 16 weeks of leave to women and only six weeks of leave to men. The employer's policy does not violate Title VII. Women and men both receive six weeks of parental leave, and women who give birth receive up to an additional 10 weeks of leave for recovery from pregnancy and childbirth under the short-term disability plan.

(Emphasis added.)
Sheketoff and Savignac will have to rebut this example to prove their discrimination claim. Presumably, they will argue that Jones Day’s policy still violates Title VII because it presumes that women who have given birth are disabled without evidence to that effect. But that practice might not constitute discrimination against a man who has not made a claim of disability but simply seeks additional parental leave. Indeed, partly on that basis, the Eighth Circuit has rejected a similar claim, holding that the University of Iowa reasonably approved periods of “presumptive disability” for new mothers so that it “d[id] not need to review medical records for each and every employee who gives birth.” Johnson v. Univ. of Iowa, 431 F.3d 325, 329 (8th Cir. 2005). 
We’ll be watching to see how the parties deal with these issues and the others that are likely to arise in this high-profile case.

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Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.