We’ll get back to the subject of pay raises for law firm associates in a minute. For now, here’s a quick update on the other story that Biglaw is abuzz about: Charney v. Sullivan & Cromwell, the case filed against S&C by associate Aaron Charney, alleging anti-gay discrimination and retaliation.
We’re monitoring coverage of this lawsuit through a news feed. Here are links to, and excerpts from, the latest stories:
1. Maple Grief [TheLawyer.com]
[O]ne charge [in the Charney Complaint] strikes [us] as particularly heinous. And that is that partners at the firm said the prevailing attitude internally was that “S&C considers all Canadians to be irrelevant”.
Given that the firm’s M&A lawyers spent most of last year defending Canadian nickel producer Inco on a £9.3bn hostile bid, we would be keen to hear Sullivan’s arguments played out in a tribunal.
2. Fake-Lawyer Jokes Better Than Real-Lawyer Jokes [New York Magazine / Daily Intelligencer]
A very brief mention — but with a shout-out to ATL:
Aaron Charney, the gay associate suing his former firm for discrimination, hasn’t gotten the support he expected from New York’s Lesbian and Gay Law Association. [Above the Law]
3. The Tough Road Ahead in the Lawsuit against S&C for Anti-Gay Discrimination: The Plain Truth about Plaintiffs [FindLaw]
Those of you who have been hungering for a dissection of Aaron Charney’s case by an employment lawyer will appreciate this excellent article. It’s by Professor Scott Moss, who teaches employment discrimination law at Marquette. Before entering academia, he practiced plaintiff-side employment law for several years, at Outten & Golden LLP in New York City.
It’s quite interesting. Highlights and our commentary, after the jump.
Professor Moss begins:
For all the talk of wacky harassment lawsuits and litigation-fearful employers, in practice it turns out it’s amazingly hard to sue one’s employer for discrimination or harassment. That’s my experience as an employment lawyer — and I believe that’s the rude lesson a hotshot young lawyer is learning, having sued his own law firm.
(Hmm… What do the guys at Overlawyered think?)
Some thoughts from Professor Moss on Charney’s “going commando” in this case:
The reason lawyers may be scarce in cases like Charney’s is that they know employment discrimination and harassment cases are no piece of cake. Plaintiffs win less often than in other kinds of lawsuits, and victories usually are underwhelming: winners’ damages awards usually are too low to make litigation a worthwhile investment for a paying client, or for a contingency-fee lawyer….
The big-ticket item is lost wages, and here’s the catch: If you’re “just” harassed, and not fired, you typically haven’t lost any wages at all. This may be a key reason S&C put Charney on paid leave. That option avoided starting the clock ticking on the kind of high lost-wages damages award that could attract a top employment lawyer to the case. As a result, Charney had to draft his complaint himself, with mixed results.
Professor Moss agrees with our “not bad for a pro se” assessment of Charney’s complaint:
Charney’s no dummy – he’s an honors Columbia Law School grad. Thus, it’s no surprise that, for the work of an amateur, his complaint is pretty impressive. Unfortunately, though, Charney isn’t an employment lawyer, and it shows. Most of the flaws sound technical, but they truly matter – for the claims that are pled, are those that are litigated (unless the complaint is amended: Hint, hint).
For example, Charney claims a “pattern or practice” of discrimination — a term that typically means discrimination against many employees. But the acts the complaint describes show, instead, a great deal of discrimination against Charney alone.
What Charney should have claimed, instead, was a “hostile work environment” that was “discriminatory and retaliatory,” and sufficiently “severe or pervasive” to alter his employment conditions. These are the elements the plaintiff must allege for a basic “harassment”-type claim.
Here’s some analysis of Charney’s future employment prospects:
At some point, Charney will be gone from S&C. In theory, whether he wins or loses his case, the anti-retaliation laws make it illegal for another law firm to decline to hire him because he’d sued – but that and a token won’t get him more than a subway ride.
I’ve heard recruiters call an otherwise impressive professional who’s filed a discrimination lawsuit “radioactive.” Firms don’t have to tell an employee why they passed on hiring him, which is one reason failure-to-hire lawsuits are, the statistics show, rarely filed.
This all sounds ugly, but if the case isn’t resolved early, it will get uglier still: The real intrusiveness comes in the discovery and evidence-gathering phase. Most likely, S&C will get Charney’s medical and psychological records (if any). In addition, Charney will most likely get the sensitive personnel file documents of both his peers and his alleged harassers.
So why would anyone volunteer for this kind of misery? None of the possibilities is a rosy scenario:
First, Charney may simply be clueless about the level of ugliness to which this will predictably descend….
Second, Charney may simply want justice at any cost. If he truly was harassed, and did suffer retaliation at S&C – already a severe career setback — then he may figure he has little to lose. He may also be an idealist who wants to protect others against homophobia and the setbacks he has suffered.
Third, as is possible in any such case, Charney may simply have concocted these allegations to extort a settlement or cover up workplace failures.
Which type of plaintiff is Charney: clueless, idealistic, or cynical? That’s the drama of discrimination cases: you rarely can tell at the start.
This ambiguity is reflected in our public opinion poll, asking you whether you support Charney or S&C in this case. (Btw, that poll is still open; you can vote by clicking here.)
We’ll just have to wait and see – or, more likely, never know. That’s because most parties reach confidential settlements requiring silence about both the case and the settlement amount.
Will S&C settle the case? On the one hand, they refused to settle at an earlier point in time, when the public relations spectacle could have been avoided. And they’ve given no indication lately of wanting to settle. So perhaps they’re determined to fight it out.
On the other hand, this whole episode has been rather embarrassing — or, at the very least, rather distracting — for the firm. They may just want it to go away, especially before an ugly discovery process begins. And, of course, statistical probability is on the side of settlement (since upwards of 90 percent of cases get settled).
If you have thoughts on this, please share them in the comments. And feel free to take our poll on how much you think Aaron Charney’s case is worth, which you can access by clicking here. Thanks.
Earlier: Prior ATL coverage of Charney v. Sullivan & Cromwell (scroll down)