This was absolutely fascinating to me and thank you for this reporting. I left big law about 15 years ago to start my own small boutique firm with a few other people. This makes me incredibly glad that I did.
As for the hysteria over the Dobbs decision, I count myself amongst that group who is pro-choice but who has longed to see the decision overturned because it seemed to be based on such faulty reasoning and tantamount to judges legislating policy. I have listened to the oral argument in the Dobbs case, and the premise of the argument was that such an important and complicated issue should be returned to the democratic process. The notion that it would violate some firm's harassment policy to expess such an opinion is just insanity to me. I don't see how people purporting to be critical or logical thinkers can operate this way.
I'm also just surprised by the intolerance for other viewpoints these accounts reflect. I have radically different political opinions than my three law partners--I'm much more conservative--and while sometimes that is irksome to me because I just don't understand their way of thinking, the idea that the arrangement is so intolerable that I cannot practice law with them doesn't really cross my mind. I have respect for them as lawyers and we are not politicians or policymakers.
By trying to ensure that everybody in your law firm thinks the same way, I don't see how this is really helping with the zealous advocacy of clients. Different ways of thinking and different perspectives tend to bring out different legal arguments and approaches, and that's a good thing in a law firm.
You draw such an important distinction, Courtney. People forget the difference between (1) supporting or opposing abortion as a policy matter and (2) supporting or opposing Roe or Dobbs.
Professor Amar, mentioned in this story, is liberal and supports the right to abortion. But he, like you, is not a fan of Roe:
David, you do a remarkably good job of covering the issue. I appreciate and am grateful for that because regardless of one's personal feelings on this matter or countless other social issues, the way to learn, to grow, and to be a better advocate for whatever side you believe in is to understand the nuance of both sides and the arguments for and against. This piece, as several previous articles you have written have also done, illustrates a symptom of a larger issue - a seemingly growing intolerance for views that differ from one's own. You need not agree with everything someone else believes in to have a relationship with them business or otherwise. Too often we all seem to engage in knee-jerk reactions to an issue without much further thought.
How you deliver your viewpoints also matters. People can be respectful, and also I (who can be very strident) have learned to just say, "we have to agree to disagree on this."
Hypothetically, if the partner in the second case you describe was Catholic, and when asked “Am I correct in assuming you’re pro-life?” she responded, "I am Catholic, and I follow the teaching of my church, so yes, I am pro-life" would she have a case against the firm for employment discrimination based on religion?
Maybe, if she could prove the firm was discriminating against her based on her religion (although I know plenty of pro-choice Catholics). That being said, as someone who is stridently pro-choice, I don't think any lawyer should be forced to do pro bono work, particularly work where the person has a religious or ideological objection to it. I personally don't care if someone feels Dobbs was wrongly decided from a Constitutional law perspective or for any reason, and don't think someone should be fired for thinking/articulating that viewpoint.
While I get that this partner is "profitable," many people, including numerous Black people and people of color who are "profitable" to the firm, leave law firms because they don't feel they fit in "culturally" and are hampered from developing business. Many partners, regardless of race, leave for those very reasons.
But plenty of nonreligious people are anti-abortion too, and the pro-abortion firm likely does not care about the person's purely religious views, only their moral views.
To digress, there use to be Jewish law firms long ago. Are they unlawful now, at least if they give preference in hiring to Jewish associates? (see Courtney Angeli's comment on partners not being subject to the discrimination law).
It's interesting—when I worked at what was traditionally a Jewish firm, Wachtell Lipton, I was told many of these firms were established because their lawyers couldn't get jobs at the white-shoe, WASPy firms, even when they had superb academic records. But I don't have a sense that the Jewish firms discriminated against non-Jews (and I never felt that way as a non-Jew at Wachtell).
There were no "Jewish law firms". White shoe firms would not hire Jews. So Jews had to form their own law firms. I've never heard of a single such law firm that would not hire someone because he/she was a gentile.
Agree that abortion views sort on all kinds of moral lines. And, yes, a Jewish firm preferencing potential associates based on their religion would be unlawful - in most states under both state and federal law.
If the pro-life stance is taken in obedience to Catholic social teaching then it is a religious view and taking discriminatory action against that Catholic would appear to violate Title VII (assuming the Catholic is not excluded from Title VII because they are an equity partner).
If a law firm discriminated against non-Jewish associates today in hiring that would appear to be a Title VII violation.
I think there would be an argument in that direction unless the person is a true partner, in which case he or she would not be subject to the protections against religious discrimination contained in Title VII
Interesting. I seem to recall this issue arising in connection with an EEOC action against Sidley. In this case, as noted in the post, the partner is an equity partner.
That would be a factor in favor of finding the person not to be an "employee" within the meaning of Title VII, but it's not entirely dispositive. The last time I looked at these cases, of which the Sidley case is one, the overall size and level of involvement of the partner in the organization seemed fairly significant.
Also, if any of these associates are Catholic, this kind of pressure being applied would seem to be problematic from the standpoint of employment discrimination:
“On the Hogan Lovells call that Keller participated in, partners exhorted female associates to speak out, sign petitions, and pressure male associates to sign petitions against Dobbs”
If this was pervasive, it is redolent of a hostile environment under Title VII.
It depends on how the firm delivers the message and how "pressured" it really is. If it were me, I would say something to the effect of "If you feel strongly about this, we encourage you to speak out, sign petitions, etc." If firms want to financially support people who need to have an abortion, good for them. An anti-abortion person shouldn't care since they're not going to get an abortion anyway.
As long as there were no negative employment repercussions for Catholic associates that spoke out, signed petitions and pressured pro-choice associates to sign petitions then that approach should pass muster
Also, asking if someone is pro-life is not discriminatory per se. This partner could also be asking so that they know, going forward, that she would likely not be interested in doing this type of pro-bono work.
Yes, but if the person’s pro-life view is a religious belief then actions taken against the person as described in this piece would appear to be discrimination based on religion
I don't think the actions described constitute per se religious discrimination. She can take it up with a lawyer well-versed in these lawsuits if she wants to.
I think that attorneys who expressed agreement with Judge Luttig's statement that Donald Trump is a "clear and present danger" to the Constitution (https://www.youtube.com/watch?v=jzLNIDrjo-w) while they were employed by Jones Day or the Dhillon Law Firm should not be surprised if that expression led to their termination. My point is, there are a number of Big Law and Boutique firms where Right Wing views are not only welcomed, but required.
Maybe, but have you ever heard of an actual real story where someone was fired for not having Right Wing views?
I am very skeptical that Jones Day fires people for being pro-abortion, for example. Indeed, I wonder whether a majority of Jones Day lawyers are anti-abortion-- does anybody have an idea?
For a lot of people, just being willing to represent a Republican client means a firm is "Right Wing".
Biglaw political contributions overwhelmingly flow to Democratic candidates. And even at Jones Day, more than 75 percent of campaign contributions go to Democrats:
Many law firms have bipartisan Political Law practices where they may want someone who is steeped in the Republican Party. I had a client (who worked in the Obama administration make this specific request for their practice group.
At least with Jones Day and Dhillon, people who go to those places know where they stand. If you go to either firm, I have little sympathy for you if you get fired for being too left-wing.
I wish Biglaw firms other than Jones Day would just own up to their creeds, which would avoid traps for the unwary.
Suppose a big-law firm says publicly that it is willing to hire Republicans, and then when it finds out an associate is a secret Republican, fires that associate. Would that be fraud? Could the associate secure expectation damages, including the expected value of becoming a partner?
As you say, if a law firm says "We don't hire Republicans or conservatives," that would be perfectly legal (unless, perhaps, that was a covert way to avoid hiring Asians).
Except perhaps in certain jurisdictions—see the update added to my footnote 4. (I personally have big concerns about laws that protect political belief and expression in the employment context.)
The problem is that some political belief and expression may overlap with religious belief and expression--not regarding supporting a candidate or political party, but with regard to policy positions. For example, could a libertarian-supporting law firm refuse to hire a Catholic who, because of Rerum Novarum (the papal encyclical within Catholic Social Teaching that says morality requires a living wage be paid by employers) has the religious belief that a living wage should be imposed by government? (As long as that belief does not affect his or her representation of clients of the libertarian-supporting law firm).
"Would that be fraud? Could the associate secure expectation damages, including the expected value of becoming a partner?"
Just in time for any professors out there procrastinating on coming up with a 1L Contracts exam! Could be a great series of questions for an issue-spotter....
More seriously, though, I think part of the issue here is that the firing/demotion/whatever is rarely framed as "for being a Republican" or "for being conservative." When there's a publicly stated reason, it's generally "because you expressed this offensive opinion." With the implication that it's perfectly fine if you want to *think* that, and maybe even to *say* it -- to a different set of people, in a different way, at a different time -- but saying it when you did, to whom you did, that was a breach of professional decorum.
I think this is an extremely incoherent position, but I also suspect it reflects the way a lot of people caught in the middle of these controversies really do justify to themselves what's going on.
>> Some Keller critics, like Kathryn Rubino of ATL, argue that “it is dangerous to assert that just because a statement has been repeated within the right-wing echo chamber makes it acceptable.”
I'm struggling to grasp the use of "echo chamber" as a pejorative in the course of explicitly endorsing a workplace norm of staging conversations on political topics in which everyone is expected to express the exact same opinion and disagreement is considered an firing offense.
Does it matter why the SCOTUS ruled as they did in Dobbs? Suppose the decision turned on the religious beliefs of the justices, rather than legal argument and analysis? Would our attitude towards this decision be affected, even if the reasoning of the controlling opinion withstands all scrutiny?
With regard to "expressing support for the SCOTUS decision in Dobbs," does the reason for such support matter? My own opposition to the Dobbs decision is compounded of support for abortion rights and doubts about the motivations for the decision.
When we're talking about a retired partner who is being asked to not associate with the firm anymore it's pretty shrug-worthy but it seems to me that firing somebody actually representing clients over an expressed legal view is not fair to the clients if the firing could result in a termination of representation. That said, I think most people would argue that there is a line somewhere where expressing a legal view could cross over into harassment -- say gathering racial minority employees together and regaling them about how segregation should come back -- but I doubt this crosses that line.
Political views aren't protected in the employment context (although in NY and a few other jurisdictions political campaigning is) and partners AFAIK aren't protected at all, but it's a separate question whether firing somebody over heterodoxy is a good idea for a firm. I doubt it.
How is “ we don’t hire Republicans “ or “ we don’t hire Democrats “ any different from “ we don’t hire Jews” or “ we don’t hire Muslims?” I know political beliefs are not constitutionally protected but the essence is the same: discriminating against someone for their moral belief system. Therefore shouldn’t it be considered just as odious to discriminate against people in employment based in their party affiliation and at least contrary to the ethics rules governing the practice of law? I fail to see how you think this is OK.
This was absolutely fascinating to me and thank you for this reporting. I left big law about 15 years ago to start my own small boutique firm with a few other people. This makes me incredibly glad that I did.
As for the hysteria over the Dobbs decision, I count myself amongst that group who is pro-choice but who has longed to see the decision overturned because it seemed to be based on such faulty reasoning and tantamount to judges legislating policy. I have listened to the oral argument in the Dobbs case, and the premise of the argument was that such an important and complicated issue should be returned to the democratic process. The notion that it would violate some firm's harassment policy to expess such an opinion is just insanity to me. I don't see how people purporting to be critical or logical thinkers can operate this way.
I'm also just surprised by the intolerance for other viewpoints these accounts reflect. I have radically different political opinions than my three law partners--I'm much more conservative--and while sometimes that is irksome to me because I just don't understand their way of thinking, the idea that the arrangement is so intolerable that I cannot practice law with them doesn't really cross my mind. I have respect for them as lawyers and we are not politicians or policymakers.
By trying to ensure that everybody in your law firm thinks the same way, I don't see how this is really helping with the zealous advocacy of clients. Different ways of thinking and different perspectives tend to bring out different legal arguments and approaches, and that's a good thing in a law firm.
You draw such an important distinction, Courtney. People forget the difference between (1) supporting or opposing abortion as a policy matter and (2) supporting or opposing Roe or Dobbs.
Professor Amar, mentioned in this story, is liberal and supports the right to abortion. But he, like you, is not a fan of Roe:
https://www.wsj.com/articles/the-end-of-roe-v-wade-11652453609
Plenty of feminists also don't agree with the Constitutional underpinnings of Roe either.
David, you do a remarkably good job of covering the issue. I appreciate and am grateful for that because regardless of one's personal feelings on this matter or countless other social issues, the way to learn, to grow, and to be a better advocate for whatever side you believe in is to understand the nuance of both sides and the arguments for and against. This piece, as several previous articles you have written have also done, illustrates a symptom of a larger issue - a seemingly growing intolerance for views that differ from one's own. You need not agree with everything someone else believes in to have a relationship with them business or otherwise. Too often we all seem to engage in knee-jerk reactions to an issue without much further thought.
How you deliver your viewpoints also matters. People can be respectful, and also I (who can be very strident) have learned to just say, "we have to agree to disagree on this."
I tire of the double standards.
Hypothetically, if the partner in the second case you describe was Catholic, and when asked “Am I correct in assuming you’re pro-life?” she responded, "I am Catholic, and I follow the teaching of my church, so yes, I am pro-life" would she have a case against the firm for employment discrimination based on religion?
Maybe, if she could prove the firm was discriminating against her based on her religion (although I know plenty of pro-choice Catholics). That being said, as someone who is stridently pro-choice, I don't think any lawyer should be forced to do pro bono work, particularly work where the person has a religious or ideological objection to it. I personally don't care if someone feels Dobbs was wrongly decided from a Constitutional law perspective or for any reason, and don't think someone should be fired for thinking/articulating that viewpoint.
While I get that this partner is "profitable," many people, including numerous Black people and people of color who are "profitable" to the firm, leave law firms because they don't feel they fit in "culturally" and are hampered from developing business. Many partners, regardless of race, leave for those very reasons.
But plenty of nonreligious people are anti-abortion too, and the pro-abortion firm likely does not care about the person's purely religious views, only their moral views.
To digress, there use to be Jewish law firms long ago. Are they unlawful now, at least if they give preference in hiring to Jewish associates? (see Courtney Angeli's comment on partners not being subject to the discrimination law).
It's interesting—when I worked at what was traditionally a Jewish firm, Wachtell Lipton, I was told many of these firms were established because their lawyers couldn't get jobs at the white-shoe, WASPy firms, even when they had superb academic records. But I don't have a sense that the Jewish firms discriminated against non-Jews (and I never felt that way as a non-Jew at Wachtell).
There were no "Jewish law firms". White shoe firms would not hire Jews. So Jews had to form their own law firms. I've never heard of a single such law firm that would not hire someone because he/she was a gentile.
Agree that abortion views sort on all kinds of moral lines. And, yes, a Jewish firm preferencing potential associates based on their religion would be unlawful - in most states under both state and federal law.
If the pro-life stance is taken in obedience to Catholic social teaching then it is a religious view and taking discriminatory action against that Catholic would appear to violate Title VII (assuming the Catholic is not excluded from Title VII because they are an equity partner).
If a law firm discriminated against non-Jewish associates today in hiring that would appear to be a Title VII violation.
I think there would be an argument in that direction unless the person is a true partner, in which case he or she would not be subject to the protections against religious discrimination contained in Title VII
Interesting. I seem to recall this issue arising in connection with an EEOC action against Sidley. In this case, as noted in the post, the partner is an equity partner.
That would be a factor in favor of finding the person not to be an "employee" within the meaning of Title VII, but it's not entirely dispositive. The last time I looked at these cases, of which the Sidley case is one, the overall size and level of involvement of the partner in the organization seemed fairly significant.
Also, if any of these associates are Catholic, this kind of pressure being applied would seem to be problematic from the standpoint of employment discrimination:
“On the Hogan Lovells call that Keller participated in, partners exhorted female associates to speak out, sign petitions, and pressure male associates to sign petitions against Dobbs”
If this was pervasive, it is redolent of a hostile environment under Title VII.
It depends on how the firm delivers the message and how "pressured" it really is. If it were me, I would say something to the effect of "If you feel strongly about this, we encourage you to speak out, sign petitions, etc." If firms want to financially support people who need to have an abortion, good for them. An anti-abortion person shouldn't care since they're not going to get an abortion anyway.
As long as there were no negative employment repercussions for Catholic associates that spoke out, signed petitions and pressured pro-choice associates to sign petitions then that approach should pass muster
Also, asking if someone is pro-life is not discriminatory per se. This partner could also be asking so that they know, going forward, that she would likely not be interested in doing this type of pro-bono work.
Yes, but if the person’s pro-life view is a religious belief then actions taken against the person as described in this piece would appear to be discrimination based on religion
I don't think the actions described constitute per se religious discrimination. She can take it up with a lawyer well-versed in these lawsuits if she wants to.
I think that attorneys who expressed agreement with Judge Luttig's statement that Donald Trump is a "clear and present danger" to the Constitution (https://www.youtube.com/watch?v=jzLNIDrjo-w) while they were employed by Jones Day or the Dhillon Law Firm should not be surprised if that expression led to their termination. My point is, there are a number of Big Law and Boutique firms where Right Wing views are not only welcomed, but required.
Maybe, but have you ever heard of an actual real story where someone was fired for not having Right Wing views?
I am very skeptical that Jones Day fires people for being pro-abortion, for example. Indeed, I wonder whether a majority of Jones Day lawyers are anti-abortion-- does anybody have an idea?
For a lot of people, just being willing to represent a Republican client means a firm is "Right Wing".
Biglaw political contributions overwhelmingly flow to Democratic candidates. And even at Jones Day, more than 75 percent of campaign contributions go to Democrats:
https://excessofdemocracy.com/blog/2021/11/ranking-the-most-liberal-and-conservative-law-firms-among-the-top-140-2021-edition
Maybe this article shows that people of differing partisan leanings can still work together peacefully.
Many law firms have bipartisan Political Law practices where they may want someone who is steeped in the Republican Party. I had a client (who worked in the Obama administration make this specific request for their practice group.
At least with Jones Day and Dhillon, people who go to those places know where they stand. If you go to either firm, I have little sympathy for you if you get fired for being too left-wing.
I wish Biglaw firms other than Jones Day would just own up to their creeds, which would avoid traps for the unwary.
Suppose a big-law firm says publicly that it is willing to hire Republicans, and then when it finds out an associate is a secret Republican, fires that associate. Would that be fraud? Could the associate secure expectation damages, including the expected value of becoming a partner?
As you say, if a law firm says "We don't hire Republicans or conservatives," that would be perfectly legal (unless, perhaps, that was a covert way to avoid hiring Asians).
Except perhaps in certain jurisdictions—see the update added to my footnote 4. (I personally have big concerns about laws that protect political belief and expression in the employment context.)
The problem is that some political belief and expression may overlap with religious belief and expression--not regarding supporting a candidate or political party, but with regard to policy positions. For example, could a libertarian-supporting law firm refuse to hire a Catholic who, because of Rerum Novarum (the papal encyclical within Catholic Social Teaching that says morality requires a living wage be paid by employers) has the religious belief that a living wage should be imposed by government? (As long as that belief does not affect his or her representation of clients of the libertarian-supporting law firm).
"Would that be fraud? Could the associate secure expectation damages, including the expected value of becoming a partner?"
Just in time for any professors out there procrastinating on coming up with a 1L Contracts exam! Could be a great series of questions for an issue-spotter....
More seriously, though, I think part of the issue here is that the firing/demotion/whatever is rarely framed as "for being a Republican" or "for being conservative." When there's a publicly stated reason, it's generally "because you expressed this offensive opinion." With the implication that it's perfectly fine if you want to *think* that, and maybe even to *say* it -- to a different set of people, in a different way, at a different time -- but saying it when you did, to whom you did, that was a breach of professional decorum.
I think this is an extremely incoherent position, but I also suspect it reflects the way a lot of people caught in the middle of these controversies really do justify to themselves what's going on.
>> Some Keller critics, like Kathryn Rubino of ATL, argue that “it is dangerous to assert that just because a statement has been repeated within the right-wing echo chamber makes it acceptable.”
I'm struggling to grasp the use of "echo chamber" as a pejorative in the course of explicitly endorsing a workplace norm of staging conversations on political topics in which everyone is expected to express the exact same opinion and disagreement is considered an firing offense.
Does it matter why the SCOTUS ruled as they did in Dobbs? Suppose the decision turned on the religious beliefs of the justices, rather than legal argument and analysis? Would our attitude towards this decision be affected, even if the reasoning of the controlling opinion withstands all scrutiny?
With regard to "expressing support for the SCOTUS decision in Dobbs," does the reason for such support matter? My own opposition to the Dobbs decision is compounded of support for abortion rights and doubts about the motivations for the decision.
" In Keller’s telling ..."
I knew I could stop reading there.
When we're talking about a retired partner who is being asked to not associate with the firm anymore it's pretty shrug-worthy but it seems to me that firing somebody actually representing clients over an expressed legal view is not fair to the clients if the firing could result in a termination of representation. That said, I think most people would argue that there is a line somewhere where expressing a legal view could cross over into harassment -- say gathering racial minority employees together and regaling them about how segregation should come back -- but I doubt this crosses that line.
Political views aren't protected in the employment context (although in NY and a few other jurisdictions political campaigning is) and partners AFAIK aren't protected at all, but it's a separate question whether firing somebody over heterodoxy is a good idea for a firm. I doubt it.
How is “ we don’t hire Republicans “ or “ we don’t hire Democrats “ any different from “ we don’t hire Jews” or “ we don’t hire Muslims?” I know political beliefs are not constitutionally protected but the essence is the same: discriminating against someone for their moral belief system. Therefore shouldn’t it be considered just as odious to discriminate against people in employment based in their party affiliation and at least contrary to the ethics rules governing the practice of law? I fail to see how you think this is OK.
Uh, you answered your own question.