Ex-Kirkland associate's bias case packs a punch, but will it succeed?

REUTERS/Kim Kyung-Hoon

(Reuters) - You don’t need to convince me that gender bias remains a deep-rooted problem in the legal profession. Just look at the numbers: Women make up only 22% of equity partners at large firms, according to the National Association for Law Placement.

But in reading a 130-page gender bias complaint by a former associate at Kirkland & Ellis -- the largest law firm in the world by revenue -- it feels more like rubbernecking a car crash with little sense of who's to blame. All you can do is gape.

Plaintiff Zoya Kovalenko, who joined Kirkland as a mid-level IP litigation associate in 2020 and was fired less than a year later, did not respond to phone, email and text messages seeking comment.

In her suit filed last week in San Francisco federal court, she alleges that the firm discriminated against her “with respect to workload, employee benefits and pay, junior associate support and assistance on assignments, accessibility to partners, and respect for scheduled time off.”

Her work was “objectively excellent,” Kovalenko said, but Kirkland fired her because she “was a strong-willed female who threatened the male-dominated status quo of Defendants’ practice.”

Kirkland in a statement said that Kovalenko’s “performance and the quality of her work product was found to be below the standards that the firm expects of its associates. The allegations in question were investigated and found to be entirely without merit.”

Represented by Orrick, Herrington & Sutcliffe partner Lynne Hermle, the firm vowed to “vigorously defend itself and the attorneys named as defendants against these baseless allegations.”

Kovalenko represented herself in the complaint, though it said that she intends to retain counsel.

Gender bias suits against law firms have become more notable in the past decade, with complaints against firms including Jones Day; Morrison & Foerster; Proskauer Rose; Chadbourne & Parke (now part of Norton Rose); Steptoe & Johnson; Winston & Strawn and Ogletree Deakins.

None to date have concluded with large, publicly-reported payouts. More often, the cases settled on confidential terms or were shunted off to arbitration.

“It takes courage” for a lawyer to file a gender bias suit against her firm, Sanford Heisler Sharp founder David Sanford, who is not involved in the Kirkland case but whose firm has represented employees in claims against 70 law firms, told me.

Sanford said more than 80% of his law firm cases settled before a complaint was filed. Deciding to go forward with a suit is “very personal. It impacts your financial situation, your professional situation, your emotional state,” he said.

Kovalenko in her complaint (which now has restricted access on PACER, although archived copies are available online) takes what strikes me as a scorched-earth approach.

For example, she names names -- not just of the partners she alleged discriminated against her, but of the four male associates she uses as comparators (as opposed to identifying them, say, as associates A, B, C and D).

She then details their shortcomings in a bid to show that she was a better lawyer, pointing to examples of how one or another had “subpar performance on at least two assignments" or “failed to adequately address claim construction” or “required substantial guidance and supervision."

She contrasts this with multiple quotes from partners complimenting her work.

I understand her point -- that she received praise (at least sometimes) and the men messed up (at least sometimes), but she got fired and they still work there.

Still, naming and shaming her former peers like this strikes me as a dubious move, considering she doesn't allege they were to blame for any alleged discrimination she experienced.

Kovalenko lobs grenades at the partners too. Taking issue with what she said were unclear instructions for an assignment, she said if one male partner (I’m omitting his name) was "not as incompetent as his instructions would make him seem, the reasonable conclusion is that (he) deliberately wasted client time and resources in an effort to undermine and retaliate against Plaintiff.”

Oof.

Much of Kovalenko’s complaint focuses on her workload, which she alleges was “onerous and excessive” compared with her male counterparts. However, she only specified that she billed “well over 200 hours” in both June and July 2021.

Which is a lot, but for Big Law?

Shrug.

She also complains that Kirkland partners “paid no respect” to her scheduled vacation over a long weekend, assigning her work during what was supposed to be time off. She alleges that male associates were allowed undisturbed time off.

For Kovalenko to prevail on a gender discrimination claim, she needs to show that she was treated differently from, and less preferably than, similarly situated men.

One thing that differentiates her complaint from others that have succeeded is the duration of her employment. She says that when factoring in time off at the beginning of her tenure for onboarding and training, and to study for the California bar, and seven weeks at the end when she says she was frozen out of new assignments, she really only worked at Kirkland for "a mere seven months."

Is that long enough to show a pattern of discriminatory treatment?

Given the way Kovalenko has thrown down the gauntlet, I suspect Kirkland will hit back hard -- not just against her discrimination claims, but also her attacks on firm lawyers.

If Kovalenko retains outside counsel, that might help dial down the acrimony. But in the meantime, this litigation seems unlikely to advance the cause of gender equality in the legal profession.

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Jenna Greene writes about legal business and culture, taking a broad look at trends in the profession, faces behind the cases, and quirky courtroom dramas. A longtime chronicler of the legal industry and high-profile litigation, she lives in Northern California. Reach Greene at jenna.greene@thomsonreuters.com