Posted November 14th, 2019.
You’d have to look hard to find a partner at a major law firm who’s stupid enough to make overt racist comments to lawyers of color these days. At the same time, though, I bet most minority lawyers will tell you that they’ve been subjected to racially insensitive comments at some point. (From my personal archives as an associate: A partner once turned to me and said, “No tickee, no shirtee,” about a trust agreement provision during a meeting in which I was the only Asian. )
I’m bringing all this up because Kaloma Cardwell is now suing his former firm Davis Polk & Wardwell for discrimination and retaliation. And, of course, no partners at that prestigious firm made blatant racist comments to him.
(Davis Polk issued this statement about the case: “Mr. Cardwell’s termination had nothing to do with his race. He was terminated for legitimate, non-discriminatory reasons. The claims lack merit, and the firm will defend the case vigorously.”)
According to Cardwell’s complaint, the discrimination he suffered was subtle and drawn out—more akin to psychological torture. Among other things, during his years at the firm as an associate from 2014 to 2018, he claims he was consistently left out of emails and conferences, frozen out of meaningful assignments, ignored by partners in his department, given ambiguous reviews and otherwise left to wither away in the dark.
But here’s the question that intrigued me: Was Davis Polk racist—or just another cold law firm that treats associates like dirt?
Put another way: Can Cardwell win his case when the alleged acts of discrimination seem so subtle?
“Even though there’s no smoking gun, if you put [his grievances] together, it can prove discrimination,” says Saba Bireda, a partner at Sanford Heisler Sharp. “It’s infrequent that someone will say that they don’t want to work with someone because he’s black. But courts have recognized when minorities are treated differently.”
Implicit bias can be just as pernicious, and it’s rife in law firms. “We all know that law firms operate on informal relationships,” explains Bireda. “And if you don’t get work, you start getting a reputation for not being good at your job, and that builds on itself. This is a common story among associates, and it happens more with people who are different, like women who have babies or minorities.”
Increasingly, there are more cases of subtle forms of discrimination in the workplace, says Douglas Wigdor, who often represents plaintiffs in high-profile employment matters, most recently DLA Piper partner Vanina Guerrero in her claim that she was sexually abused by Louis Lehot, one of her partners. (Lehot has denied the claim, and DLA has issued a response to the claim.) “They are not so easy to prove, but discovery can produce strong cases,” such as information about how similarly situated associates are handled and “whether those who are persons of color are treated differently, and if others have complained.”
While discrimination might be trickier to prove, a very convincing case could be built on retaliation. “Retaliatory action is easier to prove,” says Wigdor. “Jurors understand retaliation: If you complain and you’re treated differently as a result—like having your office moved [by the janitor’s closet] or not being invited to lunch—that’s retaliation.”
Moreover, the standard of proof for retaliation is lower than that for discrimination. “Retaliation claims often survive when a racial discrimination claim does not,” says Bireda. And retaliation, explains Bireda, only requires that “adverse action resulted from protected activity,” which in Cardwell’s situation involved the numerous times he complained about discrimination at the firm.
In fact, what’s striking in Cardwell’s complaint is that he documents at least eight instances in which he voiced concerns about the treatment of black associates to Davis Polk partners or officials and essentially got no response. Instead, the complaint says, he faced increasing isolation until his billables were barely existent (for the first three months of 2017, his billable time was about two hours per month), despite his repeated requests for work. Then, after filing a complaint with EEOC in August 2017, he got fired in February 2018.
Which raises this question: Why didn’t Davis Polk address or acknowledge Cardwell’s concerns? And a more cynical question: If the firm didn’t think Cardwell was worth the trouble and simply wanted him out, why didn’t a savvy firm like Davis Polk set up a better foundation for firing him? (Cardwell’s complaint alleges that he was never given an explicitly negative review until one month before he was fired.)
“My experience is that law firms don’t do a good job at providing feedback,” sums up Wigdor. “Law firms are run by human being.” And some, he adds, make the mistake of taking actions that might be construed as retaliatory. “They don’t like to be criticized, especially if the suggestion is that they’re racists.”