Last night I wrote about a lawyer at a major law firm who was fired after she spoke in favor of the Dobbs decision during a conference call to discuss employee reactions to the Dobbs decision. There are of course many, including the firm itself, who believe that firing was appropriate. But even some who questioned that may have felt this was essentially a one off and therefore not necessarily representative of a broader trend.
Today, David Lat published a story on his Substack account noting a second instance of the same pattern. Lat didn’t identify the lawyer or the firm because she is in the process of settling with them but he says he has seen the emails which back up her account.
Here’s what happened, according to this partner. After she declined to take on pro-bono work of a pro-choice bent or to get involved in other reproductive-rights initiatives post-Dobbs—saying she was too busy, not mentioning any opposition to abortion or to Dobbs—her office managing partner asked her, “Am I correct in assuming you’re pro-life?” After she didn’t deny this (because she actually is pro-life), he called her racist (because of the disproportionate impact of Dobbs on minority communities), let her know she was not going to be working with his clients, and started undermining her in various ways, large and small.
It became increasingly difficult for this partner to build her practice without the support of leadership. Eventually she was told she was not a good fit for the firm, despite her large book of business. The firm initially offered a few flimsy pretexts for firing her, which it eventually abandoned after they were refuted by this partner and her counsel. Because both sides now acknowledge that she is not being terminated for cause under the partnership agreement, she is being paid a seven-figure sum to leave. Credit where credit is due: the firm is willing to put its money where its mouth is when it comes to its social-justice commitments, showing the door to a profitable partner because it sees her views as unacceptable…
Could there be other factors at play in this partner’s firing besides Dobbs? Absolutely; Biglaw partnership politics is often a game of three-dimensional chess. Is the situation odd, even anomalous? Perhaps—and it might not have happened at many other firms, or maybe even another office of this firm. But I don’t doubt the basic accuracy of my source, who is someone I have known for years, and I don’t doubt that her pro-life views contributed to making her persona non grata at her soon-to-be-former firm.
I don’t know if I’m entirely there yet, but I think I’m coming around to the following view: Biglaw isn’t a big tent, and it’s naive, maybe even downright silly, to believe otherwise. It’s fine to be economically or fiscally conservative—Biglaw defends Big Business, after all—but there is increasingly no place for social conservatives in many large law firms, as well as elite circles more generally.
In some places, like California, there are laws that protect employees from being fired over political views but those law don’t exist in all places. Still I found a podcast created by one of the country’s largest law firms, BakerHostetler, to warn businesses that they could be sued for firing people over their pro-life opinions on abortion. The discussion featured two partners in the firm, Ashlee Grant and Daniel Luna. [emphasis added]
Kattman: Let’s discuss how employers need to stay cognizant of potential claims that could be asserted by employees who oppose abortion. Ashlee?
Grant: So even before Dobbs, we’ve seen over the past, you know, two to five years even, this increased focus on employees’ religious freedoms in the workplace. The most prevalent example being the most recent exemptions or people seeking exemptions from compliance with COVID-19 vaccination policies. And so given that the abortion debate often involves not only political undertones, but also involves, or triggers and is tied to religious beliefs, employers need to be cautious about taking adverse actions against an employee for pro-life statements, pro-life actions that they make in and outside of the workplace for a number of reasons.
First, because that may violate Title VII’s prohibition against religious discrimination. In fact, just two weeks ago, a jury in the Northern District of Texas returned a verdict in favor of a former employee against a large airline and awarded her nearly $5 million in damages, finding that the employer and the union that she was part of had discriminated against her because of her religious beliefs and failed to accommodate those religious beliefs in violation of Title VII after she was fired in this instance for pro-life Facebook messages that she had sent to the union president that also voiced her opposition to the use of union funds to help members attend a sponsored women’s march in January 2017. So, that verdict just came out. Obviously, in dollar-wise it is huge, but that that shows it is a great example of the potential risk that you could take, should an employer want to take an adverse action against an employee when they express their prolife beliefs. In addition to Title VII, a number of states have laws that prohibit terminating an employee either based on their political affiliations or more broadly, based on conduct outside of the workplace. So, Daniel, I know that California is one of those states.
Lula: Yes, California law actually prohibits discrimination in the workplace based on creed, which has been held to encompass political positions and political party, political views.
Grant: And in addition to California, other examples of states that have similar laws, either whether it is banning political affiliations, or you can’t take adverse actions based on conduct outside of the workplace, include Colorado. Colorado employers cannot threaten to fire or fire an employee because of their membership or their connections to a political party, or fire an employee for
actions that occur outside of the non-working hours and off an employer’s premises. Connecticut is another example where they specifically have a law prohibiting, disciplining or firing employees for exercising their First Amendment rights. Louisiana, down there they’ve got a law where employers cannot threaten or fire employees if they support or they take part in certain political organizations and activities.
So whether an employer can get away with this sort of thing is dependent on which state you’re in. But the main point is that these sorts of firings do happen because the woke elite who work at these big law firms expect everyone to toe the progressive line.