Jones Day pushed back on the notion that its parental leave policy was biased against fathers, arguing that the policy was based in part on science, privacy and administrative ease.
Lawyers for couple Mark Savignac and Julia Sheketoff have argued that the policy is based on the stereotypical assumption that every woman will be disabled for eight weeks as a result of pregnancy. Although Jones Day said that wasn’t the case, “virtually all employees who give birth take the full” additional eight weeks of disability leave, and HR anticipates that will be the case, the couple said .
Jones Day said on March 3 that its parental leave policy’s assumption of an eight-week postnatal disability was “adopted on the basis of science, privacy and administrative ease.” The adoption wasn’t accepted “to take away fathers’ bonding time with a newborn,” the company said.
The investigation into the case showed this “clearly,” Jones Day said.
Disability Leave
The couple alleged in their lawsuit that the policy is biased against new fathers because it gives them eight weeks less paid leave than new mothers in the form of presumptive incapacity leave.
Savignac and Sheketoff have argued that Jones Day’s company representative testified that mothers who can return to work in less than eight weeks “still get eight weeks’ leave” because they expect to be unable to work for that long.
However, the couple does admit that assuming six weeks’ disability is medically reasonable for routine vaginal deliveries, and that eight weeks’ disability is a medically reasonable assumption for one-third of cesarean deliveries, the company said. Physicians, including the expert offered by Savignac and Sheketoff, testified that an assumed six to eight week postpartum disability is typical “when the nature of the birth is not known at the time of certification,” the company said.
In the face of this evidence, the couple “retreats” to the “categorical legal theory” that “any perceived period of disability is ‘illegal discrimination by law’ because it is a ‘generalization’ about a woman’s recovery from childbirth, ‘ said Jones Day. The theory was unsupported and unworkable, it said.
Adopting such an approach would require employers to apply “an ‘honor system’ solely for birth-related disabilities” and treat all other disabilities differently, the company said. That would be in conflict with the Pregnancy Discrimination Act, which requires equal treatment of pregnancies. It would also require young mothers to “continuously conduct self-diagnosis or daily medical exams to determine when to return to work,” Jones Day said.
Other claims fail
The couple’s lawsuit also alleges that Sheketoff received a lower bonus than she should have received in 2017 due to sexual prejudice, that Savignac was fired in retaliation for complaining about biased parental leave policies, and that a press release from Jones Day was issued after they also sued was retaliation.
Those arguments are also largely based on novel theories that no court has yet accepted, Jones Day said.
Not all complaints or claims against an employer are necessarily protected activities under Title VII of the Civil Rights Act of 1964 and other statutes, the firm said. Instead, they must be appropriate and not offensive in order to be protected.
Jones Day said Savignac was fired “for his unprofessional email containing conclusive allegations, malicious allegations and blackmailing threats.” He was not fired for filing a complaint of bias or threatening to sue.”
Likewise, not all press statements by a defendant about an employee’s lawsuit are “automatically” workplace retaliation, the firm said. It issued its press statement after Savignac and Sheketoff sued to address “false allegations” the couple had made to “protect the firm’s reputation from media attacks”. The reason is not to damage the reputation of the couple, it said. The couple’s claim that the press release was “categorically” illegal because it was prompted by their lawsuit or related media activity is “simplistic” and does not meet the requirement to prove a claim for retaliation except for causality, the firm said.
Sheketoff received mixed reviews for her job performance because her performance was actually mixed, Jones Day said. The male partner she referred to to back up her allegations of sexual bias was just “one of numerous reviewers who criticized her writing, lack of initiative, and small hours,” it said. Her mixed reviews weren’t a result of the male partner being “secretly biased toward women,” the company said.
Savignac’s claim that it compromised his job references after he was fired is also not supported by any actionable evidence, the company said.
sanctions justified
Jones Day also doubled down on its motion in a separate filing March 3 that the United States District Court for the District of Columbia impose sanctions on Savignac and Sheketoff. The firm also said Judge Randolph D. Moss should deny the couple’s countermotion for sanctions.
The lawsuit’s claims, which challenge the postpartum disability policy, Sheketoff’s salary and Savignac’s post-release job references, “are so inconclusive that it is objectively unreasonable for the plaintiffs to pursue them,” Jones Day said.
Savignac and Sheketoff represent themselves. Jones Day represents himself.
The case is Savignac v. Jones Day, DDC, No. 1:19-cv-02443, Response to Summary Judgment/Response of 3/3/23.
