Lawyer Pay

Foley partner who claimed bias because of lesser pay loses in 6th Circuit


A Foley & Lardner partner who claimed discrimination because he was paid less than minority, female and younger partners has lost his federal appeal.

The Cincinnati-based 6th U.S. Circuit Court of Appeals ruled against Raymond Carey on Monday, the National Law Journal reports. The opinion (PDF) said Carey did not establish his case because he failed to provide evidence his work was substantially similar to that of higher-paid partners.

“Whether two attorneys perform ‘equal work’ depends on the size and scope of the attorney’s cases, the importance of his or her practice group to the firm’s financial health, his or her responsibility for recruiting and mentoring associates, and his or her leadership role in the firm, among other factors,” Judge Karen Nelson Moore wrote in the opinion, which wasn’t recommended for full-text publication.

According to the National Law Journal, Carey’s case “illuminated the ongoing discussion of a lack of pay equity in the legal profession—typically a struggle that female and minority lawyers face—and asked whether a white, male, almost-60-year-old lawyer was underpaid and discriminated against.”

Carey was 57 when he sued in 2011; he retired in January at the age of 60. Carey had claimed discrimination on the basis of gender, race and age, and violation of the Equal Pay Act.

Carey’s pay ranged from about $388,000 in fiscal year 2007-08, when he had 1,936 billable hours, to about $481,500 in fiscal 2010-11, when he had 1,744 billable hours. His billable hours were highest—2,400—in fiscal 2009-10, when his pay was $475,000. He was a partner in the labor and employment group.

The appeals court did not decide whether Carey’s status as partner qualified him as an employee who was protected under the law because it found he could not succeed on the merits.

Foley & Lardner used a “holistic” compensation formula that took into account factors such as billings, skill level, teamwork, mentoring and sharing of work with associates, the opinion said. In determining Carey’s compensation, the firm considered complaints that Carey was a “silo” and “one man band” who didn’t push enough work down to associates, the opinion said.

Carey had pointed to an internal memo pledging to take “action steps” to improve retention of women lawyers as evidence that the firm discriminates in favor of women and minorities in promotion to leadership positions. The 6th Circuit disagreed.

“No reasonable jury could infer from a memorandum recognizing that specific initiatives were needed to encourage women to stay at Foley that it was an ‘unusual employer’ that discriminated against men in compensation decisions,” the appeals court said. “To the contrary, the white male partners were almost uniformly the highest compensated partners in Foley’s Detroit office.”

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