This Is Not Enough: Statement from WLA President Isabel Finley on Kirkland & Ellis and Mandatory Arbitration

On November 14th, 2018, I sent the attached letter to the law firm Kirkland & Ellis, which for many years has been the Harvard Women’s Law Association’s (WLA) biggest sponsor. The letter states that due to Kirkland’s use of mandatory arbitration and nondisclosure provisions in employee contracts, the WLA is no longer comfortable with the specific sponsorship relationship we have had with Kirkland for several years. As the WLA’s only platinum level sponsor, Kirkland gave $25,000 annually in exchange for exclusive sponsorship of our largest, most visible event, the WLA Spring Conference. Following Kirkland’s refusal to answer a law school survey on mandatory arbitration practices this summer, some WLA board members began reconsidering our relationship with the firm; in early November, a leaked associate contract confirmed Kirkland’s use of mandatory arbitration and nondisclosure provisions. Subsequently, due to the disproportionate harm that these provisions have on women, people of color, the LGBT community, and other minority groups, an overwhelming majority of the WLA board voted to no longer accept Kirkland’s sponsorship of the Spring Conference barring a policy change.

Exactly a week after I sent Kirkland the letter advising them of this position, and amongst other Harvard students’ organizing efforts against mandatory arbitration, Kirkland announced via internal email that it “will no longer require arbitration of any employment disputes that may be brought by associates or summer associates.” This is a laudable policy change, and we are thrilled that Kirkland associates are no longer required to sign away their civil rights. However, it seems many reacting to this news have claimed victory far too quickly. Kirkland’s November 21 email specifically states that the policy change is for employment disputes brought “by associates or summer associates”—what it does not say, is “by all employees.”

While Kirkland’s recruiting office had confirmed they were considering my letter before their November 21 announcement, the firm has yet to respond to the letter itself. Accordingly, it is unclear whether Kirkland’s policy change actually addresses the WLA’s full concerns, given that the firm has not spoken on the status of mandatory arbitration use for non-associate employees. My November 14 letter intentionally did not single out associates or summer associates as the only employees of concern; this is because support staff, counsel, and partners are also often harmed significantly by mandatory arbitration and nondisclosure provisions.

In fact, these provisions may actually do the greatest damage to the careers of partners and counsel. With pay and promotion at these levels no longer in lockstep, women and other diverse attorneys often face greater disparities in pay and treatment upon reaching these more senior roles. Yet by that point in an attorney’s career, the stakes of promotion and pay equity are far higher—meaning the potential losses facing a firm if they lose in court are as well. It is generally far more difficult for a partner than an associate to make a lateral move to another firm, especially after having spent nearly a decade at their firm before being promoted, and, in the case of equity partners, having contributed their own capital. The inequities for female partners have been borne out in a series of recent gender discrimination lawsuits against Biglaw firms. In many of these cases, law firms have vigorously attempted to enforce mandatory arbitration provisions in partnership agreements.

Similarly, the importance of any employment disputes for non-attorney support staff is particularly great; without the higher salary and credential of a law degree, they are more likely to rely on their specific salary and job to make ends meet, and to have less ability to network their way into a lateral move. However, given the stark difference in salaries between partners and non-attorney staff, litigation brought by staff is as a whole far less costly to a law firm, as it is unlikely to involve millions in damages.

Accordingly, it is likely that dropping mandatory arbitration for associates alone does little to solve the problem where it hits the hardest. Just yesterday, another Biglaw firm, Sidley Austin, announced it was dropping mandatory arbitration for “associates… summer associates [and] non-attorney staff members,” further illustrating precisely which law firm positions are left out of these changes.

The WLA is reevaluating our sponsorship requirements and offerings before the start of the 2019-20 fundraising cycle. Currently, our position on Kirkland’s sponsorship remains unchanged from that outlined in my November 14 letter, and we respectfully request additional information on the status of mandatory arbitration and nondisclosure provisions in all of Kirkland’s employment and partnership contracts.

Today’s summer associates are tomorrow’s partners. If we are truly to serve our mission of furthering women’s success in the legal profession, we must advocate for that success to remain attainable and fair not only now, but long into the future.

11.14.18 Letter to Kirkland & Ellis – Harvard WLA Sponsorship