Ezold v. Wolf Block Schorr & Solis-Cohen

At first blush, the recent reversal of a verdict finding sex discrimination in Ezold v. Wolf Block et. al., regarding denial of partnership to Ms. Ezold, appears to reflect common sense. A closer look at the evidence, however, shows the decision has flaws that may seriously undermine civil rights laws.

The specious attraction of the appellate decision is basically this: We all know, really, that decisions about partnership are highly subjective, and that the law, no matter how noble its social goals, should not intrude into these realms. Simply put, courts do not have the right to substitute their own judgment for that of the employer. This veneer of common sense, however, is underlain with distortion of fact and tortured legal reasoning, first advanced by the attorneys for Wolf Block, and now accepted by the justices of the Third Circuit Court of Appeals.

In 1991, litigator Nancy Ezold won her lawsuit against the firm she had been associated with for six years because they denied her partnership at the same time they admitted to partnership male associates whose performance Ezold believed to be inferior or equal to her own. The Third Circuit's reversal is based on a de novo review of the facts, but the appellate opinion itself disregards key facts in the case.

First, Nancy Ezold's superiors in the litigation department at Wolf Block with whom she worked most closely wanted her as their partner. They admired and respected her work, and they liked her as a person. The full partnership never got the chance to vote on Ezold's candidacy because the five-man executive committee failed to recommend her to the partnership for a vote. Several partners in the litigation group who supported Ezold's candidacy (including two top rainmakers for the firm), left Wolf Block following the litigation -- either a remarkable coincidence or a result of the firm's discriminatory behavior towards Ezold.

Second, Ezold's reviews from the partners for whom she had done substantial work were consistently positive for six years. By contrast, the senior partner who chaired the committee that recommended against partnership testified in the district court that his marginal rating of Ezold for client relationships (an area praised by the litigation partners) was not based on any facts but only on his opinion that Ezold was a prima donna. She was criticized by another senior partner for weakness in legal analysis, a "fact" seized upon by the appellate court, yet Ezold's overall score on legal analysis was the same as the male associates with whom she had been compared.

Third, Wolf Block's executive committee told Ezold that, despite her growing contribution to the litigation practice, they would guarantee her partnership in the firm only if she would agree to manage the firm's domestic relations practice, an area in which she had little experience and no interest in practicing. Many women attorneys can recall the days, not so long ago, when domestic relations was the only specialty open to them. This field, however, presents complex legal issues, given the nature of modern marriages. In this context, the analytical skills required to be successful are daunting, particularly in the area of taxation. No ordinary senior associate with six years in business litigation would make the leap, instantaneously, to domestic relations. Wolf Block's offer to Ezold either betrays the essential bias in their decision-making about her candidacy or gives the lie to their insistence that she was too weak a legal analyst to be a partner in their firm.

Finally, no one is admitted to any partnership who is perfect or equally good in all of the areas under evaluation. The District Court, in ruling for Ezold in the underlying case, saw through Wolf Block's rather transparent pretext in this regard. The Court noted the many scathing reviews Ezold's male peers received (including one fellow who was deemed by the partners to have committed malpractice).

Yet the failings of many of those male associates -- sometimes egregious -- was not used to veto them. Several male associates were made partners despite serious concerns about general competence and behavior, including the one with the malpractice red flag in his review. The appellate panel went so far as to excuse one male associate's frequent, lengthy, and unexplained absences, (which created potential liability for the firm due to missed deadlines) because of his abilities in another area. In Ezold's case, however, cavilling about her analytical skills was used to negate her entire track record of accomplishment. The Third Circuit blatantly ignored what was clear in the underlying case: Ezold had met and in many ways exceeded the standards the firm set for her, and she evidenced none of the character flaws that more than one male associate manifested who were accepted as partners.

The Third Circuit's questionable reasoning is further undercut by its steadfast blindness with respect to this basic fact: Every attorney is a composite of strengths and weaknesses -- or areas needing development. Any senior associate could be blackballed for lacking superior strength in one specific quality -- Ezold was; many of her male peers with less stellar reviews were not.

Wolf Block's own evaluation process acknowledges this fact. Portfolios of hundreds of written evaluations for each associate score the attorney in twenty different categories, and also give the attorney an overall score. This process recognizes that human beings, in any field of endeavor, can realistically be evaluated only in terms of a composite of talents, and not solely in terms of just one quality. On the day the five-partner executive committee decided not to bring Ezold's candidacy before the entire partnership, however, they changed their own standard -- for Ezold alone.

Reading the Third Circuit opinion without having also read the transcript in the underlying case, one could conclude that the partnership of Wolf Block made an informed, and necessarily subjective, decision not to invite Ezold to join their club. But it's the same sort of subjectivity that would apply if a group of judges in an athletic contest with aesthetic as well as performance criteria were suddenly to change the criteria for just one contestant, and then protest that their decision to eliminate that individual was untouchable because the judging process is definitionally subjective.

The appellate panel's argument that the District Court improperly substituted its judgment for that of the law firm is particularly seductive. The reason we have a body of civil rights laws, however, is to protect American citizens from businesses that would make decisions in illegally discriminatory ways. It is the proper sphere of the courts to determine whether or not businesses in the United States use this freedom to exercise business judgment as a cover for prejudice. And it is clearly not the provence of the appellate court to review the facts of the case when the lower court so clearly had sufficient evidence to support its decision.

Allowed to stand, this ruling will affect every promotion decision in partnerships as well as tenure decisions in academia. For women and minority men who have worked hard to achieve success in their chosen profession, this decision looms as an ominous reminder that basic civil rights, as yet, have not been assumed to apply to individuals in management. One of the most insidious myths of the glass ceiling is the idea that, because of economic pragmatism, businesses will eventually treat women and minority men fairly, absent serious enforcement of the law. Wolf Block's own self-inflicted economic damage in its dealings with Ezold is a clear and very sad tale to the contrary. The message from the Third Circuit, that if you are a well-paid, senior executive then you do not deserve equal protection under the law, must be reviewed and overturned by the Supreme Court.

Editor's Note (1994) The Supreme Court declined to hear Ezold's petition, and as a result, the Appellate Court's decision is now a precedent for cases brought in the Third Circuit. Also, Ezold was required to pay $25,000 to cover Wolf Block's costs, and she still owes her attorneys over $75,000 in costs. For information about how you can help Nancy Ezold, see the section "Current Key Cases".