Discrimination blames

The firm was forced to carry out an internal investigation after litigation partner Stuart Dutson sent an email questioning the commitment of a female interviewee who had recently had a child (see story).

While some readers of TheLawyer.com were supportive of Dutson’s position – “I feel sorry for Dutson. He was only asking for guidance on how to handle the interview,” said one – most felt it was a clear case of discriminatory behaviour.

The argument that Dutson was only seeking advice so as not to discriminate has a certain validity, but only up to a point. After all as a partner at a top 10 firm he arguably should have known better.

But law firms are no strangers to discrimination claims. Take DLA Piper. On Monday (1 February) the firm was in the Employment Appeal Tribunal to contest a disability discrimination claim after allegedly withdrawing a job offer from a person with a history of mental health conditions.

The claimant, known in the case as J, had verbally accepted the offer of a professional support lawyer role after attending two interviews. After disclosing a previous history of depression, it is claimed, the firm withdrew the offer, blaming the move on a recruitment freeze.

While the original claim was struck out in March 2009, the Equality and Human Rights Commission, which is funding the case, believes that the appeal “highlights the stigma that people can experience from prospective employers if they disclose that they have previously had a mental health condition”.

Neither is DLA Piper alone in facing such a claim. As reported on TheLawyer.com last month US firm Howrey is being sued by a former Brussels-based associate for racial discrimination (see story).

The $30m (£18.9m) suit, filed in the civil division of the Superior Court of the District of Columbia, alleges that Howrey discriminated against Jamaican Kamisha Menns because of her race and national origin.

According to the claim, Menns’s employment at the US firm was ended the day after she made a formal written complaint to Howrey’s DC headquarters.

While these claims cannot be conflated, they do highlight the potential minefield Eversheds could have found itself in, whether an email was sent innocently or not.

And, with the House of Lords agreeing amendments to the Equality Bill, firms will have to tread especially carefully when it comes to pre-employment health questionnaires, as the onus would fall onto the employer to prove that they have not discriminated based on disclosures.