Cara Greene has a strict employees-only policy. She’s spent nearly two decades working in employment law where she tackles the many forms discrimination takes in the workplace. Pervasive systems built to favor some and leave others behind still sit stubbornly in place at many establishments. More than that though, Greene explains that “companies rely on a confidential, opaque process to avoid accountability.” Perhaps that’s why she’s so passionate about working for the workers.
A partner at Outten & Golden in New York, Greene litigates equal pay and discrimination disputes and advises executives and lawyers on their own employment matters. She has litigated a mix of individual and class action suits on behalf of a wide variety of clients, ranging from low-wage hourly workers to highly compensated professionals and everyone in between. Regardless of the case, regardless of the client, Greene wholeheartedly believes that “everyone deserves the same quality of legal representation.”
Greene is co-lead counsel in the Goldman Sachs gender discrimination class action that settled weeks before it was scheduled to go to trial, for $215M. In a case that was 13 years in the making, Greene represented a certified class of female Vice-Presidents and Associates challenging Goldman Sachs’ pay and promotion policies.
Archaic systems of discrimination can have the power to extend beyond the workplace ecosystem, to leave their mark on our individual selves and manifest in ironic ways. And while the quest for equality can feel like a record on repeat, Greene maintains that we are, in fact, making progress – she’s seen some impactful changes, firsthand.
Lawdragon: Let’s dive right into the Goldman Sachs case. Congrats on the settlement. You were preparing for trial as co-lead trial counsel?
Cara Greene: Yes, along with my partner, Adam Klein, and co-counsel at Lieff Cabraser. The case had been certified as a class action and the class period went back to 2002. So this was a group of women spanning more than two decades. The claims that were certified by the court were for disparate impact and disparate treatment related to the performance evaluation systems and the promotion systems.
LD: The difference here being intention?
CG: Exactly. Disparate impact is where, what would otherwise appear to be a neutral policy has a negative impact on a particular group of individuals. In this case, we alleged it was having a negative impact on women. Sometimes in the operation of a system, even though the system appears like it should work, in practice, it doesn't.
With disparate treatment however, it's not just that it happens to have a negative impact on a group of individuals. There's some intentionality around the decisions that are made that negatively impact the women.
The lawsuit itself was filed in 2010 and the case wound its way through the courts. It’s incredibly satisfying to have reached a resolution. I don't think any of us expected when that case started that it would take as long as it has taken.
LD: Thirteen years.
CG: I think we counted 13 babies that were born through the life of this case, to the clients and legal team. We've had deaths, divorces, marriages. There's certainly been a welding of personal and professional milestones.
LD: Congratulations again. A big part of your practice involves fighting for equal pay for women. Do you think we're getting closer?
CG: I do think we are getting closer. There have been some changes at a legislative level that have had an impact. For instance, the salary history ban really did have an impact for women. It allowed them to move to a position and not have the impact of prior discriminatory pay decisions follow them. I’ve had clients who changed jobs and immediately saw a significant increase in compensation, as a direct result.
There are other changes that have been made with respect to salary transparency. New York recently began to require employers to post what the salary ranges are for new positions. But for someone who has been paid in a discriminatory or unequal way, it's not just about fixing it going forward – there needs to be restitution. They need to be made whole on the lost income that they experienced.
LD: You work for a broad spectrum of clients – low-wage workers up to white-collar executives. Do you have a different approach from one end of the spectrum to the other?
It wasn’t a class action, but it was the power of a group of people that banded together and were able to show these patterns. They made the firm take notice in a way that would've been difficult for them to achieve on their own.
CG: I approach each client with the same respect. Each case is valued as being as important and as deserving of excellent service as any other case. That's something I feel very passionately about – everyone deserves the same quality of legal representation. Of course, there are differences in terms of the circumstances you're dealing with. You have to be able to identify what is important to each client. And that obviously can be widely different between a low-wage worker and a C-suite executive.
LD: How do you approach that?
CG: I like to sit down with the client and find out what they need to move forward, to be made whole. What does a successful outcome look like here? Then we structure our approach towards that end. And while sometimes litigation is necessary – and I'm a litigator, I love to litigate, it's what I'm good at – very often, there are ways to achieve those goals that don't require litigation.
LD: Can you tell me about the race discrimination case you resolved on behalf of a group of Black financial services professionals?
CG: That case involved five Black women who had all experienced similar setbacks in their careers. When you start to pull back and see a pattern of different trajectories in careers, a pattern of different compensation, then you start to recognize it as more than just coincidence.
In that case, it wasn’t a class action, but it was the power of a group of people that banded together and were able to show these patterns. They really made the firm take notice in a way that would've been difficult for them to achieve, I think, on their own.
I actually mediated that case when I was nine months pregnant. About four days before giving birth.
LD: Talk about multi-tasking!
CG: Those moments where personally something monumental is happening, and something professionally too, are very unique and special occurrences.
LD: Absolutely. Speaking of the personal and professional being entwined, can you share with us any discrimination or bias that you’ve faced in your career?
CG: It’s definitely happened. I've had clients who told me they really needed a white beard to advocate for them. I've had opposing counsel who have been unhappy with my advocacy on behalf of my clients, and have picked up the phone and called my male partners to complain about me.
I had one client who decided not to use me and I didn't know why. At the time, I was noticeably pregnant. About a year later, he came back and said, "I want to retain you. I made a huge mistake. You were pregnant, you were young, and I didn't think that you were the right person for me. But now I realize, I let my bias get in the way of what was best for me. Would you consider taking me on as a client now?"
LD: Did you?
CG: I did. I appreciated that he owned it, that he realized he was wrong. And he pointed to the irony too – that case was an age discrimination case. As we went through it, he said, "I never really believed discrimination occurred. When women told me that they felt discriminated against, or people of color told me, I didn't really believe it until it happened to me. And now I realize I have to go back and reevaluate all of those times. Even myself, how I treated you when you were pregnant.”
We were able to get to a really good outcome, and he became a very dear client to me, despite that start. That kind of experience really exposes your own biases. People are growing and evolving, myself included, and so I give a lot of grace to that. I give a lot of grace to companies who haven't done the right thing, but want to do the right thing.
LD: Have you seen a shift in things since you began your practice? So much has happened on a societal level in terms of understanding our own implicit bias. Are we starting to “do better”?
One of the biggest challenges that employees face with respect to vindicating their rights is forced arbitration. The majority of white-collar workers I work with have no idea that they've been required to sign away their rights to a jury trial.
CG: We refer to it as discrimination 2.0, right? It may not be as blatant, people may not make overtly discriminatory statements that really expose their biases, but very often they're still there. And they manifest themselves in ways that are equally harmful to our clients. While I've certainly not seen an elimination of bias, there is perhaps a broader understanding of how it operates in practice.
Successful companies are those that are putting into place systems that check for that bias. Instead of relying on subjective criteria to evaluate employees, putting into place objective criteria. Instead of having a black box system of compensation where it's doled out in a way that's not transparent and where it's oftentimes tied to the feelings of one particular person, putting in place a transparent compensation system, that again, is tied to objective criteria. I am seeing that sort of advancement, where an understanding allows for systematic change within an organization that helps to eliminate some of the impacts of bias.
LD: That's great to hear.
CG: That's what makes the equal pay class action work very exciting. In addition to recovering compensation that's been denied to my clients, you have that chance to influence how a company does business.
LD: Would you say that’s why you’ve chosen to focus on employment law?
CG: I really fell into this area of law when I was in law school. I needed a job and a friend's husband worked at Outten & Golden and they hired me. I started working and realized this is the way I was meant to help people. Employment law became my passion. I can really make an impact on a person's life, and that's something special.
LD: What made you realize the kind of impact you could have when it comes to helping more vulnerable people?
CG: One of my earliest cases was a class case against a grocery store in Brooklyn. I advocated on behalf of the workers who were bagging groceries for tips. The grocery store was not paying them any wages. They were all immigrants and just not aware of their rights. I remember one woman, she was about 65 or 70, and she was asked to work 12 to 14 hours, and not allowed to take a restroom break. She soiled herself standing by. It was so eye-opening to realize that in our country there is still such inequality and so many people who are vulnerable.
I was able to advocate for her and her colleagues, and we came to a very good resolution. That was one of the first times I felt that impact, that what I'm doing really matters.
LD: Yes, that’s great and I know you’ve said similar things about your work with pregnancy discrimination.
CG: Pregnancy discrimination is something that I feel very strongly about. I represented a woman who was in a professional services firm and had experienced pregnancy discrimination. It was made very evident that the reason they had denied her a promotion was because she had been out for a series of IVF treatments and then finally successfully became pregnant. It derailed her career. We took that case to arbitration and had a very successful win.
LD: That’s encouraging.
CG: I think sometimes it can become discouraging when you read the newspaper, so it’s good to see that the system still works. To see that there is still a way to get justice for people like her. I'm a mother of four so those cases are very meaningful to me.
LD: Can you talk about forced arbitration and why it’s an issue for employees?
We refer to it as discrimination 2.0, right? It may not be as blatant, people may not make overtly discriminatory statements that really expose their biases, but very often they're still there.
CG: I think one of the biggest challenges that employees face with respect to vindicating their rights is forced arbitration. The majority of white-collar workers I work with have no idea that they've been required to sign away their rights to a jury trial. Some of them are devastated to learn that because they really want to expose the practices that have been going on. These companies rely on a confidential, opaque process to avoid accountability. Of course there are instances when arbitration can be a good thing, I'm not someone who categorically rejects arbitration, but it should always be voluntary. It should always be because the parties mutually have decided that this is the best forum for their claims to be resolved.
We've been very involved in efforts to change the law to prohibit forced arbitration. There's been legislative change around sexual harassment cases, but it shouldn't be just sexual harassment. Someone who has been racially discriminated against should have that same right to choose where to bring their claims. Someone who has been denied equal pay should have that same right. That is a critical area where there still needs to be change more broadly. New York passed a law prohibiting forced arbitration, but it was preempted by the Federal Arbitration Act. So really, for things to change there needs to be an act by Congress.
LD: How would you describe your approach to your work?
CG: I am a problem solver. I try to be very creative in how I approach a situation because I do believe that where there's a will, there's a way. There's a solution, we've just got to figure it out.
And that for me is a lot of fun, because it feels like you have a lot of latitude. Sometimes you have to get really creative. So I think of myself as a creative problem solver.
LD: Does that align with how you think others might perceive you?
CG: How other people would describe me, I think, is the iron fist in the velvet glove. I'm not a table pounder. I'm not someone who makes an emotional appeal every time I get on the phone, but I bring it when it's necessary. I think employers have learned not to mistake my professionalism and politeness, for lack of backbone. I think earlier on in my career, that was difficult to establish. But people know me now. They know I want to be constructive, but if we need to litigate, I will litigate. I'll take you to the mat.