Erin Johnson’s legal team opened a new line of attack on WPP on Wednesday, blasting the company for arguing that her discrimination suit be thrown out based solely on the evidence presented in her initial complaint.
Furthermore, the defendants—which include the holding company, J. Walter Thompson and the agency’s former CEO Gustavo Martinez—are cherry picking which evidence to refute rather than looking at Johnson’s experience as a whole, the memo says.
The defendants "do not recognize that unlawful conduct by a CEO, much of which is open and notorious, cannot be ignored simply because plaintiff Erin Johnson does not recite each and every aspect of the misconduct in her Complaint," said the 19-page document filed in the United States District Court for the Southern District of New York.
The new memo also contends that WPP’s latest argument is making inappropriate use of legal precedent. Earlier this month, the defendants argued that Johnson’s complaints did not satisfy the "severe or persuasive" standard required and cited previous cases that were thrown out of court involving "far more egregious, frequent and sexual" behavior. But those cases, say Johnson’s lawyers, were thrown out only after the discovery process, in which attorneys depose witnesses and compile evidence in preparation for trial.
In sum, the new filing argues that tossing the case out now would be premature, and the judge must allow the lawyers to do their jobs before deciding whether to proceed to trial.
The existence of a hostile work environment "by its nature cannot be measured ‘mathematically by a precise test,’" and "a determination can be made ‘only by looking at all the circumstances,’" wrote Johnson’s lawyers, citing earlier decisions.
The behavior cited in the suit filed in March includes numerous occasions where Martinez made "rape jokes," including one incident captured on video that showed the former agency CEO making a joke about getting raped not in a "nice way" during a corporate meeting. It also alleges that Martinez made numerous sexist, racist and anti-Semitic remarks, and subjected Johnson to "unwelcome touching," such as grabbing her neck. The behavior cited in the complaint is evidence, the lawyers argue again in today’s memo, of a hostile environment.
Johnson's lawyers and WPP declined comment.