Hastings Business Law Journal


Jessica Fink


Under the Age Discrimination in Employment Act, as well as other federal anti-discrimination laws, only "employees" as defined by the statute are permitted to sue. In recent years, the U.S. Supreme Court and lower courts have provided guidance regarding when partners in large law firms might be deemed "employees" protected by these laws. What has emerged from the courts' decisions in these cases is a test that places significant emphasis on the amount of power and control that a partner has within a firm: Partners deemed to lack a sufficient amount of power and control within their firms may be characterized as "employees" for purposes of these federal anti-discrimination laws. Such partners thus would be permitted to sue their firms under the ADEA, including if they were subject to a mandatory retirement policy-a common feature within many large firms.

Scholars and practitioners have expressed disparate views regarding whether the courts adopted the right test for determining a partner's ability to sue his or her firm. This Article, however, bypasses the question of whether these courts "got it right" in crafting this test and instead focuses on an area that has received scant attention-the impact that the courts' analysis might have on many aspects of large law firms, from firms' hiring patterns, to their compensation schemes, to their established tracks for promotion. Existing assumptions regarding when associates should expect to make partner, the percentage of firm profits they might receive upon reaching this status, and the level of turnover among older partners all may be undermined by these court decisions.