A Coming of Age?: Why Revised EEOCGuidelines May Force Firms to ProtectAgainst Partner Age Discrimination Suits

I. Introduction Recently, the Equal Employment Opportunity Commission (EEOC) issued revised enforcement guidelines that could have significant implications for law firms and other professional organizations.1 Specifically, the guidelines may increase the likelihood that partners will sue their firms under the Age Discrimination in Employment Act (AREA) if their firm maintains a policy that forces them to retire at a certain age.2 Firms that are wary of this risk can greatly reduce their potential liability by reassessing certain policies.3 Conversely, individuals who attain partner status should recognize that their position within the firm significantly affects their legal rights. Congress passed the ADEA in 1967 for the purposes of promoting the "employment of older persons" and prohibiting "arbitrary age discrimination in employment."4 The Act protects individuals in an employment relationship who are at least forty years of age. In acting it as a sister statute to Title VII of the Civil Rights Act of 1964, Congress incorporated Title VII's substantive prohibitions verbatim into the ADEA.6 Moreover, because both statutes have similar purposes and provisions, cases interpreting the language of one are persuasive authority for interpretation of the other.7 When it passed Title VII, Congress also created the EEOC to serve as the main administrative and enforcement agency of the Act.8 Eventually, the EEOC also assumed administrative and enforcement power over the ADEA.9 The ADEA and Title VII speak only in terms of unlawful employment practices, so courts accordingly have interpreted the plain language of the Act as applying solely to individuals who are "employees."10 As a result, the lower federal courts and the EEOC recognize an exemption for bona fide partners, members of boards of directors, and major shareholders who do not qualify as "employees."11 Instead, these individuals qualify as "employers" who own and manage a business, thereby falling outside the scope of federal protection.12 In addition, the ADEA specifically states that nothing in its provisions prohibits compulsory retirement of "[b]ona fide executives and high policymakers" to whom the finn promises certain minimal retirement benefits.13 Consequently, although mandating the retirement of employees such as law firm associates and "of counsel" is illegal under federal age discrimination law, requiring a bona fide partner to do so is not.14 For a number of years, however, courts have struggled to define exactly who is an employee/n-partner and who is a bona fide employer/partner under the Acts.15 This is due to the fact that courts now generally accept that simply labeling a person "partner" will not allow a firm to avoid the Acts' prohibitions.16 Therefore, liability hinges on defining "employee" for the purposes of the statute in question.17 The text of both Title VII and the AREA offers no practical guidance, as it provides merely a circular definition of "employee."18 Under both Acts, "the term 'employee' means an individual employed by an employer."19 The definition of "employer" under both statutes is not circular, but is equally unhelpful: "a person engaged in an industry affecting commerce."20 In response, the lower federal courts have developed an assortment of tests that can yield different results on similar facts. …