In representing clients, I have, on occasion, had a client make a honest inquiry about the federal laws regarding age discrimination. Their question is something along the lines of: If discriminating against age is against the law, why can law firms insist on mandatory retirement policies?
The simple response is that partners at law firms have, historically, been viewed as owners/employers, rather than employees. But that view has been challenged in recent years by the EEOC’s lawsuit against Sidley Austin LLP — a case that settled in October 2007 for $27.5 million. But it’s always struck me how this rule is perceived as creating two different sets of rules — one for lawyers and one for everyone else.
Business New Haven, a niche business publication in Connecticut (which is republished on Conntact.com), has an article in this week’s issue about this very topic and how law firms in Connecticut are addressing this situation:
Connecticut law firms are practicing what the American Bar Association (ABA) has been preaching since last summer about retirement rules for partners.
And many have been doing it far longer than that, according to area attorneys.
In August 2007, the ABA’s House of Delegates, its policy-making body, approved a resolution encouraging law firms to jettison mandatory age-based retirement policies for partners and "instead evaluate senior partners individually in accordance with their attributes and interests and the firm’s generally accepted performance criteria."
The resolution deemed mandatory retirement policies "inconsistent with accepted employment practices, against public policy and not in the best interest of either law firms or their clients.
I spoke to the reporter in the case as part of her research into the subject a few weeks ago. In the article, I discuss the effect that the ABA policy will have on mandatory retirement practices in general.
As I said there, I don’t expect the ABA resolution to have any dramatic impact on law firms immediately. But the trend over the years has been to discourage such policies and focus instead on performance. As society’s concept of what is "old" continues to change, so too do law firm’s concepts of what they need to do for succession planning and overall performance.