Sidley, Austin firm must turn over more information.

• Author: Sanders, Carol McHugh
• Position: Law firm age discrimination case

A Chicago-based law firm must comply more fully with a subpoena in an Equal Employment Opportunity Commission (EEOC) investigation to determine whether 32 demoted partners in fact were employees under the Age Discrimination in Employment Act (ADEA). The Seventh Circuit did not resolve whether the former partners at Sidley & Austin were employees, but only that there is enough doubt about whether they are covered by the age discrimination laws to entitle the EEOC to greater compliance with its subpoena. Equal Employment Opportunity Commission v. Sidley, Austin, Brown & Wood, 2002 U.S.App. Lexis 22152).

A concurring judge noted that the U.S. Supreme Court has granted certiorari in a case from the Ninth Circuit that may resolve some or all of the problems that govern the classification of Sidley's members. Wells v. Clackamas Gastroenterology Associates P.C., 271 F.3d 903 (9th Cir. 2001), cert. granted, No. 01-1435, October 1, 2002 (summary at 71 U.S. Law Week 3062). The Ninth Circuit held in Clackamas that any person classified as an employee for purposes of state law necessarily is an employee for purposes of federal law.

The EEOC pursued information from the law firm now known as Sidley, Austin, Brown & Wood after the firm demoted the 32 equity partners in 1999 to "counsel" or "senior counsel" status. The commission subpoenaed documents relating to whether those partners were covered by ADEA, which protects employees, but not employers, from age discrimination. The commission also sought information about whether Sidley may be forcing other partners to retire at a set age, contrary to federal anti-discrimination laws that abolished mandatory retirement.

On the commission's motion to enforce its subpoena, the federal district court ordered the firm to comply fully. 2002 U.S.Dist. Lexis 2113.

On appeal, Sidley maintained that it produced enough information to show that the 32 lawyers were bona fide partners before their demotion and, as such, were employers not covered by ADEA. The firm also asserted that the question of whether the 32 demoted partners are within the ADEA's coverage is jurisdictional, which once answered against the commission, requires it to stop investigating.

The Seventh Circuit, in an opinion by Judge Posner, said the firm could "obtain no mileage" by characterizing the coverage issue as jurisdictional. EEOC could pursue information as to whether the 32 demoted partners were employees under the ADEA because it is entitled...