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At the Tipping Point
When he took over as the new President of the New York State Bar Association (NYSBA) in June, 2006, Mark H. Alcott identified as one of the three themes of his presidency 'an end to age discrimination in our profession, including the archaic practice of mandatory retirement.' See, M.H. Alcott, 'Taking the Initiative,' NYSBA Journal, 5 (July/August 2006). According to Mr. Alcott, who is a partner at Paul, Weiss, Rifkind, Wharton & Garrison LLP, mandatory retirement policies at law firms deprive society of 'seasoned talent.' Id. at 6. He noted that lawyers from the baby boom generation are living longer, but many of them also waited until later in life to marry and start a family and, as a result, are also delaying retirement. Id. He also observed that retirement may not be a viable option for baby boomers who are now in the 'sandwich generation' of raising their own children while caring for aging parents. Id.
On Sept. 28, 2006, the NYSBA announced that it established a Special Committee on Senior Lawyers, a Special Committee on Age Discrimination in the Profession and a Task Force on the Mandatory Retirement of Judges (see, 'NYSBA Addresses the Special Issues and Challenges Now Facing Senior Lawyers,' www.nysba.org/newscenter) (Sept. 28, 2006). In a press release accompanying that announcement, Mr. Alcott stated that: '[A]s our population ages, many talented vigorous lawyers are now facing new challenges that have not been fully explored or vetted by the legal community. For example, many senior lawyers are facing both social and legal discrimination that is not being addressed, and that is unacceptable. Issues such as mandatory retirement and other practices that adversely affect lawyers because of their age cannot be ignored.'
Alcott has placed the issue of mandatory retirement policies at law firms squarely before the legal community. However, he is not the first to do so. In 2002, the Equal Employment Opportunity Commission (EEOC) filed an age discrimination charge against Chicago-based Sidley Austin Brown & Wood. The EEOC charged that they violated the age discrimination in Employment Act of (ADEA), by demoting 32 older equity partners to non-equity status and by implementing a mandatory retirement age policy. After 3 years of legal skirmishing at the administrative level, the EEOC filed a ADEA lawsuit in the U.S. District Court in 2005. The trial court aptly noted that the case had 'been of great interest not only to Sidley, but also to most of the other large law firms across the country.' EEOC v. Sidley Austin, 406 F.Supp.2d 991, 995 (N.D. Ill. 2005). However, the immediate past President of the New York City Bar Association, Bettina Plevan, recently observed that the parties to the case 'know that they are being watched closely but so far very little guidance has emerged from the case.' See, B.B. Plava and J.B. Wong, 'When Is a Partner Not a Partner?' NYLJ, May 22, 2006. In addition to not yet providing guidance to the profession, the EEOC's lawsuit against Sidley Austin has also not served as a deterrent: 57% of law firms with more than 100 employees, and 13% of law firms with less than 100 employees have mandatory retirement age policies. See, L. Jones 'Pitfalls of Mandatory Law Firm Retirement,' National Law Journal, May 24, 2006.
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