Resolving the Title VII Partner-Employee Debate

35 Pages Posted: 11 Oct 2017

Date Written: February 1, 2003

Abstract

Discrimination against partners in law firms presents a unique legal issue. While the Supreme Court has recognized that Title VII protects law firm associates from discriminatory acts committed by supervising partners, the circuits are split on the issue of whether Title VII covers partners alleging to be victims of discrimination. In accordance with well-established principles of jurisdiction, plaintiffs seeking protection under Title VII must fall within the purview of the statute. Title VII covers “employers” and “employees.” Courts determine who qualifies as an “employer” or an “employee” by looking to the statutory definitions of the terms, and they decline to exercise jurisdiction if the party alleging discrimination does not qualify as an employee or the party accused of discriminating is not an employer as defined by the statute. While the plain language of Title VII explicitly forbids employers from treating employees less favorably because of race, color, religion, sex, or national origin, the statute fails to offer a substantive definition of who qualifies as an employee. An employee, according to the definition in the statute, is “an individual employed by an employer.” This circular definition offers trial courts inadequate guidance for determining who should be included or excluded from the definition of employee. The definition provisions of other antidiscrimination statutes such as the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”) contain similarly ambiguous language.

This Note argues that the Court should interpret the term employee in Title VII to include partners and similarly situated executives. Noting that the concurrence in Hishon v. King & Spalding has had a significant influence on the standards lower courts have adopted to evaluate the partner-employee question, Part I deconstructs Justice Powell’s concurrence and identifies the mistaken assumptions in his reasoning. This Part explores the notable structural changes that have occurred in the modern law firm’s nature and demographics and the available business organization forms. Part II contends that lower courts have relied on the reasoning articulated in Justice Powell’s concurrence or some similarly flawed rationale and, as a result, the standards developed to determine who qualifies as an employee fail to offer a viable solution to the debate. Part III argues that interpreting the definition of employee in Title VII to include partners and similarly situated executives would satisfy the congressional purpose underlying the statute and offer a clear resolution to the debate, allowing litigants to predict with greater accuracy their coverage or exposure under the law.

Suggested Citation

Johnson, Kristin N., Resolving the Title VII Partner-Employee Debate (February 1, 2003). Michigan Law Review, Vol. 101, No. 4, 2003, Available at SSRN: https://ssrn.com/abstract=2847204

Kristin N. Johnson (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

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