"But I'm Denny Crane!": Age Discrimination in the Legal Profession after Sidley

Article excerpt

I. "TRUST ME. I CAN FIX THIS. I'M DENNY CRANE."

Art doesn't always imitate life when it comes to the law. Boston Legal's aging TV lawyer Denny Crane may manage week after week to weasel out of predicaments that would cost younger men their jobs. (1) But real-world law firms have no sense of humor when an older worker's productivity begins to slip. When does the decision to discipline or terminate an employee because of perceived age-related debility violate the law? And what rights does an older worker have when faced with outright age discrimination?

The answers to these questions are moving targets. As post-War America continues to gray, (2) its attitude toward older workers is becoming more tolerant. (3) Modern employment law has begun to challenge long-held practices in the legal profession, (4) where, unlike on TV, age-related dismissals are not limited to lawyers who shoot their clients. (5) When a veteran contributor begins to show signs of wear, many partners find themselves pressured to dismiss or demote a colleague who was once a skilled practitioner, a rainmaker, or even a mentor. (6) Such decisions may be difficult on a personal level, but the legal consequences can be worse. Competent older attorneys have long been harassed, terminated, passed over, or coerced into retirement for reasons rooted in greed, unthinking adherence to tradition, or stereotyping. (7) But today, any business decision that raises the specter of age discrimination is potentially actionable in federal and state courts. (8) Recent cases like Smith v. City of Jackson, Mississippi (9) and EEOC v. Sidley Austin Brown & Wood (10) have greatly extended the scope of legal protections against age bias (11) and made it plain that the profession will no longer tolerate age discrimination within its own ranks. (12) The result has been a new legal standard that has produced eight-figure consent decrees for practices that just a few decades ago might not have raised an eyebrow. (13)

II. FEDERAL AND STATE PROTECTIONS

A. Statutory Overview

The most important federal protections against workplace age discrimination are found in the Age Discrimination in Employment Act of 1967 ("ADEA"). (14) Enacted during the heady days following the 1964 Civil Rights Act, (15) the ADEA bars a broad range of discriminatory practices against employees who are at least forty years old. (16)

Congress passed the ADEA because it found older workers to be at an increasing disadvantage in the workplace, facing inequities like unfair mandatory retirement policies, disproportionately high unemployment, and on-the-job discrimination. (17) In an introductory statement of purpose, it urged employers to base management decisions on merit, to adopt formal anti-discrimination policies, and to seek compromise solutions to age-related controversies. (18)

The ADEA is effected by the Equal Employment Opportunity Commission, (19) a federal agency created by Title VII of the 1964 Civil Rights Act (20) that today has jurisdiction over most types of federal employment-discrimination claims. (21) Aggrieved employees normally must file a claim with the EEOC before they can open a civil case in federal district court. (22) If the agency fails to negotiate a conciliation, it issues a "right to sue" letter to the charging party (23) and may also file its own claim on the employee's behalf. (24)

Procedures are slightly different (25) in states that complement ADEA protections with their own (generally more comprehensive) anti-discrimination laws and enforcement agencies. (26) New York is one such "deferral" state, (27) where the New York State Division of Human Rights (28) implements the New York State Human Rights Law (NYSHRL). (29) The NYSHRL grants New York residents legal recourse to a wide range of discriminatory activities. (30) Its workplace age-discrimination protections are similar to those of the ADEA, but extend to employees as young as eighteen and to employers with as few as four workers. …