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The U.S. Equal Employment Opportunity Commission wants Boies, Schiller & Flexner to codify both its two-tiered attorney track and its compensation system, rendering transparent and objective law firm employment practices that have been highly subjective and secretive. Two weeks ago, the EEOC determined that the law firm, co-founded by prominent litigator David Boies, had discriminated against female associates, relegating them to a lower-paid, nonpartnership track. In a letter sent to the firm’s outside counsel, Ronald Green of New York’s Epstein Becker & Green, and obtained by the New York Law Journal, a sister publication to The National Law Journal, the EEOC proposed 13 steps it believes Boies Schiller would need to take to remedy the alleged Title VII of the 1964 Civil Rights Act violation. One of the steps stated, “Respondent will codify its two-tiered attorney track, stating (1) qualifications necessary for hire onto the partnership track; (2) the performance requirements to be met for promotion onto the partnership track after hire; and (3) the pay structure for the two different tracks. This codification will be distributed to all current and future attorneys.” The letter, written by EEOC senior investigator Arlean Nieto, also asked the firm to codify its pay structure, clearly delineating compensation based on hourly billed work as opposed to contingency fees. In addition, the EEOC asked the firm to compensate affected female lawyers up to $300,000 in back pay, mandate hours of training for lawyers and staff and submit anti-discrimination and complaint procedures for EEOC review. The agency would also monitor the firm for three years. The EEOC and Boies Schiller are now entering a conciliation process, and the terms of the EEOC’s proposal may change as the parties engage in negotiations. Katherine Eskovitz, the Boies Schiller associate representing the firm with Green before the EEOC, did not return calls seeking comment on the letter. But earlier she said the firm was disappointed with the EEOC determination of bias and denied the firm had ever discriminated against women. Green was traveling and unavailable for comment. Calls to EEOC officials also were not returned. The investigation followed an April 2001 complaint by two female associates, Rachel Baird and Bonnie Porter, who later sued the firm for discrimination. In their suit, the women claimed they were placed in a “female ghetto” of nonpartnership-track associates, where they earned far less than male partnership-track colleagues with less experience. Baird, a 1992 Yale Law School graduate, said she earned $112,000 a year when she was at Boies Schiller in 2000, while men who graduated law school in 1996 earned $159,000. But such discrepancies are not uncommon in law firms today, where professional staffs once comprising only partners and associates now field a dizzying array of equity partners, income partners, counsel, senior attorneys and contract lawyers, with equally byzantine pay structures. In perhaps most firms, partner pay is largely determined by business origination. Associate salaries are more frequently pegged to seniority, but bonuses are often determined by hours billed or other measures of “merit.” Information about individual attorney compensation is generally kept very private. EEOC overreaching? Philip M. Berkowitz, an employment law partner in the New York office of Chicago-based Seyfarth Shaw, said law firm managing partners are accustomed to a large degree of discretion in determining compensation and promotion for other partners and associates, basing their decisions on a wide variety of factors. He said the EEOC’s proposals to codify law firm practices struck him as “overreaching.” “The EEOC wants assurance that decisions are based on hard, measurable factors,” Berkowitz said. “It is an effort to impose a cookie-cutter approach to what are inherently subjective decisions.” The EEOC has in recent years taken a greater interest in policing law firms and other professional workplaces. The commission is currently investigating whether or not Chicago’s Sidley Austin Brown & Wood committed age discrimination when it demoted 32 partners, most of whom were older than 50, in 1999. “The EEOC is certainly sending a signal that law firms and other professional services firms are not immune to its enforcement,” said Berkowitz.

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