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A sexual harassment lawsuit filed by a former equity partner at Hinshaw & Culbertson is a case that again calls into question whether partners can use federal workplace discrimination laws against their firms. Similar to the pending age discrimination case brought against Sidley Austin by 32 of its former partners, a lawsuit filed by a former Hinshaw & Culbertson partner alleges that the Chicago firm violated discrimination laws that generally apply to employer-employee relationships. And also like the Sidley Austin case, the outcome of the dispute may hinge on the plaintiff’s role as partner and the amount of management control she had in her job at the large firm. Filed in the U.S. District Court for the Northern District of Illinois, the lawsuit brought by Susan Hickman asserts that in 2004 she was demoted from equity partner to a contract partner and a year later was terminated after she went to management at 414-attorney Hinshaw & Culbertson about a sexually hostile environment and disparate treatment of women at the firm. She began as an associate there in 1985. Specifically, Hickman claims that the firm violated Title VII of the Civil Rights Act of 1964 when it retaliated by firing her last year for complaining about a hostile work environment that began in 2003. Hickman, who was an environmental law partner, also asserts that management took no corrective action about the alleged harassment. But in its answer filed last month, Hinshaw & Culbertson argues, among other things, that Hickman cannot claim federal sexual harassment under Title VII for the alleged conduct that occurred while she was a partner, since she is not protected by the law as an employee. Representing Hinshaw & Culbertson in Hickman v. Hinshaw & Culbertson, 06 CV 2958, is Tom Luetkemeyer, who practices in the firm’s Chicago office. He said that Hickman’s demotion and termination were based on a “productivity issue,” related to her time spent in the office, billable hours and billed dollars to clients. Hickman’s attorney, E. Jason Tremblay of Arnstein & Lehr in Chicago, declined to answer questions about the lawsuit. In an e-mail message, he said that it was a “strong and meritorious case.” Hickman could not be reached for comment. According to Luetkemeyer, Hickman’s complaints to firm management involved allegations that a male associate who was poised to make partner had engaged in sexual harassment against another woman and that Hickman, as a member of the firm, had objected to his making partner. “The position of the firm is that she never made a complaint about a hostile work environment and that she made a complaint about a partner candidate not being appropriate for the firm,” he said. Luetkemeyer said that Hinshaw & Culbertson plans to file a motion for summary judgment, arguing, in part, that Title VII does not apply to any events that occurred while she was a partner. The test that the court would use to determine the validity of a Title VII claim is the same as the one the Seventh Circuit U.S. Court of Appeals used in the Sidley Austin decision and that the U.S. Supreme Court used in another case, said Camille Hebert, a law professor at Ohio State University Moritz College of Law. The group of former Sidley Austin partners in the ongoing case claim age discrimination resulting from changes to its mandatory retirement policy. In Equal Employment Opportunity Commission v. Sidley Austin, 315 F.3d 696 (7th Cir. 2002), the court determined that the 32 demoted partners could be considered employees protected by the Age Discrimination in Employment Act, depending on the amount of control they exerted at the firm. A year later, the Supreme Court in Clackamas Gastroenterology v. Wells, 538 U.S. 440 (2003), held that the most important factor in deciding whether a worker is an employee is the employer’s control over an individual’s work. “I think what the court ultimately is saying is that the bigger you are, the less you look like what we think of as a traditional partnership,” Hebert said. Leigh Jones is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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