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All year, big firms watched with trepidation the progress of an age discrimination suit targeting Chicago’s Sidley Austin. But in the end the outcome of the landmark case actually didn’t bring much clarity to how firms should handle mandatory-retirement policies. In October, Sidley Austin settled its long-running dispute with the Equal Employment Opportunity Commission, which sued the firm for de-equitizing or forcing out 32 mostly older partners in 1999. The firm agreed to pay $27.5 million and abolished its mandatory-retirement-age policy until Dec. 31, 2009, as part of its consent decree. Sidley had argued that because the lawyers in question were partners, discrimination laws meant to protect employees didn’t cover them. The EEOC rejected that argument, noting that decision-making power at the firm resides with a handful of partners on the executive committee. Accordingly, though the Sidley lawyers were classified as partners, the EEOC found them to be employees, giving them protection under anti-discrimination laws. Though it settled, the firm has admitted no wrongdoing, and the consent decree says only that each partner is an employee for “the purposes of resolution of this matter.” That leaves open the question of the legality of mandatory-retirement policies at many firms like Sidley. Firms face a growing problem as the glut of baby boomer attorneys edges up on mandatory-retirement ages, which range from 65 to 72 for most firms. Many of these older attorneys are productive and healthy, and they want to continue working as full partners rather than being forced to either de-equitize or retire. The rationale behind mandatory retirement is that forcing partners out once they reach a certain age makes room for younger attorneys, but increasingly, people in the legal community are finding the rule anachronistic. This summer the American Bar Association voted to urge firms to reconsider such policies, and Kirkpatrick & Lockhart Preston Gates Ellis abolished its mandatory-retirement policy in November. Given the outcome of the Sidley case and the fact that the EEOC has taken an interest in how firms are treating older workers, other firms might begin changing their policies as well. “There is still no definitive answer,” says Leslie Corwin, an employment partner with Greenberg Traurig in New York. “We still have no guidelines.”
Attila Berry can be contacted at [email protected].

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