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The 7th U.S. Circuit Court of Appeals held that the EEOC was entitled to full compliance with the coverage portion of a subpoena issued to Sidley & Austin as part of an investigation into whether 32 equity partners were demoted due to their age because there was “enough doubt” as to whether the former partners were covered by the Age Discrimination in Employment Act (ADEA). EEOC v. Sidley Austin Brown & Wood, 7thCir, 83 EPD �41,230. The partners were demoted to “counsel” or “senior counsel.” As part of its investigation, the EEOC issued a subpoena seeking documentation relating to coverage and discrimination. The inquiry into coverage was made because the ADEA protects employees, not employers. Thus, in order to establish that the demotions violated the ADEA, the EEOC had to show that, prior to their demotions, the partners were employees under the Act. Sidley provided most, but not all, of the information sought by the EEOC relating to coverage and no information relating to bias. Sidley contended that it had provided enough information to show that the demoted partners had been “real” partners, and there was no reason for the EEOC to continue its investigation. The EEOC applied for an order to enforce the subpoena. A federal district court ordered Sidley to comply fully with the subpoena. Sidley appealed. The appellate court noted out of 500 partners, Sidley was controlled by a 36-member executive committee. Members of the committee are elected by the committee, not the partnership. Moreover, despite having some powers regarding hiring, firing, promotion, and compensation of their subordinates, partners who were not on the executive committee were at the executive committee’s “mercy” as far as their own status was concerned. For the most part, the court compared partners who were not on the executive committee to employees, or executive employees, of a corporation. It stated that the most “partneresque” feature of the demoted partners’ relationship to the firm was their personal liability for the firms’ debt. Ultimately, the court concluded that “the coverage issue … remain[ed] murky despite Sidley’s partial compliance to the subpoena” and the EEOC was “entitled to the information that it think it needs to formulate the theory of coverage before the court is asked to choose between the [EEOC's] theory and [Sidley's].” As for the bias portion of the subpoena, the court stated that the EEOC had not “earned the right” to force Sidley to produce the “voluminous and sensitive documentation” sought because it failed to propose a standard or criterion to guide the determination. Accordingly, the federal district court’s order compelling full compliance to the subpoena was vacated and the case was remanded with directions for the district court to order Sidley to comply fully with the coverage portion of the subpoena. Once those submissions were complete, the district court is to determine whether the 32 partners were covered by the ADEA prior to their demotions. If the uncontested facts indicated that they were not employees, and thus not covered by the ADEA, Sidley should be excused from complying with the bias portion of the subpoena. � 2002, CCH INCORPORATED. All Rights Reserved.

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