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The law firm of noted litigator David Boies discriminated against female lawyers with respect to compensation and terms of employment, violating Title VII of the Civil Rights Act, the U.S. Equal Employment Opportunity Commission has determined. The EEOC’s investigation of Armonk, N.Y.-based Boies, Schiller & Flexner began after two female associates filed a complaint with the commission in April 2001 alleging the firm relegated them to a lower-paid, all-women non-partnership track while preserving the firm’s partnership track exclusively for male associates. The two associates who filed the EEOC complaint, Rachel M. Baird and Bonnie Porter, also later sued the firm in the Southern District of New York for about $1.25 million. They settled in April 2002 after the firm agreed to have a judgment entered against it and pay them $37,500 each. The EEOC investigation proceeded, however, and the Aug. 7 determination backs the two associates’ central allegations. “[T]he evidence of record indicates that [Boies Schiller] maintains a two-tiered system which is not applied uniformly, resulting in discrimination against a class of female associate attorneys,” wrote Spencer H. Lewis, the director of the EEOC’s New York office. In their lawsuit, the two women had claimed that Baird, a 1992 Yale Law School graduate, earned $112,000 a year when she worked at the firm in 2000, while two partnership-track male associates who graduated law school in 1996 made $159,000. Lewis also said Boies Schiller had not properly maintained or provided to the EEOC documentation of the women’s allegations. The firm will now enter into a conciliation process with the EEOC in which the two will meet and discuss ways of addressing the Title VII violation. If such talks fail, the EEOC has the right to sue Boies Schiller. But the 163-lawyer firm steadfastly maintains there is nothing to address. “We are disappointed that the Equal Employment Opportunity Commission has made an administrative determination of cause without even meeting with Boies, Schiller & Flexner, as the firm had repeatedly requested, to allow for a thorough and fair evaluation of the facts concerning this matter,” the firm said in a statement. EEOC FINDING CRITICIZED Katherine Eskovitz, a Boies Schiller associate who has been representing the firm before the EEOC along with its outside counsel, Ronald Green of Epstein Becker & Green, criticized the EEOC’s determination as “one-sided.” She said the firm had wanted to meet with the EEOC because important details about personnel decisions were not always clear in the paper record. Eskovitz said no discrimination had ever taken place at Boies Schiller, and noted that 11 of the firm’s 55 partners are women, which is above average among major law firms. She also said that men currently account for about half the non-partnership track associates. Eskovitz also pointed to a ruling last August by Southern District Judge Denny Chin denying most of the request for attorneys’ fees filed by Hillary Richard, the lawyer for both Baird and Porter. In awarding only $54,724 of the $191,048 requested, Judge Chin concluded the two women had little chance of succeeding on the merits because both left the firm within a year for personal reasons, and because Baird admitted in deposition that she had applied through a headhunter for a non-partnership track position. “[T]he amounts offered by defendants clearly were just a fraction of what it would have cost defendants, both in terms of fees and expenses to defend the case as well as revenue lost from the time the principals of the firm (including Boies) would have had to devote to defending the case,” Judge Chin wrote. “Their decision to make the offers of judgment was in no way a recognition of any liability.” Robin A. Henry, the administrative and hiring partner for Boies Schiller’s headquarters office, said the firm “provides opportunity for all who work there.” As an example, she pointed to her own experience as a woman who joined the firm as a partnership-track associate in January 1998 and became a partner by December of the same year. “We look forward to presenting our side of the case, which we expect to do in the next few weeks or months,” said Henry. “My expectation is the situation will be resolved in a manner similar to the District Court.” Boies, the lawyer well known for his role in the Microsoft antitrust case as well as for representing Vice President Albert Gore before the U.S. Supreme Court in the disputed 2000 presidential election, was out of the country on vacation and unavailable for comment. The EEOC determination will not affect the settlement reached with the two women who originally brought the complaint, but Richard said they were pleased. “I think my clients both feel vindicated and are hopeful the EEOC can effect changes to make the workplace fair for all women,” she said. “It’s a wake-up call for all firms that if they’re going to have a two-tiered system, it can’t be a mommy track and a man track.”

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