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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. Last week, 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, non-partnership track. In a letter sent to the Armonk, N.Y.-based firm’s outside counsel, Ronald Green of Epstein Becker & Green, and obtained by the New York Law Journal, the EEOC proposed 13 steps it believes Boies Schiller would need to take to remedy the Title VII 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 backpay, 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 Wednesday. But Monday she said the firm was disappointed with the determination and denied the firm had ever discriminated against women. Green was traveling and unavailable for comment. Calls to EEOC officials were also 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 non-partnership-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 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,” said Berkowitz. “It is an effort to impose a cookie-cutter approach to what are inherently subjective decisions.” Michael Starr, an employment law partner in the New York office of Hogan & Hartson, said the EEOC proposal was unusual, and he predicted the firm would resist it. But he noted Boies Schiller appeared to have far more differentiation among its ranks than do most firms. For instance, he said, most firms do not maintain a formal two-tier system for junior lawyers, most of whom expect to be considered for partner or have already been passed over. “The more a firm differentiates and creates different classifications of employees, the more it will be asked to explain its criteria for who gets classified one way or another,” said Starr. At most large firms, he said, the criteria for partnership consideration are more formalized than might appear, and pay differences among junior lawyers are less extreme. Boies Schiller’s more entrepreneurial culture, said Starr, where large contingency awards enriched some lawyers more than others, is more likely to draw such a tough response from the EEOC. Starr noted that most discrimination cases against law firms are filed by people passed over for partnership. Plaintiffs in such cases may also seek further transparency in the law firm promotion process. “If this remedy were accepted as customary, then the EEOC would want to apply it in those situations as well,” he said. 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 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. In an interview with the New York Law Journal in March 2002, EEOC Chairwoman Cari M. Dominguez noted the typical complainant to the EEOC was an hourly wage-earner working for unsophisticated employers. Speaking of a case the commission brought against Morgan Stanley on behalf of a bond saleswoman who claimed she faced discrimination, Dominguez said, “It is very rare for women at these professional levels to come to the EEOC and file a complaint. It’s called ‘kiss your career goodbye.’” Boies Schiller, whose managing partner is famous for his role in the Microsoft antitrust case and for representing Vice President Al Gore in the disputed 2000 presidential election, would make a particularly attractive test case for the EEOC, said Starr. “It’s a very high-profile firm,” he said. “Given a firm like that, the EEOC would be more inclined to push the envelope. They know other firms will sit up and take notice.”

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