Age Discrimination Committee Activity in Review

As published in The Senior Lawyer:

Fall 2010, The Senior Lawyer
Age Discrimination Committee

A meeting of the Age Discrimination Committee was held on September 27, 2010 with ten members attending either by telephone or in person at the offices of Duane Morris LLP in New York City or the offices of Whiteman Osterman & Hanna LLP in Albany.

Marguerite Stenson Wynne provided an update on the Kelley Drye case, noting that the EEOC had filed a motion to dismiss certain defenses raised by Kelley Drye in its answer, that the motion had been dismissed without prejudice to allow Kelley Drye to file an amended answer, which was done, and that the EEOC had renewed its motion to dismiss.

There was an extensive discussion of a proposal to send to the larger law firms in New York a new request to sign a pledge, similar to the one circulated in 2007, supporting the “best practices” and recommendations contained in the Report and Recommendations on Mandatory Retirement Practices in the Profession that was approved by the NYSBA in March 2007, and in particular agreeing to have a partnership retirement policy that does not require partners to retire automatically upon reaching a specific age. The proposal was approved, and the Committee will start work on this project.

The Committee also discussed a law firm ranking list produced by The American Lawyer called the “A-List,” which includes among the criteria used to rank a law firm its diversity policies and practices. However, these criteria do not appear to include practices and policies related to age discrimination. Richard Rifkin reminded the Committee that the NYSBA does not favor law firm rankings.

Finally, mention was made of discussions with Edna Sussman, the Chair of the Dispute Resolution Section, with regard to possible joint programs or seminars. One such program was included in the joint meeting of the Elder Law Section and the Senior Lawyers Section in White Plains in late October. Another possibility is a program aimed specifically at senior lawyers to assist them in learning more about, and possibly developing, an arbitration and mediation practice utilizing their significant experience.

John R. Dunne
Gilson Gray

Spring 2010, The Senior Lawyer
Age Discrimination Committee

A meeting of the Age Discrimination Committee was held on December 8, 2009 with approximately a dozen members attending either in person at the offi ces of Duane Morris LLP or by telephone. Richard Martin, staff liaison, was also kind enough to attend by telephone.

Two of the attendees, Jerome Lefkowitz and Richard Rifkin, had also been members of the Special Committee on Age Discrimination in the Profession. A link to that Special Committee’s 2007 Report and Recommendations on Mandatory Retirement Practices in the Profession is on the Age Discrimination Committee’s Web page. Attending in person as a special guest was Louis Graziano, a senior trial lawyer at the New York offi ce of the Equal Employment Opportunity Commission.

After issuing its 2007 Report and Recommendations, which was approved by the Association’s Executive Committee and House of Delegates on March 30, 2007, the Special Committee conducted a survey of New York law firms with respect to their partnership retirement practices, the results of which gave rise to the Honor Roll set forth on the Special Committee’s Web page. There was a discussion on how best to obtain copies of the survey’s results and copies of the documents used in the survey, and Messrs. Lefkowitz and Rifkin volunteered to spearhead that effort.

The principal focus of the meeting was the discussion and ultimate approval of a draft of the proposed Welcome and Statement of Purpose to be included on the Age Discrimination Committee’s Web page. The text, as it now appears on the Committee’s Web page, is as follows:

Welcome and Statement of Purpose

The basic purpose of this Committee is to help senior lawyers, as well as younger members of the bar, to become more familiar with this area of the law as it may affect their careers and to help promote changes that will end age-related discriminatory practices affecting attorneys. As part of this effort, the Committee intends to continue the excellent work of the Special Committee on Age Discrimination in the Profession.

The Special Committee’s Mission Statement, as set forth in its Report and Recommendations (pp.1-2), was as follows:

The Committee shall study and report on practices in the profession that disadvantage lawyers because of age, including those that may arise from:

• law firm hiring and firing practices
• mandatory retirement policies
• “up-or-out” policies
• age-based hierarchical staffing of cases
• policies concerning retaining of counsel
• the fixing of time charge rates
• non-compete clauses, combined with mandatory retirement policies, that prevent retired attorneys, who otherwise might wish to continue to practice law for a number of years, from engaging in such practice
• other age-discriminatory practices affecting attorneys, as the Committee may identify.

The Committee shall take a balanced and objective approach in its examination of these issues, and its report will take into account the rationale and perspective of law fi rms or other legal employers and their policies and practices in these areas. If reform is needed, the Committee shall recommend steps to promote changes and end any age-related discriminatory practices affecting attorneys. The Committee’s report shall recommend changes in law or policy, where appropriate, and shall set forth model policies, best practices and other guidance on these issues, to help facilitate positive changes and promote a more enlightened attitude on this subject within the profession.

the issues implicated by our Mission Statement were so important and complex that, given the constraints of time, to attempt to address all of them in a single report would unduly divert our focus and delay presentation of our recommendations. Therefore, we focused our efforts on an issue we felt to be of prime importance (although by no means the only significant issue): the practice of so-called ‘mandatory retirement’ of law firm partners. However, as we note in our section contrasting practices in the public sector with those of private law firms [pp.9-10], the practices employed in the former – in which age discrimination is clearly outlawed—provide important insights and suggest areas for future study by this or other committees.

Fall 2009, The Senior Lawyer
Age Discrimination Committee

The Age Discrimination Committee expects to hold its initial meeting in September. It has established contact with the New York office of the Equal Employment Opportunity Commission, and representatives of that office are planning to attend Committee meetings on a regular basis.

Preliminary discussions have taken place with regard to the Report and Recommendations on Mandatory Retirement Practices in the Profession, issued in January, 2007 by the NYSBA’s Special Committee on Age Discrimination in the Profession and later approved by the Association’s Executive Committee and House of Delegates, and how best to continue the excellent work of that Special Committee, including:

(a) inviting members of that Special Committee to join in the Age Discrimination Committee of the Senior Lawyers Section;
(b) determining how best to support and promote the “best practices” set forth in the Report and Recommendations, such as the law fi rm survey on retirement practices that was conducted by the Association a year or so ago;
(c) determining how best to continue the work of the Special Committee, particularly with respect to the issues it decided not to address because of time constraints; and
(d) promoting and publicizing the Report and Recommendations, including providing a link to it (and to the results of the survey referred to in (b) above) on the Section’s Web page.

Discussions on these subjects will continue at future Committee meetings.

Gilson Gray