Hishon v. King & Spalding Brief Amicus Curiae

    No. 82-940

In the

Supreme (Enurt of tire United States
October Term , 1982

Elizabeth Anderson H ishon,
Petitioner,

King & Spalding,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF AM IC U S CU RIAE FOR AMERICAN ASSOCIA­
TION OF UNIVERSITY WOMEN; AMERICAN SOCIETY 
OF PROFESSIONAL AND EXECUTIVE WOMEN; CON­
NECTICUT WOMEN’S EDUCATIONAL AND LEGAL 
FUND, INC.; EQUAL RIGHTS ADVOCATES, INC.; 
NATIONAL BAR ASSOCIATION, WOMEN LAWYERS’ 
DIVISION; NATIONAL WOMEN’S LAW CENTER; 
NORTHWEST WOMEN’S LAW CENTER; NOW LEGAL 
DEFENSE AND EDUCATION FUND; WOMEN’S EQUITY 
ACTION LEAGUE; WOMEN’S LAW PROJECT; AND 

WOMEN’S LEGAL DEFENSE FUND

Marsha Levick 
Judith I. Avner 
Anne E. Simon 

Counsel o f  Record 
NOW Legal Defense and 

Education Fund 
132 West 43rd Street 
New York, New York 10036 
(212) 354-1225

Attorneys fo r  Am ici Curiae



TABLE OF CONTENTS

Table of Authorities..............

Interest of Amici Curiae.........

Statement of the Case.............

Summary of Argument...............

Argument
I. THE DECISION BELOW WOULD UNDER­

MINE THE SUBSTANTIAL PROGRESS 
WOMEN HAVE MADE TOWARDS ACHIEV­
ING EQUALITY OF EMPLOYMENT OP­
PORTUNITY IN THE LEGAL PRO­
FESSION......................

II. THE LOWER COURT'S VIEW THAT
THE PARTNERSHIP FORM MANDATES 
EXEMPTION OF SOME PARTNERSHIP 
DECISIONS FROM TITLE VII IS 
ERRONEOUS....................
A. The Eleventh Circuit's 

Decision is Based on an 
Idealized and Inaccurate 
View of "Partnerships"•••

B. The Eleventh Circuit Er­
roneously Construed Title 
VII by Focusing on Formal 
Differences and Ignoring 
Functional Similarities 
Between Corporate and Part­
nership Forms of Organization 
in Professional Services 
Businesses ................

iii
1

2
3

Page

19

20

28

x



Page

III. DECISIONS ON ADMISSION TO PART­
NERSHIP ARE EMPLOYMENT DECISIONS 
SUBJECT TO SCRUTINY UNDER TITLE
VII........................... 36
A. The Termination of Employment

as the Result of an "Up or 
Out" Policy is an Employment 
Decision Under Title VII. 36

B. Progression from Associate 
to Partner is Clearly an 
Expectation of Employment
as an Associate. 40

C. Partnership Decisions are
Not Protected by the Free­
dom of Association....... 45

IV. TITLE VII’S APPLICATION TO PART­
NERSHIPS AFFECTS MANY IMPORTANT 
SECTORS OF THE ECONOMY, NOT
SIMPLY LAW FIRMS....  54

CONCLUSION................  64

APPENDIX

- ii -



TABLE OF AUTHORITIES

Cases Page

Albemarle Paper Co. v. Moody, 422
U.S. 405 (1975) ...........    5,44

Beilis v. United States, 417 U.S.
85 (1974).......................  54

Blank v. Sullivan & Cromwell. 418
F. Supp. 1 (S.D.N.Y. 1975)....... 15

Bradwell v, Illinois, 83 U.S. (16
Wall) 1308 (1873)...............  6

Buckley v. Valeo, 424 U.S. 1
71*976)........................... 51

Citizens Against Rent Control/
Coalition for Fair Housing v.
City of Berkeley, 454 U.S.
290 (1981)......................  47

CSC v. Nat'1 Assoc, of Letter
Carriers, 413 U.S. 548 (1973)-.. 5,51

First Bank & Trust Co. v. Zagoria,
51 U.S.L.W. 2529 (Ga. Feb. 23,
1983)............................ 33

Gilmore v. Kansas City Terminal 
Railway Co., 509 F.2d 48"(8th 
Cir. 1975JT.....................  44

Heart of Atlanta Motel, Inc, v.
United States, 379 U.S. 241
(1964)........................... 49,50

iii -



Hishon v . King & Spalding, 678 F.
2d~T02T'"(11th Clr7l9S?)....... in passim

In re Primus, 436 U.S. 412 (1978). 52

Page

Kohn v. Royal1, Koegel & Wells,
59 F.R.I., 515, tS.D.N.Y. 1973)
appeal dism., 496 F.2d 1094
(2nd Cir. 1974) .................. 14

Kunda v. Muhlenberg College, 621
F . 2d 532 (3d Cir. “1980)........  38

Lieberman v. Gant, 630 F.2d 60
(2d Cir. I980T . ................ 38

Lucido v. Cravath, Swaine & Moore,
425 F. Supp. 123 (S.D.N.Y.
1977).........................   .4,37,45,62

NAACP v. Alabama ex rel Patterson,
357 U.S. 449 (1958)............  48

NLRB v. Yeshiva University, 444
U.S. 672 (T9^oyT7TT 77.'. .........  39

Norwood v. Harrison, 413 U.S. 455
CI9 73) .7772 . .777.............. 5,47,48,49

Ohralik v. Ohio State Bar Ass'n,
436 U.S. 447 (1978)~....      53

iv



Page

Payne v. Travenol Labs, 673 F.
798 (5th"Cir. 1982), cert, 

den., 74 L.Ed. 2d 605 (1983J---  44

Pinckney v. County of Northhampton,
512 F. Supp. 989 (E.D. Pa. 1981), 
aff'd., 681 F .2d 808 (3rd Cir.
T982)............................ 44

Railway Mail Ass'n v. Corsi, 326
U.S. 88 (1945).................  50

Runyon v. McCrary, 427 U.S. 160
(1976)..................    .48,49,50

Sweeney v. Bd. of Trustees of Keene 
State College, 569 F.2d 169 (1st 
Cir.), vacated and remanded on 
other grounds, 439 U.S. 24 (1978),
605~F.2d 106 (1st Cir. 1979)____ 44

United States Department of
Agriculture v. Moreno, 413 U.S.
528 (1973)......................  47

U.S. Postal Service Bd. of
Governors v. Aikens, 51 U .S .L .W .
4354 (TIT'S. Apr. 4, 1983)......... 44

Village of Belle Terre v. Boraas,
“ 416 U.S. 1"TT974)............- • • 46
Widinar v. Vincent, 454 U.S. 263

( M U . ___7777.................  47

v



Books, Newspapers, Periodicals 
& Studies

American Women’s Society of 
Certified Public Accountants,
A 1981 Statistical Profile of 
the Woman Certified Public 
Accountant "(1981)..............

Blum, Professional Incorporation: 
Social Change Created by the 
Tax Act, 14 Taxes~51 (1982)...

Bureau of Labor Statistics, U.S.
Dept, of Labor, Employment and 
Earnings--Household Data Annual 
Averages (Jan. 1983)...........

Bureau of Labor Statistics, U.S.
Dept, of Labor, The Female-Male 
Earning Gap: A Review of Employment
and Earnings Issues (Sept. 1982). 57

C. Epstein, Women in Law (1981)...in passim

Flaherty, Women and Minorities: The
Gains, National Law Journal, Dec.
20, 1982.......................... 14,16

Glancy, Women in Law: The Dependable
Ones, 21 Harv. L.S. Bull. No. 5 
(June 1970)......................  12,16

Greer, Women in Architecture A 
Progress (T ) Report and a 
Statistical Profile, AIA Journal,
Jan7 1982, at 40................. 57,61

Hochberger, Women in Law--How Far 
Have They Come? Mew York Law 
Journal, Mar. 21, 1977..........  13

58,60

29,30

8

Page

vi



Page

P. Hoffman, Lions in the Street
( 1973) ............................................................... 23, 36, 37,40

Internal Revenue Service, Dept, 
of Treasury, Statistics of 
Income-1978 Partnership Returns 
(1982)..................   55

Internal Revenue Service, Dept. of 
Treasury, Statistics of Income-
1979 Partnership Returns (1982).. 55

Internal Revenue Service, Dept, of 
Treasury, Statistics of Income-
1980 Partnership Returns 71982)..54,55,56

Ms. CPA, Forbes, Aug. 17, 1981,
at 8.............................. 58,59

National Laxtf Journal, Apr. 25,
1983, at 9, Col. 1 ................ 25

National Law Journal, Cct. 6,
1980.............................. 21

Nelson, Practice and Privilege:
Social Change and the Structure 
of Large Law Firms, 1981 Amer.
Bar Fdn. Research J. 97.........  24,36,41

Orren, A Look Inside Those Big
Firms, 59 A.B.A.J. 778“TT973)___ 27

Raggi, An Independent Right to 
Freedom of Association, 12 Harv. 
C.R.-C.L.L. Rev. 1 (1977)........  46

Vll



Rank, More Women Moving into Public 
Accounting, But Few to the~Top~
New York Times, Dec. 17, 1977,
at B18, Col. 1 ..................  58

Smigel, The Wall Street Lawyer
(1963) ...................... . .24,36,40,42

Society of Women Engineers, A Profile
of the Women Engineer (1982)7.77 60

M. Stevens, The Big Eight
(1981)..... ...... 77. . .----  22,26,27,43,59

J. Stewart, The Partners (1983)... 23,37,43
Tribe, American Constitutional Law

(1978)7 .....  7777777777777777777 46
wayne, The Year of the Accountant,

New York Times, Jan. 3, 1982,
at D1, Col. 1 ...................  22

Wood, The Desirability of Professional 
Corporations after the Economic - 
Recovery Tax Act, 60“Taxes“261“
098717777777777................  30

Young & Herbert, Political Association 
under the Burger Court: Fading
Protection, 15 U. Cal. Davis L.
Rev. “53 (T981)..................  46

viii



Civil Rights Act of 1964, 42
U.S.C. §2000e et seq........... in passim

Ga. Code J14-7-5(a) (1982).......  33

Ga. Code §14-7-7 (1982)..........  32

H. Rep. No. 760, 97th Cong.,
2d Sess. 621 (1982)............. 31

H. Rep. No. 760, 97th Cong.,
2d Sess . 634 (1982)............. 34,35

N.Y. Bus. Corp. Law §1507
(McKinney Supp. 1982)........... 33

N.Y. Bus. Corp. Law §1511
(McKinney Supp. 1982)........... 33

N.Y. Bus. Corp. Law §1505(a)
(McKinney Supp. 1982)........... 32

1982 U.S. Tax Week 1973 ..........  31,32

S. Rep. No. 494, 97th Cong.,
2d Sess. 314 (1982)............. 30

26 U.S.C.A. §331(a) (West Supp.
1983)............................ 34

26 U.S.C.A. §1001 (West 1982)....  34

118 Cong. Rec. 3802 (1972).......  17,18

Codes & Statutes Page

- ix -



INTEREST OF AMICI CURIAE

This brief amicus curiae in support of 

petitioner is submitted on behalf of the 

American Association of University Women; 

American Society of Professional and Execu­

tive Women; Connecticut Women's Educational 

and Legal Fund, Inc.; Equal Rights Advocates, 

Inc.; National Bar Association, Women's Law­

yers Division; National WTomen' s Law Center; 

Northwest Women's Law Center; NOW Legal De­
fense and Education Fund; Women's Equity 

Action League; Women's Law Project; and 

Women's Legal Defense Fund.- These organi­

zations are dedicated to the principle of 

equal treatment under the law and to the 

elimination of sex and race discrimination
/V/V j

in e m p l o y m e n t ' Amici believe that this 

case is of great importance for the full ef­

fectuation of Title VII's mandate to elimi­
nate employment discrimination.
rcy —■ ■ 1
~Letters from counsel for the narties, 
consenting to the filing of this brief, 
are being filed with the Clerk.

k'k /— 'Statements describing each organization 
appear in the Appendix to this brief.

1



STATEMENT OF THE CASE

Petitioner, Elizabeth Anderson Hishon, 

an honors graduate of Columbia University 

School of Law, was employed in 1972 as an 

associate by King & Spalding, an Atlanta 

law firm of more than 50 partners, more 

than 50 associates and more than 50 non­

attorney support staff personnel. She was 

only the second woman lawyer to be employed 

by the firm. Among the factors that influ­

enced her decision to accept employment at 

King & Spalding were representations that 

she would be considered for partnership af­

ter satisfactory completion of five or six 

years of employment. After she did not re­

ceive a promotion to partnership, Ms. Hishon 

was discharged in 1979 pursuant to the 

firms's "up or out" policy. She brought 

suit under Title VII, claiming discrimina­

tion on the basis of sex.

The District Court for the Northern

2



District of Georgia, after refusing to grant 

discovery on the merits, dismissed Ms. Hish- 

on's complaint under Fed. R. Civ. P. 12(b)

(1), holding that, as a matter of law, Title 

VII did not govern decisions to promote an 

associate in a law firm to partnership. 24 

FEP Cases 1303 (N.D.Ga. 1981). On appeal, 

the Court of Appeals for the Eleventh Cir­

cuit affirmed, over the vigorous dissent 

of Circuit Judge Tjoflat. 658 F,2d 1022 
(11th Cir. 1982).

SUMMARY OF ARGUMENT

The ruling of the courts below, exempt­

ing decisions involving promotion to law 

firm partnerships from scrutiny under Title 

VII, should be reversed by this Court. In 

the face of more than a century of overt 

discrimination against women in law, the 

decision, if sustained, would reverse the 

very real and substantial progress women 

have made towards achieving equality of em­

ployment opportunity in the legal profession.

3



The decision should be reversed because 

it is based on an inaccurate and idealized 

view of partnerships as purely voluntary 

organizations distinct from other corporate 

forms of business organization. In fact, 

partnerships in the legal profession, as 

well as many other professions, are commonly 

large, complex business organizations, and 

are functionally very similar to the corpo­

rate form of professional business organiza­

tion .
Contrary to the ruling below, the fail­

ure to promote petitioner to partner, re­

sulting in her termination due to King and 

Spalding's "up-or-out" policy, was an employ­

ment decision cognizable under Title VII. 

Lucido v. Cravath Swaine & Moore, 425 F.

Supp. 123, 127 (S.D.N.Y. 1977) and is there­

fore a "term, condition, or privilege" 42 

U.S.C. § 2000e-2(a)(1981) of employment as 

an associate. Title VII's broad mandate to 

eliminate employment discrimination clearly

_ 4 -



extends to promotional opportunities. 

Albermarle Paper Co. v. Moody, 422 U.S. 405 

(1975) .

Moreover, the Eleventh Circuit erred in 

its analysis of the interests at stake in 

this case. This Court has expressly held 

that discriminatory acts are not justifiable 

in the name of free association, Norwood v, 

Harrison, 413 U.S. 455, 470 (1973), and that 

governmental policies intended to further 

compelling governmental interests, such as 

those embodied in Title VII, may justify re­

strictions on associational interests.

CSC v. Nat'1 Assoc, of Letter Carriers,

413 U.S. 548 (1973) .

Finally, the widespread use of the 

partnership form of business organization by 

numerous professions and industries through­

out our economy would extend the effect of 

the lower court's ruling far beyond simply 

law firms.

5



I. THE DECISION BELOW WOULD UNDERMINE THE 
SUBSTANTIAL PROGRESS WOMEN HAVE MADE 
TOWARDS ACHIEVING EQUALITY OF EMPLOY­
MENT OPPORTUNITY IN THE LEGAL PROFESSION,

It has been over one hundred years 

since Mr. Justice Bradley upheld the right 

of Illinois to deny Myra Bradwell admis­

sion to the practice of law, characteriz­

ing her exclusion as an "adaptation" neces­

sary to preserve and protect women's proper 

role in society:

It is true that many women are 
unmarried and not affected by 
any of the duties, complications, 
and incapacities arising out of 
the married state, but these 
are exceptions to the general 
rule. The paramount destiny and 
mission of woman are to fulfill 
the noble and benign offices of 
wife and mother. This is the 
law of the Creator. And the 
rules of civil society must be 
adapted to the general consti­
tution of things, and cannot be 
based upon exceptional cases.

Bradwell v. Illinois, 83 U.S. (16 Wall)

130, 141-42 (1873).

-6-



The case of Myra Bradwell is, today, 

an unfortunate and embarrassing relic of 

judicial history. No state would presently 
deny a woman the right to nractice law 

solely because of her sex. But while women 

have indeed made substantial progress to­

wards achieving equality in the legal pro­

fession, the entrenched biases of more than 

a century of overt discrimination against 

them continue to impede their full inte­

gration and participation at the highest 

and most prestigious levels of the profes­

sion, specifically, elevation to partner­
ship in large law firms.

It is, of course, the legality under 

Title VII of discriminatory practices en­

gaged in by law firms to limit women's op­

portunities for promotion to partner which 
is at issue in this case. As the last 

major barrier to true equality in their 

employment, its importance cannot be over­
stated. The ruling below, which would deny

-7-



women, as well as male members of minority 

groups, the right to invoke the protections 

of Title VII at this critically important 
stage of their careers, is a devastating 

step backwards, and should be overturned 

by this Court.
The importance of this ruling is under­

scored by acknowledging that it is only 

since the passage of Title VII nearly twenty 

years ago that women have emerged as a sig­
nificant demographic group both within the 

law schools and within the profession. 

Between 1910 and 1970, women represented 

less than 4% of this nation's lawyers; in 

1982, women comprised approximately 157. of 

all lawyers. Bureau of Labor Statistics, 

U.S. Dept, of Labor, Employment and Earn­

ings - -Household Data Annual Averages,

Table 23, p. 158 (January 1983). The sta­

tistics on law school enrollments are even 

more striking: in 1963, women accounted for

only 3.87o of all law students; by 1980, the

-8-



percentage of women enrolled in this nation’s 

law schools had risen to 33.5%. C. Epstein. 

Women in Law 53 (1981).

The reason for the dramatic growth in 

the participation of women in the law during 

the last twenty years, following so many 

years of stagnation, is directly traceable 

to the elimination of a host of discrimi­

natory practices engaged in by law schools 

and employers throughout much of the previ­

ous period. For example, while most of 

the "elite" law schools had abandoned their 

exclusionary admission practices by the 

turn of the century (Michigan, 1870; Yale, 

1886; Cornell, 1887; New York University,

1891; Stanford, 1895). Epstein, supra, 
at 50, exclusionary policies continued 

in some instances until as recently 

as 1972.—  ̂ And even when these exclusion-

— ^Washington and Lee finally began admit­
ting women in 1972. Notre Dame opened its 
doors to women in 1969, Harvard in 1950, 
and Columbia in 1928. Epstein, supra, 
at 50.

9-



ary practices were formally eradicated,

women encountered in their place informal

quotas limiting their enrollment, and more

rigorous admission criteria likewise making

it more difficult for them to gain accen- 
2 /tance,—  Epstein, supra p. 9 , at 51.

Of course, eliminating the barriers to 

their admission to law school did not im­

mediately remove other obstacles to their 

advancement in the legal profession. For 

example, many of the initial women graduates 

found themselves steered towards only par-

~2~7— ~ — ----------------— 'While admissions officers routinely de­
nied that qualified women were barred by 
any such quota system, alleging instead 
that it was women's apparent lack of in­
terest in the law which accounted for their 
small enrollment, many law school faculty 
members have since acknowledged that 
quotas on women had in fact existed until 
the 1960's.. Epstein, supra p. 9 , at 52.
The likely existence of quotas and stricter 
admissions criteria is also indicated in a 
study published by the Harvard Law Record 
in 1965. The study notelI~EHat" aTthougFT'the 
proportion of women students had remained 
at 3-47o since 1950, the number of applica­
tions had "skyrocketed." In 1951, 19 of 
the 36 women applicants were admitted; in 
1965, only 22 of the 139 women applicants 
were accepted. Id. at 53.

-10-



ticular kinds of legal work. A 1958 U.S. 

government publication advised women law­

yers to concentrate on "real estate and 

domestic relations work, women's and juve­

nile legal problems, probate work and patent 

law," undoubtedly a reflection of women's most 

realistic job opportunities. Epstein, supra 

p. 9 , at 81. That law firms were expressly

not interested in hiring women prior to the 

passage of Title VII was further evidenced 

in a survey undertaken by the Harvard Law 

Record in 1963, for the purpose of ascer­

taining what law firms looked for in candi­

dates for employment. The Record asked 430 

private law firms across the country which 
traits they valued most highly in evaluat­

ing new recruits, as well as those they 

deemed undesirable. While firms predict­

ably placed a high value on scholarship and 

initiative, Epstein, supra p. 9 , at 83,
the traits deemed undesirable, other than 
a poor academic record, included sex (women),

-11-



race (Blacks), and religion (Jews). Id. 

Women were apparently considered undesir­

able by firms of all sizes in all parts of 

the country and in fact, while Jews, Blacks, 

and women were all consistently rated nega­

tively, women drew the most negative rating
1 /of the three. Id,— '

With the emergence of legal services 

and public interest law firms, jobs with 

these agencies also proved predictably more 

available to graduating women lawyers than 

big corporations or large law firms, pri­

marily because of their lower salaries and

—'̂In a 1970 survey of women and men graduates 
from Harvard Law School, it was found that while 
women were likely to be awarded more employ­
ment interviews than their male colleagues, 
men received more job offers--a finding 
which the researcher concluded indicated 
that women's employment choices were more 
circumscribed than men's, Glancy, Women 
in Law: The Dependable Ones, 21 Harv. L.S,
BuTTTTJo . 5, '2T7”^~(June 1970). In fact, 
the researcher found that a much higher 
percentage of men (727o) than women (527>) 
went to work for law firms immediately fol­
lowing graduation, which was again viewed 
as a reluctance on the part of law firms to 
hire women attorneys. Id. at 26.

-12-



less attractive working conditions.Hochberger, 
Women in Law--How Far Rave They Come?, New 

York Law Journal, March 21, 1977, p. 1. A 

survey conducted by the National Association 

of Law Placement in 1975 found that, whereas 

only 5.5% of that year's graduating class 

went to public interest or legal services 

jobs, 12% of the women graduates took these 
positions. Id.

Women did not really begin to gain ac­

cess to the large law firms until the 1970's. 

At the beginning of the last decade, there 

were no more than forty women attorneys em­

ployed in New York's largest law firms; by 

1980, their numbers had swelled to more than 

six hundred. Epstein, supra p. 9 , at 175.
A look at the hiring patterns in large lav/ 

firms throughout the country during this 
same period reveals a similar growth in the 

percentage of women associates, to over 21%

-13-



by 1980 , —  Id.

The striking gains of the 1970's were 

due in large part to the initiation of law­

suits against some of New York's largest 

and most prestigious law firms for blatantly 

discriminatory recruitment and hiring prac-
5 /tices,—  Two of these cases advanced to 

the trial stage, Kohn v. Royall, Koegel & 

Wells (now Rogers & Wells), 59 F.R.D. 515 

(S.D.N.Y. 1973), appeal dism,,496 F„2d 1094

— ' k  survey conducted by the National Law 
Journal in 1982 of the 151 largest law 
firms showed that women comprised about 17% 
of the lawyers in these firms. Flaherty,
Women and Minorities: The Gains, Kat'l
Law Journal!") Dec. 20, T982") at T.
5 /—  The lawsuits were initiated by a group of 

New York University and Columbia women lav; 
students who were outraged by the conduct 
and statements of many of the large firms' 
interviewers. Comments ranged from asser­
tions that women were not good litigators, 
and that their participation in litigation 
would have to be limited to brief-writing, 
to admissions of actual bias in the firms 
which relegated women to "blue sky" work 
(keeping abreast of changes in state securi­
ties laws), involving virtually no client 
contact and which is today delegated to para­
legals in most large law firms. Epstein, 
suprji P - 9 , at 185.

-14-



(2nd Cir, 1974) and Blank v. Sullivan &

Cromwell, 418 F. Supp. 1 (S.D.N.Y. 1975).

In both cases, the defendant law firms 

eventually agreed to offer a specific per­
centage of its positions each year to female 
graduates, Epstein, supra p. 9 , at 185,

as did some of the other law firms cited in 

the initial complaints (and who were guar­

anteed anonymity). Id.
Unfortunately, the emergence of women 

in the last ten to twenty years as a sig­

nificant proportion of law graduates and 

associates in large lav? firms has done lit­

tle to change their continuing scant repre­

sentation at the partnership level of these 

firms. In 1956, there existed only one 

woman partner among the large New York law 

firms, Epstein, supra p. 9 , at 179. In
1968, there were three. By the summer of 

1980, the number of women partners had in­

creased to 41; at the same time, of the 
3987 partners in the 50 largest law firms in 

the country, only 85 were women. Id. In a

-15-



survey conducted by the National Law Journal 

in 1982 of the 151 largest law firms in the 

country, women, Blacks, and Hispanics com­

prised only 4.17o of the partners at those 

firms. Flaherty, supra p.13, at 9. 

Thirty-two of the firms surveyed had no 

women partners at all; 106 had no Black 

partners and 133 had no Hispanic partners.

The almost total exclusion of women 

from the highest ranks of the legal pro­
fession is particularly troubling at a 

time when women comprise more than one- 

third of all law graduates. Flaherty, 

supra p.13, at 11. In the face of so much 

progress by the legal profession in eradi-

^^The 1970 Survey of Harvard Law School 
male and female graduates, correctly fore­
cast this dismal growth in the number of 
women partners. Noting that men and women 
seemed to start out on an equal salary level, 
but that women quickly fell behind, the re­
search concluded that "most of [the women 
would] never reach the high income, high 
status positions many of their male counter­
parts achieve." Glancy, supra p .12, at 27.

-16-



eating the effects of more than a century 

of discrimination, the decision of the 

Eleventh Circuit can only further inhibit 

the ability of women to assume their right­

ful place beside their male colleagues.

The availability of Title VII to many of 

these women in the 1970's was an invaluable 

tool for establishing their right to par­

ticipate on a more equal footing with their 

fellow graduates. As more and more of these 

women become eligible for promotion to part­

nership, this Court must not deny them the 

right to again invoke the protections of 

Title VII to ensure that such promotional 

opportunities are not unjustly denied them. —

-^Congress clearly was concerned that 
Title VII's coverage extend to highly pres­
tigious jobs. Senator Javits, in onnosing 
a 1972 amendment that would have excluded 
hospital-employed physicians from Title VII 
coverage said:

One of the things that those discrimi­
nated against have resented the most is 
that they... cannot ascend the higher 
rungs in professional and other life.
Yet this amendment would... reinstate

-17-



ffootnote continued]
the possibility of discrimination on 
grounds of ethnic origin, color, sex, 
religion--[among] physicians or sur­
geons, one of the highest rungs of the 
ladder that any member of a minority 
could attain--and thus lock in and 
fortify the idea that being a doctor 
or surgeon is just too good for mem­
bers of a minority... that they have 
to be subject to discrimination... and 
the Federal law will not protect them. 
118 Cong. Rec. 3802 (1972).

-18-



II. THE LOWER COURT'S VIEW THAT THE PART­
NERSHIP FORM MANDATES EXEMPTION OF 
SOME PARTNERSHIP DECISIONS FROM TITLE 
VII IS ERRONEOUS.

The Eleventh Circuit's dismissal of 

the complaint was based on an idealized 

and inaccurate view of the nature of "part 

nership" as both essentially a voluntary 

association among partners and as clearly 

distinct from all corporate forms of busi­

ness organizations. Hishon v. King & 

Spalding, 678 F.2d 1022, 1026-28 (11th Cir 

1982). Contrary to the lower court's as­

sumptions, partnerships are business organ 

izations that vary dramatically in their 

internal structures and the relationships 

among partners; they also are functionally 

very similar to the corporate form of pro­

fessional business organization. The in­

accuracy of the Eleventh Circuit's assump­

tions fatally undermines its justification 

for exempting decisions about promotion to 

partnership from Title VII.

19



A. The Eleventh Circuit's Decision 
is Based on an Idealized and 
Inaccurate View of "Partnerships”

The court of appeals concluded that 

the fundamental character of partnerships 

required that decisions about promotion to 

partnership be exempted from scrutiny un-
Q /

der Title VII,— 7 because "the form is the 

substance" distinguishing such decisions 

from all other kinds of employment deci­

sions, even employment decisions made by 

partnerships. 678 F.2d at 1028. In reach 

ing this conclusion, the lower court fail-

-g~7------------------
-— 'The explicit exemptions from statutory 
coverage do not include elevation to part­
nership. See, e.g., 42 U.S.C. §§2000(e) 
(b)(bona fide private clubs); 2000e~l, 
2000-2(e)(certain religiously based employ 
ment) . To the extent that many partner­
ships are small, they may fall within the 
generalized exemption from Title VII of 
businesses with fewer than 15 employees.
42 U.S.C. §2000e(b). The qualities of in­
timacy and voluntariness in partnerships 
that loomed so large for the lower courts, 
see 678 F.2d at 1026, 24 FEP Cases 1303, 
1304-05 (N.D.Ga. 1980), have been recog­
nized by Congress through this size limi­
tation on Title VII coverage.

- 20



ed to recognize the substance behind the 

form.

In fact, partnerships vary substan­

tially in size, details of organization, 

and relationships among the partners. Far 

from being oases of intimacy and collegial- 

ity, many partnerships are large business­

es that exhibit marked differences among 

partners in power, income, influence, and 

formal position.

This is hardly surprising, especially 

in view of the large size of many partner­

ships. A 1980 survey found more than 100 

law firms with 100 or more lawyers, and 

45 with more than 150. National Law Jour­

nal, Oct. 6, 1980, at 34-39. King & 

Spalding placed number 106 on this list.

Id. Eighty-two of the firms had at least 

as many partners as King & Spalding's 51, 

and twenty had at least 75. Id.

The size of the "Big Eight" account-

21



ing firms—  is even more striking. In 

1981, these eight firms had approximately 

7,000 partners in the United States. N.Y. 

Times, Jan. 3, 1982, at Dl, col.l . To­

gether these firms employ 150,000 people 

in 2,500 offices in more than 100 nations. 

Annually, they interview 160,000 students 

from United States colleges and universi­

ties, hire 10,000 new professional employ­

ees and make more than 1,000 new partners. 

Stevens, supra, at 8. Furthermore, large 

size is not restricted to these eight firms. 
Seidman & Seidman, the nation's tenth larg­

est CPA firm, has 160 partners and $50 

million in annual revenues. Id. at 160. 

Within the management structure of

9 /

_
— They are: Arthur Andersen; Arthur
Young; Coopers & Lybrand; Deloitte Haskins 
& Sells; Ernst & Whinney; Peat, Marwick, 
Mitchell; Price Waterhouse; and Touche 
Ross. They are "huge multinational busi­
ness organizations, the largest profession­
al firms in the world, and some of the 
most influential powers on earth.” M. 
Stevens, The Big Eight 2 (1981).

22



such large businesses, there is bound to 

be a significant degree of differentiation 

among partners. Some law firms have a 

chairman or presiding partner, in charge 

of making day-to-day decisions for the 

firm. P. Hoffman, Lions in the Street 14, 52 
(1973); J. Stewart, The Partners 112 (1983). 

The degree of power exercised by only one 

partner in a group of 50 or more can be 
formidable.

At [one firm], for example, the 
presiding partner makes the final 
determination of each partner's 
share of income, worked out through 
individual conferences with part­
ners. He determines the agenda 
of the partnership's Tuesday lunch­
es. He resolves conflicts among 
the partners, smoothes ruffled 
feathers and disciplines when 
necessary.

Stewart, supra, at 242.

More common is the executive commit­

tee, usually made up of a small number of 

the most senior partners. This institu­

tion has been described as follows:

23



The executive committee acts 
as overseer for the firm. It is 
the deciding group; it settles pol­
icy matters and disputes. The 
main, specific task of the commit­
tee is to decide on percentages 
distributed to partners. Members 
of the group discuss questions about 
setting up pension plans or moving 
their offices. Those at the summit 
make the initial determination 
about whether new partners are 
needed. They decide, if the prob­
lem becomes overt, about the opti­
mum size of the firm. The execu­
tive committee concerns itself 
with problems of office morale; 
of client satisfaction. The 
committee acts as referee and 
serves to ease conflict within 
the firm.

E. Smigel, The Wall Street Lawyer 237 (1963)

(footnotes omitted). See also Nelson,

Practice and Privilege: Social Change and

the Structure of Large Law Firms, 1981 Amer. 

Bar Fdn. Research J. 97, 120.

More rarely, but quite significantly, 

partnerships have formally stratified sys­

tems. One now-dissolved New York law firm, 

for example, is described as having two 

classes of partners: "proprietary" and
"non-proprietary." Proprietary partners

24



match the Eleventh Circuit's idea of "part­

ners," who have an interest in the profits 

of the firm and make crucial decisions, 

such as who else will become a proprietary 

partner. Non-proprietary partners, however, 

strongly resemble what even the Eleventh 

Circuit would agree are "employees." They 

are essentially salaried, and able to share 

in profits only at the discretion of the 

proprietary partners. National Law Journal, 

Apr. 25, 1983, at 9, col. 1.— ^

A very strong centralization of con­

trol over business decisions is also evid­

ent in large accounting partnerships. They 

have executive committees, chairmen (or 

managing partners), and vice-chairmen.

Although rare, such formal stratifica­
tion is not extinct. For example, a small 
number of employers recruiting at Harvard 
Law School in 1982 indicated the existence 
of a formal "junior partner" status in 
their firms. Harvard Law School Placement 
Office, Employer Directory Fall 1982 (avail­
able in Harvard Law School Library).

25



These partners "establish current and long­

term policies, set procedures, [and] approve 

partner earnings..." Stevens, supra p.22, 

at 32-33. The autonomy of the less power­

ful partners is severely limited, as noted 

by Stevens:

Each partner's interest in a Big 
Eight firm is only a tiny fraction 
of a percent. What’s more, they 
can be reprimanded, shifted from 
client to client, and relocated 
across the fifty states, often 
against their will. This is hardly 
the kind of treatment 'business 
owners' have to tolerate.

Id. at 32.

Large differences among partners is 

further reflected in their widely varying 

incomes. Even the "edited version," 678 

F.2d at 1025, of King & Spalding's 1974 

partnership agreement, supplied during dis­

covery in the instant case, strongly sug­

gests that not all active King & Spalding 

partners receive equal shares of the part­

nership income. See Joint Appendix (here­

inafter, "Jt.App.") at 155. A decade ago,

26



a survey of law firms of twenty-five or more 

lawyers reported a large disparity in earn­

ings among partners. Almost half the firms 

that responded indicated that their highest 

paid partners earned at least four times 

the income of their newest, and least well- 

paid, partners. Orren, A Look Inside Those 

Big Firms, 59 A.B.A.J. 778, 779 (1973).

A similar pattern exists in accounting 

firms. For example, new partners at Touche 

Ross earn $50,000 a year, whereas the firm's 

chairman earns at least $500,000 a year.

Even at Price Waterhouse, which has the 

smallest intra-partnership earning dispari­

ties among the "Big Eight," partners' sala­

ries range from $75,000 to $200,000.

Stevens, supra p. 22, at 31.
As the above discussion demonstrates, 

many partnerships are large, complex, high­

ly structured and highly stratified busi­

ness organizations. Instead of looking at 
the realities of the many varieties of part­

27



nership structure and practice, especially 

of the large professional partnerships, the 

court of appeals relied on an idealized 

vision of "a partnership." In so doing, it 

erroneously constricted the reach of Title 

VII.

B. The Eleventh Circuit Erroneously 
Construed Title VII by Focusing 
on Formal Differences and Ignor­
ing Functional Similarities Be­
tween Corporate and Partnership 
Forms of Organization in Profes­
sional Services Businesses

The inadequacy of the lower court's 

conception of the partnership form as lim­

iting Title VII's coverage is further dem­

onstrated by comparing partnerships to the 

analogous corporate form, the professional 

corporation. These two forms of business 

organization do not differ in any respects 

that are significant for purposes of Title 

VII analysis. However, in a professional 

corporation, the principals are employees 

of the corporation. Applying the Eleventh 

Circuit's "clear distinction between the

28



employees of a corporation and the partners 

of a law firm," 678 F.2d at 1028, would then 

yield the odd result that all employment 

decisions made by law firm professional 

corporations would be subject to scrutiny 

under Title VII, but some decisions by law 

firm partnerships would not be. The func­

tional similarity between partnerships and 

professional corporations, however, shows 

both the shallowness of the lower court’s 

analysis and the dangers to Title VII if 

this Court adopts that analysis.
The principal difference between part­

nerships and professional corporations has 

been in aspects of federal income tax treat­

ment of the two forms. Certain disparities 

in the tax treatment of corporations, on 

the one hand, and self-employed profession­

als on the other, triggered the development 

of professional corporations side by side 

with partnerships. See Blum, Professional 

Incorporation: Social Change Created by

29



the Tax Laws, 14 Tax Notes 51 (Jan. 11

1982); Wood, The Desirability of Profession­

al Corporations after the Economic Recovery 

Tax Act, 60 Taxes 261 (1982). For high in­

come taxpayers the difference in treatment 

of pension contributions was significant.

In 1981, the maximum deductible annual con­

tribution to her Keogh (or H.R.10) plan was 

the lesser of 15 per cent of her net earn­

ings from self-employment, or $15,000. S. 

Rep.No. 494, 97th Cong., 2d Sess. 314 

(1982). By contrast, the maximum, deductible 

contribution for a corporate plan covering 

a lawyer was $45,475 for 1982. Id. at 313. 

In both cases, these funds, in a qualified 

pension trust, would earn investment in­

come tax-free, and would be taxed to the 

beneficiary only when received after re­

tirement. However, this differential has 

been largely eliminated by the Tax Equity 

and Fiscal Responsibility Act of 1982, Pub.

L. 97-248 ("TEFRA"). See Conference Com­

30



mittee Report, H.Rep.No. 760, 97th Cong.,

2d Sess. 621 (1982)("The Conference agree­

ment generally eliminates distinctions in 

the tax law between qualified pension, etc. 

plans of corporations and those of self- 

employed individuals....").

Aside from these tax differentials in 

benefits programs, there are virtually no 

significant substantive differences between 

partnerships and professional corporations. 

For example, a professional corporation 

must adhere to corporate formalities. See 

Rev. Rul. 70-101, 1970-1 C.B. 278-280, 

amplified Rev. Rul. 70-455, 1970-2 C.B. 257;

Rev. Rul. 72-468, 1972-2 C.B. 647, modified
Rev. Rul. 73-556, 1973-2 C.B. 424, amplified

Rev. Rul. 74-439, 1974-2 C.B. 405, Rev. Rul.

82-212, 1982 U.S. Tax Week 1973. Profes­

sional corporations are also subject to pay­

roll-based taxes, such as the federal un­

employment tax, on all their professional 

employees, while partnerships are not so

31 -



taxed on their partners. See Tax Management

Portfolio - TEFRA at A-270 and note 55 

(1983) .

In the two areas where one might expect 

the traditional distinction between corpo­

rate and partnership forms to be signifi­

cant for Title VII purposes, it does not 

exist. Because of considerations of pro­

fessional ethics and licensing, partnerships 

and professional corporations alike do not 

have the traditional corporate attributes 

of limitation of individual liability and 

ability freely to transfer shares and/or 

raise outside capital.

Professional corporation statutes do 

not generally allow a professsional to es­

cape liability for her own torts (e.g., 

malpractice), nor those committed by those 

under her supervision. See, e .g ., Ga.

Code §14-7-7 (1982); N.Y. Bus. Corp. Law 

§1505(a)(McKinney's Supp. 1982). Indeed, 

in Georgia the professional corporation

32



form has been held not to insulate the pro­

fessional employees of the corporation from 

liability for the torts committed by other 

professional employees. First Bank & Trust 

Co. v. Zagoria, 51 U.S.L.W. 2529 (Ga. Feb. 

23, 1983).

Moreover, professional corporation 

statutes generally require that all stock 

in professional corporations be owned by 

persons licensed for, and actively engaged 

in, the practice of the relevant profession. 

See, e.g., Ga. Code §14-7-5(a)(1982); N.Y. 

Bus. Corp. Law §§1507, 1511 (McKinney Supp. 

1982). In essence, such statutory require­

ments have eliminated the traditional cor­

porate separation between "ownership," 

through ownership of stock that is freely 

transferable, and "employment" in the cor­

poration. In practice, stock in profession­

al corporations is held by professional em­

ployees of the corporation. This ownership 
interest, however, does not make the prin­

33



cipals any the less employees of the corpo­

ration .

These limitations on the traditional 

attributes of corporations in the profes­

sional corporation context serve to high­

light the inadequacy of the lower court's 

view that the uniqueness of partnerships re­

quires that they be given special exemption 

from Title VII.—  ̂ The functional simil-

127--------------------— Moreover, by focusing on the partnership 
form as the basis for its decision, the 
court of appeals presented the possibility 
that businesses wishing to avoid Title VII 
liability for some employment decisions 
could become partnerships in order to ig­
nore Title VII. Although there are usually 
strong economic disincentives involved in 
choosing a form of business organization 
for such reasons, even in part, there is 
currently an opportunity for professional 
corporations to convert to partnerships 
without some of the usual economic conse­
quences. Ordinarily "disincorporation'1 of 
a successful professional corporation would 
be likely to precipitate a significant tax 
liability to the shareholder-employees, see 
26 U.S.C.A. §331(a)(West Supp. 1983); 26 
U.S.C.A. §1001 (West 1982). Recognizing 
that TEFRA's elimination of pension-related 
tax benefits might cause some professional 
corporations to liquidate, Congress enact­
ed TEFRA §247 (not codified) as "disincor­
poration relief." Conference Committee

34



arities between the corporate and partner­

ship forms of organization demonstrate that 

the Eleventh Circuit's distinction between 

corporations and partnerships is indeed 

form without substance.

[footnote con't]
Report, H.Rep.No. 760, 97th Cong. 2d Sess. 
634 (1982). In 1983-1984, professional 
corporations will be able to liquidate with­
out many of the negative tax consequences 
that usually attend such a change. Thus, 
there is little or no economic barrier to 
changing the partnership form of business 
organization in order to avoid Title VII.
In addition, it is possible that some part­
nerships in non-professional fields that 
might have economic reasons for wanting to 
incorporate, would forego incorporation in 
order to retain their partial immunity to 
Title VII. The decision of the court of 
appeals, which permits these perverse re­
sults, would seriously undermine Title 
VII's goals.

35



III. DECISIONS ON PROMOTION TO PARTNER­
SHIP ARE EMPLOYMENT DECISIONS SUB­
JECT TO SCRUTINY UNDER TITLE VII

A. The Termination of Employment as 
the Result of an "Up or Out"
Policy is an Employment Decision 
Under Title VII

As Judge Tjoflat correctly observed, 

Ms. Hishon was fired from King & Spalding. 

678 F.2d at 1030. Although King & Spalding 

contended below that Ms. Hishon's losing 

her job was merely an effect of the deci­

sion not to offer her partnership, that 

distinction is both artificial and false.

In the "up or out" policy adhered to by 

King & Spalding, 678 F.2d at 1024, failure 

to become a partner and failure to maintain 

one's employment as an associate are two 

sides of the same coin. "Up or out" promo­

tion policies are almost universal among 

large law firms. Hoffman, supra 

p. 23, at 6-7; Smigel, supra p . 21, at 44, 

114-16; Nelson, supra p. 24, at 122/ 

"Permanent associates are a dying breed."

-36-



Hoffman, supra, at 144; see also Stewart,
11/supra p . 23, at 156.—  Associates either 

become partners or must leave the law firm; 

in short, get promoted or get fired. See 

Jt. App. at 31-32 (Answer 1[9).

Discriminatory discharge is explicitly 

proscribed by Title VII. 42 U.S.C. §20Q0e- 

(a)(1). There is no question that, at the 

time of her discharge, Ms. Hishon was an em­

ployee of King & Spalding. Jt. App. at 48- 

49 (affidavit of James Sibley). In the 

analogous situation presented in Lucido v . 

Cravath, Swaine & Moore, 425 F.Supp. 123,

127 (S.D.N.Y. 1977), the district court 

held that the plaintiff had been an employee 

of the defendant law firm throughout the 

period of the alleged discrimination, in­

cluding his failure to be made a partner

— 'Interestingly, King & Spalding had_one 
permanent associate at the time Ms. Hishon 
was hired. The permanent associate was al­
so the only woman associate in the firm's 
87-year history to that point. Jt. App. at 
187.

-37-



and consequent discharge from the firm.

The Eleventh Circuit in the instant case 

failed to apply the correct analysis devel­

oped by the court in Lucido, and erroneous­

ly affirmed the dismissal of Ms. Hishon's 
claim.

Moreover, in the specialized area of 

academic employment, where tenure decisions 

are strikingly similar to the "up or out" 

partnership decisions at issue in this case, 

courts have applied Title VII in scrutiniz­

ing decisions not to award tenure to faculty 

members. See Lieberman v. Gant, 630 F.2d 

60, 64 (2d Cir. 1980); Kunda v. Muhlenberg 

College, 621 F.2d 532, 535 (3d Cir. 1980). 

Like the decision to promote an associate 

to partner, tenure decisions are made after 

periodic evaluation of the employee's suit­

ability for tenure and they confer what is 

essentially a guarantee of continued employ­

ment. See Lieberman v. Gant, 630 F.2d at 

64. Also, as with partnership,

-38-



a tenured employee is moved into the ranks 

of those people who make the important man­

agerial decisions about the enterprise-- 

including, significantly, decisions about 

who else should be awarded tenure. See 

NLRB v. Yeshiva University, 444 U.S. 672 

(1980). Most importantly, the failure to 

be awarded tenure is also followed by loss 

of academic employment in that institution.

Tenure decisions, as well as partner­

ship decisions, are the result of complex 

and varying processes. The complexity of 

the tenure decision-making process, however, 

has not led courts to hold them to be out­

side the scope of Title VII. Similarly, 

there is no reason to conclude in the in­

stant case that because King & Spalding's 

process of discharging Ms. Hishon was com­

plex and protracted, it produced something 

other than a discharge. Ms. Hishon's alle­

gation that the discharge was in violation 

of Title VII is a claim over which the fed­

-39-



eral courts have jurisdiction, and the Elev­

enth Circuit erroneously dismissed it.

B. Progression from Associate to 
Partner is Clearly an Expecta­
tion of Employment as an Associate

Large law firms, such as King & Spald­

ing, generally recruit law school graduates 

as associates, give the associates a certain 

number of years to prove themselves, and 

then either promote them to partnership or 

fire them. See Jt. App. at 30-32 (Answer 

1fs 8-9); Hoffman, supra p. 23, 6-7;

Smigel, supra p. 24, at 114-16; Nelson, 

supra p. 24, at 122. Thus, partnership is 

a critical component of an associate's 

career path in the firm.

Law firms recruit law school graduates 

for jobs as associates with clear reference 

to the ultimate goal of partnership. It 

is commonly understood by students that 

successful performance as an associate is 

rewarded with partnership. It is also 

understood by law firms that employment of

-40-



associates is the first step in acquiring 

new partners. Many law firms take the po­

sition that "they hire only people of part­

nership caliber." Nelson, supra p. 24 , at 

126. More significant than the general 

statement is the fact that many firms spe­

cifically use this argument in recruiting 

new associates. For example, a sampling 

of information supplied by firms recruiting 

at Harvard Law School in 1982 reveals that 

a significant number tell students that 

they only hire potentially partnership­

worthy people as associates . —  ̂ About a 

quarter of the firms in Atlanta, half the 

Houston firms, a third of the Boston firms, 

a third of the Chicago firms, and a fifth

“ 'The sample of law firms considered here 
includes only those submitting an individ­
ual statement, in addition to the standard­
ized form required by the Harvard Law School 
Placement Office. Thus, the percentages 
can not be generalized to apply to all firms 
in each city. Nevertheless, they are sig­
nificant evidence of prevalence of the 
clearly marked career path from new associ­
ate to partner. (Information available in 
Harvard Law School Library).

-41-



of the Los Angeles firms presented them­

selves as hiring people they consider capa­

ble of becoming partners. The connection 

between associateship and partnership that 

is evident in the recruiting practices of 

large law firms contradicts King & Spald­

ing's contention that promotion to partner­

ship is wholly different from other employ­

ment decisions made by law firms.

Once an associate begins working in a 

large law firm, the work, incentives, and 

system of performance evaluation are geared 

toward partnership as the goal. The possi­

bility of becoming a partner is "the strong­

est reward" in the incentive system of al­

most all large law firms. Smigel, supra 

p. 24 , at 259. The years of hard work and 

long hours that most associates put in are 

part of their jobs as associates, but are 

also the key building blocks in advancement 

to partnership. Associates work hard because 

they know that it will help them to be­

-42-



come partners. See, e .g ., Stewart, supra

p. 23 , at 86.— /
Similarly, the evaluation of associ­

ates' work, in most large firms, stresses 

the associate's partnership potential.

Such partnership-oriented evaluations may 

begin as early as two years after an associ­

ate has been hired. National Law Journal, 

Apr. 4, 1983 at 40, col. 1. The longer an 

associate has been with the firm, the more 

clearly connected to partnership the evalu­

ations become. See Jt. App. at 46-47 (affi­

davit of James Sibley). King & Spalding, 

like many other large firms, has institu­

tionalized this process, making partnership 

decisions a fixed number of years after an 

associate is hired. 678 F.2d at 1024. The 

partnership decision itself is merely the 

most definitive in the series of evaluations

1 5 /— A similar incentive pattern is found in 
large accounting firms. See Stevens, supra 
p. 22 , at 28-29.

-43-



of associates, each focused on the associ­

ate as potential partner.

It is, therefore, clear that the oppor­

tunity to progress from associate to partner 

is a "term, condition, or privilege," 42 

U.S.C. §2000e~2(a), of employment as an 

associate. Title VII's broad mandate to 

eliminate employment discrimination clearly 

extends to promotional opportunities, at 

both lower-level and executive and manager­

ial levels. Albemarle Paper Co. v. Moody, 

422 U.S. 405 (1975).— / In the instant 

case, promotion to the ranks of the firm's

—  See, e .g ., Payne v Travenol Labs, 673 
F. 2d 798 (5th Cir". 1982) , ~ cert. denied , 74 
L.Ed.2d 605 (1983)(promotions to technical, 
managerial and executive level jobs); U.S. 
Postal Service Bd. of Governors v. Aikens,
51 U.S.L.W. 4354 (U.S. Apr. 4, 1983)(mana- 
gerial positions); Sweeney v. Bd. of Trus­
tees of Keene State College! 569 F.2d 169 
(1st Cir.), vacated and remanded on other 
grounds, 439 U.S. 24 (1978), 604 F.2d 106 
(1st Cir. 1979)(academic promotions);
Gilmore v. Kansas City Terminal Railway Co., 
509 F.2d 48, 5T (8th Cir. 1975)"(managerial 
and supervisory positions); Pinckney v . 
County of Northampton, 512 F. Sunn.989 
TE.D.Pa. '1981) , a ^ d , 681 F.2d 808 (3rd 
Cir. 1982)(administrative positions).

-44-



management carries with it other changes in 

the associate's position, such as security 

of tenure. These additional factors, how­

ever, which are present in many other mana­

gerial or executive-type promotions, do not 

alter the nature of the claim of employment 

discrimination. The associate has, under 

any circumstances, been part of an employ­

ment system that leads either to partner­

ship or to unemployment, and is therefore 

entitled to the protection of Title VII.

See Lucido v. Cravath, Swaine & Moore, 425 
F. Supp. at 128.

C. Partnership Decisions are not 
Protected by the Freedom of 
Association

The Eleventh Circuit's conclusion that 

the anti-discrimination policies of Title 

VII are outweighed by the King & Spalding's 

partners' freedom of association misper- 

ceives the nature of that freedom and re­

sults in a perversion of clear Congression-

-45-



al intent to outlaw discrimination.

This Court has never recognized a right 

of association independent of other consti­

tutional guarantees. One commentator de­

scribed freedom of association as "little 

more than a shorthand phrase used by the 

Court to protect traditional first amend­

ment rights of speech and petition as exer­

cised by individuals in groups.” Raggi,

An Independent Right to Freedom of Associ­

ation , 12 Harv. C,R.-C.L. L. Rev. 1 (1977). 

See also, Tribe, American Constitutional 

Law, 701-703 (1978); Young & Herbert, Polit­

ical Association under the Burger Court: 

Fading Protection, 15 U. Cal. Davis L. Rev. 

53, 54 n. 4 (1981). Although individual 

justices have tried to articulate a general 

notion of freedom of association independ­

ently deserving constitutional protection, 

see, e .g ., Justice Marshall's dissent in 

Village of Belle Terre v. Boraas, 416 U.S.

1, 15-18 (1974) and Justice Douglas' con­

-46-



currence in United States Department of

Agriculture v. Moreno, 413 U.S. 528, 540- 

45 (1973) , this Court as a whole has tended 

to recognize freedom of association as be­

ing tied to some underlying First Amendment 

right. See, e ,g ., Citizens Against Rent 

Control/Coalition for Fair Housing v. City 

of Berkeley, 454 U.S. 290 (1981)(city ordi­

nance placing limits on expenditures and 

contributions in campaigns on ballot meas­

ures violated citizens' groups' rights of 

political speech and association)- Widmar 
v. Vincent, 454 U.S. 263 (1981)(if univer­

sity makes facilities generally available 

to registered student groups, it may not 

discriminate on basis of content of speech 
against groups wishing to use facilities 

for religious worship and discussion).

Further, this Court has expressly and 

consistently held that discriminatory acts 

are not justifiable in the name of free 

association. As this Court held in Norwood

-47-



v. Harrison, 413 U.S. 455, 470 (1973):
Invidious private discrimination 
may be characterized as a form of 
exercising freedom of association 
protected by the First Amendment, 
but it has never been accorded 
affirmative constitutional pro­
tections .

And, even when recognizing a freedom 

of association for the purpose of express­

ing or advocating beliefs, this Court clear­

ly has denied any unrestricted right to act 

on those beliefs. This principle, recog­

nized as early as NAACP v. Alabama ex rel. 

Patterson , 357 U.S. 449, 460 (1958), was 

recently reaffirmed in Runyon v. McCrary,

427 U.S. 160, 176 (1976). In Runyon, 
this Court held that requiring a private 

school, committed to the promotion of racial 

segregation, to admit black children did 
not infringe any freedom of association en­

joyed by the school, the parents, or the 
children. As Justice Stewart wrote, the 
school's discriminatory practice could not 

be rationalized as a form of freedom of

-48-



association because a legally mandated open 

admissions policy would not affect the con­

tent of what was taught:

[I]t may be assumed that parents 
have a First Amendment right to 
send their children to educational 
institutions that promote the belief 
that racial segregation is desirable, 
and that children have an equal 
right to attend such institutions.
But it does not follow that the 
practice of excluding racial 
minorities from such institutions 
is also protected by the same 
principle. As the Court stated in 
Norwood v. Harrison, 413 U.S. 455, 
"The Constitution ... places no 
value on discrimination,' id., at 
469, and while 1[i]nvidious private 
discrimination may be character­
ized as a form of exercising free­
dom of association protected by 
the First Amendment ... it has 
never been accorded affirmative 
constitutional protections ...'

427 U.S. at 176.— /

Runyon involved the same issue of law
presented in the instant case--whether

17 /—  Cf. Heart of Atlanta Motel, Inc. v. 
United States, 379 U.S. 241, 258TTT7T964) 
(upholding constitutionality of the public 
accommodations provisions of Title II of the 
Civil Rights Act of 1964):

[footnote con't on following page]

-49-



it is a violation of the First Amendment 

freedom of association to apply an anti- 

discrimination statute to a commercial or­

ganization. This Court rejected the associ 
ational claim in Runyon for precisely the

reason that it should be rejected here: no

right or ability to advocate any point of 

view is infringed when a discriminatory 

promotional policy is invalidated. 427 U.S 

at 176-77.
This Court has held that governmental 

policies intended to further a compelling

[footnote con't from preceding page]
The only questions are: (1)
whether Congress had a rational 
basis for finding that racial dis­
crimination by motels affected 
commerce, and (2) if it had such 
a basis, whether the means it 
selected to eliminate that evil 
are reasonable and appropriate.
If they are, appellant has no 
'right' to select its guests as 
it sees fit, free from govern­
mental regulation.

See also Railway Mail Ass'n y. Corsi, 326 
U.S. 88, 93-94 (1945)(due process does not 
prohibit state from banning racial discrim­
ination in union membership),

-50-



state interest, like the anti-discrimina­

tion principles embodied in Title VII, may 

justify restrictions on associational in­

terests. CSC v. Nat'l Assoc, of Letter 

Carriers, 413 U.S. 548 (1973)(restrictions 

on the associational rights of federal em­

ployees justified by interest in effective 

government); Buckley v. Valeo, 424 U.S. 1, 

24-28 (1976)(limitations on the associa­

tional rights of campaign contributors jus­

tified by interest in avoiding actuality 

and appearance of political corruption). 

Acting in disregard of these principles, 

the Eleventh Circuit resolved the conflict 
between Title VII and rights of association 

by simply eliminating Title VII from its 

analysis.

Favoring the associational interst of 

King & Spalding over Congressional intent 

to bar discrimination in employment contorts 

the nature of the associational right and 

makes a mockery of Title VII. Without

-51-



question King & Spalding, in considering 

whether to make Elizabeth Hishon a partner, 

was making a business decision. See Jt. 

App. at 45-48 (affidavit of James Sibley). 

Assertions of constitutionally guaranteed 

associational rights of the law firm nei­

ther obfuscate the nature of the partner­

ship decision nor transform it into a deci­

sion warranting constitutional protection. 

This Court's opinions suggest that the con­

stitutional protection accorded political 

speech and association is not as great when 

applied to ordinary business activities. 

Compare In re Primus, 436 U.S. 412 (1978) 
(reversing a reprimand of an attorney who, 

on behalf of the American Civil Liberties 

Union, had solicited a client; distinguish­

ing "traditional fee paying arrangements," 

and noting representation involved could 

not be viewed as "motivated by considera­

tions of pecuniary gain rather than ...

[the] goal of vindicating civil liberties,"

-52-



436 U.S. at 429-30); with Ohralik v. Ohio

State Bar Ass'n, 436 U.S. 447 (1978)(af­

firming disciplinary actions against an 

attorney who improperly solicited clients, 

noting that a "lawyer's procurement of re­

munerative employment is a subject only 

marginally affected with First Amendment 

c o n c e r n s 436 U.S. at 459).
Title VII prohibits sex discrimination 

in employment--it does not interfere with 

the exercise of discretion in the non-dis- 

criminatory selection of new partners. To 

hold otherwise is to adopt a view of the 

right of association which transcends all 
other considerations of law and the Consti­

tution and which is wholly unsupported by 

this Court's previous rulings on the para­

meters of associational rights.

-53-



IV. TITLE VII'S APPLICATION TO PARTNER­
SHIPS AFFECTS MANY IMPORTANT SECTORS
OF THE ECONOMY, HOT SIMPLY LAW FIRMS

An exception to Title VII for promo­

tions in a partnership like King & Spald­

ing would have an impact on industries and 

professions beyond law firms. In large 

part because of its malleability, partner­

ship is a common form of business organi­

zation in this country. As this Court has 

noted, "some of the most powerful private 

institutions in the nation are conducted 

in the partnership form." Beilis v. United 

States, 417 U.S. 85, 93 (1970). In 1980, 

1,379,654 businesses including roughly 8.4 

million partners filed partnership tax re­

turns with the Internal Revenue Service, 

Internal Revenue Service, Dept, of the 

Treasury, Statistics of Income-1980 Part­

nership Returns Table 1, p. 10 (1982) (here­

inafter cited as Statistics of Income-1980) . 

Use of the partnership configuration for a

-54-



business is growing. In 1979, 1,299,593 

businesses filed partnership returns, Inter­

nal Revenue Service, Dept, of the Treasury, 

Statistics of Income-1979 Partnership Re­

turns Table 1, p. 10 (1982) and in 1978, 

1,234,157 did so. Internal Revenue Service, 

Dept, of the Treasury, Statistics of Income- 

1978 Partnership Returns Table 1, p. 8 

(1982). These partnerships account for a 

significant amount of business. In 1980, 

for example, partnerships had total re­

ceipts of almost $300 billion, Statistics 

of Income-1980 Table 1, p. 10.

Partnerships can be found throughout 

all segments of the nation's economy. For 

example, in 1980, there were 8,228 partner­

ships of certified public accountants con­

sisting of 53,274 partners, which earned 

$6.65 billion in receipts. Statistics of

-55-



Income-1980 Table 1, p. 18. In addi­

tion, partnerships are widely used in the 

engineering and architectural fields (6,675 

partnerships) id.; farming (108,094 part­

nerships), id. at 10; construction (66,590 

partnerships), id. at 11; wholesale and 

retail trades (200,273 partnerships), id. 

at 13; insurance (7,127 partnerships), id. 

at 15; personal services, including laun­

dries, beauty and barber shops (25,607 part­

nerships), id. at 17.
Because use of the partnership form of 

business organization permeates this na­

tion's many professions and industries, a 

holding by this Court excluding partner­

ships from scrutiny under Title VII will

— / See supra Section II for discussion of 
the importance of the "Big Eight" certi­
fied public accounting firms. In addition, 
there were 4,783 partnerships of other ac­
counting, bookkeeping and auditing services 
which included 12,564 partners and 
$505,000,000 total receipts. Statistics of 
Income-1980 Table 1, p. 18.

-56-



effectively exempt a large number of busi­

ness organizations from the proscriptions 

of that Act. This is particularly disturb­

ing at a time when the number of women part­

ners in many of the above-mentioned fields 

continues to lag so significantly behind 

the increasing numbers of women entering 

these fields. —

Public accounting firms, for example, 

are large employers of female certified 

public accountants. According to a recent

— / Between 1980 and 1981, the number of 
women accountants doubled, resulting in an 
increase in the number of women accountants 
from 25.2% to 38.5% of the field. Bureau 
of Labor Statistics, U.S. Dept, of Labor, 
The Female-Male Earning Gap: A Review of
Employment and Earnings Issues Table 5, p.
8 (Sept. 1982). Over the same period, the 
number of women engineers nearly tripled, 
resulting in a jump from 1.67, of all engin­
eers being women to 4.3%. Id. In the five 
years from 1975 to 1980, the number of fe­
male architects doubled, so that women now 
comprise 6.7% of the field as compared with 
4.3% in 1975. Greer, Women in Architecture 
A Progress (?) Report and a Statistical 
Profile, AIA Journal, Jan. 1982, aF 40 
(hereinafter cited as Women in Architec­
ture) .

-57-



survey conducted by the American Woman's 

Society of Certified Public Accountants,

587o of its membership and that of the Amer­

ican Society of Women Accountants were em­

ployed in public accounting firms in 1981, 

almost 30% of which were national firms. 

American Woman's Society of Certified Pub­

lic Accountants, A 1981 Statistical Profile 

of the Woman Certified Public Accountant 

(1981). Of these women, only 17.9% were 

partners in their firms, while 34.5% were 

considered non-supervisory. Id, The num­

ber of women partners in the "Big Eight" 

firms is even more dismal. As the New York 

Times reported in 1977, the "Big Eight" firms 

averaged fewer than three female partners 

each. More Women Moving into Public Ac­

counting, But Few to the Top, N.Y. Times,

Dec. 17, 1977, at 18. According to Forbes, 

in 1981 only one of the 125 new partners at 

Peat, Marwick, Mitchell was a woman, a pat­

tern replicated throughout the "Big Eight."

-58-



Women accounted for three of Arthur Ander­

sen's 168 new partners; three of Arthur 

Young's 57 new partners; none of Price- 

Waterhouse's 36 new partners; three of De- 

loitte Haskins and Sells’ 64 new partners; 

one of Coopers & Lybrand's 70 new partners, 

two of Touche Ross' 58 new partners, and 

one of Ernst & Whinney's 75 new partners.

Ms. CPA, Forbes, Aug. 17, 1981, at 8 . — 1

20/—  The attitudes that women in the "Big 
Eight" must fight against can be both vi­
cious and entrenched, as illustrated by 
Stevens, supra p. 22 , at 22.

'They really were the good old days 
back when I was an active partner,' 
says a retired Big Eight auditor.... 
'It was a gentleman's business, that's 
what I liked about it. Now, it's 
like the UN there.... You don't 
have anything in common with your 
partners... I just can't get used 
to it. I mean, in my day lunchtime 
was a relaxed affair. A good meal 
and good conversation with men of 
your own ilk. Now if you want to 
tell a joke, you have to look around 
the table first. One of your part­
ners may be Negro, Spanish, a Jew, 
or a woman. You know how sensitive 
they are.'

-59-



In view of these facts, it is not surpris­

ing that the limited chance for promotions 

was one of the most frequent reasons given 

by the women accountants in the surveys 

described above for leaving their previous 

position. American Woman's Society of Cer­

tified Public Accountants, supra p. 58.

Similar patterns exist for women en­

gineers and architects. For example, ac­

cording to a 1982 survey of its membership 

conducted by the Society of Women Engineers, 

62.4/o of its members were employed in pri­

vate industry, but roughly half had no 

regular supervisory responsibility. Only 

87c served as managers or general managers. 
Society of Women Engineers, A Profile of 

the Woman Engineer 3, Table 2 p. 4, Table 7 

p. 6 (1982). A survey conducted in 1981 by 

the American Institute of Architects Jour­

nal found that the majority of women archi-

-60-



tects were employed in architectural firms. 

Women in Architecture at 40. The survey 
results strikingly indicate a significant

rise in the number of women who report be­

ing subject to discrimination in their work 

experience -- 56% in 1981 as compared with 

40% in a similar survey conducted in 1974. 

Id. Of these victims of discrimination,

577c indicated they had suffered discrimina­

tion in advancement, 54% in work assign­

ments and 51% in hiring. Many of the sur­

vey participants responded that it was dif­

ficult, if not impossible to move to mana­

gerial positions in some architectural 
21/firms.—  In the words of one woman, "It 

is extremely difficult to continue to grow

21/—  Many also commented that discrimination 
has detrimentally affected their sense of 
self esteem and self confidence, as one 
respondent said, "by having to re-prove 
myself in each new situation, rather than 
being accepted without questions as a com­
petent professional. Women in Architecture, 
at 40.

-61-



within a firm in terms of management, scope 

of responsibility and salary, Most men be­

come threatened when a woman gains compet­

ence in their areas." Id.— ^

An exception to Title VII for promo­

tions to partnership thus promises to 

shield more than just law firms from prohi­

bitions against discrimination and reach

~TTl— Clearly, the sluggishness with which 
these fields have responded to the in­
creased numbers of women has an impact be­
yond those women currently eligible to be 
considered as partners. Women at all le­
vels feel the adverse effects of discrimi­
nation which continues at the top of their 
fields. Their opportunities to advance are 
hindered and the quality of their job ex­
perience may suffer as a consequence, See 
Jt. App. at 12-13 (Complaint f 17); cf. 
Lucido v. Cravath, Swaine & Moore, 425 F, 
Supp. at 127 (alleged discrimination in 
work assignments based on religion and/or 
national origin). This leaves members of 
Title VII's protected groups unable to 
know whether they will be judged on their 
merit, after years of extended and expen­
sive training and further years of long and 
hard work. It will tend to inhibit them 
from entering all professions, not simply 
law, in which partnerships are an important 
form of organization.

-62-



more than just those women currently eli­

gible for consideration as partners. The 

lower court's decision clears the path for 

gross circumvention of the anti-discrimina­

tion proscriptions of Title VII by partner­

ships and should not be sanctioned by this 

Court.

-63-



CONCLUSION

For the reasons set forth above, the 

decision of the United States Court of Ap­

peals for the Eleventh Circuit should be 

reversed.

Respectfully submitted,

Marsha Levick 
Judith I. Avner 
Anne E. Simon

Counsel of Record
NOW Legal Defense and 

Education Fund 
132 West 43rd Street 
New York, New York 10036 
(212) 354-1225

Attorneys for Amici Curiae*

* Attorneys for amici gratefully acknow­
ledge the assistance of Lee Basher, Noemi 
Bonilla, John Copoulos, Siobh^n Cronin, 
Kathleen Edwards, Barbara Fauth, Linda 
Long, David Sicular, and Susan Strauss in 
the preparation of this brief.

-64-



A P P E N D I X



DESCRIPTIONS OF AMICI CURIAE

The American Association of University 

Women ("AAUW") is a national organization 

of 190,000 college-educated women working 

for the advancement of women. Dedicated 

for 100 years to promoting the social and 

economic well being of all persons, the 

AAUW affirms its commitment to equal em­

ployment opportunity for women and men.

The American Society of Professional 

and Executive Women supports equal oppor­

tunity in all career paths. It deplores 

the continuity of exclusionary practices 

that curtail the achievements and contribu­

tions of women. The organization is com­

mitted to fostering positive career goals 

and attitudes, and recognizes the import­

ance of this case in the application of 

Title VII to partnerships to affect many 

facets of American enterprise.

1-a



Connecticut Women's Educational and 

Legal Fund, Inc. ("CWEALF") is a non-profit 

public interest law firm specializing in 

cases of sex discrimination. Since its 

inception in 1974, CWEALF has represented 

plaintiffs in numerous employment discrim­

ination cases and has also been active in 

educating women about their legal rights 

in the workplace. CWEALF is strongly in­

terested in maintaining Title VII as a 

broad remedial statute against employment 

dis crimination.

Equal Rights Advocates, Inc., is a 

San Francisco based, public interest legal 

and education corporation specializing in 

the area of sex discrimination. It has a 

long history of interest, activism and ad­

vocacy in all areas of the law which af­

fect equality between the sexes. Equal 

Rights Advocates, Inc, has been particu­

2-a



larly concerned with gender equality in the 

work force because economic equality is 

fundamental to women's ability to achieve 

equality in other aspects of society.

The National Bar Association, Women 

Lawyers' Division, founded in 1925, is a 

professional membership organization which 

represents more than 10,000 Black attorneys, 

judges, and law students. Its purposes in­

clude achieving equal opportunities for 

minorities in the legal profession and pro­

tecting the civil and political rights of 

all citizens. To effectuate its goal of 

racial and sexual equality, the National 

Bar Association, through its Women Lawyers' 

Division, has been actively involved in 

issues concerning equal employment oppor­

tunities .
The National Women's Law Center is a 

legal organization, located in Washington, 

D.C., with the purpose to protect and ad­

vance women's rights. The Center repre­

3-a



sents women's concerns before federal admin­

istrative agencies and courts. The Center 

has been involved in a wide range of issues 

affecting the employment rights of women.

The Northwest Women's Law Center is a 

local non-profit organization that seeks 

to promote the rights of women through the 

law. The Center is concerned with the is­

sue of sex discrimination and its total 

elimination from the work environment. The 

Center actively works to educate both women 

and employers throughout the Pacific North­

west about the effects of sex discrimina­

tion, the rights of women who are discrim­

inated against, and what employers can do 

to eliminate discrimination from the work­

place .
The NOW Legal Defense and Education 

Fund ("NOW LDEF") is a non-profit civil 

rights organization that performs a broad 

range of legal and educational services 

nationally in support of women's efforts

4-a



to eliminate sex-based discrimination and 

secure equal rights. NOW LDEF was estab­

lished in 1970 by leaders of the National 

Organization for Women, a membership organ­

ization of over 190,000 men and women in 

more than 700 chapters throughout the Uni­

ted States. A major goal of the NOW LDEF 

is eliminating barriers that deny women 

economic opportunities.

Women's Equity Action League ("WEAL") 

is a national membership organization dedi­

cated to securing legal and economic rights 

for women. WEAL's membership is committed 

to the full implementation of employment 

discrimination laws, and in particular the 

application of Title VII of the Civil 

Rights Act of 1964 to the full range of 

employment decisions affecting women.

The Women's Law Project is a non-pro­

fit feminist law firm dedicated to elimin­

ating sex discrimination through litigation 
and public education. Since its founding

5-a



in 1973, the Women's Law Project has been 

concerned with institutional barriers to 

the advancement of women at all levels of 

employment. Because of its primary focus 

on achieving results beneficial to women 

through the legal system, the Women's Law 

Project has a special interest in the em­

ployment opportunities of women in the le­

gal community, and believes that the pro­

tections of federal law are an essential 

component of achieving equal opportunity 

within the legal profession.

Women's Legal Defense Fund is a non­

profit, tax exempt membership organization, 

founded in 1971 to provide pro bono legal 

assistance to women who have been discrim­

inated against on the basis of sex. The 

Fund devotes a major portion of its re­

sources to combatting sex discrimination in 

employment, through litigation of signifi­

cant employment discrimination cases, oper­

ation of an employment discrimination

6-a



counselling program, public education, and 

agency advocacy before the EEOC and other 

federal agencies that are charged with en­

forcement of equal opportunity laws,

7 -a



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