Hishon v. King & Spalding Brief of Petitioner

    No, 82-940

In The

Supreme Court of the United States
October Term 1982

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ELIZABETH ANDERSON HISHON,

YS.
Petitioner,

KING & SPALDING,
Respondent.

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ON CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

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BRIEF OF PETITIONER

— o---------- -—

E m m et  J. B ondttrant 
E dward B . K rttgman 
B ondxjrant, M iller , H tsho:n 

& S teph en so k

2200 First Atlanta Tower 
Atlanta, Georgia 30383-4501 
(404) 688-0350
Counsel for Petitioner

COCKLE PRINTING CO., 2311 Douglas St., Omaha 68102



1

QUESTION PRESENTED

Whether King & Spalding and other large institu­
tional law firms that are organized as partnerships are, 
for that reason alone, exempt from Title VII of the Civil 
Eights Act of 1964, and are free (a) to discriminate in the 
promotion of associate lawyers to partnership on the basis 
of sex, race or religion; and (b) to discharge those asso­
ciates whom they do not admit to partnership based on 
reasons of sex, race or religion under an established “up- 
or-out” policy.



11

INTERESTED PARTIES

The following listed parties have an interest in the 
outcome of this case:

Elizabeth Anderson Hishon (Petitioner)
King & Spalding (Respondent)
William K. Meadows 
Charles L, Gowen 
Hughes Spalding, Jr.
James M. Sibley 
Griffin B. Bell 
Charles H. Kirbo 
John Izard 
Pope B. Mdntire 
Kirk M. MeAlpin 
Frank C. Jones 
Richard A. Denny, Jr.
Harry C. Howard 
William H. Izlar, Jr.
R. Byron Attridge 
Bradley Hale 
Robert W. Hurst 
Robert L. Steed 
Henry Hall Ware III 
Daniel J. O’Connor, Jr.
Hugh Peterson, Jr.
John A. Wallace 
Edward J. Hawie 
John C. Staton, Jr.
David Lee Coker 
John D. Hopkins
A. Felton Jenkins, Jr.
G. Lemuel Hewes 
Horace H. Sibley 
Charles M. Shaffer, Jr.
W. Donald Knight, Jr.
Joseph R. Gladden. Jr.



Ill

James H. Wildman 
Joseph B. Haynes 
Herschel M. Bloom 
Michael C. Russ 
Charles H. Battle, Jr.
Walter W. Driver, Jr.
Russell R. French 
George H. Lanier 
Lanny B. Bridgers 
Clarence Haverty Ridley 
William C. Clineburg, Jr.
Richard G. Woodward 
Theodore M. Hester 
William F. Nelson 
James A. Rubright, Jr.
Joseph R. Bankoff 
Ralph B. Levy 
Donald S. Kohla 
John Trapnell Glover 
Nolan C. Leake 
Charles H. Tisdale, Jr.
Russell B. Richards 
George S. Branch 
Michael E. Ross 
Ruth West Garrett 
William B. Fryer 
Michael R. Horton 
Scott J. Arnold 
Bruce N. Hawthorne 
Albert H. Conrad, Jr.
Henry L. Bowden, Jr.

Partners in King & Spalding*

As listed in Martindale-Hubbell Law Directory 1982.



IV

TABLE OF CONTENTS

Question Presented..............     i
Interested P arties.................... -................................... ii
Table of Authorities......................................................  vi
Opinions and Judgments Below..................   1
Jurisdiction .......       1
Statutes Involved...........................................................  1
Statement of the Case .. ............................. ............. ...  2

The Allegations of the Complaint............. ........... 3
The Proceedings Below...... ............................   4

Summary of Argument.................     10
Argument :

Page

I. The Befusal to Apply Title VII to Partnerships 
Would Be a Significant Blow to the National
Goal of Eradicating Job Discrimination............. 15
A. Law Partnerships are Big Businesses and

Bepresent Significant Job Opportunities in 
the Legal Profession. ______ ____________  15

B. Employment Discrimination Against Women
and Minorities is a Serious Problem in the 
Legal Profession, Deeply Booted in its His­
tory........ ..................................................   18

II. Because the Complaint was Dismissed for Want 
of Subject-Matter Jurisdiction, the Judgment 
Below Must Be Eeversed “Unless it Appears 
Beyond Doubt that the Plaintiff Can Prove No 
Set of Facts in Support of [Her] Claim” that 
Sex Discrimination by Law Firms in the Selec­
tion of Partners Is Prohibited by Title VII......... 23

III. Discrimination by Law Firms in the Selection of 
Partners and the Discharge of Those Associates 
who Fail to Make Partner Because of Sex, Eace,



V

Religion, or National Origin, Are “Unlawful Em­

TABLE OF CONTENTS—Continued
Page

ployment Practices” that Are Prohibited by §703 
(a)(1) and (2) of Title VII..................................  24
A. Title VII is to be Liberally Construed, and

Exceptions Are Not to be Read into the Stat­
ute Without Clear Congressional Intent.......  25

B. Economic Reality and Not Common-Law Def­
initions Determines Whether a “Partner” is 
an “Employee” of the Firm for Purposes of 
Title VII. ................ ................ .........................  27

C. Discrimination by a Law Firm In the Selec­
tion of Partners from Among Its Associates 
Based on Race, Religion, Sex or National Or­
igin, Violates Title VII............... .............. ...... 30
1. The Entity Theory

(a) A large law partnership is an entity 
that has an institutional identity sep­
arate from that of its individual 
partners and can he considered as 
the “employer” of a partner for 
Title VII purposes................   31

(h) King & Spalding’s partnership agree­
ment modifies state law to give King 
& Spalding the essential attributes 
of incorporation...........................   34

(c) The fact that a partner in King & 
Spalding may have a limited “own­
ership” interest in firm assets or is 
paid from “profits” does not alter 
the primary nature of the relation­
ship as one of employment................  38

2. The Opportunity Theory
By holding out to petitioner and to oth­
er associates the promise of equal con­
sideration for partnership, King & Spald­
ing made the opportunity of promotion



VI

to partnership a “term, condition or priv­
ilege” of employment and an “employ­
ment opportunity” of its associates that 
is covered by Title VII............................ .... 41

D. King & Spalding’s Decision to Deny Plaintiff 
Admission to Partnership Based on Sex Also 
Resulted in the Termination of Her Employ­
ment as an Associate and thus Violated § 703

TABLE OF CONTENTS—Continued
Page

(a)(1) and (2) of the Act__ ____ __________  47
Conclusion ................ .....................................................  49

TABLE OF AUTHORITIES
Cases

Andrus v. Glover Construction Co., 446 U. S. 608
(1980) ....................................    26

Armstrong v. Phinnev, 394 F. 2d 661 (5th Cir.
1968) ............................................................    31

Bates v. State Bar of Arizona, 433 U. S. 350 (1977) ...21, 28
Beilis v. United States, 417 U. S. 85 (1974) ..............12,16,

32, 33, 34, 35
Blank v. Sullivan & Cromwell, 418 F. Supp. 1 (S. D.

N.Y. 1975) .. ........... ........................................... 11,22,25
Bonilla v. Oakland Scavenger Co., 697 F. 2d. 1297

(9th Cir. 1982) .....  12,39,45
Bradwell v. Illinois, 83 U. S. 130 (1873) .....................  19
Bryan v. Maddox, 249 Ga. 762, 295 S. E. 2d 60 

(1982) ........................................................................ 38
Cannon v. University of Chicago, 441 U. S. 677 

(1979) ...................       30
City of Wheeling v. Chester, 134 F. 2d 759 (3d 

Cir. 1943) .......... ..................... ............................. 31.



V ll

Clark v. Olinkraft, Inc., 556 F. 2d 1219 (5th Cir.
1977), cert, denied, 434 U. S. 1069 (1978) .............. 44

Conley v. Gibson, 355 U. S. 41 (1957) ..................... ...  24
Connecticut v. Teal, 50 U. S. L. W. 4716 (June 21,

1982) (No. 80-2147) .................... ........ 10,11,26
Continental Casualty Co. v. United States, 314 

U. S. 527 (1942)   26
County of Washington v. Gunther, 452 U. S. 161

(1981) .................................................................  11,27
EEOC v. First Catholic Slovak Ladies Association,

694 F. 2d 1068 (6th Cir. 1982) ..................... 13,39,45,46
Franks v. Bowman Transportation Co., 424 U. S.

747 (1976) .................................................................11,26
Goldberg v. Whitaker House Cooperative, Inc.,

366 U. S. 28 (1961) .......................................11,13, 29, 39
Golden State Bottling Co. v. NLRB, 414 IJ. S.

168 (1973) ..................................................... ............ 14,43
Goldfarb v. Virginia State Bar, 421 U. S. 773

(1975) .............................................................10,21,24,25
Hargrove v. Oki Nursery, Inc., 646 F. 2d 716 (2d 

Cir. 1980) .................................    30
Harwell v. Cowan, 175 Ga. 33, 165 S. E. 2d 19 (1932) 35
Hishon v. King & Spalding, 678 F. 2d 1022 (11th 

Cir. 1982) ..........„...................................1,8,27,42,45,46
Hishon v. King & Spalding, 25 Enrpl. Prac. Dec.

(CCH) U31,703 (N.D. Ga. 1980) ...........  1,6,47,48
Kohn v. Rovall, Koegel & Wells, 496 F. 2d 1094 (2d 

Cir. 1974) .............................................................11, 22, 25
Lucido v. Cravath, Swaine & Moore, 425 F. Supp.

123 (S. D. N. Y. 1977) .........................11,14,15, 25, 43,48

TABLE OF AUTHORITIES—Continued
Pages



V l l l

McLain v. Real Estate Board of New Orleans, Inc.,
444 U. S. 232 (1980) ............. ...... ......... ...8,10, 23, 24, 47

NLRB v. Bell Aircraft Corp., 206 F. 2d 235 (2d 
Cir. 1953) ............................................................ 14,42,43

NLRB v. Hearst Publications, 322 U. S. I l l
(1944) ...... .............................................. .............11, 29, 30

Pettway v. American Cast Iron Pipe Co., 494 F.
2d 211 (5th Cir. 1974) .........................14, 39, 40,41,45, 46

Pettway v. American Cast Iron Pipe Co., 332 F.
Supp. 811 (N. D. Ala. 1970) ....................................13, 40

Rogers v. McDonald, 224 Ga. 599, 163 S. E. 2d 719
(1968) ............. ....................................... ..................  37

United States v. Silk, 331 U. S. 704 (1947)..................11, 29

TABLE OF AUTHORITIES—Continued
Pages

S tatutes

28 U.S. C. §1254 (1 ) ................................................... 1
28 U. S. C. § 1331______________________________  3
42 U. S. C. '§ 2000e, et seq. (Title YII of the Civil 

Rights Act of 1964) ................................... ...........passim
42 U. S. C. § 2000e (Section 701 of the Civil Rights 

Act of 1964) ........................................................ 1,10, 24
42 U. S. C. '§ 2000e-2 (Section 703 of the Civil 

Rights Act of 1964) ............. ...2, 4, 9,10,11,14,15, 24, 25
O. C. G. A. ■§ 14-8-90 (Ga. Code Ann. § 75-107) ........  35

§ 14-8-42 (Ga. Code Ann. § 75-203) ..........  37
§14-8-45 (Ga. Code Ann. §75-206) 38



IX

F ederal R ules op Civil P rocedure

Rule 12 (b) (1) ........................ .........................3,6,8,10,24
Rule 12 (b) (6) ............................................ ........ ...... 24
Rule 3 7 ............................... .......-.................... .............6, 34

TABLE OF AUTHORITIES—Continued
Pages

T exts

M. Abram, The Day is Short (1982)............. — .......... 21
Association of American Law Schools, Prelaw

Handbook 1982-83 (1982) ___ ______ — .................  20
Bower, A Survival Guide For Associates, Barrister,

Yol. 6, No. 1 (Winter 1979)................. ...................... 42
C. Clark, Minority Opportunities in Law For 

Blacks, Puerto Ricans <& Chicanos (1974)________  22
J. Crane and A. Bromberg, Law of Partnership (1968) 32
C. Epstein, Women in Law (1981).........................19,20,22
J. Goulden, The Superlawyers (1972) -------------------  16
P. Hoffman, Lions in the Street (1973) ................... 16,19
Webster’s Third New International Dictionary

(3d ed. 1976) .................................................... ............. 27

Articles

Bad Day at Kulak Rock, National Law Journal, 
November 2, 1981 ------------------------- ---------------  31

Barber, Employment Discrimination Against Women 
Lawyers, 59 A.B.A.J. 1029 (Sept. 1973) ___ ______ 20

C. Epstein, The Partnership Push, SAVVY, March 
1980 _______ ________________ ____ __________ 22

The First Friend, Newsweek, Jan. 24,1977---- --------  17
Flaherty, Women & Minorities: The Gains, Na­

tional Law Journal, December 20,1982---------------  22



X

Goolrick, Equality Under the Law9, Atlanta J.
& Const., June 8, 1980 (Atlanta Weekly Mag­
azine) ........... .................... ........ ................ ..................  19

Stevens, Law Schools and Law Students, 59 Va. L.
Rev. 572 (1973) ............. .......... ........ .......... .............. 20

Wayne, The Tear of the Accountant, N. Y. Times,
Jan. 3, 1982 ................. ........ ......................................  16

L. Wightman, Male-Female LSAT Candidate Study 
1969-73, Educational Testing Service (1974) .—........  20

M iscellaneous

Martindale-Hubbell Law Directory 1944-1977 .............. 3
The Top 200 Law Firms, National Law Journal,

September 13, 1982, at 14;............. — ......... .........  17
September 20, 1982, at 13............................... ........ 17
October 6, 1980, at 32;.... ......... ........... ................... 17
October 13, 1980, at 34 ........................ — .............  17

Reuters Ltd., Dateline: Atlanta, June 19, 1979............  17
U. S. Bureau of the Census, Statistical Abstract

of the United States 1982-83 (103 ed. 1983).......16, 20,21,
22,23

U. S. Dept, of Commerce, Bureau of Census,
County Business Patterns—United States,
United States—Establishments, Employees 
and Payroll by Industry by Employment- 
Size Class: 1977 ....... ................ -..............

TABLE OF AUTHORITIES—Continued
Pages

17



OPINIONS AND JUDGMENTS BELOW
The opinion of the Court of Appeals is officially re­

ported as Hishon v. King & Spalding, 678 F. 2d 1022 (11th 
Cir. 1982), and is reproduced as Appendix A to the Peti­
tion for a Writ of Certiorari.1 App. A-l through A-16. The 
November 25, 1980 opinion of the district court is unoffi­
cially reported as Hishon v. King <£ Spalding, 25 Empl. 
Prac. Dec. (CCH) ff 31,703 (N. D. Ga. 1980) (Appendix B 
to the Petition, App. A-17 through A-26), and the final 
judgment dismissing the complaint in conformity with that 
opinion was entered on November 26, 1980. R. 272; J.A. 
259.2

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JURISDICTION

The judgment of the Court of Appeals for the Eleventh 
Circuit was entered on June 17, 1982. Appendix C to the 
Petition, App. A-27 through A-28. A timely petition for 
rehearing en banc was denied on September 9, 1982. Ap­
pendix D to the Petition, App. A-29 through A-30. The 
petition for certiorari was filed within 90 days of that date 
and was granted on January 24, 1983. 51 U. S. L. W. 3552 
(Jan. 24, 1983).

Jurisdiction is conferred on this Court by 28 U. S. C. 
§ 1254(1).

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STATUTES INVOLVED

Section 701 of Title VII of the Civil Rights Act of 1964 
provides in pertinent p a rt: '

Definitions
(a) The term “person” includes one or more in­

dividuals, governments, governmental agencies, politi-

Dhe Petition for a Writ of Certiorari shall be referred to 
hereinafter as "the Petition." The Appendix to the Petition 
will be cited as "App."

2Joint Appendix.
1



2

cal subdivisions, labor unions, partnerships, associa­
tions, corporations, legal representatives, mutual com­
panies, joint-stock companies, trusts, unincorporated 
organizations, trustees, trustees in cases under Title 
11, or receivers.

(b) The term “employer” means a person en­
gaged in an industry affecting commerce who has 
fifteen or more employees for each working day in 
each of twenty or more calendar weeks in the current 
or preceding calendar year, and any agent of such a 
person, . . .

jg.W W W

(f) The term “employee” means an individual 
employed by an employer . . .
42 U. S. C. l§ 2000e(a), (b), (f) (emphasis supplied). 
“Unlawful employment practices” are defined in § 703 

of Title VII as follows:
(a) It shall be an unlawful employment practice 

for an employer—
(1) to fail or refuse to hire or to discharge any 

individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or national 
origin; or

(2) to limit, segregate, or classify his employees 
or applicants for employment in any way which would 
deprive or tend to deprive any individual of employ-

. ment opportunities or otherwise adversely affect his 
status as an employee, because of such individual’s 
race, color, religion, sex, or national origin.
42 U. S.C. §2000e-2(a)(l), (2).

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STATEMENT OF THE CASE

Petitioner, Elizabeth Anderson Hishon, is a female 
lawyer who was employed by King & Spalding as an as­
sociate from 1972 until her discharge in December 1979.



3
Her Title VII complaint3 (E. 4-19; J.A. 6-26) alleging that 
King & Spalding discriminated against her on the basis of 
sex by denying her promotion to partnership and by termi­
nating her employment as an associate under an “up-or- 
out” policy was dismissed by the district court for want of 
subject-matter jurisdiction under Eule 12(b)(1) on the 
ground that Title VII does not apply to sex discrimination 
relating to partnership decisions. App. A-17 through A-26.

The Allegations of the Complaint
King & Spalding is a partnership engaged in the prac­

tice of law in interstate commerce with offices in Atlanta, 
Georgia, and Washington, D. C. Complaint If 2(a); E. 4; 
J.A. 6. King & Spalding has more than fifty partners, and 
employs more than fifty other lawyers as associates and 
more than fifty non-lawyers in secretarial, paralegal and 
clerical positions. Complaint j[ 2(b); E. 4; J.A. 6.

King & Spalding was formed in 1885. E. 161; J.A. 153. 
At the time the complaint was filed, King & Spalding had 
never admitted a woman to partnership throughout its 
almost 100-year history. Complaint j[ 2(c); E. 4-5; J.A. 6-7. 
Prom 1944 until 1977, however, King & Spalding employed 
a woman (Ms. Antha M'ulkey) as the firm’s only “perma­
nent associate.”4

Ms. Hishon was only the second female lawyer em­
ployed by King & Spalding. She was employed in 1972 
following graduation with honors from the Columbia Uni­
versity School of Law. Complaint H 5; B. 5; J.A. 7. The 
complaint alleged that petitioner was induced to accept

3The district court's jurisdiction was based on 42 U. S. C. 
§ 2000e-5(f)(3) and 28 U. S. C. § 1331.

4See listings of King & Spalding (formerly named Spalding, 
Sibley & Troutman (Jan. 1943-June 1946), Spalding, Sibley, 
Troutman & Kelley (July 1946-1955), and Spalding, Sibley, 
Troutman, Meadow & Smith (1956-1961)) in Martindale-Hubbell 
Law Directory for the years 1944-1977.



4
employment with King & Spalding by the express promise 
and representation that she would be considered for part­
nership on a fair, non-discriminatory basis upon satisfac­
tory completion of five or six years’ employment as an 
associate. Complaint If 8(c), (d ); R. 6; J.A. 9. The com­
plaint also alleged that King & Spalding made similar 
representations to other promising law school graduates 
(complaint f[8; R. 6; J.A. 8) and that such promises and 
representations were “terms, conditions and privileges” of 
petitioner’s employment by King & Spalding within the 
meaning of § 703(a) (1) of Title VII. Complaint W 4,16(a); 
R. 5, 8-9; J.A. 7,11.

The complaint alleged that, despite King & Spalding’s 
promises and representations of fair and non-discrimina­
tory treatment, King & Spalding discriminated against 
petitioner on the basis of sex and, in considering her for 
promotion to partnership, refused to utilize the same 
standards it applied to male associates who were admitted 
to partnership. Complaint If 17(h); R. 11; J.A. 13.

The complaint also alleged that petitioner’s employ­
ment as an associate was terminated as a result of the sex 
discrimination practiced by King & Spalding. Complaint 
HU 13, 17(c); R. 8-10; J.A. 10-12. The same discriminatory 
decision to refuse to admit petitioner to partnership led 
automatically to her dismissal as an associate under the 
firm’s “up-or-out” policy. Id.

The Proceedings Below5
The district court imposed a stay on merits discovery 

and granted petitioner a limited period within which to

5The Equal Employment Opportunity Commission moved 
to participate in the action as amicus curiae, and for access to 
the record (J.A. 109-10) which the district court had placed 
under seal. R. 90-92; J.A. 87-89. The district court granted the 

(Continued on next page)



5
conduct discovery restricted to the “coverage” issue. 678 
F. 2d at 1025 (R. 88-89; J.A. 86-87).

In partial response to the petitioner’s discovery re­
quests, King & Spalding produced a written partnership 
agreement. R. 161-72; J.A. 153-64. The King & Spalding 
partnership agreement supersedes the Georgia law of 
partnerships and performs the same function as a cor­
porate charter by conferring on King & Spalding the prin­
cipal attributes of incorporation, including (1) perpetual 
existence (ffi[ 2, 5(a); R. 161-62; J.A. 153-54), (2) a trade 
name “King & Spalding” wdiich is not the name of any of 
its living partners (If 1; R. 161; J.A. 153), (3) centralized 
management and control by a committee that is the equiva­
lent of a corporate board of directors (|f 14; R. 170-71; J.A. 
162-63), and (4) a limitation on each partner’s ownership 
interest in the assets of the firm to the amount of his “cap­
ital account.” If 9 (a); R. 166-67; J.A. 158-59.

(Continued from previous page)
EEOC's motion to participate, but denied it access to the record. 
j.A. 218-19. On appeal, the EEOC again moved for access to 
the record and to participate as amicus curiae. J.A. 5. Although 
the court of appeals granted the Commission's request to par­
ticipate in oral argument, it failed to rule on its motion for ac­
cess to the record. J.A. 5.

The Commission's position in this case was succintly stated 
in its brief in support of the petitioner's request for rehearing 
en banc in the court of appeals:

The EEOC, as the agency charged by Congress to en­
force and interpret Title VII, submits that the panel's con­
clusion is erroneous, in that it conflicts with the language 
and intent of the statute and with relevant Supreme Court 
case law and rules of statutory construction. Moreover, the 
decision of the panel majority does not simply deprive the 
plaintiff in this case of recourse under Title VII. Rather, as 
the only appellate decision on this issue, it signals to all 
major legal or other professional partnerships that they 
may deny equal advancement opportunity to women and 
minority associates without fear of retribution under the 
statute.
Brief of EEOC, at 2.



6
King & Spalding objected to the majority of peti­

tioner’s discovery and, when the petitioner moved to com­
pel under Rule 37 of the Federal Rules of Civil Procedure, 
the district court denied the motion and simultaneously 
dismissed the complaint under Rule 12(b)(1) for want of 
subject-matter jurisdiction. The district court ruled that, 
accepting petitioner’s allegations of sex discrimination by 
King & Spalding as true, such discrimination was outside 
the coverage of Title VII because King & Spalding is 
organized as a partnership. The district court analogized 
a law partnership to a marriage and the application of 
Title VII to a shotgun wedding :

In a very real sense a professional partnership 
is like a marriage. It is, in fact, nothing less than a 
“ business marriage’’ for better or worse. Just as in 
marriage different brides bring different qualities in­
to the union—some beauty, some money, and some 
character—so also in professional partnerships, new 
mates or partners are sought and betrothed for dif­
ferent reasons and to serve different needs of the 
partnership. Some new partners bring legal skills, 
others bring clients. Still others bring personality 
and negotiating skills. In both, new mates are ex­
pected to bring not only ability and industry, but also 
moral character, fidelity, trustworthiness, loyalty, per­
sonality and love. Unfortunately, however, in part­
nerships, as in matrimony, these needed, worthy and 
desirable qualities are not necessarily divided evenly 
among the applicants according to race, age, sex or 
religion, and in some they just are not present at all. 
To use or apply Title VII to coerce a mismatched or 
unwanted partnership too closely resembles a statute 
for the enforcement of shotgun weddings.
25 Empl. Prac. Dec. (CCH) || 31,703, at 20,062 (R. 
266; App. A-20).

The trial court refused to look beyond the common-law 
definition of partnership and allow petitioner to demon­
strate that King & Spalding (as is true of many other law



7
firms) is organized and run in a manner that departs 
significantly from the common-law model of a “partner­
ship,” and has many attributes of a corporation. Judge 
Edenfield stated:

Undeniably, a private professional partnership 
is a voluntary association. . . . Plaintiff’s emphasis 
on the composition and internal arrangements of this 
particular partnership cannot alter this inescapable 
conclusion. King & Spalding is a partnership, created 
and perpetuated as such and subject to the partner­
ship laws of Georgia and the United States. The 
legal characterization of what an entity is, of course, 
is purely a question of state law,. . .

These observations effectively dispose of plain­
tiff’s prayers for further discovery.
Id. (R. 265 ; App. A-19).
In dismissing the complaint, the district court was 

heavily influenced by what it perceived as an infringement 
of rights of “freedom of association” of King & Spalding’s 
existing partners that would result if the firm were sub­
jected to the coverage of Title VII and prohibited from 
using race, sex and religion as criteria in the selection of 
partners. The court saw itself confronted with the “di­
lemma” of having to choose between Title VII to cover 
partnership decisions of large law firms on the one hand— 
a question which the court said was “doubtful and obscure” 
—and ruling that Title VII violates “the right of defend­
ant to freedom of association” if Title VII were applied 
to the selection of partners by King & Spalding from 
among its associates. Id. at 20,064 (R. 271; App. A-24). 
The court resolved the dilemma by deciding the “doubtful 
and obscure” question of coverage of Title VII over law 
firm partnerships against the petitioner, but with the ob­
servation that “the court is humbly aware that in reach­
ing this conclusion it may have erred.” Id.

The district court described its dilemma in the con­
cluding paragraph of the opinion:



8
In the end, then, the court faces this dilemma:

(1) If the court finds that the case is covered by 
Title VII the defendant’s constitutional right to free­
dom of association is then thrown into head-on con­
flict with plaintiff’s constitutional right not to suffer 
discrimination in the terms, conditions and privileges 
of her employment; (2) if the court construes the 
Act as not covering plaintiff’s claim, then there is no 
constitutional problem and the court should dismiss 
the case for want of subject-matter jurisdiction. To 
the court, while the right of defendant to freedom of 
association seems clear, the coverage of the Act seems 
doubtful and obscure. The court is humbly aware 
that in reaching this conclusion it may have erred. 
In considering this possibility, the court considered a 
balancing process which would give effect to both 
constitutional rights by allowing the case to proceed 
but would require the plaintiff, in such rare instances, 
to show by clear and convincing proof that, irrespec­
tive of all other justifications claimed by defendant, 
naked discrimination was the sole and producing 
cause of plaintiff’s rejection as a partner. The court, 
however, could find no hint of any authority for a 
trial court to so alter the burden of proof. All of 
these questions will have to be resolved by a higher 
authority, legislative or judicial. In the meantime, 
the court concludes that it has no subject-matter 
jurisdiction of plaintiff’s claim and the case is, there­
fore, DISMISSED.
Id. (E. 271; App. A-24, 25).
On appeal, a divided panel of the Eleventh Circuit 

Court of Appeals affirmed, with Circuit Judge Peter T. 
Fay and Senior District Judge George C. Young in the 
majority, and Circuit Judge Gerald B. Tjoflat dissenting. 
Hishon v. King & Spalding, 678 F. 2d 1022 (11th Cir. 1982). 
The majority ruled:

A dismissal under Fed. R. Civ. P. 12(b)(1) is 
proper only when “ it appears beyond doubt that the 
plaintiff can prove no set of facts in support of [her] 
claim, which would entitle [her] to relief.” McLain v.



9
Real Estate Board of New Orleans, Inc. . . . Appellant 
suggests that Title VII must be given the “ broadest 
possible interpretation” in order to effectuate its 
purpose—to remedy acts of discrimination within the 
employment context. Rogers v. EEOC, 454 F. 2d 234, 
238 (5th Cir. 1971), cert, denied, 406 U. S. 957, 92 S. 
Ct. 2058, 32 L. Ed. 2d 343 (1972). . . . Even under the 
most liberal reading we cannot find the requisite con­
gressional intent to permit Title VIPs intervention 
into matters of voluntary association. We can con­
ceive no set of facts which would entitle her to relief 
under Title VII with respect to partnership decisions. 
This renders the dismissal of her claim proper.
678 F. 2d at 1026 (App. A-6).
Although the majority refrained from expressly en­

dorsing the trial court’s freedom of association rationale, 
the majority was heavily influenced by the notion that a 
partnership is a “voluntary association,” and that part­
ners of a “voluntary association” should be free to select 
those with whom they will “associate” in the practice of 
law in the absence of clear evidence of “the requisite con­
gressional intent to permit Title VIPs intervention into 
matters of [discrimination by] voluntary association[s].” 
Id.

Judge Tjoflat dissented on the ground that Title VII 
applies to petitioner’s firing as an associate as a direct 
consequence of King & Spalding’s decision to refuse her 
admission to partnership. Since this decision was alleged 
to have been based on sex, her firing, therefore, constituted 
employment discrimination in violation of §703(a)(1) 
and § 703(a) (2) of Title VII. 678 F. 2d at 1030 (App. A-15, 
A-16).

Petitioner’s motion for rehearing en banc was denied 
on September 9, 1982. App. A-29. Certiorari was granted 
by this Court on January 24, 1983. 51 U. S. L. W. 3552.

o-



SUMMARY OF ARGUMENT
The complaint stated a sex discrimination claim under 

each of three legal theories. First, the complaint alleged 
that the relationship between a partner and a large institu­
tional law firm is primarily one of “employment” which 
is covered by Title VII. Second, the complaint alleged 
that the opportunity of “making partner” which King & 
Spalding held out to petitioner and to other associates to 
induce them to accept employment with the firm was both 
an “employment opportunity” and a “term, condition and 
privilege of [her] employment” within the meaning of 
§ 703(a) of Title VII. Third, the complaint alleged that 
petitioner’s employment as an associate was terminated by 
King & Spalding as a direct result of the fact that she had 
been rejected for partnership because of her sex.

Because the complaint was dismissed under Rule 
12(b) (1) for want of subject-matter jurisdiction, the 
judgment must be reversed “unless it appears beyond 
doubt that plaintiff can prove no set of facts” under which 
sex discrimination in the selection of partners by any law 
firm could ever constitute “employment discrimination” 
“which would entitle [her] to relief” under Title VII. 
McLain v. Real Estate Board of New Orleans, Inc., 444 
U. S. 232, 246 (1980).

Partnerships are “persons” whose employment prac­
tices are covered by § 701(a) of Title VII. King & Spal­
ding employs more than 50 associates and 50 secretarial 
and clerical personnel and is engaged in the practice of 
law, “an industry affecting commerce” [Ooldfarh v. Vir­
ginia State Bar, 421 U. S. 773 (1975)], with offices, in 
Atlanta and Washington. King & Spalding is, therefore, 
an “employer” covered by Title VII and cannot claim 
either a professional exemption [Connecticut v. Teal, 50 
U.S.L.W . 4716 (June 21, 1982) (No. 80-2147); Goldfarb 
v. Virginia State Bar, 421 U. S. 773 (1975)] or an exemp­
tion based on the fact that it is organized as a partnership.

10



11
An associate of a law firm is an “employee” whose 

“term[s], condition[s] and privileged] of employment” 
and whose “employment opportunities” are protected by 
Title VII from discrimination on the basis of race, religion, 
sex, or national origin. Kohn v. Royall, Koegel & Wells, 
496 F. 2d 1094 (2d Cir. 1974); Lucido v. Cravath, Swaine 
& Moore, 425 F. Supp. 123 (S. D. N.Y. 1977); Blank v. 
Sullivan & Cromwell, 418 F. Supp. 1 (S. D. N.Y. 1975).

The issue in this case is whether acts of sex discrim­
ination practiced by a law firm in refusing to admit female 
associates to partnership (and the subsequent discharge 
of those associates who do not “make partner” under an 
up-or-out policy) constitute “unlawful employment prac­
tices” which are prohibited by § 703(a) of Title VII.

In making this determination, it must be remembered 
that Title VII was “intended to be broadly inclusive” 
{County of Washington v. Gunther, 452 U. S. 161, 178 
(1981)], that “Congress required ‘the removal of . . . bar­
riers to employment’ and professional development that 
had historically been encountered by women, blacks and 
other minorities” [Connecticut v. Teal, 50 U.S.L.W. at 4718 
(emphasis supplied)], and that Congress, therefore, “in­
tended to prohibit all practices in whatever form which 
create inequality in employment opportunity due to dis­
crimination on the basis of race, religion, sex, or national 
origin . . . [as] the ‘highest priority.’ ” Franks v. Bow­
man Transportation Co., 424 U. S. 747, 763 (1976) (em­
phasis supplied).

In enacting Title VII, Congress rejected the narrow 
common-law definition of “employment” in favor of the 
more comprehensive and economically realistic definition 
of employment in the National Labor Relations Act [NL 
RB v. Hearst Publications, 322 U. 8. I l l  (1944)], the So­
cial Security Act {United States v. Silk, 331 U. S. 704 
(1947)], and the Fair Labor Standards Act {Goldberg v. 
Whitaker House Cooperative, Inc., 366 U. S. 28 (1961)].



12
The petitioner has advanced two basic arguments to 

support her claim that the provisions of Title YII apply 
to and were violated by the decision of King & Spalding to 
deny her promotion to partnership in the firm on account 
of her sex.

Entity Theory—If King & Spalding were organized 
as a professional corporation, rather than as a partner­
ship, there would be no doubt that its partner-shareholders 
would be considered “employees” of the firm for Title VII 
purposes. Discrimination by a professional corporation 
in the selection of lawyers for advancement from the 
“associate” status to that of a “shareholder” is prohibit­
ed by Title VII. Cf. Bonilla v. Oakland Scavenger Co., 
697 F. 2d 1297 (9th Cir. 1982).

Although King & Spalding is nominally organized as 
a partnership rather than a professional corporation, it 
should not be treated differently for Title VII purposes. 
Large law partnerships “possess many attributes common 
to corporate forms of business.” 678 F. 2d at 1026. In 
Beilis v. United States, 417 U. S. 85, 93-94, 95 (1974), this 
Court emphasized that “Wall Street law firms . . . are often 
large, impersonal, highly structured enterprises of essen­
tially perpetual duration” and that even a small law firm 
with as few as three partners had “an established insti­
tutional identity independent of its individual partners.”

The conclusion that partnerships should be treated 
on a parity with corporations for Title VII purposes is 
reinforced in this case by the fact that King & Spalding 
has a written partnership agreement. This agreement 
serves the same function as a corporate charter by elim­
inating the common-law rules of partnership and replac­
ing them with four principal attributes of incorporation, 
including (1) a trade name, (2) perpetual existence, (3) 
centralized management, and (4) limited ownership by 
partners of firm assets. Cf. Beilis v. United States, 417 
IT. S. at 96 n. 4.



The economic reality of the relationship between a 
lawyer and a large law firm is primarily one of employ­
ment. The professional duties of a lawyer in a large firm 
are essentially the same whether the lawyer is a “partner” 
or an “associate.” In either case, the lawyer earns a liveli­
hood by performing professional services for clients of 
the firm. The clients pay the firm for these services and 
the lawyer is compensated by the firm.

Although a partner is a nominal “owner” of the firm, 
“there is nothing inherently inconsistent between the co­
existence between a proprietary and an employment re­
lationship.” Goldberg v. Whitaker House Cooperative, 
Inc., 366 U. S. at 32. A partner’s income from a law firm 
is ordinary income earned as compensation for individual 
labors on behalf of the firm and its clients, not as a return 
on invested capital. A partner in a law firm cannot, for 
example, increase his share of firm profits simply by in­
creasing the size of his capital account. Moreover, many 
firms, including King & Spalding, limit a partner’s owner­
ship in firm assets on retirement or withdrawal to a por­
tion of that partner’s capital account.

It is also irrelevant that partnership positions in King 
& Spalding are filled by “election” rather than by appoint­
ment. EEOC v. First Catholic Slovak Ladies Association, 
694 F. 2d 1068 (6th Cir. 1982); Pettway v. American Cast 
Iron Pipe Co., 494 F. 2d 211 (5th Cir. 1974).

Employment Opportunity Theory—In addition to al­
leging that “partnership” is an employment relationship 
covered by Title VII, the complaint also alleged (and the 
answer admitted) that King & Spalding represented to 
petitioner, and to other young law graduates whom the 
firm was seeking to recruit, that each associate would be 
fairly considered for partnership after five or six years of 
satisfactory employment by the firm. These representa­
tions of fair and equal consideration for partnership were

13



14
material inducements to petitioner’s decision to accept 
employment as an associate with King <fc Spalding. By 
making these representations, King & Spalding made “fair 
and equal consideration” for partnership both an employ­
ment opportunity and a “term, condition and privilege of 
[her] employment” which petitioner possessed by reason 
of her employment with King & Spalding as an associate.

“Making partner” represents a promotion from the 
entry level position of an “associate” to the more-highly 
compensated and prestigious position of a “partner.” Part­
nership in a law firm is therefore an employment oppor­
tunity.

Partnership in a law firm is also a “term, condition 
and privilege” of employment. NLRB v. Bell Aircraft 
Corp., 206 F. 2d 235, 237 (2d Cir. 1953) (An employee’s 
“prospects for promotion [are] among the conditions of 
his employment.”) It makes no difference whether pro­
motion would have been to a position that is outside the 
coverage of Title VII. Golden State Bottling Co. v. NLRB, 
414 U. S. 168, 188 (1973); Lucido v. Cravath, Swaine & 
Moore, supra. This is especially true in firms like King 
& Spalding that have “up-or-out” policies, which make at­
tainment of partnership a condition of continued employ­
ment. Only partners are allowed to remain with the firm 
and continue working for (i. e., “representing”) clients of 
the firm instead of being terminated and forced to look 
elsewhere for professional employment.

Assuming arguendo that the relationship between a 
junior partner and a large law firm is not an “employment 
relationship” that is itself covered by Title VII, the op­
portunity of being promoted to partnership which King 
& Spalding held out to all of its associates was a “term, 
condition or privilege of [the petitioner’s] employment” 
within the meaning of '§ 703(a) of Title VII, and also an 
“employment opportunity” covered by the Act.



15

Termination Theory — The petitioner has also ad­
vanced a third claim of wrongful termination resulting 
from King & Spalding’s discriminatory refusal to admit 
her to partnership under the firm’s automatic “up-or-out” 
policy.

The complaint alleged (and King & Spalding has 
admitted) that when King & Spalding refused to ad­
mit petitioner to partnership because of her sex, this 
decision resulted automatically in the termination of 
her employment as an associate under an “up-or-out pol­
icy.” The complaint expressly alleged that the petition­
er’s employment as an associate was terminated as a direct 
result of King & Spalding’s decision to refuse to make her 
a partner in the firm, and that sex was a major factor 
in its decision. Accepting the allegations of the complaint 
as true, the effect of such discrimination was automatically 
to terminate Ms. Hishon’s employment as an associate and 
to “deprive [her] of employment opportunities or other­
wise adversely affect [her] status as an employee” of King 
& Spalding, clear violations of § 703(a) of Title VII. Lu- 
cido v. Gravath, Swaine S  Moore, supra.

The complaint, therefore, stated a claim against King 
& Spalding for sex discrimination in employment in viola­
tion of Title VII and should not have been dismissed for 
want of subject-matter jurisdiction.

---------------- o----------------

ARGUMENT
I. The Refusal to Apply Title VI! to Partnerships Would 

Be a Significant Blow to the National Goal of Eradicating Job 
Discrimination.

A. Law Partnerships Are Big Business and Represent 
Significant Job Opportunities in the Legal Profession.

Partnerships are not outmoded forms of business 
enterprises suitable only for cottage industries and small 
family businesses. This Court has recognized that “ [s]ome 
of the most powerful private institutions in the Nation are



16

conducted in partnership form. Wall Street law firms and 
stock brokerage firms provide significant examples.” Beilis 
v. United States, 417 U. S. 85, 93-94 (1974).6

Partnerships occupy a significant segment of the 
economy and provide a large number of the job opportu­
nities in the United States. In 1979, for example, there 
were 1,300,000 partnerships in the United States with to­
tal revenues of $252.9 billion. U. S. Bureau of the Census, 
Statistical Abstract of the United States 1982-83, at 528, 
Table 876 (103 ed. 1983) (hereinafter cited as “Statistical 
Abstract”).

In 1977, the legal profession was a $14.4 billion indus­
try employing 541,000 people; $10.09 billion of the total 
was received by 29,200 partnerships which employed 197,- 
800 people. Statistical Abstract, 185, 800-01, Tables 311, 
1435, 1436. By 1981, the legal profession had grown to a 
$23.4 billion industry and employed 684,000 people as 
partners, associates and in secretarial and clerical ca­
pacities. Statistical Abstract, 800-01, Tables 1435, 1436.

The major law firms in the United States represent 
centers of economic and political power far out of propor­
tion to their numbers or their contributions to the GNP. 
See Beilis v. United States, supra; J. Goulden, The Super- 
lawyers (1972); P. Hoffman, Lions in the Street (1973). 
King & Spalding’s well-publicized connections during the 
Carter Administration were typical of the influence wield­

6The Big Eight accounting firms are also organized as part­
nerships. In 1981, the largest in terms of number of partners 
(Coopers & Lybrand) had 2,010 partners worldwide and rev­
enues of $998 million. The smallest of the Big Eight (Arthur 
Andersen & Co.) had 1,400 partners and estimated revenues in 
excess of $973 million. See Wayne, The Year of the Account­
ant, N. Y. Times, Jan. 3,1982, § 3 at 1, col. 2.



17
ed in Washington, and in state capitals throughout the 
Nation, by many other large institutional law firms.7

In 1982, the law firms included in the National Law 
Journal’s list of the Top 200 law firms employed a total 
of 28,836 lawyers as partners (12,153) and associates 
(16,683). These firms ranged in size from Chicago’s Bak­
er & McKenzie, which had 236 partners and 377 associates, 
and operated 28 offices in the United States and in foreign 
countries, to Boston’s Herrick & Smith, which had 80 law­
yers. The Top 200 Law Firms, National Law Journal, 
September 13, 1982, at 14, 16, 18-19; September 20, 1982, 
at 13-16. In 1979, King & Spalding ranked 97th, in 1980 
106th, in 1981 98th, and 1982 115th among the Top 200 law 
firms in total numbers of lawyers. Id .; National Law Jour­
nal, October 6, 1980, at 32-37; October 13, 1980, at 34-38.

Furthermore, the Top 200 law firms are big businesses 
relative to the size of most other businesses that are cov­
ered by Title YU. For example, King & Spalding had 
more lawyers in 1980 (102) than 98% of all business “es­
tablishments” in the United States had employees.8 King 
& Spalding also had more lawyers than 92% of the busi­
ness “establishments” in the United States meeting the

7King & Spalding partners Griffin Bell and Jack Watson 
served as Attorney General and as Chief of the White House 
staff, respectively, during the Carter Administration, while 
Charles Kirbo, another King & Spalding partner, served in an 
unofficial capacity as "first friend" of the President. The First 
Friend, Newsweek, Jan. 24, 1977, at 24 (". . . King & Spalding, 
a Southern gentlemanly law firm in Atlanta . . ."). See also 
Reuters Ltd., Dateline: Atlanta, June 19, 1979 (". . . King & 
Spalding, one of the best connected law firms in the country 
. . "King & Spalding, with 107 lawyers, is not the city's 
largest firm, but its corporate and social ties are perhaps the 
most venerable.").

8U. S. Dept, of Commerce, Bureau of Census, County 
Business Patterns— United States, Table 1B— United States—  
Establishments, Employees and Payroll by Industry by Employ­
m en t-S ize  Class: 1977.



18
“size of business” test of Title VII bad employees. Id. 
Even if only the number of associates employed by King 
& Spalding (50+) is considered, King & Spalding was 
still larger than 77% of the business “establishments” in 
the United States covered by Title VII. Id.

B. Employment Discrimination Against Women and 
Minorities is a Serious Problem in the Legal Profession, Deeply 
Rooted in its History.

Discrimination against women, blacks, Jews and other 
minorities has been a persistent part of our nation’s his­
tory. Despite its motto, “Equal Justice Under Law,” the 
legal profession has not been exempt from discrimination. 
Although Portia was immortalized by Shakespeare in The 
Merchant of Venice, Mr. Justice Bradley, in the Myra 
Bradwell case, expressed a less favorable attitude toward 
women lawyers that has continued to prevail more than 
a century later. In upholding the power of the State of 
Illinois to refuse to admit women to the practice of law, 
Mr. Justice Bradley stated in a concurring opinion:

[T]he civil law, as well as nature herself, has always 
recognized a wide difference in the respective spheres 
and destinies of man and woman. Man is, or should 
be, woman’s protector and defender. The natural 
and proper timidity and delicacy which belongs to the 
female sex evidently unfits it for many of the occu­
pations of civil life. The constitution of the family 
organization, which is founded in the divine ordinance 
as well as in the nature of things, indicates the do­
mestic sphere as that which properly belongs to the 
domain and functions of womanhood. The harmony, 
not to say identity, of interests and views which be­
long or should belong to the family institution, is re­
pugnant to the idea of a woman adopting a distinct 
and independent career from that of her husband. . . . 
This very incapacity was one circumstance which the 
supreme court of Illinois deemed important in ren­
dering a married woman incompetent fully to perform



19
the duties and trusts that belong to the office of an 
attorney and counselor.

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 para­
mount 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 so­
ciety must be adapted to the general constitution of 
things, and cannot be based upon exceptional cases. 
Bradwell v. Illinois, 83 U. S. 130, 141 (1873).
While the legal obstacles to the admission of women 

to the bar have been removed, the attitude that women 
were “incompetent . . .  to perform the duties and trusts 
that belong to the office of an attorney” has remained a 
formidable obstacle to the advancement of women in the 
legal profession. Seventy years after Myra Bradwell, 
Judge Phyllis Kravitch, now a member of the Eleventh 
Circuit, found large law firms to be closed to women law­
yers :

After graduating from the University of Pennsyl­
vania Law School in 1943, one of two women in the 
class, she was lucky to find a place to practice law— 
her father’s firm in Savannah. At the time, most law 
firms didn’t hire women—not even good students like 
Judge Kravitch, who had been on the editorial board 
of the school’s law review. Prestigious judicial clerk­
ships were also closed to women then. “ When I 
started practicing law,” says Judge Kravitch, “ the 
doors were not only closed, they were locked.” 
Goolrick, Equality Under the Law?, Atlanta J. & 
Const., June 8, 1980 (Atlanta Weekly Magazine), at 
16, col. 3.9

9lt is no secret that many of the large law firms throughout 
the United States have been historic bastions of overt discrimi­
nation in the employment of women, Jews, blacks and other 
minorities. See C. Epstein, Women in Law 82 (1981); P. Hoff­
man, Lions in the Street 11-12 (1973).



20

As recently as 1950, such prestigious law schools as 
Harvard did not admit women. C. Epstein, Women in Law 
50 (1981). Notre Dame law school did not admit women 
until 1969. Washington and Lee did not do so until 1972. 
Id.

Mr, Justice Bradley to the contrary, the objective data 
demonstrate that women as a group are as well qualified 
as men, intellectually and academically, to practice law. 
A 1972 survey of eight leading law schools found that 53% 
of the women, and only 35% of the men, enrolled in law 
school graduated in the top 10% of their undergraduate 
classes. Stevens, Law Schools and Law Students, 59 Ya. 
L. Rev. 572 (1973). A study of LSAT scores reflects that 
during each year from 1969-73, median LSAT scores of 
women were consistently higher than those of their male 
counterparts. L. Wightman, Male-Female LSAT Candi­
date Study 1969-73, Educational Testing Service (1974). 
See also C. Epstein, Women in Law 56-57 (1981); Barber, 
Employment Discrimination Against Women Lawyers, 59 
A.B.A.J. 1029 (Sept. 1973).

The enactment of Title VII marked a turning point 
in the employment of women in the legal profession. In 
1964, there were fewer than 2,200 women (4%) enrolled 
in accredited law schools. Only 367 women received law 
degrees in 1965. Statistical Abstract, 168, Table 279. Ten 
years later, the number of women law students had in­
creased ten-fold to 21,788 and the number of women receiv­
ing law degrees increased by 1200% from 367 in 1965 to 
4,415 in 1975. In the next five years from 1975 to 1980, 
the number of women graduating from law schools more 
than doubled to 10,754. Statistical Abstract, 168, Table 
279. By 1981, the number of women studying law had 
grown to 44,986 or 35% of the total law school enrollments. 
Association of American Law Schools, Prelaw Handbook 
1982-83, at 11 (1982).



Despite the objective evidence that women are as well 
qualified as men to practice law, the attitude expressed by 
Mr. Justice Bradley persists, and lawyers have been slow 
to recognize the applicability of Title VII to the legal 
profession.10 Although lawyers have long counselled their 
clients to comply with Title VII, job opportunities for 
women in the legal profession trailed far behind those of 
their male counterparts.

Women comprised only 3.8% of the total number of 
lawyers and judges employed in 1972, eight years after 
the enactment of Title VII. Statistical Abstract, 388, 
Table 651. In that year, Ms. Hishon was hired by King 
& Spalding as only the second female lawyer in that firm’s 
almost 100-year history, and the first since the enactment 
of Title VII.

Martindale-Hubbell reflects that the first woman em­
ployed by King & Spalding was Ms. Antha Mulkey, an 
honor graduate of the University of Georgia Law School, 
who was employed as an associate in 1944. Although Ms. 
Mulkey was sufficiently well qualified to meet King & 
Spalding’s standards for the practice of law—she was em­
ployed as an associate for 33 years—she was never ad­
mitted to partnership. While she remained as the firm’s 
only permanent associate, more than 50 men who were 
her juniors were promoted into the partnership.11

10Lawyers were equally slow to recognize the applicability 
of the Sherman Act to the legal profession. See Goldfarb v. 
Virginia State Bar, 421 U. S. 773 (1975). Cf. Bates v. State Bar 
of Arizona, 433 U. S. 350 (1977).

nNot all minority-group members were as fortunate as 
Ms. Mulkey. When Morris Abram returned to Atlanta, after 
graduating with honors from the University of Georgia and the 
University of Chicago Law School, and having earned a Rhodes 
Scholarship, he applied to the firm that was then known as 
Spalding, Sibley & Troutman and discovered "the awful and 
inescapable reality that no Jew had ever been employed by 
that firm, now the renowned King & Spalding of Griffin Bell 
and Charles Kirbo." M. Abram, The Day is Short 62, 95 (1982).

21



2 2

In 1974 and 1975, the Second Circuit and the Southern 
District of New York upheld sex discrimination claims 
filed by women lawyers against Wall Street law firms that, 
like King & Spalding, were organized as partnerships. 
Kohn v. Royall, Koegel & Wells, 496 F. 2d 1094 (2d Cir. 
1974); Blank v. Sullivan £  Cromwell, 418 F. Supp. 1 (S. D. 
N. Y. 1975). As a result of these decisions, employment 
of women as associates by law firms has accelerated. Over 
the nine-year period from 1972 through 1981, the number 
of women employed in the legal profession as lawyers and 
judges increased more than three-fold from 3.8% in 1972 
to 14.1%. Statistical Abstract, 388, Table 651.

Although Title VII has expanded the entry-level job 
opportunities for women as associates in law firms, the 
coveted upper-echelon positions of “partner” in many law 
firms remain closed to women or are available only on dis­
criminatory terms to the exceptional “Superwoman.” C. 
Epstein, Women in Laiv 53 (1981). As recently as 1979, 
for example, 90 of the Top 200 law firms (including King 
& Spalding) had no women partners; 67 other firms on the 
Top 200 list had only one. C. Epstein, Women in Law 
175-218 (1981); Epstein, The Partnership Push, SAVVY, 
March 1980, at 29, 35.12

A 1982 survey of 151 law firms reflects that there were 
no women partners in 32 firms, no black partners in 106, 
and no Hispanic partners in 133 firms. Flaherty, Women 
£  Minorities: The Gains, National Law Journal, Decem­
ber 20, 1982, at 1, 8-11. These 151 law firms employed 5% 
of the lawyers in the entire Nation. This same survey 
reflects that in June 1982, King & Spalding had only one 
woman partner, and no black or Hispanic partners. Al­

12This historical pattern of discrimination is by no means 
limited to women. One author has noted that there has been 
a tendency among Wall Street law firms to hire blacks "only 
for display purposes or for corporate 'minority affairs/ /. e., 
contacts with other blacks." C. Clark, Minority Opportunities 
in Law for Blacks, Puerto Ricans & Chicanos 5 (1974).



23
though, women represented more than 30% of those grad­
uating from law schools in 1980 [Statistical Abstract, 168, 
Table 279], only 7 (13%) of King & Spalding’s 53 asso­
ciates were women. King & Spalding had only one asso­
ciate who was black (2%), and no Hispanic associates. 
Id. at 10.

These statistics demonstrate that the issue presented 
in this case is not an isolated act of discrimination by a 
law firm against a single individual, but is representative 
of a historical pattern of discrimination that exists in 
large numbers throughout the Country. Although not by 
design, this case has become a test case of the rights not 
only of women, but also of blacks, Jews and other minor­
ities that have historically been excluded from the most 
highly compensated, prestigious and responsible job op­
portunities in the private practice of law.

The ultimate issue presented by this appeal can be 
simply stated:

Can King & Spalding, or any other law firm 
that has 15 or more employees, post a sign on 
the door of its partnership meetings that reads:

KEEP OUT
NO WOMEN, NO BLACKS, NO JEWS ADMITTED 

Petitioner believes that the only answer permitted by 
Title VII to this question is an emphatic “NO” and that 
the ruling of the court of appeals must be reversed.

IS. Because the Complaint was Dismissed for Want of 
Subject-Matter jurisdiction, the judgment Below Must Be Re­
versed "Unless it Appears Beyond Doubt that the Plaintiff Can 
Prove No Set of Facts in Support of [Her] Claim" that Sex Dis­
crimination by Law Firms in the Selection of Partners Is Pro­
hibited by Title VII.

In McLain v. Real Estate Board of New Orleans, Inc., 
444 U. S. 232, 246 (1980), this Court held that the same 
standards of review apply whether a complaint is dis­



24
missed under Rule 12(b)(1) for want of subject-matter 
jurisdiction or for failure to state a claim under Rule 
12(b)(6). Such dismissals are not favored and must be 
reversed “unless ‘it appears beyond doubt that the plain­
tiff can prove no set of facts in support of [her] claim 
which would entitle [her] to relief.’ ” Id. at 246 (quoting 
Conley v. Gibson, 355 TJ. S. 41, 45-46 (1957)).

The judgment below can be affirmed only if there 
are no circumstances under which the discrimination by 
any law firm that is organized as a partnership in the 
selection of partners can be found to be covered by Title 
VII. This is especially true in this case, in which the 
district court not only sustained a facial attack on the 
complaint, but refused to allow petitioner to obtain rele­
vant discovery concerning the internal structure and op­
eration of King & Spalding to support her claim concern­
ing the coverage of Title VII.

The complaint stated a claim for sex discrimination 
under Title VII and should not have been dismissed.

III. Discrimination by Law Firms in the Selection of Part­
ners and the Discharge of Those Associates who Fail to Make 
Partner Because of Sex, Race, Religion, or National Origin, Are 
"Unlawful Employment Practices" that Are Prohibited by § 703
(a) (1) and (2) of Title VII.

There is no dispute that King & Spalding is a “per­
son” whose employment practices are covered by Title 
VII. Section 701(a) expressly defines “the term ‘person’ 
[to] include . . . partnerships.” Nor is there any doubt 
that King & Spalding is an “employer,” is engaged in the 
practice of law in “an industry affecting commerce” [see 
McLain v. Real Estate Board of New Orleans, Inc., supra; 
Goldfarb v. Virginia State Bar, supra], and has “fifteen 
or more employees” and, therefore, meets the size of 
business test of coverage of Title VII. 42 U. S. C. 12000e
( b )  .

There is no “professional exemption” that removes 
lawyers from Title VII, any more than there is a profes­



sional exemption from the Sherman Act. Goldfarb v. 
Virginia State Bar, supra. An associate of a law firm 
(such as Ms. Hishon was of King & Spalding from April 
1972 until her discharge on December 31, 1979) is an “em­
ployee” of the firm for purposes of Title VII. 42 U. S. C. 
§ 2000e(f). Kohn v. Royall, Koegel & Wells, supra; Blank 
v. Sullivan & Cromwell, supra; Lucido v. Cravatk, Swaine 
& Moore, 425 F. Supp. 123 (S.D. N.Y. 1977).

The question presented by this case is not whether 
King & Spalding is an “employer” covered by Title VII, 
nor whether Ms. Hishon was an “employee” of King & 
Spalding who was entitled to the protection of Title VII. 
These points have never been disputed. Rather, the issue 
is whether the particular acts of sex discrimination, which 
were alleged to have been practiced against Ms. Hishon 
by her employer King & Spalding, were “unlawful em­
ployment practices” within the meaning of § 703(a) of 
Title VII.

As will be explained in Sections C. 1, C. 2, and D be­
low, sex discrimination by law firms is an unlawful “em­
ployment practice” under each of three legal theories:
(1) A large partnership is an entity having an identity 
separate from its individual partners and can be consid­
ered an employer of a partner for Title VII purposes;
(2) promotion to partnership is a “term, condition or priv­
ilege of employment” or an “employment opportunity;” 
and (3) petitioner’s discharge as an associate was the di­
rect result of the discriminatory refusal to promote her 
to partnership.13

A. Title VII is to be Liberally Construed, and Exceptions 
Are Not to be Read into the Statute Without Clear Congres­
sional Intent.

25

13Before these three theories are developed in Sections C 
and D below, two preliminary points must be made. The first 
concerns the construction of Title VII (Section A), and the sec­
ond, the definition of "employee" (Section B).



26
This Court has held that “in enacting Title VII of the 

Civil Eights Act of 1964, Congress intended to prohibit 
all practices in whatever form which create inequality in 
employment opportunity due to discrimination on the 
basis of race, religion, sex, or national origin, [citations] 
and ordained that its policy of outlawing such discrimina­
tion should have the ‘highest priority.’ ” Franks v. Bow­
man Transportation Co., 424 U. S. 747, 763 (1976). There 
is no doubt that Congress intended to outlaw discrimina­
tion in the professions. This Court has recently empha­
sized that “Congress required ‘the removal of artificial, 
arbitrary, and unnecessary barriers to employment’ and 
professional development that had historically been en­
countered by women, blacks and other minorities.” Con­
necticut v. Teal, 50 U.S.L.W. 4716 (June 21, 1982) (No. 
80-2147) (emphasis supplied).

This Court has held that “ [w]here Congress explicit­
ly enumerates certain exceptions to a general prohibition, 
additional exceptions are not to be implied, in the absence 
of evidence of a contrary legislative intent.” Andrus v. 
Glover Construction Co., 446 U. S. 608, 616-17 (1980); 
Continental Casualty Co. v. United States, 314 U. S. 527, 
533 (1942).

When Congress has intended to exempt certain or­
ganizations from Title VII, it has done so by specific ex­
ceptions in the statute. For example, Congress exempted 
employers having fewer than fifteen employees ['§ 701(b)], 
private clubs [§701(b)(2)], and persons elected to public 
office [§ 701(f)] from Title VIPs prohibitions against em­
ployment discrimination. There is no evidence, however, 
that Congress intended to exempt partnerships in general 
or law firms in particular from the coverage of Title VII, 
and no such exemptions should be implied.

The approach of the court of appeals to the interpre­
tation of Title VII was the opposite of that mandated by



27
the decisions of this Court. Instead of presuming cov­
erage from the absence of an express statutory exemption 
for law firms, the majority placed the burden on the peti­
tioner of demonstrating from the legislative history that 
Congress discussed the subject of discrimination by law 
firms and other partnerships and specifically intended to 
cover jDartnership decisions. Finding an absence of posi­
tive evidence of “the requisite congressional intent” [678 
F. 2d at 1026 (emphasis supplied)], the lower court pre­
sumed that Congress intended to leave discrimination in 
the selection of partners by law partnerships and other 
“voluntary associations” untouched by Title VIPs other­
wise comprehensive prohibitions against discrimination 
in the workplace. The lower court disregarded the teach­
ing of County of Washington v. Gunther, 452 U. S. 161 
(1981), in which this Court explained that, because Title 
VII was “intended to be broadly inclusive” [id. at 170], 
the lower federal courts “must therefore avoid interpreta­
tions of Title VII that deprive victims of discrimination 
of a remedy, without clear congressional mandate.” Id. 
at 178 (emphasis supplied).

B. Economic Reality and Not Common-Law Definitions 
Determines Whether a "Partner" is an "Employee" of the Firm 
for Purposes of Title VII.

Title VII defines an “employee” simply as a “person 
employed by an employer.” § 701(f) (42 U. S. C. <§ 2000e 
(f)). Although the term “employment” is not explicitly 
defined in Title VII, it has a well-established common 
meaning that encompasses the means by which one earns 
a livelihood. Thus, “employment” is defined in Webster’s 
Third Neiv International Dictionary 743 (3d ed. 1976), as 
an “activity in which one engages and employs his time and 
energies . . .  [for example] work (as customary trade, craft, 
service or vocation) in which one’s labor or services are 
paid for by an employer.” (emphasis supplied.) “Employ” 
means “to use or engage the services of (a lawyer to



28
straighten out a legal tangle); also: to provide with a job 
that pays wages or a salary or with a means of earning 
a living.” Id. (emphasis supplied).

It does not demean the legal profession to describe 
the practice of law by lawyers for large law firms as 
“work” or a “job.” Whether a lawyer is a partner or an 
associate in a law firm, the practice of law involves the 
performance of personal services of a professional nature 
by the individual lawyer. As this Court observed in 
Bates v. State Bar of Arizona, it is a “real-life fact that 
lawyers earn their livelihood at the bar.” 433 U. S. at 
368. In the case of a sole practitioner, the lawyer earns 
a livelihood by representing and performing professional 
services for individual clients. In the case of a lawyer 
who works for a law firm, the lawyer earns a livelihood by 
working for clients of the firm, either as a partner or an 
associate. The labor by which the lawyer earns a liveli­
hood by performing professional services for clients of a 
firm is, therefore, well within the common, everyday 
meaning of “employment.”

King & Spalding argues that at common law a part­
nership and its partners were considered as a single entity. 
Based on this premise, King & Spalding would have the 
Court conclude that a partner in a large law firm with 50 
or even 100 partners—or in the case of a Big Eight ac­
counting firm with as many as 2,000 partners'—cannot be 
considered as an “employee” of the partnership for pur­
poses of Title VII.

Congress did not, however, intend to restrict Title 
VII’s otherwise comprehensive ban on employment dis­
crimination based on narrow common-law concepts of “em­
ployment.” By enacting Title VII without explicit def­
initions of “employee” or “employment,” Congress intend­
ed to use these terms in the same manner as it had used 
them in the National Labor Relations Act, the Social Se-



29
eurity Act, and the Fair Labor Standards Act. In all 
three statutes, Congress used the terms “employer,” “em­
ployee” and “employment” with only the most general def­
initions or without any definitions at all. Congress was 
undoubtedly aware, however, that this Court had inter­
preted the term “employment” in each of these statutes 
very broadly by looking at the economic reality of a par­
ticular relationship, and had rejected attempts to narrow 
the coverage of those Acts through the use of more re­
strictive common-law definitions of an “employee.” NLRB 
v. Hearst Publications, 322 U. S. I l l  (1944) (National La­
bor Eelations Act), United States v. Silk, 331 U. S. 704 
(1947) (Social Security Act), and Goldberg v. Whitaker 
House Cooperative, Inc., 366 U. S. 28 (1961) (Fair Labor 
Standards Act).

In the first of these cases, NLRB v. Hearst Publica­
tions, this Court established the rationale that was fol­
lowed in subsequent cases in defining the term “employee” 
in both the Social Security Act and the Fair Labor Stand­
ards Act:

Congress recognized that economic relationships can­
not be fitted neatly into the containers designated 
“ employee” and “ employer” which an earlier law 
had shaped for different purposes . . .

#  *  *

In this light, the broad language of the Act’s defini­
tions, which in terms reject conventional limitations 
on such conceptions as “ employee,” “ employer,” and 
“ labor dispute,” leaves no doubt that its applicabil­
ity is to be determined broadly, in doubtful situations, 
by underlying economic facts rather than technically 
and exclusively by previously established legal classi­
fications.
322 U. S. at 128-29.
Goldberg v. Whitaker House Cooperative [Fair Labor 

Standards Act] was decided only three years before the 
passage of Title VII. This Court held that an “owner”



30
of an enterprise could also be considered an “employee” 
where the economic reality of the relationship was such 
that she worked for the enterprise. The Court explained 
that “ownership” and “employee” status were not mutual­
ly exclusive, and tha t:

There is nothing inherently inconsistent between the 
coexistence of a proprietary and an employment re­
lationship. If members of a, trade union bought stock 
in their corporate employer, they would not cease to 
be employees within the conception of this Act. . . . 
We fail to see why a member of a cooperative may 
not also be an employee of the cooperative. In this 
case the members seem to us to be both “ members” 
and “ employees.” It is the cooperative that is af­
fording them “the opportunity to work, and paying 
them for it,” . . .
366 U. S. at 32-33.
This Court has stated that “it is not only appropriate 

but also realistic to presume that Congress was thorough­
ly familiar with these unusually important precedents from 
this and other federal courts and that it expected its en­
actment to be interpreted in conformity with them.” Can­
non v. University of Chicago, 441 U. 8. 677, 699 (1979). 
See also Hargrove v. Ohi Nursery, Inc., 646 F. 2d 716, 720 
(2d Cir. 1980) (“Use of the same language in various en­
actments dealing with the same general subject matter, 
. . . [i. e., employment] is a strong indication that the stat­
utes should be interpreted to mean the same thing”).

There can be no doubt, therefore, that in enacting 
Title VII, Congress intended that the term “employee” be 
interpreted broadly and to reject artificial, common-law 
concepts of employment in favor of a realistic appraisal 
of the “underlying economic facts” of a particular rela­
tionship. NLRB v. Hearst Publications, supra.

C. Discrimination by a Law Firm In the Selection of Part­
ners from Among Its Associates Based on Race, Religion, Sex 
or National Origin, Violates Title VII.



31
Title VII coverage of sex discrimination practiced 

by law firms in the selection of partners from among their 
associates exists nnder two distinct legal theories: (1) an 
“entity theory” under which the partnership is treated as 
the “employer” of its partners, and (2) an “employment 
opportunity” theory nnder which to “make partner” is 
both an “employment opportunity” and a “term, condition 
or privilege” of a young lawyer’s employment as an as­
sociate of a large law firm.14

1. The Entity Theory
(a) A large law partnership is an entity that has an institu­

tional identity separate from that of its individual partners and 
can be considered as the "employer” of a partner for Title VII 
purposes.

The crux of King & Spalding’s position in the district 
court was that “the firm” and its partners are a single 
entity and that a “partner” is an owner and cannot be 
separated from “the firm” or considered an “employee” 
of “the firm” for purposes of Title VII. These artificial 
and legalistic distinctions ignore the economic reality of 
the relationship between an individual partner and a large 
institutional law firm. A partner, and particularly a junior 
partner, in many large law firms is in reality a “profit-shar­
ing employee.” City of Wheeling v. Chester, 134 F. 2d 
759, 762 (3d Cir. 1943). See Armstrong v. Pliinney, 394 
F. 2d 661 (5th Cir. 1968) (applying an entity theory to 
hold a partnership to be the “employer” of a 5% partner 
for tax purposes).15 Partnership in a law firm has the 
primary attributes of employment. Partnership is a job 
opportunity which enables a lawyer to earn a living by 
performing professional services for firm clients. The 
income from the job ends when the partner stops working

14The termination of associates under an up-or-out policy 
will be discussed in Section D below.

lsSeveral well-known law firms have "fired” partners. See, 
e. g., Bad Day at Kutak Rock, National Law Journal, November 
2, 1981 at 1, col. 2.



32
for the firm. Partnership in a law firm is primarily a job 
opportunity which is readily distinguishable from real 
estate and other investment partnerships which generate 
income for partners, not from personal services, but as a 
return on invested capital.

The authors of a leading textbook on partnerships 
could have been referring to King & Spalding when they 
stressed tha t:

[N]o corporation is more entity-like than a large 
law or accounting firm which has been going for gen­
erations, often under the name of someone long since 
dead, with dozens or hundreds of partners (of whom 
only a handful, as managing partners or an executive 
committee, make major decisions) . . .
J. Crane and A. Bromberg, Law of Partnership 19-20 
(1968).
This Court has recognized that “Wall Street law firms 

. . . are often large, impersonal, highly structured enter­
prises of essentially perpetual duration,” and that even 
a small law firm with as few as three partners has “an 
established institutional identity independent of its indi­
vidual partners.” Beilis v. United States, 417 U. S. at 
93-94, 95 (1974) (emphasis supplied). Even the majority 
in the court of appeals in this case was “well aware that 
large law partnerships possess many attributes common 
to corporate forms of business.” 678 F. 2d at 1026.

In Beilis, this Court enforced a grand jury subpoena 
which had been served upon a former partner of a small 
three-partner law firm requiring his production of records 
of the former partnership (which had been dissolved). 
This Court rejected Beilis’ assertion of the Fifth Amend­
ment privilege against self-incrimination based on his 
contention that the law firm and its partners were a single 
entity, and that the business records of the partnership 
were, therefore, his personal records and protected by the 
privilege.



In reaching this conclusion, this Court refused to be 
influenced by technical common-law definitions of the rela­
tionship between a partnership and its partners. The 
Court recognized that the partnership form is, in economic 
reality, only one of many forms under which business en­
terprises are conducted, and emphasized six common at­
tributes of partnerships and corporations which require 
that the two organizational forms be treated equally for 
Fifth Amendment purposes:
(1) That partnerships, like corporations “ are often large,, 

impersonal, highly structured enterprises. . . . ”
(2) That the particular partnership had been in existence 

for 15 years and had “ essentially perpetual duration.”
(3) That the partnership had an “ established institution­

al identity independent of its individual partners,” 
resulting from the fact that, “ [t]he firm maintained 
a bank account in the partnership name, had station­
ery using the firm name on its letterhead, and, in gen­
eral, held itself out to third parties as an entity with 
an independent institutional identity . . . ”

(4) That the partnership “ employed six persons in addi­
tion to its partners, including two other attorneys 
[i. e., ‘associates’] who practiced law on behalf of 
the firm, rather than as individuals on their own be­
half. ’ ’

(5) That the firm “ filed separate partnership returns for 
federal tax purposes, as required by § 6031 of the In­
ternal Revenue Code, 26 U. S. C. § 6031. ”

(6) That “ State law permitted the firm to be sued . . . in 
the partnership name, and generally regarded the 
partnership as a distinct entity for numerous other 
purposes.”
Beilis v. United States, 417 U. S. at 93-97 (emphasis 
supplied).
These factors apply with much greater force to King 

& Spalding than to the dissolved three-man law firm of 
Beilis, Kolsby & Wolf. King & Spalding is a “large, im­
personal and highly structured enterprise” with more 
than 100 lawyers and more than 50 other employees in

33



34
secretarial, paralegal and clerical positions, and offices 
in two cities. During the recent past, the ties between 
King & Spalding and the Carter Administration were wide­
ly publicized, and the firm was recognized as one “of the 
most powerful institutions in the Nation.” King & Spald­
ing has had, in fact, an “essentially perpetual duration” 
that has extended for almost 100 years; King & Spalding 
has established for itself an “institutional identity” by 
holding itself out to the public as practicing law under a 
trade name, “King & Spalding,” which is the name under 
which the firm was founded in 1885. R. 161; J.A. 153.

(b) King & Spalding's partnership agreement modifies 
state law to give King & Spalding the essential attributes of 
incorporation.

A factor present in this case and not present in Beilis 
is the fact that King & Spalding operates under a written 
partnership agreement that modifies the common law of 
partnership and gives King & Spalding the principal at­
tributes of incorporation.

A copy of King & Spalding’s partnership agreement 
is in the record (R. 161-72; J.A. 153-64) and was relied 
on by the petitioner in the district court in support of 
her Rule 37 motion to compel discovery. R. 159; J.A. 151. 
King & Spalding’s partnership agreement modified the 
general principles of partnership law in at least five ma­
terial respects, and replaced them with the principal at­
tributes of ordinary business corporations. As a result 
of these changes, King & Spalding is a “partnership” in 
name only, and has all the substantive characteristics of 
a corporation.

First—King £  Spalding has a “charter.” While many 
law firms function under the common law of partnership 
without written agreements, King & Spalding has adopted 
a written partnership agreement which modifies the com­
mon law and serves the same purposes that a corporate 
charter serves for a corporation.



35
In Beilis, this Court treated the three-man law firm 

as a corporation for Fifth Amendment purposes, despite 
the fact that the firm did not have a written partnership 
agreement to serve as “a formal constitution or bylaws 
to govern its internal affairs.” 417 U. S. at 96. The Court 
stressed, however, that the case for treating the law firm 
as a corporation would have been even stronger if the 
Beilis firm had operated under a written partnership 
agreement that “made any material change in the provi­
sions of state law regarding the management and control 
of the firm or the rights of the other partners. . . . [That 
fact] would merely reinforce our conclusion that the part­
nership is properly regarded as an independent entity with 
a relatively formal organization.” 417 U. S. at 96 n. 4.

Second — King & Spalding has perpetual existence. 
King & Spalding has distinguished itself from a common- 
law partnership by providing in its partnership agree­
ment that the firm shall have perpetual existence. The 
agreement recites that “the Firm” has had a continuing 
existence since 1885, and that its existence is not dissolved 
by the admission of new partners or the death, withdrawal 
or expulsion of any of its partners.

This firm began business January 1, 1885 under 
the firm name of King & Spalding . . . and currently 
the present firm name.

W W W

(a) The firm shall continue until dissolved by 
vote of partners with at least 66-2/3% of the partici­
pating units . . . The firm shall not he dissolved by the 
withdrawal, incapacity or death of any partner or 
partners, . . .
R. 161-62; J.A. 153-54 (emphasis supplied).

In contrast, a common-law partnership is dissolved auto­
matically by the addition, withdrawal or death of one of 
its partners. O.C.G.A. § 14-8-90 (Ga. Code Ann. § 75-107); 
Harwell v. Cowan, 175 Ga. 33 (1), 165 S. E. 2d 19 (1932).



36
Third — King & Spalding does business under a trade 

name. King & Spalding is a trade name that does not re­
fer to any of its living partners. The adoption of a trade 
name has given the firm an institutional identity that is 
independent of the individual reputations of the many 
well-known lawyers who are presently associated with it. 
Use of a trade name protects the goodwill of the firm 
against impairment by death and retirement, or the de­
fection of any of its well-known partners to other law 
firms. Corporations have long recognized the advantages 
of trade names. Names like “General Motors” or “Coca- 
Cola” have given these enterprises an identity and con­
tinuity apart from the names of individuals who founded 
them or happened to he their dominant corporate officers 
or principal stockholders at any given time. By its delib­
erate use of a trade name, the partnership is attempting 
to establish and identify itself as the Coca-Cola or General 
Motors among law firms in Atlanta, if not nationally.

Fourth — King <& Spalding has centralized manage­
ment and control. Management of King & Spalding is 
vested in a Management Committee which is elected by the 
partners in substantially the same manner as shareholders 
of a corporation elect directors. The King & Spalding 
Management Committee also performs the same functions 
that a board of directors performs in an ordinary business 
corporation. While the King & Spalding Management 
Committee cannot alter the firm partnership agreement 
(any more than the directors of a corporation can amend 
its charter), the Management Committee’s actions are 
otherwise binding on the firm unless overridden by a 
66-2/3 vote of the partners:

The management of the firm shall be delegated 
to a Management Committee comprised of three part­
ners . . . To the Management Committee the partners 
delegate full and complete authority and responsibil­
ity to make any and all decisions, commitments and 
contracts with respect to the operation and manage­



37
ment of the firm, provided, however, the Management 
Committee shall not have authority to act in a man­
ner which would require a change in this Partnership 
Agreement for its accomplishment or implementation. 
. . .  No action taken by the Management Committee 
may be reversed or changed except by an affirmative 
vote of partners with 66-2/3% or more of the partici- 
pating units.
Partnership Agreement ft 14; R. 170-71; J.A. 162-63 
(emphasis supplied).
Under common law, partnership decisions are made 

by a vote of a majority at interest of the partners. O.C.G.A. 
§ 14-8-42 (Gfa. Code Ann. § 75-203); Rogers v. McDonald, 
224 Ga. 599,163 S. E. 2d 719 (1968).

Fifth — King & Spalding partners do not otvn a share 
in the Firm assets. When a lawyer becomes a partner in 
King & Spalding, he does not acquire a meaningful owner­
ship interest in the underlying firm assets, as does a part­
ner in a common-law partnership. When a King & Spald­
ing partner withdraws or is expelled, he is entitled only 
to a refund of his invested capitai, and his share of un­
distributed net earnings.16 The King & Spalding agree­
ment expressly provides that:

(a) . . .  it is agreed that upon the separation 
from the firm of any partner, whether by reason of 
voluntary or involuntary withdrawal or death, his in­
terest in the firm’s earnings and assets shall be as 
follows:

(i) A refund of Ms cash capital contribution, 
if the firm’s capital is unimpaired (to the extent 
there is impairment of the firm’s capital, such 
partner shall be refunded only his proportion of 
unimpaired capital);

(ii) The amount of undistributed net earn­
ings to which he is entitled as shown by the firm’s

16The only circumstance under which a King & Spalding 
partner would receive a pro rata share of the underlying assets 
of the firm would be in the event of a total dissolution.



8 8

records as of the end of the month in which such 
withdrawal occurs.

Partnership Agreement U 9 (a); R. 166-67; J.A. 159.
In contrast, if King & Spalding were a common-law 

partnership, a withdrawing partner would be entitled to 
receive a pro rata share of the fair market value of the 
firm’s net assets in excess of its liabilities. O.C.Gf.A. § 14- 
8-45 (Ga. Code Ann. §75-206); Bryan v. Maddox, 249 Gfa. 
762, 295 S. E. 2d 60 (1982). This would include a share 
of the value of the unbilled time and disbursements, ac­
counts receivable, as well as the value of all leasehold 
improvements, furniture, fixtures, library, the files, com­
puters and other physical assets.

(c) The fact that a partner in King & Spalding may have 
a limited "ownership" interest in firm assets or be paid from 
"profits" does not alter the primary nature of the relationship 
as one of employment.

King & Spalding argued in the lower courts that be­
cause partners are considered as the “owners" of the firm, 
and are paid from “profits,” they cannot be considered as 
“employees” of the firm for purposes of Title VII. Taken 
to its logical conclusion, this argument would mean that 
employees of a corporation would lose the protection of 
Title VII if they acquired stock under an employee stock 
ownership plan. This argument is unsound and must be 
rejected for at least two reasons.

First, the argument ignores the fact that under the 
terms of the King & Spalding partnership agreement a 
partner in King & Spalding does not have any meaningful 
ownership interest in the underlying firm assets. Partner­
ship Agreement if 9(a) (quoted at page 37, supra; R. 166- 
67; J.A. 158-59). When a King & Spalding partner retires, 
withdraws or is expelled, he is entitled only to a refund 
of his invested capital, and his share of undistributed net 
earnings. Id.



39
Second, cases decided by this Court [Goldberg v. 

Whitaker House Cooperative, Inc., 366 IT. S. 28 (1961)], 
as well as by several lower courts [Bonilla v. Oakland 
Scavenger Co., 697 F. 2d 1297 (9th Cir. 1982); EEOC v. 
First Catholic Slovak Ladies Association, 694 F. 2d 1068 
(6th Cir. 1982); Pettway v. American Cast Iron Pipe Co., 
494 F. 2d 211, 264-66 (5th Cir. 1974)] establish that the ex­
istence of an ownership interest in a business does not pre­
vent a person from being an “employee” of that business 
and, therefore, within the protection of federal employ­
ment legislation. For example, in Goldberg v. Whitaker 
House Cooperative, Inc., this Court held that the women 
who worked at home knitting goods for sale by the coopera­
tive were “employees” of the cooperative for purposes of 
the Fair Labor Standards Act, notwithstanding the fact 
that they were also “members” and “owners” of the co­
operative. The Court concluded that “ [t]here is no reason 
in logic why these members may not be employees. There 
is nothing inherently inconsistent between the coexistence 
of a proprietary and an employment relationship.” 366 
U. S. at 32 (emphasis supplied).

In Bonilla v. Oakland Scavenger Co., supra, the Ninth 
Circuit held that a membership corporation engaged in the 
garbage business violated Title VII by giving preference 
to its stockholders (all of whom were Italian-Americans) 
in making promotions from “helper” positions to the high­
er-paid positions as “drivers.” The company argued that 
Title VII did not apply to the exercise of “proprietary 
rights” by stockholders to promote themselves and their 
families to higher-paid positions. This argument was re­
jected by the Ninth Circuit:

The Company argues that Title VII has no applica­
tion to discrimination in the sale of corporate stock. 
Even if this is so, however, it does not help the Com­
pany’s position here. Since the Company ties pref­
erential wages, hours, and job assignments to owner­
ship of its stock, the shareholder preference plan con­



40
stitutes a condition of employment subject to the 
mandate of Title VII. The Company’s organization 
closely entangles stock ownership and employment 
privilege, but the predominant characteristics are 
those of employment. . . . [T]he discriminatory em­
ployment practices of the Company are within the 
reach of Title VII in spite of the effort to character­
ize those practices as “ proprietary rights.”
697 F. 2d at 1302-03.
In Pettway v. American Cast Iron Pipe Co., supra, 

the Fifth Circuit held that an opportunity to be elected 
to an “ownership” position in a business which was avail­
able only to white male employees and gave them the 
ability to influence the terms and conditions of their em­
ployment was an “employment opportunity” under Title 
VII that could not be denied black employees. In that 
case, all of the stock of American Cast Iron Pipe Co. had 
been conveyed under the will of the company’s founder 
jointly to the members of two committees as trustees for 
the employees of the company. One committee was called 
the Board of Management and consisted of corporate of­
ficers of the company. The second committee was called 
the Board of Operatives and consisted of white male em­
ployees of the company over 21 years of age elected by 
non-supervisory employees of the company. The district 
court held that, although black employees of the company 
were not “employees” of the Board of Operatives, the 
opportunity to be elected to serve on the Board of Opera­
tives and to influence the management of the company by 
voting the shares of stock held by the Board was so con­
nected with the employment that black employees could 
not be excluded from becoming trustee-owners of the stock 
as members of the Board of Operatives. Pettway v. Amer­
ican Cast Iron Pipe Co., 332 F. Supp. 811, 815 (N. D. Ala. 
1970). Judge Lynne explained that:

“ [T]he right to serve as a member on the Board of 
Operatives at Acipco has been, since the inception of



41
the Eagan Plan, a valuable term, condition or priv­
ilege of employment at Acipco and therefore falls 
within the express coverage of Title VII, 42 U.S.C.A. 
2000e-2(a).”

The court of appeals quoted this portion of the district 
court’s opinion in affirming the ruling of the district court 
insofar as it had held that black employees could not be 
denied election to the Board of Operatives, Pettway v. 
American Cast Iron Pipe Co., 494 F. 2d at 263-64.

In summary, the factors emphasized by this Court in 
Beilis and reinforced by the provisions of the King & 
Spalding partnership agreement compel the conclusion 
that “the firm” King & Spalding should be treated as an 
institution separate from its partners, and as the “em­
ployer” of the partners for Title VII purposes. The con­
trary ruling of the lower court is erroneous and should 
be reversed.

2. The Opportunity Theory
By holding out to petitioner and to other associates the 

promise of equal consideration for partnership, King & Spalding 
made the opportunity of promotion to partnership a "term, 
condition or privilege" of employment and an "employment 
opportunity" of its associates that is covered by Title VII.

The complaint alleged that King & Spalding repre­
sented to petitioner (and represents generally to other 
third-year law students and judicial law clerks whom King 
& Spalding is attempting to recruit) that the associate will 
be given fair and equal consideration for partnership. 
Complaint Tf 8(b), R. 6; J.A. 9-10; Answer If 8(b); R, 26; 
J.A. 30-31.17

17The Court can take judicial notice of the fact that there 
is vigorous competition among large law firms to employ law 
students who are at the top of their classes, as was Ms. Hishon. 
Representations such as those made by King & Spalding to pe­
titioner are essential for any law firm that hopes to recruit 
bright law students or law clerks. No highly-qualified recruit 
would accept employment as an associate of even a firm as 
prestigious as King & Spalding if the firm did not hold out the 

(Continued on next page)



42
Under the allegations of the complaint, the oppor­

tunity of promotion to partnership was not one which 
King & Spalding held out to the World, but was one which 
was specifically offered to petitioner by virtue of her sta­
tus as an associate employed by King & Spalding. Assum­
ing for the sake of argument that partnership in a law 
firm is not, per se, an employment relationship covered by 
Title VII, by using the prospect of promotion to partner­
ship as an inducement to persuade petitioner and other 
bright young lawyers to accept employment with the firm 
and to work hard, King & Spalding has made the opportu­
nity to become a partner both an “employment opportu­
nity” of Ms. Hishon’s and other associates and a “term 
condition or privilege of [Ms. Hishon’s] employment” by 
King & Spalding as an associate, within the coverage of 
§ 703(a) of Title VII, which could not, therefore, be with­
held on the basis of sex, race, religion or national origin 
under Title VII.

An employee’s “prospects for promotion [are] among 
the conditions of his employment.” NLRB v. Bell Aircraft 
Corp., 206 P. 2d 235, 237 (2d Cir. 1953). Even the court 
of appeals could not “quarrel with the premise that an 
‘opportunity’ can include promotion to a position beyond 
that of an ‘employee’ covered by Title VII.” 678 F. 2d at 
1028.18

Furthermore, in the analogous context of employment 
discrimination in violation of the National Labor Rela­
tions Act, this Court has held that, when a promotion is

(Continued from previous page) 
prospect of admission to partnership as an inducement. See, 
e. g v Bower, A Survival Guide For Associates, Barrister, Voi. 6, 
No. 1 (Winter 1979), at 17 (" [attainment of partnership status 
is a primary motivation for associates. . . .").

18The majority below, however, refused to accept the con­
clusion that Title VII prohibited discrimination in the opportu­
nity to become a partner in a law firm as "encroaching upon in­
dividuals' [partners'] decisions to voluntarily associate in a 
business venture." 678 F. 2d at 1028.



43

unlawfully denied to an employee who is covered by that 
Act, the protection of the statute is not lost simply because 
the position to which the employee would have been pro­
moted (but for the employer’s unlawful discrimination) 
was a “supervisory position” that is outside the coverage 
of the Act. Golden State Bottling Co. v. NLRB, 414 IT.S. 
168, 188 (1973). In Golden, an employee w7as denied pro­
motion to a supervisory position which was outside the 
coverage of the NLRA because of his union activities. This 
Court cited with approval the Second Circuit’s decision 
in Bell Aircraft and held that the denial of the promotion 
based on the employee’s union activities violated the Act, 
even though the position in management of the company 
was outside the coverage of the Act. The Court quoted 
with approval the court of appeals, which had stated:

“ The Act’s remedies are not thwarted by the fact 
that an employee who is within the Act’s protections 
when the discrimination occurs would have been pro­
moted or transferred to a position not covered by 
the Act if he had not been discriminated against. 
NLRB v. Bell Aircraft Corp., 206 F. 2d 235, 236-237 
(2d Cir. 1953).” 467 F. 2d at 166.
414 U. S. at 188.
In Lucido v. Cravath, Swaine $  Moore, supra, the 

district court relied upon this reasoning in refusing to dis­
miss a Title VII complaint by an associate alleging that 
he had been denied admission to partnership because of 
his Italian-Catholic ancestry. Without deciding whether 
the relationship between partners inter se was covered by 
Title VII, the district court held that the opportunity 
which Mr. Lucido possessed by virtue of his employment 
as an associate by Cravath, Swaine & Moore was an “em­
ployment opportunity” that was covered by the Act.

[T]he court need not decide whether Title VII applies 
to partners inter se. However, even assuming that 
Title VII does not apply to such a relationship, the



44
protection the Act affords to Lucido for the unlawful 
discrimination he allegedly suffered as an employee 
in not being selected for partner solely because he is 
an Italian Catholic would not be affected. The ap­
plicability of Title VII might be different if the de­
fendant were firing a partner or considering a non- 
associate for partner, but, under the facts in the com­
plaint, there is a clear employer-employee relation­
ship between Crawath and Lucido and discrimination 
in a promotional opportunity during that relationship 
is covered by Title VII.

The opportunity to be promoted to a position 
not itself covered by Title VII does not mean that 
discrimination in that promotion cannot be protected 
by Title VII.
425 F, Supp. at 128 (emphasis supplied).19 
King & Spalding has also made partnership “a con­

dition of employment subject to the mandate of Title VII” 
by tying both Ms. Hishon’s continued employment by the

I9The opportunity to be considered for partnership is di­
rectly affected by the employment opportunities which a young 
lawyer receives as an associate. The complaint alleged that be­
cause she was a woman, King & Spalding treated Ms. Hishon 
less favorably than male associates by giving her less respon­
sible work assignments (/. e., "woman's work"), which tended 
to involve smaller matters on which she was required to work 
alone and without assistance from or being given the oppor­
tunity to supervise the work of junior associates. Complaint 
If 17(d), (e); R. 9; J.A. 13. This discrimination in the quality of 
work assignments deprived petitioner of the opportunity to 
demonstrate that she was "partnership material" and tended 
to make it less likely that she would advance to partnership 
than King & Spalding's male associates who received better, 
more responsible work assignments, and plenty of associate 
help. These were continuing violations of both § 703(a)(1) (/. e., 
an unlawful discrimination in the "terms, condition or privi­
leges of employment because of . . . sex") and § 703(a)(2) (/. e., 
an unlawful segregation or classification of employees that 
tended to "deprive [plaintiff] of employment opportunities or 
otherwise deliberately affect [her] status as an employee") that 
adversely impeded her opportunity to be favorably considered 
for partnership. Clark v. Olinkraft, Inc., 556 F. 2d 1219 (5th 
Cir. 1977), cert, denied, 434 U. S. 1069 (1978).



45

firm and her advancement to the “preferential wages, hours 
and job assignments” to attainment of the coveted status 
of a “partner.” Bonilla v. Oakland Scavenger Co., 697 F. 
2d at 1302.

The lower court never fully responded to petitioner’s 
contention that King & Spalding’s promise of fair con­
sideration for partnership became a “term, condition or 
privilege” of her employment as an associate. The lower 
court conceded that it had “serious concerns about any 
representations made to the appellant regarding her fu­
ture consideration for partnership” and was “well aware 
of the significance given a firm’s partnership policy by a 
prospective associate. . . .” 678 F. 2d at 1029. The major­
ity suggested, however, that, “ [i]f in fact these represen­
tations were deceptively made, then perhaps an action in 
breach of contract or misrepresentation may provide a 
more appropriate vehicle for the appellant to drive toward 
a legal remedy.” Id. The majority never explained how 
an express representation of non-diseriminatory consid­
eration for partnership could support a contract action by 
Ms. Hishon as an employee without the promise becoming 
simultaneously a “term, condition or privilege” of her em­
ployment by King & Spalding as an associate.

Pettway and a recent decision of the Sixth Circuit in 
EEOC v. First Catholic Slovak Ladies Association, supra, 
also dispose of another argument that was relied on by 
the district court. The district court thought that because 
partnership positions in King & Spalding were filled by 
“election,” rather than by appointment, they were outside 
the coverage of the Act.20 This distinction was rejected

20If this were true, many corporate positions would be out­
side the coverage of Title VII. For example, virtually everyone 
in a bank from president to assistant cashier is an "officer" and 

(Continued on next page)



46

by the Sixth Circuit in First Catholic Slovak Ladies Asso­
ciation. Under the constitution of the First Catholic Slo­
vak Ladies Association, the salaried officers of the Asso­
ciation were also required to be directors. To be eligible 
for election as a director, one had to be less than 66 years 
old. Relying on the ruling of the Eleventh Circuit in 
Hishon, the district court held that the fact of election of 
directors removed the positions from the coverage of the 
age discrimination act. The Sixth Circuit reversed and 
held th a t:

[W]hether an individual is an employee and there­
fore covered by the protections in ADEA should not 
center on the label which the organization has chosen 
to give to the position. By emphasizing that these 
women held elected positions as directors and offic­
ers, the District Court failed to assess accurately their 
true status. These individuals performed traditional 
employee duties. . . .
694 F. 2d at 1070.
The teaching of Pettway and First Catholic Slovak 

is that when some employees are afforded the opportunity 
to be elected “owners” or “shareholders” and to partici­
pate in the management of the enterprise, the opportunity 
is both an “employment opportunity” and “a term, condi­
tion or privilege of employment” to which Title YII ap­
plies. The opportunity to be elected cannot be withheld 
from other employees on the ground of race, religion, sex, 
or national origin.

(Continued from previous page) 
is elected by the board of directors; the fact that these positions 
are filled by election does not prevent their occupants from 
also being "employees" of the bank who are covered by Title 
VII. A bank can no more exclude blacks from consideration 
for election to the presidency of the bank than it can exclude 
them from employment as tellers.



D. King & Spalding's Decision to Deny Plaintiff Admis­
sion to Partnership Based on Sex Also Resulted in the Termina­
tion of Her Employment as an Associate and thus Violated 
§ 703(a)(1) and (2) of the Act.

In addition to the two theories described above, the 
complaint also alleged that as a direct consequence of 
King & Spalding’s decision to refuse to admit Ms. Hi short 
to partnership because of her sex, King & Spalding (a) 
froze petitioner’s compensation as an employee of the 
firm, and (b) terminated petitioner’s employment as an 
associate pursuant to King & Spalding’s admitted “up-or- 
out” policy. Complaint 1117(b) (c); B. 10; J.A. 12. This 
claim was separate from the “partnership” claims dis­
cussed above, and was dismissed by the district court in 
a footnote. 25 Empl. Prac. Dec. (CCH) 31,703 at 20,064- 
65 n. 1; R. 269; App. A-26.21

The complaint expressly alleged that King & Spald­
ing’s decision to refuse petitioner’s admission to partner­
ship was based on her sex, and these allegations must be 
accepted as true for purposes of the motion to dismiss. 
McLain v. Real Estate Board of New Orleans, supra. The 
result of the discrimination was, therefore, to “deprive 
[Ms. Hishon] of employment opportunities or other-wise 
adversely affect [Ms. Plishon’s] status as an employee” of 
King & Spalding, a violation of the literal language of

21in its answer and in the brief and affidavits filed in sup­
port of its motion to dismiss, King & Spalding admitted that 
there was a direct causal connection between King & Spalding's 
decision not to admit Ms. Hishon to partnership, and the cessa­
tion of all raises for petitioner and her ultimate discharge as an 
associate of the firm on December 31, 1979. J.A. 48, 58, 
67. In fact, King & Spalding went to some length to em­
phasize that it has an "up-or-ouf" policy and no longer em­
ploys "permanent associates" as a matter of policy. Id. Thus, 
King & Spalding argued that, when the decision was made not 
to admit Ms. Hishon to partnership, her raises stopped and her 
termination as an associate "within a reasonable period of 
time" became automatic, under King & Spalding's established 
"up-or-out" policy. Id.

47



48

§ 703(a) (2) of the Act. 42 U. S. C. § 2000e-2(a) (2). See 
Lucido v. Gravath, Swaine & Moore, supra.

The district court, however, dismissed this aspect of 
plaintiff’s discrimination claim. The court observed that 
“this contention will not cut the mustard” because King 
& Spalding’s “long-standing [up-or-out] policies . . . have 
been uniformly applied by it over the years, for the most 
part against associates who were male only [sic, only 
male]. Neither in her pleadings, briefs nor arguments 
does plaintiff even whisper or suggest that such applica­
tions by defendant were in any way based on sex,” 25 
Empl. Prac. Dec. (CCH), at 20,064-65 n .l ;  R. 269; App. 
A-26.

The district court missed the point. The thrust of 
the complaint was that plaintiff did not “make partner” at 
King & Spalding because she was a woman, and that under 
King & Spalding’s established policy this discrimination 
also caused both a freeze in her salary advancement as an 
associate and her discharge as an associate and employee 
of the firm. That some white male associates at King & 
Spalding have also been forced to leave the firm when they 
did not make partner under the firm’s “up-or-out” policy is 
beside the point. Petitioner’s male contemporaries did 
not lose their jobs as associates of King & Spalding be­
cause they were males, but for other reasons not covered 
by Title VII. The complaint alleged that Ms. Hishon lost 
her job because of her sex.

The court of appeals also rejected the petitioner’s 
claim as a “backdoor” attempt to obtain coverage under 
Title VII. The majority stated:

While discriminatory termination alone may have 
stated a cause of action under Title VII for an un­
lawful discharge, Lucido v. Gravath, Swaine & Moore, 
when the termination is a result of the partnership 
decision, it loses its separate identity and must fall



49
prey to the same ill-fate as her original attempt to 
apply Title VII to partnership decisions.
678 F. 2d at 1029.
The majority relied on an -unprecedented application 

of the doctrine of assumption of risk in holding that peti­
tioner had no claim under Title VII for wrongful dis­
charge :

Prospective associates are apprised not only of 
their potential for partnership, but also of the conse­
quences to be suffered following an unfavorable de­
cision. Just as she accepted a representation made 
to her concerning partnership consideration, appel­
lant likewise assumed the risk that an unfavorable 
decision would set in motion the termination proce­
dure under the firm’s “up or out” policy.
678 F. 2d at 1029-30 (emphasis supplied).
Title VII removes discrimination on the basis of race, 

sex, religion and national origin from the “risks” which 
“employees” must assume as conditions of employment. 
Even if petitioner is not entitled to assert a claim under 
Title VII for denial of admission to partnership, she is 
at least entitled to assert a claim for wrongful discharge 
under Title VII based on the theory that King & Spalding!s 
decision to refuse her admission to partnership because of 
her sex caused her salary as an associate to be frozen and 
also resulted in her ultimate discharge as an employee of 
the firm, in violation of § 703(a) (2) of the Act.

---------------- o----------------

CONCLUSION
The decision of the court of appeals below expressly 

allows large law firms, as well as accounting firms and 
other businesses organized as partnerships, to discrimi­
nate against women, blacks or religious minorities when 
selections are made among the associates for promotion to 
partner. The decision below is contrary to the prior de­



50

cisions of this Court and represents a significant setback 
in the fight against discrimination. The dismissal of the 
complaint for failure to state a claim for sex discrimina­
tion under Title YII of the Civil Eights Act was erroneous 
and should he reversed.

Respectfully submitted,
Emmet J. Bondurant 
Edward B. Krugman

OF COUNSEL:
BONDURANT, MILLER, HISHON & STEPHENSON 
2200 First Atlanta Tower 
Atlanta, Georgia 30383-4501 
(404) 688-0350

Attorneys for Petitioner 
Elizabeth Anderson Hishon