The Average American Family
Law Blogging 101

BigLaw Hiring is Age Discrimination (ADEA)

Why hasn't BigLaw been sued for employment discrimination under the ADEA?  

A 40-year-old lawyer with years of solid experience would not be qualified to work in a large law firm, due to age discrimination.

The BigLaw model is a lock-step hierarchy, and is based on the year of law school graduation.  First Year Associates will begin working in September or so.  All First Year Associates will have graduated law school in 2010.  All Fifth Year Associates graduated law school in 2005.  A 2005 law-school graduate could not be hired to work as a First Year Associate.

The average age of a law-school graduate is 28 years old.  A 40-year old would be the virtual dinosaur of his graduating glass.  Thus, BigLaw almost never hires anyone 40-years old, or older.

BigLaw, hiring, in a word, makes age a qualification for employment.  It is not possible, under the hiring model employed by hundreds of law firms, for a 40-year-old lawyer with a decade of experience to be hired as a First, Fifth, or Other Year Associate.

Thus, BigLaw has a hiring policy that has a disparate impact on persons over 40-years old.  It is age discrimination.

Some will say that BigLaw is not intentionally discriminating against older persons, but that doesn't matter.  In Smith v. City of Jackson, the Supreme Court held that the Age Dicrimination in Employment Act - which protects persons over 40 years of age from discrimination - prohibits a hiring policy that has a disparate impact on older Americans. 

BigLaw's hiring model literally prohibits older Americans from even applying to large law firms.  There is a prima facie evidence of discrimination.

BigLaw could offer some defenses.  E.g., they might claim that age wasn't the but-for cause of discrimination.  Gross v. FBL Financial Services, Inc.  Yet that is mere semantics that ignores BigLaw's hiring policy.

BigLaw has wrapped up its age discrimination in the cloak of law-school graduation year.  "We don't demand that people people be young before we hire them.  We simply hire fresh law grads, and it's merely a coincidence that they are young."  Yeah, some coincidence.

That coincidence is highly suspicious.  What does a recent law grad know about the law?  Nothing.  BigLaw might claim that they need blank slates.  If that's the case, how can they justify charge clients $325 an hour for blank slates?

There is extreme dissonance between BigLaw's defenses, and its actual business practices.  A blank slate shouldn't be billed out at high billing rates.  After all, it's a blank slate.  Thus, BigLaw's defense against age discrimination would require it to admit that it defrauds its clients by billing know-nothings out at outrageous hourly rates.

BigLaw might claim that law school graduate year is a bona fide occupational qualification - the so-called BFOQ defense.  Why?  Why can't a lawyer with experience be trained?  Because you can't teach old dogs - or old lawyers - new tricks?  

What other justification could BigLaw offer in its defense?

Speaking of BigLaw: Couldn't any company that only hires recent graduates be sued under the ADEA?  After all, there's no question that graduation year is directly correlated with age.  If you'll only hiring recent college or law school graduates, then you're looking to hire young people - i.e., not people over 40.  That seems discriminatory.

Perhaps I'm out of my league here.  Other than getting an "A" in Employment Discrimination, I've never dealt with an ADEA issue.  Perhaps I am missing something big.  

If so, what am I missing?