Best Ohio Age Discrimination Attorney Answer: Are partners employees of their business? Can an employer favor younger applicants? Does the ADEA protect accounting firm partners from forced retirement? Is forced retirement a wrongful termination?
A recently filed lawsuit in the Northern District of California accuses Big 4 accounting firm PricewaterhouseCoopers of systemic age discrimination. Lead plaintiff Steve Rabin, a 53-year-old CPA, alleges Pricewaterhouse violated The Age Discrimination in Employment Act (“ADEA“), as well as the California state law by engaging in a pattern of age discrimination against accounting applicants who are over 40 years old.
As our employment discrimination attorneys have blogged about before, the ADEA, like Ohio statutes (R.C. § 4112.02(N), R.C. § 4112.05, R.C. § 4112.14), makes it unlawful for an employer to discriminate against individuals over forty on the basis of age. These laws apply at all phases of the employment process, from hiring to firing. (Can I Sue For Age Discrimination? – Call The Right Attorney; Age Discrimination: A Good Verdict. | Spitz, The Employee’s Law Firm; I Didn’t A Promotion Because I’m “Old”! – Call The Right Attorney; and Age Discrimination Plaintiffs Beware: Filing an EEOC Charge May Prevent You From Filing Your Age Discrimination Claim in Court).
According to Rabin’s age discrimination complaint, “PWC’s culture and practice has distributed the benefits of its enormous success unequally – systematically favoring younger applicants at the expense of their older counterparts.” As a result, “[T]he number of workers 40 years of age and older in entry-level and lower to mid-level positions at PWC is stunningly low.”
PWC, according to the complaint, intentionally refuses to hire older accountants and does not post open positions on the firm’s website, instead utilizing a recruitment tool for entry-level positions that only accepts applications from applicants currently affiliated with a university.
Rabin’s lawsuit further alleges that, “PWC’s policies and practices have the effect of deterring would-be applicants ages 40 and older from applying and denying job opportunities to those individuals ages 40 and older who do apply.” One of the policies that Rabin alleges deters older applicants is PWC’s mandatory retirement age for partners. PWC’s partnership agreements require all partners to step down upon reaching age 60 (PWC rival Deloitte has a similar policy requiring mandatory retirement at age 62).
If PWC’s mandatory retirement policy sounds like it runs afoul of the ADEA, that’s because it probably does. As a general rule, forced retirement based on age is illegal. (See Can My Boss Force Me To Retire Based On My Age? Best Lawyer Reply!; Age Discrimination Law: Is Forced Early Retirement Unlawful?; and I Was Fired Because I’m Turning 60. I Need The Best Lawyer!).
The ADEA does allow for a few sensible exceptions to the general rule. For example, public safety officers, bona fide executives and high level policy-makers, along with individuals in certain positions, where all or most older employees would be unable to safely perform the job, can be forced to retire upon reaching a certain age. Again, these positions are the exception to the rule. Why then have PWC and Deloitte, not to mention half of the nation’s largest law firms, been able to maintain mandatory retirement ages?
The ADEA only protects employees. Partners, the argument goes, are actually employers, not employees, and, thus, are offered no protection by the ADEA. It’s a tough sell, though, to argue that an individual who is one of hundreds, and sometime thousands, of partners at a giant firm is actually an employer.
In Clackamas v. Wells, a disability discrimination claim, the United States Supreme Court announced a number of relevant factors relevant to determining whether director-shareholders were employees or employers. The Clackamas factors are useful in making the distinction with law and accounting firm partners. Relevant to determining whether an individual is an employee or employer, a court may look to: (1) whether the organization can fire the individual and/or regulate her work; (2) whether, and to what extent, the organization supervises the individual; (3) whether the individual reports to a higher-up; (4) to what extent the individual influences the organization; (5) whether the parties intended the individual to be an employee; and (6) whether the individual shares in the organization’s profits and losses.
PWC, it should be noted, has over 2,000 partners in the United States and over 8,000 globally. It would be absurd to argue that with that many partners, they all have the autonomy and influence required by Clackamas. The Equal Employment Opportunity Commission (“EEOC“) has sparred with the Big 4 accounting firms, as well as a number of large law firms, in the past over their mandatory retirement policies. Rather than fight the EEOC in court and risk damaging precedent, these firms have generally settled, and this is likely what will happen with Rabin’s lawsuit. These firms know that they cannot credibly argue that their partnership agreements shield them from the ADEA.
If you are over 40 and feel that you’ve been discriminated against in the workplace, the employment discrimination attorneys at Spitz, The Employee’s Law Firm would like to hear from you.
If you are an employee over the age of 40 years old and believe that you are being discriminated because you are older than other employees; or have be wrongfully terminated or fired instead of someone younger or were replaced with some younger than you, you may have an age discrimination claim under Ohio law or the federal Age Discrimination in Employment Act (ADEA). Even if you are not sure about your age discrimination claim, you should call the right attorney as quickly as possible to schedule a free and confidential consultation at 866-797-6040. Age discrimination claims have very short statute of limitations, which means that you only have a very short amount of time to figure out if you have an age discrimination claim and take action. It is unlawful for employers to treat older employees differently. At the free initial consultation, you can tell us the specifics about how “my boss did …” or what happened on “my job.”
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