In Hishon v. King & Spalding, 467 U.S. 69 (1984), the U.S. Supreme Court affirmed a decision by the Eleventh U.S. Circuit Court of Appeals and held that a law firm was subject to Title VII of the Civil Rights Act of 1964 in deciding whether to promote an associate to partner. Title VII prohibits discrimination on the basis of sex. In so ruling, it rejected the idea that the firm’s right of association provided justification for discriminatory promotion decisions based on gender.
Law firm rejected promotion of first female partner
The firm of King & Spalding in Atlanta, Georgia, with approximately 50 associates and 50 partners (none of whom were women), had hired Elizabeth Anderson Hishon as an associate with the prospect that she could advance to partner as a matter of course. When it subsequently denied her this promotion after six years, and again after seven, it terminated her.
Court said First Amendment association did not protect discrimination in this case
Writing a decision on behalf of a unanimous Court, Chief Justice Warren Burger decided that Hishon had a contract that was subject to Title VII provisions, and that there was no language that could exclude decisions about partnerships from its purview. While acknowledging the distinctive contributions that lawyers make, he found that the law firm “has not shown how its ability to fulfill such a function would be inhibited by a requirement that it consider petitioners for partnership on her merits.” He further observed that while private discrimination might be regarded as a form of First Amendment association, “it has never been accorded affirmative constitutional protections.” Hishon was thus entitled to her day in court.
Justice Lewis Powell authored a brief concurring opinion in which he observed that “the Court’s opinion should not be read as extending Title VII to the management of a law firm by its partners,” which relationship he thought differed from that of ordinary employers and employees. He observed, however, that “In admission decisions made by law firms . . . neither race nor sex is relevant.”
The parties subsequently settled this case out of court.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.