Hishon v. King & Spalding
Decided on May 22, 1984; 467 US 69


A. Issues Discussed: Civil Rights (gender), 1st and 14th Amendments

B. Legal Question Presented:

Did the District Court properly dismiss a Title VII complaint alleging that a law partnership discriminated against petitioner, a woman lawyer employed as an associate, when it failed to invite her to become a partner?


A. Background:

In 1972, petitioner Elizabeth Anderson Hishon became an associate with a large Atlanta law firm (respondent). At the time this suit was filed no woman had ever served as a partner of the firm.

Petitioner alleged that the prospect of partnership was an important factor in her initial decision to accept employment with respondent. She alleged that respondent used the possibility of partnership as a recruiting device to induce petitioner and other young lawyers to become associates at the firm. According to the complaint, respondent represented that advancement to partnership after five or six years was “a matter of course” for associates “who receive[d] satisfactory evaluations” and that associates were promoted to partnership “on a fair and equal basis.” The complaint further alleged that respondent's promise to consider her on a “fair and equal basis” created a binding employment contract.

In May 1978 the partnership considered and rejected Hishon for admission as partner; one year later, the partners declined to review her for promotion. Once an associate is denied invitation for potential partnership review at respondent's firm, the associate is notified to begin seeking employment elsewhere. Petitioner's employment as an associate terminated on December 31, 1979.

Hishon claimed that respondent discriminated against her on the basis of gender in violation of Title VII of the Civil Rights Act of 1964. The District Court dismissed the complaint on the ground that Title VII was inapplicable to the selection of partners by a partnership.  On appeal, the Court of Appeals affirmed.

The US Supreme Court granted certiorari to review the case.

B. Counsel of Record:
Opposing Side
Emmet J. Bondurant argued the cause and filed a brief for petitioner. Charles Morgan, Jr., argued the cause for respondent. With him on the brief were J. Richard Cohen, Steven E. Vagle, Hamilton Lokey, and Gerald F. Handley.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Deputy Solicitor General Bator argued the cause for the United States as amicus curiae urging reversal. With him on the brief for the United States et al. were Solicitor General Lee, Assistant Attorney General Reynolds, David A. Strauss, Brian K. Landsberg, James W. Clute, and Philip B. Sklover.

Additional briefs of amici curiae urging reversal were filed for the American Association of University Women et al. by Judith I. Avner and Anne E. Simon; for the American Civil Liberties Union by Samuel Estreicher, Burt Neuborne, Isabelle Katz Pinzler, E. Richard Larson, Charles S. Sims, and Mary L. Heen; for the Anti-Defamation League of B'nai B'rith et al. by Justin J. Finger, Meyer Eisenberg, Jeffrey P. Sinensky, Leslie K. Shedlin, and Nathan Z. Dershowitz; for California Women Lawyers by Elizabeth S. Salveson; for the Dallas Association of Black Women Attorneys et al. by Neil H. Cogan; for the NAACP Legal Defense and Education Fund, Inc., by Jack Greenberg, Charles S. Ralston, Gail J. Wright, and Elizabeth Bartholet; for the Women's Bar Association of Illinois et al. by Paddy Harris McNamara, Susan N. Sekuler, and Jacqueline S. Lustig; for the Women's Bar Association of Massachusetts by Leah Sprague Crothers; and for Robert Abrams et al. by Paulette M. Caldwell, Lawrence S. Robbins, and Barbara S. Schulman.
Joseph D. Alviani filed a brief for the New England Legal Foundation as amicus curiae urging affirmance.

"The contractual relationship of employment triggers the provision of Title VII governing ‘terms, conditions, or privileges of employment.’ Title VII in turn forbids discrimination on the basis of ‘race, color, religion, sex, or national origin.’

Because the underlying employment relationship is contractual, it follows that the ‘terms, conditions, or privileges of employment’ clearly include benefits that are part of an employment contract. Here, petitioner in essence alleges that respondent made a contract to consider her for partnership. Indeed, this promise was allegedly a key contractual provision which induced her to accept employment. If the evidence at trial establishes that the parties contracted to have petitioner considered for partnership, that promise clearly was a term, condition, or privilege of her employment. Title VII would then bind respondent to consider petitioner for partnership as the statute provides, i.e., without regard to petitioner's sex.

Petitioner's claim that a contract was made, however, is not the only allegation that would qualify respondent's consideration of petitioner for partnership as a term, condition, or privilege of employment... An employer may provide its employees with many benefits that it is under no obligation to furnish by any express or implied contract... A benefit that is part and parcel of the employment relationship may not be doled out in a discriminatory fashion, even if the employer would be free under the employment contract simply not to provide the benefit at all. Those benefits that comprise the 'incidents of employment,' may not be afforded in a manner contrary to Title VII. The opportunity to become a partner was part and parcel of an associate's status as an employee at respondent's firm.

Further, contrary to respondent’s arguments, 'a benefit need not accrue before a person's employment is completed to be a term, condition, or privilege of that employment relationship.' 'Title VII [does not] categorically exempt partnership decisions from scrutiny.' And [a]lthough... the activities of lawyers may make a ‘distinctive contribution... to the ideas and beliefs of our society,’ respondent has not shown how its ability to fulfill such a function would be inhibited by a requirement that it consider petitioner for partnership on her merits. Respondent’s arguments fail to establish petitioner was not entitled to protection under Title VII...

Held: Petitioner's complaint states a claim cognizable under Title VII, and she therefore is entitled to her day in court to prove her allegations."

Justice Vote: 9 Pro vs. 0 Con

  • Burger, W. Pro  (Wrote majority opinion)
  • Brennan, W. Pro  (Joined majority opinion)
  • White, B. Pro  (Joined majority opinion)
  • Marshall, T. Pro  (Joined majority opinion)
  • Blackmun, H. Pro  (Joined majority opinion)
  • Rehnquist, W. Pro  (Joined majority opinion)
  • Stevens, J. Pro  (Joined majority opinion)
  • O’Connor, S. Pro  (Joined majority opinion)
  • Powell, L. Pro  (Wrote concurring opinion)

The ACLU filed as amicus curiae urging reversal. The United States Supreme Court reversed the Court of Appeals for the Eleventh Circuit's decision in a 9-0 vote, giving the ACLU an apparent win.