Like other employment discrimination laws, the Age Discrimination in Employment Act only provides coverage for claims brought by employees against their employers. On its face, ADEA does not extend to claims brought by partners against their partnerships. Last month, however, the Equal Employment Opportunity Commission issued a letter discussing situations when it believes that partners can sue for age discrimination.

The letter is an informal discussion from the EEOC's legal counsel to an undisclosed recipient asking about mandatory retirement policies in accounting partnerships. It says that in some circumstances, a partner can be a statutory employee if he or she does not participate in management, and if their activities are controlled by the partnership's management.

The letter cites six factors used in making this determination. They include the partnership's ability to hire and fire the worker, control over their work, whether they report to a supervisor and their ability to influence the overall operation of the partnership. The letter cites Supreme Court and lower court precedent supporting this position.

Although not a formal EEOC opinion, the letter indicates the agency's position in response to age discrimination charges brought against larger partnerships. While the agency will conduct an individual analysis of the partnership's relationship to the charging party, it will reject a blanket contention by the partnership that its organizational structure places it outside the scope of ADEA's coverage.