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SCOTUS won't decide if N.C. law firm partner was also employee

3 minute read

A general view of the Supreme Court building at the start of the court's new term in Washington, U.S. October 4, 2021. REUTERS/Jonathan Ernst

  • 4th Circuit said Title VII did not protect Myers Bigel partner
  • Plaintiff claimed SCOTUS test from ADA case didn't apply to Title VII

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(Reuters) - The U.S. Supreme Court on Monday declined to review a ruling that said a former shareholder at North Carolina intellectual property law firm Myers Bigel was not the firm's employee and could not pursue race discrimination and retaliation claims.

The justices denied certiorari to Shawna Lemon, who said a test created by the Supreme Court in 2003 for determining whether a shareholder in a business is also an employee under the Americans with Disabilities Act should not apply to claims brought under Title VII of the Civil Rights Act of 1964.

Lemon in a July petition said Title VII protections apply more broadly to "individuals" rather than just employees. Lemon claims she was forced to resign after facing retaliation for pushing back when Myers Bigel refused to disclose the results of a probe into sex bias at the firm.

The question of "shareholder" employment status has arisen frequently in bias claims filed against law firms, including a landmark sex discrimination case filed by female lawyers against Chadbourne & Park, now Norton Rose Fulbright, that ultimately settled in 2018.

In Lemon's case, the 4th U.S. Circuit Court of Appeals in a January ruling upholding dismissal of her lawsuit said that as a partner and coequal owner of the firm, she could not be considered its employee.

Lemon's lawyer, Nathaniel Pencook of Nelson Mullins Riley & Scarborough, did not immediately respond to a request for comment. Nor did Myers Bigel's lawyers at Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan.

The 4th Circuit and the North Carolina federal judge who tossed out Lemon's case had applied the Supreme Court's 2003 decision in Clackamas Gastroenterology Associates PC v. Wells, which involved disability bias claims by a former shareholder in a medical practice.

The court in Clackamas said that whether shareholders are employees under the ADA turns on the degree of control a business exerted over their work. The court applied six factors, including whether a shareholder can be fired and share in profits and losses, and whether the individual's work is closely supervised.

Lemon in her petition told the Supreme Court that Congress in passing Title VII never intended for equity holders in professional businesses to go without protections from workplace discrimination.

And the economic stake that partners have in law firms does not offer any real protection against discrimination, Lemon's lawyers wrote, since "a controlling faction of the firm" can still make biased decisions.

The case is Lemon v. Myers Bigel PA, U.S. Supreme Court, No. 21-74.

For Lemon: Nathaniel Pencook of Nelson Mullins Riley & Scarborough

For Myers Bigel: Kerry Shad of Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan

Dan Wiessner (@danwiessner) reports on labor and employment and immigration law, including litigation and policy making. He can be reached at daniel.wiessner@thomsonreuters.com.

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