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The myth-busting began immediately at an Aug. 9 panel on the ABA’s Day of the Woman. No matter what profession, level of education, percentage of women in a certain field, or amount of time taken off to raise children, a gap between the wages of men and women exists – 50 years after President John F. Kennedy signed the Equal Pay Act into law.
“This pay disparity, this gap, exists in all 50 states, all education and seniority levels,” said Roberta Liebenberg, chair of the ABA Gender Equity Task Force and senior partner at Fine Kaplan and Black in Philadelphia. “It is not just a women’s issue, it is a family issue. More than 50 percent of our American households have women breadwinners.” When wages are stifled for women, their retirement security is also affected, Liebenberg added.
At “Elusive Equality: When Will Women Achieve Pay Parity?” during the 2013 ABA Annual Meeting in San Francisco, panelists explained the lack of progress on pay equity both within the legal profession as well as other industries.
“There is a disparity however you slice and dice it,” said Marcia Greenberger, founder and co-president of National Women’s Law Center in Washington, D.C. Greenberger reported that over a woman’s lifetime, there can be a difference of $700,000 to $2 million in earnings depending on her education level. “That’s a lot of money.”
For Patricia Gillette, member of ABA Commission on Women in the Profession and partner at Orrick, Herrington & Sutcliffe LLP in San Francisco, a lot of what we see in terms of wages has to do with “ancient ideas” of what are jobs for women and what are jobs for men. “There are certain professions that are dominated by women,” said Gillette, referencing teaching as a prime example. “Some of [the pay gap] we can trace back to the way society thinks about certain professions and jobs and the values them based on the gender that dominates them.” A recent study by the AAUW shows that the pay gap exists even in female-dominated professions, with men making more money as teachers or social workers.
Even though panelists agreed that a lot of obvious discrimination for women in the workplace has been less prevalent, implicit bias has remained as a barrier to equal opportunity for women. Instead of having job listings that specify whether a particular position is fit for a woman or a man, now women experience a “motherhood penalty.” Liebenberg cited statistics that show that a woman’s salary goes down markedly after she has a child, while a man’s salary increases after his children are born. Gillette agreed with the presence of a double standard after a child is born, with men being viewed as more responsible after becoming a parent while women are viewed with a much stronger level of doubt in their ability and commitment. “All of the factors that need to be unwound to get to true income equality really are revolutionary when we think about valuing women in the workplace equal to men,” said Greenberger.
Gillette expressed hope that a change is underway among the newer generation of lawyers who will become future leaders within the legal profession and other industries. She noted for men and women in the high-tech industry, working at home is normal. “Gen Y men bring with them a desire to participate in their family life in a way that is different,” Gillette said. “I do think there is hope on the horizon for this next generation of law firm leaders to be more inclusive.”
Liebenberg disagreed with this optimistic outlook, showing that the culture and trends do not support this approach. “As the crusher of dreams, the empirical evidence is that 96 percent of law firms have part-time and flex-time, and 86 percent of those who take part-time and flex-time are women…It will be interesting to see if Gen Y and the Millennials have an impact, but so far I haven’t seen it.” Liebenberg thinks that as law firms get bigger and the race to the top gets more competitive, she thinks workplace flexibility will be even more in jeopardy.
Several of the panelists expressed disappointment that the current political climate did not allow for the Paycheck Fairness Act, proposed legislation to remedy the shortcomings of the Equal Pay Act, to become law. For Christina M. Tchen, assistant to the president and chief of staff in the office of the First Lady Michelle Obama, the executive branch didn’t wait for Congress to pass these important measures to reach equal pay. Through the Obama Administration’s Equal Pay Task Force, transparency and access to data has become their tool to help women achieve pay parity.
“What we did instead is take the data that is publicly available from the Department of Labor and put out an app challenge,” shared Tchen. Winners of the DOL’s app challenge included Aequitas, Close The Wage Gap, the Gender Gap App, and Demand Equal Pay For Women. Men and women can use these apps to inform themselves about their industry, skill level and what they can do to earn fair pay. “Knowledge is power here,” said Tchen.
While discussing the challenges that remain to reach pay equity, the panelists reminded the audience about the publications now available from the ABA Gender Equity Task Force: ABA Toolkit for Gender Equity in Partner Compensation, Closing the Gap: A Road Map for Achieving Gender Pay Equity in Law Firm Partner Compensation, Power of the Purse: How General Counsel Can Impact Pay Equity for Women Lawyersand What You Need to Know about Negotiating Compensation.
The ABA Toolkit for Gender Equity in Partner Compensation, is “a terrific resource to host a conference,” said Stephanie Scharf, president of the National Association of Women Lawyers Foundation and founding partner of Scharf Banks Marmor LLC in Chicago. “This makes it as easy as possible to start a conversation about gender equity and partner compensation.”
As someone that lived these experiences at a large law firm, Tchen thinks the negotiation guide, What You Need to Know About Negotiating Compensation, is great. “You don’t always know how every other team member is writing their memo. You sort of assume you are all part of a team, we’re all going to get equal credit, we all contributed well,” said Tchen. “That’s really not when you’re in the compensation world the way it operates…it will always still be every person for themselves. We just have to learn how to be smarter about it for ourselves.”
All panelists agreed that general counsel can play a pivotal role in forcing the conversation on equal opportunity, as well as law firm leadership considering the changing demographics and succession plan for when 400,000 baby boomers leave the profession. “We don’t talk about role models for rainmakers —people who actually bring in the business—that’s where we need more women,” observed Gillette. “We need the younger associates to look up and see that.”
As the panelists wrestled with the answers to closing the gap and how the legal profession can utilize the ABA tools to help, the idea of critical mass was discussed. “As lawyers skilled in lobbying and the power of aggregation, it still surprises me how so many people still think of themselves as lone rangers and don’t band together to fix this,” said Scharf. “Even if five or six people come together, that’s a big number even in a large firm.” Gillette concurred, adding that “people are empowered by information and number of people,” and that if women team up to gain control of the process, they are more likely to see results.
“A lot of best practices for compensation and transparency are also issues that are not just good for women partners, they’re good for the health of the firm overall,” said Tchen. “If you look at what’s happened at some of the firms that have imploded, pay secrecy was a part of that problem.”
The CLE Showcase Program “Elusive Equality: When Will Women Achieve Pay Parity?” was sponsored by the ABA Section of Litigation.