Advocating for Equality

Vol. 40 No. 4

By

Tanya N. Terrell is director of the ABA Section of Individual Rights and Responsibilities (IRR). Stephen J. Wermiel is immediate past chair of IRR.

For nearly fifty years, the American Bar Association (ABA) Section of Individual Rights and Responsibilities (IRR) has served as a voice within the legal profession for protecting and advancing civil rights, civil liberties, and social justice. Created during the height of the civil rights movement, IRR seeks to reflect the profession’s commitment to achieving, through the legal system, the American ideals of justice, freedom, and equality for all. Since its founding, the Section has continued to fulfill its original purpose by raising and addressing the often complex and difficult civil rights and civil liberties issues that arise in a changing and diverse society.

During the FY12–13 bar year, the Section continued its work on these issues through programming centered on the theme “Advocating for Equality in the Next Generation.” Through a series of town hall meetings, we met with law students and young lawyers to discuss whether experiences with discrimination and definitions of equality have changed for those who have grown up in a multicultural, social media-driven society. Each of the town hall meetings focused on a different aspect of equality, from race and gender to disability rights and lesbian, gay, bisexual, and transgender (LGBT) issues, and each was held as an open session at a different law school across the country. The purpose of the meetings was to encourage dialogue about how the legal profession should work to address issues of inequality, intolerance, and discrimination in the profession and in society and to determine whether traditional methods of advocacy need to be adjusted to accommodate evolving mores and experiences.

The “Advocating for Equality” theme was a result of a conversation we had with then-incoming ABA President Laurel Bellows, who shared her surprise at the number of young women she’d spoken to who thought that gender-based discrimination was over. While we optimistically hoped to discover that those opinions were closer to true than not, we found that many of the same challenges that have plagued minorities in this country still exist, though progress has been made in some areas. The overwhelming (though unscientific) conclusion of all the discussions was that discrimination, though more subtle and covert, still occurs in many aspects of society. Inaccurate stereotypes about race, gender, sexual orientation and gender identity, and religion are lessening but still serve as barriers for many, and minority lawyers and law students still feel the impact of these barriers as they work to advance in their careers.

For example, according to the ABA Commission on Women in the Profession, during the 2011–12 academic year, women were 46.8 percent of first-year enrollees in law schools and received 47.3 percent of all J.D.s awarded. See Comm’n on Women in the Profession, Am. Bar Ass’n, Current Glance at Women in the Law, Feb. 2013. However, the percentage of women editors-in-chief at law journals was only 29 percent at the top 50 law schools, despite the fact that women made up 43 percent of all journal leadership positions. See Karen Sloan, Women Lag in Top Law Review Jobs, Nat’l L.J., Oct. 19, 2012.

At law firms, women accounted for only 19.9 percent of partners and only 15 percent of equity partners. And, on average, male partners were paid 30 percent (or nearly $237,000) more than their female counterparts, despite billing nearly the same number of hours. See Vivia Chen, Pay Gap Between Male and Female Partners Is Now a Gaping Hole, Careerist, Sept. 19, 2012.

A number of these issues came up during IRR’s gender town hall and the women we met discussed the complexities of these statistics. Many said that as law students they felt optimistic about their opportunities for advancement but as young lawyers they were discovering inequities in the legal profession. Those in large law firms described disparities in the quantity and quality of work assignments given to them versus their male counterparts and women from all work environments discussed the difficulties of meeting societal expectations regarding child and elder care.

In closing remarks for the gender town hall, IRR Vice Chair Lauren Rikleen, who is also executive-in-residence at the Boston College Center for Work and Family, noted that progress is being made in the way the millennial generation prioritizes work-life balance. Responsibilities for child and elder care, which were once considered those of only women, are now being viewed through a gender-neutral lens. An article in the Harvard Business Review states that “fathers spend three times as much time with their children and twice as much time on housework than dads did a generation ago” (see Scott Behson, What’s a Working Dad to Do?, Harv. Bus. Rev. Blog (Aug. 21, 2013, 1:00 PM)) and recent studies by the Center for WorkLife Law at the University of California Hastings College of Law suggest that the demand on employers to provide work flexibility is increasing as young people become more engaged in their roles as both parents and professionals. The studies, however, also show that although employers are establishing more flexible work options, many employees, especially men, feel stigmatized if they take advantage of these opportunities. See Special Issue: The Flexibility Stigma, J. Soc. Issues, June 2013.

Racial and ethnic minority lawyers too continue to face challenges. During the 2012–13 academic year, minorities represented 25.8 percent of all J.D. enrollment. See Statistics, ABA Section of Legal Educ. & Admissions to the Bar (2013), http://www.americanbar.org/groups/legal_education/resources/statistics.html. However, according to the National Association for Legal Career Professionals (NALP) 2012 survey, minority lawyers represented only 6.71 percent of partners and minority women only 2.16 percent, with many law offices reporting no minority partners. See Women and Minorities in Law Firms by Race and Ethnicity, NALP Bull., Apr. 2013.

A familiar theme of all the town hall meeting discussions was the fear by many young minority professionals of being labeled “trouble makers” or of being accused of using their differences for unfair advantage. Many talked about the myth of the “post-racial” society and reported being told by nonminorities that racism no longer exists. During one of two race town hall meetings, participants described feeling marginalized as “tokens” in their law firms and being toted out only for client and diversity meetings. However, many chose to leave those firms without ever mentioning their experiences to supervisors and managing partners for fear of losing professional relationships or “burning bridges.”

The number of openly LGBT lawyers at law firms increased from 1.88 percent in 2011 to 2.07 percent in 2012, according to NALP. However, during our LGBT town hall, many lawyers reported the need to stay closeted at their firms—even those in firms with strong commitments to diversity and inclusion—for fear of being judged as less capable than their straight counterparts. The same held true for lawyers with disabilities, who made up only 0.23 percent of lawyers in firms in 2009–10. Town hall participants reported that many with nonvisible disabilities feared self-reporting (even if it would result in a useful accommodation) because they did not want to be stigmatized. This was particularly true of lawyers with mental and cognitive disabilities.

Native American law students and lawyers face even greater hurdles. Native American Bar Association Board Member and Assistant General Counsel at Wal-Mart Stores, Inc. Denette Mouser says, “When people talk about diversity, Native Americans are mostly overlooked because our numbers are so small. It seems as if we aren’t even on the radar screen.” Patrick Folliard, Native American Attorneys: Small in Number but Not in Influence, Diversity & The Bar, Mar./Apr. 2006, available at http://www.mcca.com/index.cfm?fuseaction=page.viewpage&pageid=882. Many surveys of minority lawyers do not even count Native American lawyers, who, according to some studies, represent less than 2 percent of all lawyers in the United States.

Native American lawyers and law students also face unique cultural and political differences. During our Native American town hall meeting in Oklahoma, keynote speaker Bill Rice, when talking about the sovereign rights of tribal governments, said, “the rules are not the same. They are not equal. When I’m a guest in your house, you have jurisdiction over me, but if you’re a guest in my home, I have no jurisdiction.”

Native American students reported frustrations in being hired at law firms. Former Native American Bar Association President Patty Ferguson-Bohnee said, “We do not yet have a critical mass of Native American attorneys to influence a shift in changes or to advocate for inclusion of Native American attorneys. Firms are not reflective of Native Americans so many Native American law students do not participate in the on campus interviews.” Meta J. Mereday, Patty Ferguson-Bohnee: Bringing Reflection and Purpose to the National Native American Bar Association, MultiCultural L. (Nov. 2011).

Statistically, minorities and women are entering law school in higher numbers but still are not advancing at the rates of their white male counterparts. The ABA has long been committed to increasing diversity in the profession, not only through the work of this Section but also through the tremendous work of its minority commissions and the ABA Center for Racial and Ethnic Diversity. As argued in the Section-sponsored ABA amicus curiae brief in the affirmative action case Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013),

full representation of racial and ethnic minorities in the legal profession is essential to the legitimacy of our legal and political systems, and therefore constitutes a compelling state interest. As the Court has recognized, the legal profession plays a critical role in American society. Lawyers formulate and implement our laws, resolve commercial disputes and protect the rights of citizens. Drawing on their training and talents, they serve as leaders in national, state and local government affairs. Diversity in the profession shows that the path to leadership is open to all citizens and demonstrates that the justice system serves the public in a fair and inclusive manner. Moreover, such diversity improves the quality of legal services and judicial decisions, and is necessary for successful competition in the global marketplace.

The results of the town hall meetings are clear. While the work of the ABA has made tremendous progress to protect the individual and collective rights of minorities and women, more must be done to ensure that those rights are not eroded and the myth of the post-racial society does not prevent us from continuing to seek greater diversity and inclusion in our workplaces and in society as a whole.

We encourage you to join one of our sixteen substantive committees and to continue the dialogue about these important issues. As we near the fiftieth anniversary of the creation of the Section of Individual Rights and Responsibilities, the enlightening series of town hall meetings across the country showed that IRR, the ABA, the legal profession as a whole, and society at large must redouble efforts to achieve diversity and genuine discrimination-free equality.

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