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Vol. 41, No. 4

NABE panel tackles complicated issue of gender inequality in the profession

by Marilyn Cavicchia

The name of the National Association of Bar Executives program “Gender Equality … It’s Complicated” was an apt one, as the speakers explained that the persistently low number of women in the profession—particularly at the highest levels—can’t be attributed solely to pipeline issues or to childbearing and work-life concerns.

If those aren’t the only problems, then what are some of the others—and how can bar associations, law firms, and other stakeholders help solve them?
On hand at the 2017 NABE Midyear Meeting in Miami to answer some of those questions and raise others were: Alysia M. Keating (moderator), director of diversity and gender equality at the Allegheny County Bar Association and chair of the NABE Diversity Development Committee; Michele Coleman Mayes, general counsel at the New York Public Library and chair of the ABA Commission on Women in the Profession; Rhianna Maras, director of programming at the Lawyers Club of San Diego; and Michael Higer, president-elect of The Florida Bar.

Current statistics, and a common misconception

Mayes shared a few key figures from her Commission’s study “A Current Glance at Women in the Law 2017.” Among them were:

  • In the profession as a whole, 36 percent of lawyers are women.
  • In private practice, 48.7 percent of summer associates and 45 percent of associates are women. At the partner level, the percentage drops to about 27. Among both equity partners and managing partners at the 200 top largest law firms, women account for 18 percent.
  • In corporate counsel at Fortune 500 companies, the percentage who are women is 24.8, and for Fortune 501-1,000, it’s 19.8.
  • Among law schools, 31 percent of deans are women, and for judges, in all the different types of courts, the percentage of women is either near 30 or somewhere in the 30s.
  • Within the ABA, 34.6 percent of all lawyer members are women, and an informal poll of the room indicated that the same is approximately true for many state and local bars.

Mayes was particularly concerned about the low percentage in corporate counsel because she knows a lot of the women who practice in that setting are baby boomers, a generation that is retiring at a steady rate.

Also concerning, she said, is the persistent wage gap between male and female lawyers. For example, she said, among equity partners, women earn about 20 percent less than men. “Not only do we live longer,” she noted, “but we also make less money.”

Given that women consistently make up almost half of every law school graduating class and cohort of associates, Keating said it’s not accurate to think of the profession’s gender imbalance as a pipeline issue—or at least, not in terms of the pipeline into the profession.

Also inaccurate, she said, is the common assumption that women leave the profession solely or even mostly because they have children. In fact, she explained, women leave at all stages of life, which means that the pipeline is “dripping” at every point in the profession.

Why do women leave?

“Women aren’t always given interesting work,” Maras said, and in fact, some stereotypical unpaid tasks they’re asked to take on—such as planning social events at their firm—erode their ability to reach billable hour requirements and advance in their career.

Recent research, Mayes noted, found that the top reason women leave is that they don’t receive sufficient origination credit (that is, recognition and rewards based on having brought in new work) to help them move ahead.

Keating agreed that the “eat what you kill” model still holds true, though some firms are beginning to evolve. “Power and pay in law firms are traditionally associated with what business you bring into the firm,” she said.

The panelists took a nontraditional view of rainmaking, suggesting that even if someone doesn’t bring in a new client, if he or she then works diligently on the file, then he or she should get a share of the recognition for new business.

Higer said this had never occurred to him until a five- or six-year associate came to him and directly asked if he would share the origination credit with her. Now, he added, for every file she works on, she is mentioned by name in the firm-wide email announcing the new business.

The role of implicit bias

As in other programs at Midyear, the concept of implicit bias (certain attitudes and beliefs we hold, regardless of whether we consciously accept or reject them) came up during this discussion.

Higer and Keating both noted that a male associate might be invited—or even invite himself—out for drinks or a round of golf with a male partner. Then, said Higer, the male associate will feel more comfortable later asking for origination credit. Keating noted that a male partner who is looking to retire will often hand things over to another man, whether because of those previous outings or simply because we all tend to favor those who are most like us.

Maras advised taking a good look at the culture of your local legal community—both within the bar association and outside it—to see whether bias still informs what is valued and whether this is carried out via discriminatory policies and incentives. Her own bar was founded in response to the fact that power players in the San Diego legal community used to meet at a restaurant where women were not allowed to have lunch.

What can bars do? Surprise—it’s not training

If implicit bias is part of the problem, then bar associations can make a dent by offering training that helps people become more aware of those biases … right?

Not according to Higer, who said that the “Tens, if not hundreds of millions of dollars”—and correspondingly numerous hours of time—spent on awareness training in the corporate sector have recently been shown to be “a waste of time.”

The kind of systemic improvement that’s needed will not occur based on awareness among individuals, Higer believes, but requires pressing for real change at the macro level. “That’s where bars can make a real difference,” he said.

Rather than through training, bar associations can help shine a light on gender inequality and other inequities via high-quality, well-presented studies, the panelists said.

One such study that received a lot of attention was conducted in 2015 by The Florida Bar Young Lawyers Division, which surveyed women lawyers who were either 36 years old or younger or had been in practice for five years or fewer. Higer highlighted a few noteworthy statistics from that study, including:

  • 43 percent of the respondents said they’d experienced gender bias in the profession;
  • 40 percent had encountered gender-related insensitivity from their employers;
  • 37 percent said they had no work-life balance;
  • 32 percent said they had no advancement opportunities; and
  • 24 percent said their employer offered no alternative work schedule.

Between those figures and the anecdotal comments that respondents wrote, Higer recalls that the Florida bar community as a whole was “stunned,” because “We thought we were doing well.”

What has emerged since then, he noted, is a blue-ribbon special committee, lots of discussion all over the state, and a new, bar-wide survey—the results of which will be released soon.

Maras shared some tips for how to prompt a higher response rate to such a survey, and how to increase the chances that people will pay attention to its findings. Offer incentives to respond, she suggested, and publish the logo of all firms that participate. Present the data in a way that’s user friendly, she continued: Create graphs with bright colors so your report doesn’t look like a boring Excel spreadsheet.

If you conduct a study that finds gender bias in your legal community, Mayes said, the next step is to think about concrete ways to “interrupt” that bias, and to urge your local firms to do the same. For example, she said, when she was in corporate counsel at Allstate, the committee on advancement had a rule that all discussions had to be based on facts, not opinion—and the facts had to be recent.

Another selling point for bar associations

Keating noted that it costs between $250,000 and $500,000 to train a new lawyer, which means the “steady trickle” of women leaving the profession after three to eight years is costing their firms some significant money. However, Mayes said that many firms and legal employers consider this to be just a normal cost of doing business.

Aside from the fact that it doesn’t reflect the best ideals of the profession, Keating noted that for bar associations, especially voluntary ones, there’s a bottom-line reason to care about gender inequality: If women make up about 50 percent of the law school graduating class but the percentage goes down to 30 after just a few years, the 20 percent difference represents a lot of members and potential members walking away from the bar association, too.

“That missing 20 percent matters,” she stressed.