I’m a millennial lawyer who dreams of bursting through the glass ceiling for those who follow behind me. As a mixed-race, Black and Muscogee Creek Native woman lawyer, I am inspired by Lyda Conley (the first Native American woman admitted to the bar), Charlotte E. Ray (the first African American woman admitted to the bar), my mother, and my recently departed G’mama, who was the first black woman to graduate from UCLA School of Law. Despite the great women who came generations before, the idea of working at a women-run firm is still a rare experience. In fact, women represent only 19 percent of equity partners, although they represent 38 percent of all attorneys (American Bar Association Commission on Women in the Profession, “A Current Glance at Women in the Law April 2019”). This begs the question of whether equity partnership is the only means of accessing gender equality in the legal workplace. The clear answer to this question is that although women can exert power through other responsibilities, women will not indeed be equal unless they are represented at all levels of the legal world. This article will assess gender equality as it relates to representation and the issues with breaking the “glass ceiling” in the legal profession.
As a millennial lawyer, I struggle with the fact that women have been practicing law for more than 100 years and still struggle with making strides at all levels of representation. There is simply no way to drive home the point of representation without discussing first the history of women in the legal landscape and the disparities of women of color in the legal landscape. A discussion of the history of women in the legal landscape will address how we got to where we are now. The focus on women of color will answer why women as a whole are not thriving in the workplace. The hope is that the legal community will finally understand that unless we change our methods and address our explicit biases against women of color, gender equality will prove impossible. After all, in the words of Sojourner Truth, renowned abolitionist and women’s rights advocate, in response to the lack of inclusion of black women in the suffrage movement, “Ain’t I a woman?”
In 1869 Arabella Mansfield became the first woman admitted to the bar. In 1872 Charlotte E. Ray became the first African American woman admitted to the bar. In 1902 Lyda Conley became the first Native American woman admitted to the bar. And in 1937 Elizabeth K. Ohi became the first Asian American woman admitted to the bar. (The identities of the first Latina lawyers has been researched by scholar Dolores Atencio, who is in the process of completing a law review article about the research; learn more at https://tinyurl.com/y5zhh4ns.)
From 1920 to 1930, internal biases against women made it nearly impossible for women to find work as anything beyond legal secretaries, temporary employees, or librarians. The Great Depression of the 1930s left women competing with unemployed men for positions that society felt were necessary for men to support their families. According to the 1930 U.S. Census, there were only 24 African American women lawyers, out of 160,605 lawyers.
While the New Deal opened positions in the government for women in law, those jobs were few and far between. Women would not get their first break in law until World War II—a break they only received because their male counterparts were in the armed forces. Due to the decrease in eligible men applying to law school, law schools were forced to accept more female applicants. This break would not last for long because their returning male colleagues quickly replaced them.
In the 1950s and 1960s, women lawyers were hired at a slightly higher rate. In fact, this was the era when future Supreme Court Justices Sandra Day O’Connor and Ruth Bader Ginsburg, Representatives Geraldine Ferraro and Patricia Schroeder, Attorney General Janet Reno, and Senator Elizabeth Dole began practicing. These future leaders in law and politics were forced, along with the other women lawyers of their time, to overcome traditional gender stereotypes at every turn. Recruiters worried not only that women lawyers would leave to care for their family, but that hiring too many women would eventually lower the salaries of the entire profession. This belief that a woman’s presence was toxic to the value of the trade became so pervasive that it would not be until 1982 that the first woman would make partner at a major law firm.
In the present day, women represent 38 percent of all lawyers, but only 19 percent of women lawyers have attained the rank of equity partner—four out of five women lawyers do not receive a share in their firm’s legal wealth. What is even more concerning is that women of color represent only 3 percent of equity partners. This steep decline in representation of women of color shows that the current gender equality landscape is far from progressive, further proving that any proposed measure to solve gender equality within the legal landscape would be inefficient without including women of color.
A significant issue in solving the underrepresentation of women in leadership roles is the rate of promotion. Current studies show that women are far less likely to be promoted than their male colleagues. The likelihood of promotion calls into question whether women are not being promoted because they are still being undervalued in relation to their male colleagues. It is far more likely that women’s contributions are undervalued because studies show that women clock more billable hours than their male counterparts.
Another study suggests that women are less likely to be promoted because they are less interested in the partner track. If this is true, the partner track should be reevaluated to include interests that matter to women. A Canadian study found that 61 percent of women expressed the difficulty of balancing work and family as the number-one reason for not wanting to make partner:
Though traditional gender roles have vastly changed, women are still more likely to take on the home’s responsibilities. Designing workplace objectives around an ideal worker who has a man’s body and men’s traditional immunity from family caregiving discriminates against women. Eliminating that ideal is not “accommodation”; it is the minimum requirement for gender equality.
Colleen Sheppard, Inclusive Equality: The Relational Dimensions of Systematic Discrimination in Canada, Montreal, Quebec: McGill-Queen’s University Press, 2010.
Moreover, where the partner track so overwhelmingly omits the interests of the women who make up such a large percentage of lawyers, it is hard not to deduce that the partner’s institutional path is inherently discriminatory toward women.
While many law firms have part-time or reduced schedules to provide flexibility and address major work-life balance issues, these options are not beneficial for lawyers who wish to pursue equity partnership. These programs are well-intentioned, but women are less likely to take advantage of these programs for fear of being ostracized and passed up for promotion. Law firms must work not only to make these programs culturally acceptable, but also to encourage attorneys to take advantage of them.
Although law firms lead the way in implementing programs and policies to reduce bias in recruiting and promotions, they still have a long way to go. The vast majority of law firms offer maternity and paternity leave that exceeds government requirements. However, attorneys are likely to believe that taking maternity and paternity leave will negatively affect their careers. Only 22 percent of law firms have on-site childcare, and far fewer subsidize regular childcare. The Canadian study noted above concluded, “it is possible to design workplaces that reflect not only the bodies and traditional life patterns of men, but also those of people (disproportionately women) who need time off for childbearing, and other family caregiving” (Sheppard, supra).
A recent study by McKinsey & Company revealed that while firms generally cite gender diversity as a priority, there is a predominant belief among women that their firm is not doing what it takes to improve gender diversity (Jess Huang, Alexis Krivkovich, Irina Starikova, Lareina Yee, and Delia Zanoschi, “Women in the Workplace 2019,” October 15, 2019; https://tinyurl.com/yhxc4nqr). Firms need to follow their words with actions beyond online mission statements. The implementation of diversity programs should be placed beyond the human resources department. Frequently, the people in the powerful position to promote associates do not know there are problems. An even greater issue is that firms tend to lack accountability to ensure they are working to solve these problems. Senior management must offer guidance and support to ensure that all the firm’s employees are on the same page regarding the goal of gender equality.
Another study (Marc Brodherson, Laura McGee, and Mariana Pires dos Reis, “Women in Law Firms,” McKinsey & Company, October 2017; https://tinyurl.com/yxfbs92f) found a consensus among women that they had not received appropriate training to assist them in excelling among the ranks. It is no mystery that a partner position is awarded based on both merit and the ability to navigate the inherent politics of any office. For an individual who is not adequately coached and guided on the firm’s culture, it is quite easy to get lost. Although offering associates proper coaching is not an intentional slight against women, a firm must pay attention to how corporate culture tends to leave out the disenfranchised and must work diligently and tirelessly to break the cycle.
To break the cycle of slights against women, firms need to break down hundreds of years of biases that lead to “corporate culture.” Bias is not necessarily permanent. Understanding and teaching staff to understand and actively correct their subconscious biases can lead to successful change in the workplace culture and ultimately makes for better lawyers.
In the larger American economy (beyond just the legal profession), women make $0.81 for every dollar earned by their male counterparts, which accounts for a potential difference of $900,000 over a 40-year career; this pay gap has only decreased by $0.07 since 2015 (PayScale, “The State of the Gender Pay Gap 2020”; https://tinyurl.com/yd6zpznk).
When broken down by race, white women make $0.81 for every dollar a white man earns; African American women, American Indian women, and Hispanic women taken together make only $0.75 for every dollar a white man earns; and Asian American women make $0.95 for every dollar a white man earns (id.).
Based on current trends, the Institute for Women’s Policy Research estimates that it will take women in the United States until 2059 to finally reach pay parity with men; Hispanic women will have to wait until 2224, and Black women will wait until 2130 for equal pay (“Pay Equity & Discrimination”).
The problem of unequal pay for women cuts across all professions, but the legal profession, which by its nature strives for justice, has a particular responsibility to remedy this issue. Martindale-Avvo’s 2019 Attorney Compensation Report (https://tinyurl.com/ycqh724s) reveals that female attorneys made on average 36 percent less than their male counterparts, which accounts for a potential difference of $79,000 a year.
Although I am a huge fan of Sheryl Sandberg (chief operating officer of Facebook and the founder of LeanIn.Org), I have always been skeptical of the theory that women are paid less than men because we are less likely to negotiate our salaries. This may be true for some other professions, but the women who enter the legal profession don’t peg me as the type to shy away from negotiations—we welcome them. To my delight, the Harvard Business Journal found that women do negotiate as often as men but are less likely to be successful in their salary negotiations (Benjamin Artz, Amanda Goodall, and Andrew J. Oswald, “Research: Women Ask for Raises as Often as Men, but Are Less Likely to Get Them,” Harvard Business Review, June 25, 2018; https://tinyurl.com/y887rvp9). Before any inquisitive minds start hypothesizing that women are poor negotiators, I will refer to a statistic that women tend to outperform men in law school overall. Women are much more likely than men to negotiate other conditions of their employment in addition to their salary than men. As women negotiate a much broader reach of employment conditions, the 36 percent pay gap cannot be explained away so easily.
It is far more likely that women attorneys are paid 36 percent less than their male counterparts because of unchecked gender bias in law. In 2015, Harvard’s The Practice magazine found that the factors contributing to women being paid less were devaluing of women in labor (“Women As Lawyers and Leaders,” The Practice, May/June 2015, Vol. 1, No. 4; https://tinyurl.com/y7p6wdhs). This same report showed that the pay disparity for women lawyers only worsened with time, as women are less likely than men to become equity partners, rather than nonequity partners. Consequently, an increase in equity partnerships for women lawyers could prove a valuable tool in the pursuit of gender equality.
The legal profession owes a duty to implement measures to ensure gender equality for all women. Attaining gender equality in legal practice is not just a matter of quantity control but quality control. Firms must begin implementing bias training and holding senior members accountable for progress in gender equality.