Effective Strategies to End Gender Bias, Stop Harassment, and Retain Talent

In the classic film Groundhog Day, Bill Murray’s character Phil Connors finds himself living the same day over and over again. Every morning at 6:00 am he is awakened by Sonny and Cher’s rendition of “I Got You Babe,” and he is off to repeat the day before.

I am reminded of this movie every time I see new stories about gender discrimination and the #MeToo movement in the legal profession. How is it that we are still dealing with these challenges when women have comprised one-third or more of law school entering classes for nearly four decades?

Yet, countless articles, books, shared anecdotes, and frustrating conversations later, we are still looking at data that demonstrates gender disparities in compensation, assignments, the achievement of key leadership roles, and promotions. And over the past few years, we are reading surveys and learning of harassment and misconduct long hidden by fearful silence.

It feels as if we are caught in a time loop, waiting for change the way fictional weatherman Phil Connors waited for Punxsutawney Phil to emerge. The groundhog may be a poor metaphor for equality, but the seemingly endless wait seems sadly apt.

Yes, of course, gains have been made during the past 40 years, but they have generally involved the breaking of barriers that never should have been erected. Stories of those early female pioneers—the first accepted into each recalcitrant law school, or allowed to work as a lawyer where becoming a partner was an impossible goal, or who endured sexual misconduct where silence was the only acceptable response—leave most women feeling simultaneously grateful for their sacrifice and angry at the cost exacted from their ambition to succeed in their careers.

Silence and Fear

Twenty years ago, as president of the Boston Bar Association, I convened a Task Force on Professional Challenges and Family Needs to address the costs of the increased attrition that was occurring as women felt forced out of their chosen profession, particularly after they had children. That work was motivated by countless conversations I had with women who shared similar stories of lost assignment opportunities and access to key partners, and described experiencing their first negative performance evaluations when they returned from maternity leave.

The task force report, Facing the Grail: Confronting the Costs of Work-Family Imbalance, provided a groundbreaking analysis of the costs to law firms that can result from adhering to an outdated workplace model replete with biases about the role of women in our society.

In preparation for this article, I reread Facing the Grail to see how dated it felt now that 20 years had passed. Instead, a sense of sadness washed over me as I reviewed language that could have been written today, including this cautionary statement:

We are in danger of seeing law firms evolve into institutions where only those who have no family responsibilities—or, worse, are willing to abandon those responsibilities—can thrive. . . . Most senior managers in law firms will tell you that the profession is troubled, but that their own law firm is grappling with these problems well. Most young attorneys contribute to that perception by failing to state within their own law firms the perceptions that they are willing to share with outsiders: that their firms are not addressing these issues in a meaningful way. . . . This discrepancy between what firm owners and managers see as the truth and what associates experience must be addressed. Firms need to develop mechanisms for lawyers to speak openly and honestly—and even critically—about these issues. The lack of open and honest communication between partners and associates, and even among young partners themselves, is a contributing factor to the difficulty in solving issues relating to law firm culture. . . .

The rest of the report was similarly relevant—and to be clear, it was not our intention to create a report to withstand the test of time. Rather, our goal was to help spur much-needed change in the profession.

Looking back at this language, I am struck by its reference to a dynamic that continues to this day. It is a dynamic that is seen in survey results and related research, and one that underlies the #MeToo movement, even as it exists in a wide range of other circumstances as well.

This dynamic is as simple as it is ubiquitous. People continue to fear speaking up about such concerns as unfair treatment; discrimination in all its forms; inequality of opportunities; patterns of unconscious bias such as maternal wall bias; compensation disparities that result in women earning less than comparably skilled and experienced male colleagues; policies that do not align with actual practice; and workplace harassment and other forms of misconduct.

This silence manifests in a reluctance to use reporting procedures that may exist or even to raise concerns on a less formal basis. Lost is the opportunity to have an open dialogue about issues that have driven so many women—and an increasing number of young men—from their law firms.

Silence and the Illusion of Objectivity

The silence, however, has an additional negative result. It allows leaders to confidently conclude that, because there are hardly any complaints, their organizations are on the right track, even as the profession itself may have challenges. When leaders allow themselves to reach such a conclusion, they are actually engaging in another pattern of unconscious bias: the illusion of objectivity.

The illusion of objectivity is the tendency to see ourselves as being more even-handed and objective than we may be in reality. Leaders feel comfortable inferring from the silence that their management is fair and based solely on merit.

Most law firm leaders, regardless of the firm’s size, would claim that their workplace is a true meritocracy where anyone can succeed. But in actuality, when a firm describes itself as a meritocracy, generally the real message is that lawyers succeed by working exceptionally long hours as a demonstration of dedication and commitment. And even in the face of technological advances that allow work to be done from anywhere, commitment is too often still measured by visibility, and dedication is marked by being seen as a team player. This illusion of objectivity allows leaders to shield themselves from their own biases, further feeding the myth of meritocracy.

Those who push back against perceived inequities, a lack of clear policies, or ineffective reporting procedures can quickly be labeled. In the culture of a law office, those who are branded as complainers are easily stigmatized by others and can soon find themselves out of the mainstream, leading to an isolation from those who control career success and advancement. The next step is generally out the door, reinforcing to others that silence is indeed golden.

Silence and Sexual Harassment

In a 2018 survey of law firm behaviors and misconduct published by the Women’s Bar Association of Massachusetts in collaboration with the Rikleen Institute for Strategic Leadership, silence proved to be the common theme. Respondents shared stories of harassment and other forms of misconduct that were never shared with their firms. And when such instances were reported, the survey respondents spoke of the social ostracism or other forms of retaliation that followed.

Even more telling, nearly 40 percent of the respondents did not even know whether their current firm had a process for reporting complaints. What does that say about a firm’s commitment to addressing negative behaviors or otherwise encouraging people to come forward with concerns if those in their workplace do not even know whether a process exists that can facilitate identification of a problem?

And now, in the wake of ongoing revelations that have occurred in the past two years across a wide range of industries, we have to contend with the #MeToo backlash. An increasing amount of media attention has been focused on men who suddenly claim they feel afraid to be alone with women. Articles recount men who allege that they no longer meet with a woman in an office behind closed doors, have lunch with a female colleague or client, or mentor a young female professional. We hear these concerns quietly expressed in law firms as well as other settings.

These stories are particularly ironic in light of what the #MeToo movement represents: a break with silence that caused lasting damage as women who felt powerless to speak up instead endured behaviors that ranged from sexual assault to other forms of discrimination. It is simply not credible that women who suffered all types of misconduct in silence would now be rushing to file false reports. Nor is there data to support that false claims are a realistic concern, especially when compared to research regarding unreported claims of actual harassment and assault.

Five Keys to Breaking the Silence

So how can we escape the Groundhog Day existence that continues to drive attrition? And how do we motivate firm leaders to pierce the illusion of objectivity that shields them from seeing the reality of life within their organizations, even as they are responding to the external demands that surround them?

Firms of all sizes are grappling with sweeping changes in technology, increased client demands, fierce competition from other firms, and a plethora of new models emerging from non-lawyer competitors. But a strategic vision to address these threats without a similar commitment to building a culture of respect and inclusion may result in an inability to meet future talent needs.

Building this culture is within the reach of every organization willing to recognize its importance as a strategic priority. The following are five key recommendations for changing culture and encouraging conversations to replace the chilling silence that leads to disengagement and drives attrition.

1. Involve leadership in the process of changing the firm’s culture. Each day and in countless ways, organizations reinforce their internal cultures through the language they use, the values they reward, and myriad other behaviors in which culture is inculcated and passed down. Few firms have only one culture, as differences can be found within practice groups and across office locations, whether those locations are in different cities or multiple floors in a building. To change, leaders must be willing to assess their existing culture by analyzing existing systems and policies; determine where change is warranted; and develop the internal consensus necessary to move forward on a series of goals.
2. Implement metrics and accountability systems. Metrics and accountability are the foundation for success, yet they are too frequently the missing ingredients, thereby preventing meaningful change from occurring. Firms have long used metrics and accountability to encourage client development and billing hours, but they are rarely used as a way to address culture. Cultural change will not happen, however, without the development of metrics that support each goal and a willingness to hold people accountable for results.
3. Redesign compensation systems to meet cultural goals. Law firm leaders should not fear using their compensation system to encourage behaviors that will promote a healthier internal environment, and many will attest that they already are doing that. But conversations with their colleagues might reveal substantial differences in perception about whether that happens in actual practice or whether the illusion of objectivity obscures reality. It is not enough to say that the firm values teamwork, participation in important tasks such as hiring, mentoring, and training, and involvement in the myriad other roles that help organizations flourish. There needs to be transparency that demonstrates exactly how the compensation system economically values the full range of skills and talents that are critical to a thriving and vibrant culture.
4. Redefine the word “commitment” to recognize the profound ways in which technology has impacted the workplace, both positively and negatively. Conversations about building a more flexible work environment have existed for decades, but technology continues to serve primarily as a tether rather than a tool. Invariably, policies that offer flexibility are still imbued with stigma when practice chairs or other key leaders respond to remote or reduced-hours arrangements with overt or covert resistance. Yet the firm that implements a panoply of truly flexible ways in which both female and male attorneys can meet all their client and family obligations will find itself a magnet for top talent.
5. Recognize that firms need to be seen as a place where younger generations feel they have a future that fits their own dreams and goals. One of the most consistent themes I hear from young lawyers and law students today is that they are unwilling to sacrifice in the way they perceive that prior generations did in order to reach someone else’s definition of success. The changing profession and a globalized world offer exciting career alternatives to remaining in a negative work environment.

As Phil Connors learned, the answers were there all along, but it took his own ability to tap into his redemptive powers before he could escape his present and move into the future. If law firms are to achieve long-term institutional sustainability, then leaders must prioritize building a culture of respect, inclusion, diversity, and equality in the same way they prioritize client development and profits per partner. The future of our profession truly does depend on our ability to escape the past.