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Law Practice Today

November 2023

Getting Beyond Bias in the Legal Profession

Andrea Sue Kramer and Alton B Harris


  • Gender inequality in the senior ranks of the legal profession is a serious but solvable problem.
  • Everyone has a role to play to fix the problem – women, men, and legal organizations.
  • If everyone plays their part, we can make meaningful progress toward the ABA’s aspirational goal of ensuring “full and equal participation in the legal profession.”
Getting Beyond Bias in the Legal Profession

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The legal profession has a problem with gender. Although 53 percent of law students and 47 percent of law firm associates are women, women are only 22 percent of equity partners; 12 percent of managing partners; 28 percent of governing committee members; and 27 percent of practice group leaders. Not only are women not moving into leadership positions in law, they find their workplace experiences far less satisfying than their male counterparts. According to an ABA and ALM survey, 67 percent of women lawyers report a lack of access to business development opportunities (compared to only 10 percent of men); 53 percent of women have been denied or overlooked for advancement or promotion (compared to only 7 percent of men); and 40 percent of women report a lack of access to sponsors (compared to only 3 percent of men).

There is a pointed irony in this situation. An explicit mission of the ABA is to “promote full and equal participation . . . in our profession . . . by all persons and to eliminate bias in the legal profession. . . .” The obvious question is how do we realize the ABA’s aspiration to have a profession in which everyone, including women, can participate in a “full and equal” manner? In our view, a three-pronged effort to get beyond the bias that holds women back is needed. Let’s look specifically at what women, men, and legal organizations need to do.

What Women Should Do

Because of traditional stereotypes and the bias that flows from them, women face what we call the “Goldilocks Dilemma.” If they conform to the dominant feminine stereotypes—being warm, pleasant, modest, deferential, and concerned (far more than men) about others—they are often seen as “too soft” to be effective leaders. They are viewed as lacking ambition and commitment; as not having the necessary “fire in the belly” and; as being too sensitive and emotional. On the other hand, if they adopt traditionally masculine behaviors —behaving assertively, with toughness, and in a highly competitive and ambitious manner — they are likely to be seen as “too hard” to be effective leaders. They can be seen as too unpleasant, unlikable, and selfish to be included on high-profile teams or to run legal organizations. This dilemma is not fair, but a woman often needs to be viewed as “just right” to obtain a senior leadership position. Fortunately, with a little attention to “impression management,” it is entirely possible for women to get it just right. This involves paying close attention to their verbal and nonverbal communication.

For example, a woman should take care to speak clearly, stay on point, and be unambiguous. She needs to avoid filler words (“you know,” “um,” and “OK”). She should avoid uptalk or self-deprecating statements (“I may be off base here, but…”). At the same time, she should welcome others to actively participate in the conversation, listen effectively, graciously acknowledge other’s contributions, and engage with others in an open and respectful manner.

Interestingly, a woman needs to remember that in avoiding the “too soft”/“too hard” dilemma, her nonverbal communication is likely to be more important than the content of what she actually says. Her appearance, posture, and facial expressions often contribute more to the impression she makes than the brilliance of her comments. She needs to project a powerful impression of competence and comfort and she can do this by standing erect with her arms held loosely at her sides. She should gesture away from her body, maintain a pleasant expression, and keep her eyes focused on the people with whom she is talking. When sitting, she needs to be relaxed but attentive and engaged. First impressions are lasting impressions, so women want to present themself as serious but friendly, engaged but relaxed, purposeful but open to constructive discussions.

Impression management of this sort does not require a woman to be a phony or hide her authentic self. Rather, it ensures that in all situations she displays her best, most appropriate self. Indeed, we all have many selves—serious, playful, humorous—all of which are entirely authentic. Impression management simply draws on our different selves to assure that the people we are dealing with see us as we want them to.

Impression management is far easier if a woman displays three important personal characteristics: (1) a positive mindset—a belief in the capacity to keep learning and to continually get better; (2) self confidence—an ability to stick to her guns when challenged; and (3) a coping sense of humor—not being a standup comic, but being able to brush aside (when appropriate) biased remarks.     

What Men Should Do

Of course, men can benefit from some of the tips we’ve just set out for women. But the first thing they must do is educate themselves about why it is so much harder for women than men to advance in the legal profession. This means not just learning the statistical differences in career advancement but also acknowledging the biases that women face—affinity, gender, outgroup, and status quo bias. They need to talk to their female colleagues; ask them questions about their experiences; and call out biased comments, decisions, and actions.

Very few of us are good at knowing when we, ourselves, act in biased ways. When we judge others based on stereotypes, we tend to favor people simply because they are like us or tailor our feedback and evaluations based on our comfort levels. With a little attention, however, we can become very good at recognizing when other people act in biased ways. Men need to be alert and willing to immediately call out others who exhibit bias, or to talk with them privately after the fact when that would be more effective.

In addition to directly countering bias, unfair treatment, and harassment, men should also reach out to their female colleagues in positive ways. They should seek to ensure women’s workplace experiences are equally meaningful, satisfying, and successful as those of their male peers. This means men need to coach, mentor, and sponsor women to the same extent as they do for men. They need to be sure their project teams are gender diverse at the various seniority levels. They need to ensure that client-facing interactions and pitch teams are appropriately gender balanced. They need to be equally available to provide advice and counsel to women as they are for men. They need to ensure that out-of-office social and networking events are equally welcoming to women and men. And, perhaps most important of all, men need to be role models for truly diverse, inclusive behavior. This means men need to be active, sincere, committed allies to women in their efforts to advance in their legal careers.

What Legal Organizations Should Do

In our book Beyond Bias, we present the four-part PATH program to end workplace gender inequality. Our program is tailor-made for legal organizations. It ensures that women and men thrive equally in their efforts to achieve career success. The four parts of the PATH program are discussed below.

(1) Prioritize Elimination of Exclusionary Behavior

Organizations need to establish clear, specific codes of unacceptable conduct and get buy-in from their lawyers at all levels that they will abide by those codes. Unacceptable conduct is exclusionary behavior that makes people feel devalued, unwelcome, and not respected. Exclusionary behavior includes incivility; rudeness, snubs and slights; microaggressions and disrespectful treatment; ignoring, interrupting, and disparaging; purposeful exclusion from networks or career-advancing activities; inappropriate comments, stories, and jokes; bullying and harassment.

The 2022 “Women in the Workplace” Report from LeanIn and McKinsey & Company says women see the office as “a minefield of microaggressions.” As a result, “nearly three quarters of women who experience this treatment ‘self-shield,’ meaning they speak up less in the workplace … feel pressure to change their appearance or … otherwise … to conform.”

To succeed, women need a true sense of inclusion, acceptance, and respect. This will not happen until legal organizations can prevent all of their lawyers from engaging in exclusionary behavior.

(2) Adopt Discrimination-Resistant Methods of Personnel Decision-Making

In large part, women are not advancing as far and as fast in legal organizations as men. This is because their organization’s personnel decisions are far more favorable to men than women. Legal organizations’ personnel decisions very often negatively affect  

  • The assignments women get;
  • The sponsorships they receive;
  • The way their work is evaluated;
  • The feedback they receive;
  • The compensation they are paid; and
  • The promotions they receive.

People making these personnel decisions are not consciously biased or intentionally trying to advance men rather than women. Instead, differential gender decisions are likely to be “baked in” to how these decisions are made. In other words, because of gender stereotypes and the biases that flow from them, there is a built-in preference for male leaders, greater comfort in dealing with men than women, and an unconscious assumption that men are more effective than women at dealing with tough issues. This systemic inequality is not going to be changed through anti-bias training, diversity programs, inclusion workshops, or “do better” lectures. Personnel decisions will not change unless the processes for making those decisions are changed so that unconscious discriminatory factors cannot influence an organization’s personnel decisions. For example, to the extent possible, organizations should:

  • Screen their decision-makers from information about the social identities of those people about whom they are making decisions;
  • Specify that these decisions must be based on objective, evidence-based criteria;
  • Require that such decisions must be made by two or more persons after joint deliberation;
  • Have one group evaluate performance while another group makes the actual decisions; or
  • Establish a formal process for reviewing personnel decisions so that decision-makers know their decisions are being reviewed as to soundness.

An organization does not need to do all of these things, but every organization should do some of them. When a legal organization’s personnel decision-making process is structured so that the influence of personal discretion and preferences is eliminated, the organization is well on its way to achieving fair and equitable treatment of all of its attorneys.

(3) Treat Inequality in the Home as a Workplace Problem

In the ABA/ALM survey, 54 percent of women (but only 1 percent of men) report being fully responsible for arranging childcare, while 32 percent of women (but only 4 percent of men) report leaving work for childcare. This childcare gender inequality has a significant negative impact on women’s career advancement. Indeed, it is hardly surprising that among experienced women lawyers, 38 percent characterized caretaking responsibilities as an important reason why women leave law firms.

While legal organizations cannot directly affect gender inequality in the home, they can do much to ameliorate the negative effect it has on women’s legal careers. Some positive steps legal organizations can take include providing parents:

  • Meaningful flexibility with respect to both time and location of work;
  • Subsidized day care services;
  • Generous leave policies with at least 12 weeks of paid maternity leave;
  • Avoidance of career-crippling penalties for extended periods out of the workplace; and
  • Effective reentry programs to assure women can quickly reconnect with clients and projects.

Legal organizations must recognize that women and men are likely to have quite different home life burdens and that achieving gender diversity in their senior ranks depends, in large part, on policies and practices that lessen the career penalties that result from this inequality.

(4) Halt Unequal Performance Reviews, Career Advice, and Leadership Opportunities

Legal organizations must ensure that women and men receive unbiased performance reviews, equally forward-looking career advice, and comparable opportunities for leadership development. Studies show that men’s performance reviews typically are more candid, focused on actual performance, and accompanied with helpful advice for improvement than women’s. By contrast, women’s performance reviews are focused more on their attitudes and personality than the quality of their actual work, infrequently containing forward-looking career advice. Likewise, women typically receive far less thoughtful, carefully considered coaching, mentoring, and sponsorship than men. And they are far less likely to be slated for leadership training or provided with leadership opportunities—chosen to lead teams, first-chair litigation engagements, and lead (or even participate in) client pitch presentations.

Legal organizations must address these differences to meaningfully tackle gender inequality. This requires concentrated and consistent efforts to ensure women and men get the same unbiased advice, feedback, and leadership opportunities.

Bottom Line

Gender inequality in the senior ranks of most legal organizations is a serious—but solvable—problem. Women, men, and the organizations themselves all have a role to play. And if everyone plays their part, the legal profession can finally start to make meaningful progress toward the ABA’s aspirational goal of all people enjoying “full and equal participation in the legal profession.”