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August 21, 2018 Article

Higher, but Unbroken: The Glass Ceiling at the Top of the Legal Profession

By Angela A. Turiano

“I ask no favor for my sex; all I ask of our brethren is that they take their feet off our necks.” This quote commences RBG, the fantastic documentary about the life of Supreme Court Justice Ruth Bader Ginsburg—an inspirational woman and gifted lawyer who helped transform the landscape of women’s rights. RBG artfully recounts Justice Ginsburg's professional history, both before and after her Supreme Court nomination in 1993, including her multiple arguments before the Court championing women's rights and equality. As aptly stated by her former classmate and esteemed legal scholar Professor Arthur Miller, Justice Ginsburg chose cases in a manner that established anti-discrimination law “like knitting a sweater.” Further to her credit, she “knitted this sweater” in the 1970s, when she not only had the proverbial male foot on her neck but also shackles binding her hands and feet.

Since Justice Ginsberg attended law school, equal rights for women have come a long way, in large part due to her diligence and determination. Justice Ginsberg is one of three female justices currently sitting on the Supreme Court (although if you ask her, there will only be enough women on the Court when there are nine), and while she was one of just nine female students matriculated at Harvard Law School in 1956 in a class of more than 500, today women comprise almost half of enrolled law students.

Notwithstanding this progress, there are still many areas where women in law lag behind. Equal pay is one. Another, which is the focus here, is promotion to top positions. Certainly, there are many female senior attorneys, but in the highest leadership roles women are noticeably absent. Consider the following statistics from a 2017 ABA study on women in the legal profession, released in January 2018:

Women in Private Practice
While 45 percent of associates are female, only:

· 18 percent of equity partners at law firms are female.

· 18 percent of managing partners at the 200 largest law firms are female.

Women in Corporations

· 24.8 percent of general counsel in Fortune 500 companies are women.

· 19.8 percent of general counsel in Fortune 501 to 1000 companies are women.

It is clear men consistently outrank their female counterparts when it comes to holding top positions.  

Law360’s annual look at the gender breakdown of attorneys (in private practice only) came to the same conclusion about the underrepresentation of women in leading roles. Specifically, the Law360“Glass Ceiling Report,” which surveyed more than 300 U.S. based law firms (with a 20 attorney minimum requirement) found that gender disparity is wider at the top levels. Indeed, in the Law360 survey, women accounted for only 21 percent of equity partners and 12 percent of the highest firm leadership roles. Furthermore, just over 40 of the firms surveyed had a female lawyer in a top leadership role such as managing partner, chairman, or CEO.  More concerning is that this disparity exists notwithstanding that, according to the ABA, women have made up more than 40% of law school students for decades and now comprise more than half of the law school student body.

This begs the question, what happened to this pipeline of female legal talent? Why are women lawyers “making it,” but only so far?

It seems women in the law are given every advantage for career advancement and promotion. For example, in private practice client firms now often expect diversity in their outside counsel, and without it, firms risk losing their place on the client’s legal roster. As a result, law firms are incentivized to not only hire female lawyers but maintain and promote them. Law firms also organize women’s initiatives for the support and promotion of women within the firm. Externally, there are female legal associations and related conferences that provide, among other benefits, networking opportunities. Moreover, while not necessarily specific to the legal profession, gender equality is promoted on social media, including an overall push for more flexible work schedules and work-life balance. There is even the #metoo movement, which empowers women to stand up against sexual harassment or otherwise general male domination in the workplace. As a result, women feel, or should feel, more empowered and are seemingly provided with the tools to succeed. Still, based upon the statistics above, it seems promotion only goes so far—top positions continue to be filled by “our brethren.”  

This is a complicated issue and one that cannot be addressed fully in this short article. From my experience, however, one of the reasons for gender disparity at the top is perception; specifically, the perception that men make better leaders than women. Where men are thought to be strong decision makers, women are considered to work better in groups and to be more collaborative. As a result, a man is more likely to get tapped to fill a leadership position, regardless of qualifications. Take President Bill Clinton in RBG, as an example—he admits that Justice Ginsburg was not his first choice to fill the vacant spot on the Supreme Court and that he had many male candidates in mind. In fact, one of the only reasons she was even considered was because of her husband, an esteemed New York City tax lawyer. He worked behind the scenes to convince President Clinton to nominate Justice Ginsburg by calling on leading scholars to write to the president and his then counsel. Even after all this campaigning, it was only after the president met with Justice Ginsburg—for a mere 90 minutes—that she “won him over.”    

That is not to say that President Clinton intentionally ignored female prospects, rather it was more likely he had an implicit bias against women wherein he subconsciously believed the stereotypes mentioned before. Everyone, to some degree, harbors beliefs in stereotypes that are so ingrained in us that we make decisions and assumptions based on them, often without realizing it. And such a bias against women is a gender-neutral—women can be just as guilty for having it as men.

Regardless of whether the bias is intentional or implicit, the result is the same—the absence of female representation in leadership roles. This is disconcerting for a number of reasons, one being that women will have less influence in the future direction of a firm and workplace policy. Another negative consequence is the lack of role models for younger women lawyers. Without female leaders setting examples, junior female lawyers may not see their own path to success, become frustrated, and leave the firm, company, or even profession. In fact, the “Glass Ceiling Report” found that the 43 law firms with women in leadership roles averaged a better representation of female attorneys overall than the remaining firms that lacked female leadership. Further to this point, at my firm, where one third of the executive committee is comprised of women, almost 40 percent of our attorneys are female.

Women have come a long way since the 1970s, both generally and within the legal profession, but there is still further to go. So, how do we get there? As stated above, this is a complex issue and, as such, there is not one solution. One suggestion, however, is that rather than wait to be called upon to lead, women can follow Justice Ginsburg’s example and step up to demand their own “90 minutes” to be heard—to explain why we too can be effective leaders. Maybe then, we will be given the chance to lead. It seems after all she did for us, we owe it to Justice Ginsburg to at least try.

Angela A. Turiano is with Bressler, Amery & Ross, PC in New York, New York.

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