May 17, 2019 Article

Gender Bias in the Legal Profession: Why It Exists and How to Overcome It

What women lawyers need is early intervention and supportive policies that will serve to eviscerate unconscious bias.

By Angela Turiano

In 1967, Kathy Switzer became the first woman to officially register and run the Boston Marathon. According to Switzer’s accounting in a New York Times article, “[t]he marathon was a man’s race in those days; women were considered too fragile to run it.” What is most incredible about this story, however, is that once Switzer’s participation was discovered, a race official actually jumped off a press truck, ran after her, and attempted to stop her by grabbing her official bib and screaming, “Get outta my race.” Switzer’s boyfriend, also running the race, had to physically shove the official to the ground so that she could continue. To add insult to injury, the press truck caught up to Switzer and began to assault her with a barrage of condescending and aggressive questions such as “What are you trying to prove?” and “When are you going to quit?” 

But she did not quit. She not only completed the race but in very good time (4 hours and 20 minutes).

Notwithstanding the fact that her accomplishment clearly demonstrated the ability of a woman to compete in a “man’s race,” this was not enough. In fact, after her run, the Amateur Athletic Association actually barred women from all competitions with male runners, with violators losing the right to compete in any races. And it would be another five years before women would be allowed to run the Boston Marathon. 

While not specific to the legal profession, Switzer’s story is indicative of the bias against women that existed then and that persists today—more than 50 years later—as well as the difficulty of effecting change.

That is not to say that we, as women lawyers, have not made some progress. Indeed, the percentage of men and women enrolled in law schools over the last few years has been nearly equal, with women surpassing men in the last three as follows:

  • 48.7 percent in 2015
  • 50.09 percent in 2016
  • 51.3 percent in 2017
  • 52.39 percent in 2018

However, year after year, statistics continue to show that the gender equality that exists at the base level decreases over time. For example, a 2018 ABA study of the top 200 law firms showed that while 45 percent of law firm associates were female, women made up only 25 percent were managing partners, and a mere 19 percent were equity partners. The study further concluded that the top in-house spot is still generally reserved for men, with about 74 percent of general counsel positions in Fortune 500 companies and about 76 percent of general counsel positions in Fortune 501 to 1000 companies being occupied by men. It is clear men too often outrank their female counterparts when it comes to holding top positions.

Not surprisingly, there is a similar disparity in compensation over time. According to U.S. Census Bureau statistics, median earnings between women and men attorneys early on in their career (under age 35) are $77,000 to $85,000, a 91 percent ratio. However, by mid-career (ages 45 to 54), median earnings for women are only $121,000 compared with $156,000 for men, a 76 percent ratio. Further to the point, at mid-career, when earnings peak, the top 10 percent of female lawyers earn more than $300,000 a year, while the top 10 percent of male lawyers earn more than $500,000. Certainly, there is a direct correlation between compensation and promotion. It stands to reason that firms choose their highest compensated partners to serve on their most important committees, such as executive and compensation, and that underrepresentation of women on these committees, in turn, helps perpetuate the gender pay gap.

In 2019, this truly is a sad state of affairs. 

In response to the lack of equality reflected in statistics, among other things, our profession has attempted to tackle the gender equality gap in many ways over the years. There are client-driven directives to outside counsel to increase diversity in their legal teams or otherwise risk losing their place on the client’s legal roster. This is an incentive for law firms to hire, retain, and promote female lawyers. There are also women’s initiatives within firms for the support and promotion of women and female legal associations and related conferences that provide, among other benefits, networking opportunities. Let’s also not forget the promotion of gender equality on social media, including the push for more flexible work schedules and work-life balance. This is certainly good news and, some would say, a reason for women to stop “complaining.” However, while these advancements are a step in the right direction, they do not solve the problem. For example, while law firms pat themselves on the back for the promotion of women to equity partner or for placing women on executive or other power committees, firms often still “save” the top spots for our male counterparts, e.g., committee chairs, managing partners, and even lead counsel on complex matters. 

Before discussing possible solutions, the type of bias that exists today bears noting. In the past, there was a genuine, publicly stated belief among many that women were not as good or as strong as men, e.g., women are too frail to run marathons. Today, the predominant bias is more of an unconscious one—a set of ingrained behaviors that result in senior partners, for example, choosing a male lawyer to handle the high-profile matter, to meet the important client, to inherit a large book of business, etc. It certainly does not help that the majority of these senior partners, as noted above, are male.

It is clear that more needs to be done to close the gender gap that still exists with regard to both pay and promotion. Below are some suggested ways to do just that.

Quotas

First, there is the idea of quotas—rules that mandate the promotion and retention of women in the top spots. As an example, a California law was recently enacted to combat the low percentages of women on corporate boards. Specifically, according to the PwC 2017 Annual Corporate Directors Survey, one-quarter of California’s publicly traded companies still do not have any female directors, and while a majority have at least one female director, only about a quarter have more than two. Against this backdrop, California passed a law banning all-male boards for public companies headquartered in California. The law requires that these companies place at least one woman on their respective board of directors by the end of 2019, with the minimum increasing to two by 2021. Companies with six or more directors are now required to have at least three women directors by that time. Failure to do so will result in monetary penalties of up to $300,000.

While quotas are a good idea in theory, they come with their own difficulties. Detractors believe quotas put pressure on firms and companies to hire less-qualified females, leading to potential discrimination against male candidates. Even more concerning is that there may be the perception that the only reason a woman got the job, even if not less qualified, was because of her gender, which would be counterproductive. At the end of the day, neither scenario would serve to further our cause.

Moreover, some studies have shown that quotas are simply ineffective. A study conducted by the Peterson Institute for International Economics of nearly 22,000 publicly traded companies in 91 countries came to this conclusion. While the Peterson study found that including women in company leadership leads to stronger profits, it did not find any evidence that quotas for women in executive positions—such as those instituted by Norway, Denmark, and Finland—were the key to the increase in a company’s bottom line. Rather, the key was fostering a “management pipeline of women” via early intervention, e.g., early development of mathematical and other relevant skills in school-aged girls, and instituting supportive policies, e.g., flex hours and harassment and discrimination training.

Financial Support

Second, there are also financial incentives to consider. A recent survey by recruiting firm Major, Lindsey & Africa (MLA) has shown that the gender pay gap is actually getting worse. Indeed, male Big Law partners today earn on average 53 percent more than their female counterparts, while in 2010 the gap was only 32 percent. The reason for the gap, studies have shown, is origination. Notably, it is not that women are not as good at originating business as men, but that they receive less origination credit than men. According to this and other research, there are many potential reasons for this origination issue: First, women are less likely to be chosen to serve as lead partners on matters. Second, women are not given the same client-facing opportunities as men—opportunities that allow attorneys to build their reputations and expertise. And, third, succession planning tends to be male oriented, e.g., older male partners tend to leave their business to their male colleagues.

To provide economic incentive to close the gender gap in the law, Burford Capital, a global legal finance firm, launched the Equity Project in October 2018. The project earmarked $50 million for financing commercial litigation and arbitration matters led by women. With capital from the Equity Project, women litigators and women-owned firms can pitch clients knowing that they can offer attractive alternative fee arrangements. Such a solution requires an extra step to be taken to achieve equality rather than providing a baseline of fairness.

Judicial Mandates

Third, there are judicial mandates. In a New York Times op-ed, a retired U.S. District Court judge of the Southern District of New York, Shera Scheindlin, suggested, among other things, that judges should insist that the individual who actually wrote the brief or prepared the witness should be the one to argue the points or do the examination. She made this recommendation after noticing that many brief writers are female, but men frequently got oral argument opportunities. While a good idea in theory, many may perceive it to be overreaching. Specifically, it allows the judge, a neutral in the courtroom, to become involved in strategy decisions made by private parties. It could also simply lead to “ghostwriting” by associates as an end run to the rule.

Legal Reporting Requirements

Finally, one of the better suggestions, in my opinion, involves transparency—specifically, reporting requirements such as the ones existing in the United Kingdom (U.K.). There, large law firms (with at least 200 employees) are now required by law, for the second year in a row, to report their gender pay gaps to the government. The results show that in the 25 largest firms in Britain, men make on average about 20 percent more money than women.

The exercise in pay transparency has sparked conversation in the country and among its law firms on what can be done to improve those figures. There are those who say—and I certainly agree—that openness and dialogue may lead to a much-needed change in the industry. As aptly stated by the executive director of NAWL, Jenny Waters, “I’m hoping that the revelations from the U.K. make it pretty clear that there’s a real, useful purpose for pay transparency in defining the scope of the problem.” Id. Another positive to this type of transparency is that it enables clients and potential female hires to make an informed decision about whom to hire and where to work, respectively, based on this relevant data. It is this type of market-driven pressure that we need to really inspire change.

There are some open questions associated with reporting efforts like those adopted in the U.K. Will gender pay gap reporting requirements be adopted in the U.S.? And if they are, will the mere reporting of the gap be enough to initiate change? Certainly, large gaps will cause embarrassment, but statistics, as we all know, can be manipulated. We can certainly hope that by highlighting the disparity, firms will become true believers in the cause—equal pay for equally deserving partners in the name of justice and fairness. We can hope, but more likely it all comes down to the bottom line. Change is far more likely to come if clients demand it. There is more hope on that front in that, as noted above, in-house leaders in today’s world often demand diversity among their outside counsel—a demand that, if not met, may leave the law firm looking for new clients.

Conclusion

At the end of the day, while financial support and mandates are helpful and may well assist in chipping away at the gap, what we really need is a change in attitude—we need the issue to become a non-issue. As the Peterson study suggests, what women lawyers need is early intervention and supportive policies that will serve to eviscerate unconscious bias—a bias that exists in both men and women. Consider this: A well-regarded and successful female attorney I know was speaking with the female office manager at her firm about possible successors to the current managing partner. The office manager suggested two potential candidates, male lawyers who were at the same level and had similar experience and backgrounds as my friend. The manager spoke about each candidate and then said, as she stared directly at my friend, “I really can’t think of anyone else, can you?”

Again, it is unconscious bias that, in my belief, is one of the biggest obstacles we face and what leads to the disparity at the top—both in position and pay. Until the day that the obstacle of unconscious bias has been overcome, however, it is up to us to stand up for ourselves. In other words, if you see something, say something. If you do not believe you are being treated fairly, promoted accordingly, or paid properly, speak up! Do not expect those in power to recognize your discontent because, most likely, they will not. The more that women speak up and challenge inequality, the more that inequality will dissipate. As evidenced by the millions of women who run marathons today, it worked for Switzer and it could work for us too.
 

Angela Turiano is a principal at Bressler Amery Ross in New York, New York.  


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