Women have made up more than 40 percent of law school students since 1985, and nearly half since 2000. Today, more graduating law school students are women than men. There are plenty of women lawyers, and there have been for decades, so why are relatively few making it to the top of the profession?
While firms hire about equal numbers of women and men as associates, women make up only 30 percent of nonequity partners, about 20 percent of equity partners and a mere 12 percent of the highest firm leadership roles, according to the National Association of Women Lawyers. Less than 3 percent of equity partners are minority women. Only 18 percent of law firms report a woman among their managing partners. Women are only slightly better represented among in-house leadership, comprising less than a quarter of general counsel in Fortune 500 companies and less than 20 percent of GCs at Fortune 501-1000 companies, according to the American Bar Association. One-third of sitting federal judges and only 31 percent of state judges are women.
In addition to being underrepresented, once they get to the top, many women are paid significantly less than their male counterparts for the same or similar work. Although firms and other legal organizations often decline to share compensation details, recent surveys report that women equity partners make as little as 70 to 80 percent of that earned by their male counterparts.
For many, at least part of the explanation is biology: Women bear children. Lack of parental leave and options for flexible work schedules, along with pregnancy bias, force many off the path to leadership or out of the legal field entirely. But a discussion about the gender gap is not only a discussion about parental leave, because not all women are parents and not all parents are women. Nevertheless, parenthood is still widely considered to be a “women’s issue.”
And that’s the problem. There are lawyer issues and then there are women lawyer issues, allegedly applicable to all women and only to women. Justifications for creating a separate class of lawyers based on gender usually begin with the word “traditionally.” Traditionally, women care for children and cannot work long hours, we’re told. Traditionally, women are responsible for taking care of the home and their husbands. Traditionally, women are taught to be polite and naturally avoid conflict.
The notion that women, due to their gender, necessarily share personality traits, capabilities, weaknesses or responsibilities is nonsense. Women come from every ethnicity, culture and nation. Women make up more than half the population of the world and more than half of all new lawyers. Individual women lawyers are as different from each other as they could possibly be from individual male lawyers—in personality, intelligence, skills and experience (just to name a few).
Although most legal organizations are making efforts to hire and retain women, through women’s initiatives and mentoring programs, ingrained stereotypes persist. Society continues to punish men for not being sufficiently masculine and women for being unfeminine. In the legal industry, these gender-based expectations still lead to bias (conscious or unconscious) in assigning matters, allocating responsibility, conducting performance reviews, recommending promotions and sharing credit for business development.
Below, we address three of the myths that still plague women and produce barriers to the highest ranks of the legal profession.
Some of the most enduring stereotypes involve women’s supposed aversion to conflict. Women are expected to favor compromise over quarrel, avoid face-to-face confrontation or be passive-aggressive and manipulative. These stereotypes do not reflect how women actually handle conflict but rather how society believes women should handle conflict.
Society judges women and men very differently in the context of conflict. Men are supposed to settle differences with direct confrontation; women are not. Noncompliance with expectations makes people uncomfortable. And people who make other people uncomfortable don’t get invited to client meetings.
The consequences for failing to meet gender-based expectations can be dire. Being pegged as a “difficult” woman (or, for that matter, a “weak” man) in a male-dominated environment can result in exclusion from important matters, isolation and outright denigration. When organizations punish women for having qualities necessary to be a good lawyer, such as assertiveness, too many good lawyers leave the industry or are forced into supporting roles.
In law, like everything else, confidence largely comes from experience. Young attorneys need opportunities for client interaction, jury trials, tough negotiations and important deals. But unless you open your own firm right out of law school, someone else is deciding which opportunities you get. Work is assigned based on perceived, rather than observed, ability.
Grooming only the junior attorneys you assume can do the job means that you decide who gets the skills to become successful and who gets sidelined doing document review. If you believe young women are easily bullied by opposing counsel, you are not going to entrust a tough negotiation to a young woman. After a few years of preferential assignments, the chosen few outpace the rest in skill and experience and are promoted more quickly. And, of course, are more confident.
Supervising attorneys argue that they are fulfilling their clients’ wishes by assigning older, usually male attorneys to important matters. But clients take their cues from their attorneys and increasingly expect that a team of diverse attorneys will provide their legal services. If you, as lead counsel, believe that you have the right person for the job, even if she does not fit what your client was expecting, it is your job to persuade the client.
Parenthood and Work-Life Balance
Finally, we turn to the elephant in the room: children. Although biology dictates that many (though not all) women can have children, parenthood is not an issue exclusive to women and should not define the career of every woman attorney.
First, not all women are parents. An estimated 15 to 20 percent of U.S. women never bear children, and women with advanced degrees are less likely to have children than the general population, according to the Pew Research Center. Further, more women are waiting longer to start having children. Womanhood does not necessarily equal motherhood, yet the latter is frequently used to define the former. Equating womanhood with parenthood does a disservice to parents and nonparents alike. In our society, a woman without children is still viewed as selfish, receives less respect for her nonwork responsibilities and even faces criticism from those who believe procreation is a moral imperative.
Second, not all parents are women. By assuming that child care is a woman’s responsibility, employers put pressure on fathers not to take parental leave or reduce their schedules, which in turn puts pressure on mothers to pick up the slack at home, all of which reinforces the underlying stereotypes. Millennial parents are striving for more equality in child care. The organizations that employ them need to keep up, not just in written policies but by creating a culture in which everyone can take advantage of those policies.
The Future of Women in the Law
To the extent any of the traditional assumptions about men and women were ever true, they are as relevant today as three-martini lunches. Young lawyers have different ideas about gender roles—and about gender identity itself—than older generations do. Law firms are part of the older generation. Employers need to adapt to reflect the ideas of their workforce.
In the meantime, the industry—and Big Law in particular —is losing talented attorneys. While there has been some improvement, change has been glacial. For example, the share of women equity partners in U.S. firms rose from 16 percent in 2007 to only 19 percent in 2017, according to the National Association of Women Lawyers. Failure to retain and promote women not only damages careers but is against legal organizations’ own self-interest.
How can the industry fix the gender gap? Surveys suggest the presence of women in leadership positions can solve at least part of the problem. Firms with more women leaders tend to have better representation of women in partnership overall, and women leaders help create environments less tolerant of sexual harassment and sexist assumptions, as the ABA Journal has reported. Organizations similarly need women on compensation committees to encourage appropriate credit-sharing. Mentoring programs and established women’s initiatives may also help retain women by countering the effects of entrenched old boys’ clubs.
But first, at a more fundamental level, legal organizations need to reject assumptions about differences between attorneys and women attorneys. Women are not inherently more or less capable than men to be partners, judges or general counsel. Each woman, like each man, deserves to be judged on her own account.
The views expressed here are personal to the authors and do not represent the opinions of their employers.
Board Members: Aaron Swerdlow, Alex Tarnow, Andrea Guzman, Andrew Warner, Anusia Gillespie, Aydin Bonabi, Bess Hinson, Blair Kaminsky, Brianna Howard, Brooke Anthony, Emily Stedman, Emma Walsh, Garrett Ordower, Geoffrey Young, Heather Souder Choi, Holly Dolejsi, Jennifer Yashar, Jessica Tuchinsky, Ji Hye You, Josh Sussberg, Kevin Morse, Kyle Sheahen, Lauren Doyle, Martina Tyreus Hufnal, Mauricio Espana, Nicole Gutierrez, Peter Buckley, Quynh Vu, Rakesh Kilaru, Reggie Schafer, Sakina Rasheed Foster, Sara Harris, Shishene Jing, Tamara Bruno, Tim Fitzmaurice, Timothy Perla, Todd Koretzky, Travis Lenkner, Trisha Rich and Wyley Proctor.