When labor and employment lawyer Bettina “Betsy” Plevan goes to court, she often finds herself facing off against another woman. “It would be rare not to have women on both sides in an employment case,” says Plevan, a partner at New York’s Proskauer Rose. Plaintiffs lawyer Anne Vladeck, a partner at Vladeck, Waldman, Elias & Engelhard, agrees. “It’s not unusual for the courtroom to be all women in an employment case; you won’t find that in an antitrust case,” Vladeck says. “If a man walked by, he’d probably think we’re sitting around talking about shopping.”
Testosterone may fuel much of the legal profession, but in labor and employment law, there’s an estrogen surge. In the big general practice firms that have major labor and employment groups, the percentage of women partners in that specialty practice frequently surpasses that of women partners in the firm overall [see chart here]. One extreme example: Paul, Hastings, Janofsky & Walker, where women represent 34 percent of labor and employment partners but only 14.9 percent of all the firm’s women partners. It’s a similar story at Jones Day (28 percent versus 18 percent overall). Though less dramatic, the gender gap is also noticeable at Morgan, Lewis & Bockius; Proskauer; and Seyfarth Shaw. The pattern persists at the nation’s two largest labor and employment specialty firms. At 753-lawyer Littler Mendelson, women account for 31 percent of the firm’s shareholders. At 566-lawyer Jackson Lewis, women constitute 23.7 percent of the partnership. At all these firms (with the exception of Proskauer), the percentage of women partners in labor and employment tops the average 19 percent women partner rate at Am Law 200 firms.
Women also hold impressive leadership positions in this practice. Several head major labor and employment departments: Nancy Abell at Paul, Hastings; Lisa Damon at Seyfarth Shaw; and Elise Bloom (she’s a cochair) at Proskauer, where Plev­an coheads the firm’s international labor and employment group and serves on the executive committee. Littler Mendelson was one of the first firms to install a female managing partner: Wendy Tice-Wallner, who led the firm from 1999 to 2005. At the Vladeck firm, women account for six of nine partners (the firm’s late leader, Anne Vladeck’s mother, Judith, was a prominent labor lawyer and women’s rights advocate).
Why are women so successful in this field? Interestingly, it’s not because the practice offers better work/life balance. “I don’t have any balance,” says Plevan, the mother of two grown children. Rather, interviews with practitioners suggest that women flock to and stick with the practice because they have a strong affinity for the issues that define it. One oft-cited though by no means universally accepted reason for women’s success is that they are equipped with emotional intelligence, something that many believe the field demands.
Labor and employment didn’t start out as a practice that welcomed women. Just 25 years ago, it was geared more toward the assembly line than the workplace, says Katherine Stone, a labor law professor at the University of California at Los Angeles: “It was gruff and male-dominated; it was a union-related practice auto workers, machinists, and construction workers so it was unusual for women to go into it.” That was true on both sides of the bargaining table.
Shut out of union work, but motivated by leftist politics, some women lawyers migrated to employment law. “Many of us got into it because traditional labor was not hospitable to women in the late seventies,” says Nancy Shilepsky, a leading plaintiff-side lawyer in Boston who graduated from law school in 1978. “We started doing [employment law] to vindicate workers’ rights wrongful termination, discrimination.” In the minds of many women employment lawyers, Shilepsky says, “we felt we were doing God’s work.”
The steady decline of unions and traditional labor work, coupled with the passage of the Civil Rights Act of 1991, opened the field to women even more, Stone says. The 1991 law, which altered the Civil Rights Act of 1964 (also known as Title VII), expanded the rights of employees who sued employers for discrimination; the new law provided for jury trials and damages for emotional distress, among other remedies. As a result of the 1991 law, the number of discrimination cases soared. “When I started practicing 30 years ago,” says Littler Mendelson shareholder Terri Soloman, ” ‘sexual harassment’ was a phrase that wasn’t even coined.”
The expansion of employment law helped trigger a change in corporate America: the rise of the human resources department. Previously a backwater operation known as “personnel,” human resources units at big companies became powerful in allocating employment-related legal work in the 1990s. And women ran the show. “HR is a different entry door [to get work] than the general counsel,” says Wallner. While the GC is more apt to give work to “a big name,” she says, an HR head is willing to give work to less established lawyers. Because employment work seldom commands the big fees that general litigation does, she adds, it’s often considered “second class” in many big firms.
Moreover, “women wanted to send work to other women,” says Lee Schreter, who cochairs Littler Mendelson’s wage-and-hour practice group. A former HR professional herself, Schreter is one of the firm’s top rainmakers. She says she started developing business as a second-year associate at Jackson Lewis’s Atlanta office in the early nineties when the head of HR at Haverty Furniture, her former company, started feeding her up to $300,000 worth of business a year.
The growth of sexual discrimination and harassment litigation in the nineties benefited women lawyers on both sides. “When you are arguing that your client has been discriminated against, it’s much more effective to have a woman make the case than a 50-year-old guy with a beer belly,” says Wallner. And, Plevan says, those accused of discrimination historically liked to hire women “because it looks better that they have a woman as their adviser.” Not so anymore, according to Vladeck, who says the notion of companies hiring women for symbolic value is outdated.
Indeed, the top women labor and employment lawyers are tough litigators. “I’m confrontation-oriented, and I thrive on it,” says Seyfarth’s Damon, who defends discrimination and harassment claims. “I love litigation,” says Abell of Paul, Hastings, who litigates high-profile class actions. (She successfully defended Cintas Corporation against claims of race, national origin, and discrimination claims; last year she and her team defeated class certification covering 19,000 Cintas workers and applicants at 350 job sites [ The American Lawyer, "Class Action Killers," January].)
Yet these die-hard litigators also say they try cases differently than their male counterparts. Women, Abell says, “look for solutions instead of a fight,” and they realize that “you need to build on relationships. . . . You don’t want to go into a courtroom and marginalize someone.”
Employment litigation requires more sensitivity, says Plevan: “Unlike a commercial dispute, where it’s just dollars and cents, clients are emotional on both plaintiff and defense sides.” If you bring a claim of sexual discrimination or are charged with retaliatory behavior, she notes, “your whole reputation is at stake.”
Being able to read nuances is an advantage, say some women in the field. “Women are interested in motives and how relationships work,” says Plevan. “Sometimes women will look at [facts] differently.” Damon says the practice taps into “the things I’m good at emotional intelligence, understanding different points of view, and helping people reach consensus.”
Schreter sees analogies between labor and employment law and family practice: “People often invest more in their jobs than in their families. So when things go south in a job, it can be as charged as a divorce proceeding.” Women, she adds, are drawn to such difficult situations, and try to see that “there won’t be any true losers.”
Does that mean women are innately suited to succeed in this practice? No one goes that far, though many of the women interviewed for this article say their upbringing gave them different skill sets than their male counterparts. “Women in my generation were raised to have families, and deal with people in everyday situations,” says Schreter. “You are trained as young girls to get along with people, and that pays off in this field.”
Other women cringe at the idea that nurturing dispositions account for their success in labor and employment. “It denigrates us; it’s a negation of how very, very hard women have worked to succeed in this field,” says Shilepsky. And, adds Vladeck, “women are not always good at being touchy-feely.”
What’s the male take on why women succeed in this field? Empathy and sensitivity come “more naturally to women than for men,” says Michael Maslanka, managing partner of labor and employment firm Ford & Harrison’s Dallas office. “Women are more protective of their clients.” When he’s asked for a plaintiffs counsel referral, he says he tends to recommend a female lawyer, especially if “it’s something nasty, like sexual harassment.” The reason: “I want [the client] to be taken care of.”
While the debate over the role that women’s emotional intelligence plays in the field is likely to continue, women do agree that they are drawn to it. “It’s a great field; we have sex and violence,” says Littler’s Soloman, adding that she has never experienced discrimination in her career. “Women aren’t pigeonholed into this; it is an area of law I love.”
Talented women lawyers often have other choices. Plevan, for one, made partner at Proskauer in general litigation in 1980 but moved over to labor and employment. Why? “It was my preference,” she says. Unlike commercial litigation, the labor and employment practice “combines counseling and litigation and is more about relationship building,” she says.
Relationship building? Sounds like code for a feminine approach. Also, more typically in the law firm world, code for keeping clients. Which, female or male, isn’t a bad trait to have.