Journalists, law students and lawyers have asked hard questions recently about whether legal education should be reformed in light of the realities of today’s economy. After all, the degree is expensive, and legal jobs are less plentiful. Here is another wrinkle to consider: Many of the women who go to law school will find that they have invested in a degree outfitting them for a career that they ultimately will flee. Lawyers and law professors should care deeply about this problem, as should anyone in a profession with a similar attrition issue.
Many young lawyers hope to begin their careers at a top-tier firm that pays a top-tier salary. And many who succeed in landing those jobs quickly experience Sunday night dread because Monday morning is coming. Law firm work typically rewards the quantity of hours billed over the quality of the work. This system is profitable for a firm because it can hire fewer attorneys and demand more work from each by linking bonuses and promotions to the number of hours the attorney bills. This system does not demonstrably serve clients better and does not reveal who is the best lawyer. It tests who is able to stay at the office the longest.
And therein lies the gender problem.
Joan C. Williams, author of Unbending Gender, has described this traditional law firm environment as designed with an “ideal worker” in mind — one who is available to work at all hours, who will not object to having work swallow up her personal life, and who presumably has someone at home to manage the unpaid work of going to the grocery store and keeping the bathrooms clean. Male attorneys (or indeed, professional men of all stripes) are much more likely to have stay-at-home spouses than are female attorneys (or female professionals generally), who are likely to marry partners with careers of their own. Without that at-home support, many female attorneys find the juggling act of meeting professional and personal demands intolerable.
Gender pressure also results from the timing of these workplace demands. The period in which young lawyers must prove themselves typically coincides with childbearing years. Many young women become keenly aware of the price they pay when they put in those long hours — the missed hours with young children, or the fear that, because they are always in the office, they might not be able to start a family at all. The long hours place a burden on many men as well, but overwhelmingly, women lose out in this system. For the past two decades, about half of law school graduates have been women, but currently only 6 percent of managing partners at the 200 largest U.S. law firms are female. The vast majority of the women who leave law firms report that they are doing so because of family demands.
Women who leave law firms sometimes exit the practice of law altogether; others flee to more family-friendly places like academia, as I did. Here, too, you can see the effects of gender on salary and status. While 37 percent of all law school faculty are female, they disproportionately hold nontenure-track positions, which are less prestigious, offer less job security and pay less.
Taking a more family-friendly legal job has consequences: You may find that you are rewarded with a richer life, but a slimmer wallet. Currently, about 75 percent of part-time attorneys working in the 200 largest firms are female. Typically, women work part-time during the formative years of their practice, while men work part-time at the end of their careers. The result? These women make less money per hour of work than their male classmates from law school, and that gap widens over time.
Sometimes the women opt back into full-time work (if the firm permits it) or (more rarely) are considered for partnership as a part-time employee. Those who make equity partner earn 85 percent of what their male counterparts make; those without that job protection will make significantly less. They also often are given less interesting work, and have positions that are less secure.
Perhaps more troubling than the loss of talent to law firms is the ripple effect it has on the number of women in leadership roles throughout society. Lawyers are uniquely placed to step into elected posts and other influential positions in government and private industry. If women continue to leave legal practice in droves, we will continue to face a female leadership gap not only at law firms, but in academia (37 percent now are women), in the judiciary (26 percent) and in Congress (17 percent). Firms and clients certainly suffer by losing this talent; our entire nation suffers a loss of diversity of leadership if women exit the market.
Lawyers have long imposed upon ourselves professional-responsibility rules and pro bono requirements because law is supposed to be more than just a business. Under this ethic, we should adapt our workplace to encourage a diverse work force that does not have to choose a job over family. We must change the model so rewards do not revolve around long hours alone, but instead take into account talent and effectiveness.
It is past time to examine what is required to make partner. We must also challenge the assumption that the part-time positions that many women opt in to must necessarily come with lower pro-rata compensation and limited upward mobility. Questioning this model does not mean that we are giving women special favors; instead, it means noticing that we have constructed a model that gives a leg up to people who have no family demands. Without change in the legal workplace, women will continue to be poorly represented at the top of law firms and among the nation’s leaders, and we all will be weaker for it.
Molly Bishop Shadel is an associate professor of law at the University of Virginia School of Law and co-author of Tongue-Tied America: Reviving the Art of Verbal Persuasion (Wolters Kluwer Law & Business 2011).