This month’s issue of Law Practice Today is dedicated to “Women in Law.” Women have made significant contributions to the profession, but the profession’s progress on gender equity leaves much to be desired. As law firm leaders in the American Bar Association Law Practice Division, we cannot ignore the gender divide that persists within the legal profession. We must act now.
Our profession has most assuredly made progress on gender equality. In 1869, Arabella Babb Mansfield was admitted to the Iowa bar and became the first female lawyer in the United States. Yet, women’s battle for opportunities as lawyers was just beginning. In 1873, the U.S. Supreme Court ruled that states could bar women from practicing law. Shamefully, it was not until 1950 that Harvard Law School opened its doors to women students, who had first petitioned for admission in 1871. When Sandra Day O’Connor earned her law degree from Stanford in 1952, no firm would hire her, claiming that investment in training would be wasted on women, as they would leave to have families. When firms did hire women, they paid them less, claiming that their services were not as valuable, as clients didn’t want to work with them.
While much has improved since Mansfield became a pioneer for women in the profession, the profession’s failure to make more progress in the past half-century is striking. In law firms specifically, the gender demographics are perplexing. The larger the firm, the fewer women one finds. According to the 2014 Annual National Association of Women Lawyers “National Survey on Retention and Promotion of Women in Law Firms” by the National Association of Women Lawyers (NAWL), in the largest 200 law firms, only 18% of equity partners and 29% of non-equity partners are women. Of the roughly 160 top leadership positions in the largest 100 firms, only seven are held by women.
This shortage of women in law firms’ upper echelons cannot be explained simply by a pipeline deficit. Since the mid-1980s, more than 40% of law school graduates have been women, and in recent years, that ratio has swelled beyond 50%. A pool of successful, viable women candidates is concentrated in the lower ranks of law firms: 47% of associates are women. Something is awry that culls women from law firms between early career positions, equity partnership, and firm management. Indeed, women are leaving law firms at twice the rate of men.
The issue of attrition of women lawyers from the profession is profound. While attrition in large firms is high for both sexes, women depart more frequently. When asked recently to identify major obstacles to women advancing to equity partner, 31% of our nation’s largest law firms said attrition. An overwhelming 94% of firms cited retaining women lawyers as a problem.
A commonly accepted explanation for the drop-out rate of women lawyers is that women (more often than men) succumb to the ongoing negotiation of work-life balance. A recent study of large law firms reported that 38% of firms believe that work-life balance issues are obstacles to retention of women lawyers. The extra challenge that women lawyers have in juggling their work and home lives is certainly a factor in the attrition rate. Full-time working women continue to shoulder most of the responsibility for taking care of their homes and families. Few women have stay-at-home spouses to ease the burden. Strikingly, about 77% of female lawyers have a spouse who works full-time outside the home, while the same is true for only 24% of male lawyers. Although the demographics of firms have changed radically in the past half-century, firm cultures often maintain patterns that were shaped by men for men with wives as full-time homemakers.
As a profession, we should not permit ourselves to use work-life balance as an excuse for continued gender inequity. We cannot simply throw up our hands, and blame biology and cultural gender roles as falling outside our firms’ control or responsibility. If law firms are genuinely concerned about retaining women lawyers, they must seriously question long-standing notions, that while facially valid, may stand as an impediment to further progress.
Albert Einstein is often quoted as having said that the definition of insanity is doing the same thing again and again, while expecting different results. The legal profession’s approach to gender equity clearly meets that definition. Law firms are nearly unanimous is saying that retaining women lawyers is a problem. But what are we doing differently to try to change our entrenched patterns? The ABA Law Practice Division does not have all the answers, but we must work diligently, and urgently, to start identifying solutions. In my role as the chair of the Law Practice Division, I ask that you join me in making a real impact on these issues not only impacting women in law, but the profession as a whole, and I offer a few avenues to start the dialogue.
Unfairness—both real and perceived—in advancement and compensation processes can be devastating to lawyers’ engagement and commitment. Given the gender imbalance in the equity partner and management ranks, as well as the fact that female equity partners earn only 80% of what a typical male equity partner earns, many women lawyers justifiably distrust the process. Firms should consider how to re-shape their advancement, compensation, performance review, and assignment processes to respect distributive (fair allocation), procedural (fair, transparent, respectful decision-making processes), relational (treating others with dignity and respect), and informational (transparency of decision-making and flow of communication) fairness. This should be coupled with accountability in the programs that law firms employ to address inequities.
For example, the 2014 NAWL survey identified that when two or more women sat on a firm’s compensation committee, the pay gap between men and women was nearly eliminated. When there were no women on the committee, women equity partners earned between 85-89% of male equity partners’ compensation. Notably, the NAWL survey may underestimate the true gap because many firms refused to provide compensation data after a 2012 compensation study found significant gender gaps. These numbers bear out a simple solution: large law firms must seat more women on compensation committees to root out systemic inequity.
To further explore these important issues, I have called upon the ABA Commission on Women in the Profession to partner with the Law Practice Division to jointly develop a comprehensive set of best practices for law firms to address various types of gender inequity in the practice of law.
Challenges to work-life balance are particularly complex for women. Women often bear greater responsibilities in their private lives, and need flexibility in their jobs to successfully juggle it all. These obstacles often necessitate policies that allow for reduced work hours and flexible schedules, and clarity about the extent to which using those policies will impact compensation and promotion. Policies alone are not enough; whether law firms and supervising lawyers fully support them determines their success.
In addition, the discussion on supporting quality of life must extend beyond policies on flexible schedules to a broader policy on well-being. We need to find ways to craft law firm cultures in which all lawyers feel engaged and supported, and experience a sense of belonging. Narrowly framing the work-life balance discussion so that it encompasses only policies about flexible schedules overlooks other possible factors that may contribute to the health and retention of female lawyers. Such a narrow approach overlooks the possibility that firms can play a significant role in the resilience of their lawyers facing considerable work and home demands. When work drains lawyers psychologically and physically, without contributing to their replenishment, women in particular may elect to leave when they have the opportunity to do so. It’s possible that many departing women lawyers give the “work-life balance” rationale as a socially acceptable escape hatch that allows them to exit inhospitable workplaces that are more negative than energizing.
To explore how we can reframe the law practice work-life balance discussion into a fuller understanding and commitment to well-being with a practical impact, I have requested that the Law Practice Division Attorney Well-Being Committee develop law firm best practices in this regard.
Mentoring and Education
Two additional factors to achieving gender equity in the practice of law are mentoring and education. Many firms pay lip-service to mentoring and sponsorship, but have not made enough progress in designing truly useful programs with a concrete impact. Outside organizations may be able to provide some assistance.
Last month, the division awarded its 2016 Martha Fay Africa Golden Hammer Award to Caren Ulrich Stacy, founder of Diversity Law and the OnRamp Fellowship. She has developed an outstanding program with a history of success in connecting women who seek to re-enter the legal profession through law firms and corporate legal departments through paid fellowships.
No one entity symbolizes the power of women in the practice of law as much as the Law Practice Division’s ABA Women Rainmakers. For the past quarter of a century, this group has reached out to the community of women lawyers by developing educational programs and business development opportunities, providing mentoring programs, and organizing valuable networking opportunities.
Women that have worked with the organization have praised its value. Vedia Jones-Richardson, past division chair and a leader in ABA Women Rainmakers, referred to it as the “seminal touchstone for women in the law.” She commended the organization as “a vibrant community of people (women and men!) with an amazing collection of skill sets and a willingness to share them for the benefit of all involved.”
Similarly, Heidi Barcus, current chair of ABA Women Rainmakers, praised the organization for helping her develop her own book of business and find joy in the practice of law. “I found my first client using the skills the Rainmakers taught me. Now, I generate a third of our firm’s business.”
Since I commenced private practice over two decades ago, I have been a loyal member of ABA Women Rainmakers. They welcomed me with open arms, and taught me more about the business of law than I found from other resources. The education that the ABA Women Rainmakers offer nationally, regionally and locally is priceless in instilling and enhancing vital skills that women and men need to succeed in the practice of law. Year after year, they continue to deliver valuable lessons in increasing networks and enhancing client base, both factors that are important for women to realize that extra edge to put them ahead of the game in the business of practicing law.
The road for women in law has been both frustrating at times, but also inspiring. They have broken many glass ceilings and continue to contribute greatly to the legal profession. Yet, gender equity remains elusive, as do comprehensive solutions to address it. As chair of the ABA Law Practice Division, I invite you to join us to work toward a vision of the legal profession at its best—one in which there is no ceiling and gender equity questions are a remnant of the past. Take on this challenge yourself, within your own firm. Grasp the opportunities offered by the ABA Law Practice Division and its entities such as ABA Women Rainmakers. Together we can work on the issues before us and build a bridge to a better profession.