Women Battle Law Firm Bias

Gender diversity is good for business. As a 2010 McKinsey Global Survey reported, 72 percent of executives “believe there is a direct connection between a company’s gender diversity and its financial success.” The study also noted that companies with the greatest gender diversity had better than average operating results and returns on equity. Yet, despite these monetary benefits and legal prohibitions on sex discrimination, women have yet to make significant inroads in the power structure and profit sharing at Biglaw. (Inside the profession, the term “Biglaw” is used to describe firms that demand long hours, represent mostly corporations, have more than 100 attorneys, and pay “market” starting compensation.)

Admittedly, law has been a male-dominated profession for centuries, but females have provided much of the brainpower since the 1980s. Thirty years of acclimatization has done little to convince the old boys who run these clubs that women deserve full membership in proportion to their representation in the worker bee associate class.

The number of female Biglaw equity partners has hovered around 15 percent for the last twenty years. (Equity partners being those have an ownership interest and receive the largest compensation.) This ceiling is especially troubling given women have constituted at least 40 percent of enrolled law students since 1985 and reached a high of 50 percent in 1999. Additionally, women’s representation in the ranks of associates entering Biglaw after graduation has been roughly comparable.

The National Association of Women Lawyers’ 2011 survey of the country’s 200 largest law firms considered other markers of women’s status. Of the 121 firms responding, 77 percent have at most two women on their governing bodies, which are typically comprised of about ten members.  Even worse, female equity partners on average earn only 86 percent of what their male peers earn.

This continuing disparity has been the source of much commentary. Analysts have suggested causes ranging from a lack of mentors to women’s failure to self-promote. But as this pattern has continued, the hard truth has begun to surface. The primary cause is sexism, generously described as “unconscious bias.” The bias arises in daily interactions and law firms’ policies set by governing bodies, which, as I previously mentioned, are dominated by men.

When a woman’s performance is evaluated she tends to be judged more harshly than her male peers. A major Wall Street law firm commissioned a consultant to evaluate its associate review process, agreeing the results could be disclosed as long as the firm wasn’t identified. The consultant, M.J. Tocci, studied 268 written lawyer evaluations and found that men and women whose work quality was described similarly in narratives received different numerical scores, with the men ranking higher. Overall, a significantly higher percentage of men (14 percent) received evaluations in the top category than women (4.76 percent). These numerical scores have greater significance than narratives in partnership decisions, with the result being that males were three times more likely to become partners than females.

In a shocking denouement to this study, Tocci reports that when she presented her conclusions to firm management, they declined to make any of the changes suggested, changes that included training to make the partners more aware of bias. Ms. Tocci observed that, “[the firm] was getting dinged as one of the worst places for women to work, [but] their philosophy was that there will always be people who are willing to break their backs to work here.” 

This indifference cannot be characterized as “unconscious bias.” It is a knowing decision not to rectify a system that treats women unfairly.

Worse than firms’ tolerance of gender discrimination is their inability or unwillingness to stop sexual harassment. While it may seem unlikely lawyers would chose to ignore the law against sexual harassment, it often appears to be the case.

One therapist’s blog contains this description of a client’s real life experience: A partner in a one-on-one meeting with a female associate leans over and says, “I’d really love to kiss you right now.” Then he barrages her with emails about how hot she is. What does she do? She can try to ignore him, she can take her problem to human relations, or she can leave the firm.

She knows ignoring him won’t solve anything because they’re working on a matter together and he’s determined. She can go to HR, which may chill out the harasser, but he’ll be angry and word will eventually leak out that she complained about him. This means they won’t work together again, and that may hurt her career if he controls a lot of business or if they work in a specialized area with only a few other partners. But reporting sexual harassment is firm policy and failing to do so up front may suggest she welcomed his conduct initially if she later decides to report it when he escalates his actions, a common pattern in sexual harassment. If she leaves without complaint, her chances of getting another job will be better because she hasn’t been branded a troublemaker.

I spent 17 years at Biglaw, ten of them as a partner. I recognize there are many reasons for gender disparity in the legal profession. The number one reason in my book: sexism.

Kate McGuinness is a lawyer who spent 17 years at Biglaw before becoming the general counsel of a Fortune 500 corporation. After leaving that position, she studied creative writing and is the author of a legal suspense novel Terminal Ambition, which will be published early in 2012. She is an advocate for women and tweets as @womnsrightswrter.

Photo credit orange sparrow/Flickr.

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