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Thursday, November 17, 2011

The Gap

According to a survey recently released by the National Association of Women Lawyers, only 47 percent of first and second year law firm associates are women; this shows a drop by one percent from past surveys. Moreover, 55 percent of staff attorneys are women, making staff attorney the attorney position with the highest percentage of female lawyers. Both female partners and female associates lag behind their male counterparts in pay, and the difference largely shows up in the respective bonuses paid to each. Finally, "[t]he majority of large firms have, at most, two women members on their highest governing committee.  A substantial number have either no women (11 percent of firms) or only one woman (35 percent of firms) on their highest governing committee." 

We know that nearly half of law students are women, so we must question why women are not faring nearly as well in private practice as are their male counterparts. Is actionable discrimination in law firms operating so rampantly and unchecked? Is something more subtle than actionable discrimination at work? Several European countries, aware of the dearth of women at the helm of leadership in industry and other places, have decided that to the extent that the culture of corporate leadership is somehow not welcoming to women or conducive to their success, large scale forced integration is the best way to alter it.

The internet and newspapers are abuzz with recent word of quota requirements implemented in many European countries that are designed to place more women on corporate boards and in other leadership positions. The idea had its genesis in Norway, but Spain, France, Iceland, the Netherlands, Belgium, and Italy are now adopting it, according to reports.

Some are saying that these countries have the right idea-that imposing these quotas and forcing integration to a point where the law and educational and professional pipelines have been unable to take it is a necessary step in the right direction for these countries. Others, opposed to quotas of any kind, feel that the forced nature of the integration will breed more backlash and strife than progress when it comes to equality of opportunity. Quotas are inimical to American attempts-legal and otherwise-to foster equality, integration, and increased access to whom it has historically been denied. Even court mandated or court approved affirmative action plans shy away from the notion of imposing flat out quotas.

So what is to be done here at home? The fact of the matter is that the recently released statistics here in the U.S. are grim, and a more searching look into this widening disparity of opportunity and achievement is clearly warranted, in one way or another. Quotas surely aren't the answer, but the widening rift is growing too big to ignore. We should be looking into why it persists and thinking about what can be done to stem it. Is there a role that law schools and legal education can play?

Posted by Kerri Stone on November 17, 2011 at 08:31 AM in Workplace Law | Permalink

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"The fact of the matter is that the recently released statistics here in the U.S. are grim, and a more searching look into this widening disparity of opportunity and achievement is clearly warranted, in one way or another. Quotas surely aren't the answer, but the widening rift is growing too big to ignore."

Is it a "widening" rift? The statistics you quoted mentioned a 1 percent drop from last year, but even if that's outside the margin of error of the survey, it hardly seems like convincing evidence of a downwards trend. Is there other data on that?

And another thing has been bothering me for the past few days. The staff attorney numbers keep being cited (not just here) with what seems to be an implicit assumption that staff attorneys would always rather be on a different track. Is that a genuine truth of the legal profession? Or do some people opt for that route voluntarily?

Posted by: Andrew MacKie-Mason | Nov 17, 2011 11:29:42 AM

If I were to hazard a guess, I would place a lot of the blame on the law firm culture and lack of work-life balance. At least for me, that is the only reason I did not become a big firm associate upon graduation from law school in 2006. Somehow, I think the work-life balance issue impacts women more than men, or maybe men are just more willing to tolerate it. Personally, I knew I would not be happy slaving away at a law firm for 80 hours a week. I knew my personal life would suffer if I chose that career path, and it was not a sacrifice I was willing to make. I wanted a healthy relationship with my then boyfriend (now husband), and I wanted to have hobbies, and (eventually) a family. So, I turned down an offer from a very prestigious NYC firm after summering there, even though at the time I had no other job prospects. (This was before the economy was in the crapper.) It worked out. I landed a job in D.C. at a federal agency, and I've worked for a federal agency or a federal court ever since. I make less money, but I'm happy.

I'm sure there are still plenty of women lawyers who are dying to devote themselves to the big law career path. I applaud them. But maybe there are a higher percentage of talented female lawyers who avoid big law like the plague when compared to their male counterparts. Is it possible that accounts for some of the gap?

Posted by: SLC | Nov 17, 2011 11:35:58 AM

Kerri says: "According to a survey recently released by the National Association of Women Lawyers, only 47 percent of first and second year law firm associates are women; this shows a drop by one percent from past surveys. . . . We know that nearly half of law students are women, so we must question why women are not faring nearly as well in private practice as are their male counterparts. Quotas surely aren't the answer, but the widening rift is growing too big to ignore."

Perhaps I'm missing something, but I'm not sure I see the difference between "nearly half" and 47%. Also, before knowing if the drop of 1% is a significant issue, don't we need to know broader trends year-to-year, as well as something about the grade distributions of men and women law students at the schools where the firms are hiring, assuming hiring is largely based on grades? cf. Guinier et. al's Becoming Gentlemen.

Posted by: Orin Kerr | Nov 17, 2011 11:36:06 AM

To Orin: The statistics on junior associates ar the best statistics for women, and even they show a decline. The reason I emphasize the high percentage on female law students is to make the point that while women may be graduating with half of the degrees, and even entering law firm practice at rates that approximate those of men, there is a status gap at the top of the pyramid--partners, equity partners, senior associates, etc.

Posted by: Kerri Stone | Nov 17, 2011 11:54:49 AM

SLC said:
If I were to hazard a guess, I would place a lot of the blame on the law firm culture and lack of work-life balance.
...
I'm sure there are still plenty of women lawyers who are dying to devote themselves to the big law career path. I applaud them. But maybe there are a higher percentage of talented female lawyers who avoid big law like the plague when compared to their male counterparts. Is it possible that accounts for some of the gap?

It is my observation that women who are able and willing to fulfill the ideal worker norm (near total dedication to the workplace) have a great deal of difficulty convincingly signaling such to an employer.

This difficulty is actually made worse by employers that offer alternate career paths, as there is a, not entirely unreasonable, assumption that such employers disproportionally attract those who intend to utilize them.

This phenomenon causes something of a conflict of interest between women who wish to follow traditional career paths and those that wish to change the nature of the workplace. This can sometimes manifest in outright hostility between would be mentors and mentees.

Posted by: brad | Nov 17, 2011 11:54:54 AM

If we are looking at the percentage of women in the partnership of major law firms, or serving as members of the managing committee, shouldnt the correct analysis ask: what was the percentage of women graduating from law school and entering law firm associte positions either 7-10 years ago (to make partner) or 20 or more years ago (to be at the "leadership level" of partnership)? Because that will more accurately reflect the narrowing of the profession after entering law firm life, rather than the current percentage entering law form associate positions.

Posted by: Anon | Nov 17, 2011 12:20:01 PM

SLC,

"Somehow, I think the work-life balance issue impacts women more than men, or maybe men are just more willing to tolerate it. Personally, I knew I would not be happy slaving away at a law firm for 80 hours a week. I knew my personal life would suffer if I chose that career path, and it was not a sacrifice I was willing to make. I wanted a healthy relationship with my then boyfriend (now husband), and I wanted to have hobbies, and (eventually) a family."

I'm not sure whether you're making the point that this is a problem with law firms, or that it explains *and justifies* the gap.

I've seen people say something like this along with a suggestion that we should change the culture to attract more women, though, so I'll address that (with an open question of whether it's actually your view).

To the extent that women may simply have different preferences when it comes to work-life balances than men (in my opinion, better and more healthy ones), the gender difference in those jobs shouldn't be seen as a bad thing per se. If we change what law firms are simply to attract more women, then we aren't really giving women any more access the jobs: we're just destroying the old jobs and creating new ones that women might like more.

I don't want to lead the life of strenuous physical training that it takes to be a professional athlete. But that's not a problem with athletics that needs to be changed, nor does athletics deserve any 'blame' for it.

Posted by: Andrew MacKie-Mason | Nov 17, 2011 12:55:52 PM

Andrew, I am going to make a wild guess that you are still childless (albeit might have friends with kids).

The problem with the argument that "women may simply have different preferences" is that once a couple has kids, someone has to budge: nannies can do a lot, but are not there 24 hrs/day. Someone has to comfort a crying kid at night, someone has to buy groceries and make dinner, someone has to change that diaper, someone has to stay with the kids when sick, and someone has to take the kids to the doctor's appointment (no, nannies cannot do that).

Otherwise, the fridge will be empty, no-one will get to sleep at night, not to mention other problems that might arise when both parents choose (based on their preference to work) to neglect their kids. Women might prefer peace at home more than men and take on these roles, even if they'd be just as happy if the dad stepped up. But I doubt that's the "different preference" you're taking about. Talking about preferences without acknowledging what must get done and that some parents are more willing and able to shirk than others (without feeling guilty) is dishonest and won't get us anywhere.

Posted by: Anon | Nov 17, 2011 1:29:57 PM

Not every couple wants kids. For that matter no every individual wants to be part of a couple.

Posted by: brad | Nov 17, 2011 1:45:49 PM

Kerri,

Thanks for the explanation. Out of curiosity, is it is clear that everyone wants to join the governing committee of the firm? I've never worked full-time at a law firm, so I'm the last person to be able to shed light on this.

I'm vaguely reminded of the study back in the late 1990s about the low number of women on the Harvard Law Review. There was a push to have affirmative action for women to ensure equal numbers, on the theory that some kind of discrimination must be occurring to lead to fewer women on the law review -- and being on law review was necessarily a good thing, as those on law review were the future leaders of America. (To be clear, I didn't think this -- I wasn't on law review, for that matter -- but that was the theory.) The Review decided to study the issue, and the study revealed that women and men who tried out for law review were actually making it at the same rate: The gender difference was caused by women being on average more interested in doing other things. I don't know if that's a dynamic with law firm governing committees, though.

Posted by: Orin Kerr | Nov 17, 2011 1:47:32 PM

Anon,

I'm not exactly sure what your point is, but it seems like your concerns are largely with family structures than professional norms. I don't think redefining the jobs of big firm lawyers is the most effective or just way to deal with the fact that various social pressures may encourage mothers to take a more-than-optimal role in childrearing.

And brad also makes a good point. Not every person wants to get married and have kids. Because we as a society recognize the common good of strong families we redistribute some of the costs of childrearing onto those who don't have children. Maternity/paternity leave is one such redistributive measure. But I don't think there's a justification for doing away with an economic arrangement that many people find desirable just because other people don't, and choose other life paths instead.

Posted by: Andrew MacKie-Mason | Nov 17, 2011 2:39:27 PM

Andrew,

To address your question, I wasn't necessarily advocating for a change in law firm culture. Big law is what it is. As long as there are billable hours and clients willing to pay them, I don't see any possibility for change. But I don't really agree with your analogy. If we lowered athletic standards so more people could become professional athletes, the sport itself would suffer. I think if changing big law culture were actually possible, allowing attorneys to work shorter hours and valuing efficiency instead of padded timesheets, I don't think it would have a negative impact on the legal profession itself. There might be a few attorneys out there who would prefer to work 80-hour weeks and might resent the change, but I think the vast majority (both men and women alike) would benefit from a healthier work-life balance. That being said, I was proposing a theory rather than advocating for a change, because I just don't see changing big law as reasonably possible.

Posted by: SLC | Nov 17, 2011 2:43:00 PM

SLC,

Thanks, I understand where you're coming from better now.

I don't think it's quite right to suggest that there wouldn't be any cost to the profession if you change up the number of hours. There's something motivating keeping it how it is. People may prefer fewer hours in the abstract, but they've also demonstrated that they care about the high pay more than having fewer hours. Firms may want less overworked attorneys, but so long as there's a firm out there willing to pay more for more hours, the top lawyers ('top' on whatever metric the firms use) may well go to those firms. On the more macro scale, decreasing the number of hours these 'top' lawyers are able to work may well impact the quality of law, since the people who are the 'best' at it will be doing less of it.

Anyways, maybe there are cost-justified changes to be made. But justifying them is more complex and involves explaining why the market hasn't already implemented them.

Posted by: Andrew MacKie-Mason | Nov 17, 2011 2:56:24 PM

Orin-- You ask some really good questions. I have not found data on what percentage of women want to join management committees. Here's the problem, though. To the extent that women in law school would give a diffrent answer than junior female associates or midelvels, seniors, or partners---we must ask at what point these preferences solidify and what causes their solidification. In other words, even if we could show that only a few percent of women versus the vast majority of men want these opportunities, I think we at least need to stop and examine that disparity and ask ourseves what about this profession is acting to attract or repel the sexes at such different rates. I am not in favor of affirmative action as a remedy for the phenomenon described here; I just wanted to juxtapose these two big and timely stories to show the lengths that some countries are going to to foster equality of opportunity. I am, however, in favor of a closer look at the profession, the workplace, and legal education to discern the source of some of the disparities we're seeing and why Title VII's entering its sixth decade of existence and we haven't seen it make more of a dent in the landscape.

Posted by: Kerri Stone | Nov 17, 2011 6:56:09 PM

Thanks for the response, Kerri. I suppose I view these issues through the lens of a very good friend of mine who was asked to take a leadership role in her large law firm but declined the offer: Her view was that she wanted a life outside work, and that she had already given so many of her best years to working around the clock that she wanted to cut back. It's hard to know, but I wouldn't be surprised if having a life was less of a priority, on the whole, for men.

Posted by: Orin Kerr | Nov 17, 2011 8:52:10 PM

Having recently spent 6 years in biglaw, I share Orin's view. Accordingly, I don't find Kerri's point troubling. Indeed, I wonder why it seems problematic. If women are making choices that social science tells us are more fulfilling, why implicitly demand for women to "make more of a dent" in the landscape that is (depressingly) biglaw?

Posted by: anonvap | Nov 17, 2011 11:25:14 PM

I'm glad I'm not too off-base, anonvap, at least in your experience. Kerri can speak for herself, obviously, but I sense it's common to look at the numbers of whatever job or credential is considered prestigious. That creates a conflict when prestigious jobs are also ones that are less fulfilling: We treat low numbers as bad because the job is prestigious, even if most sane people wouldn't aim for that job.

Posted by: Orin Kerr | Nov 18, 2011 2:25:58 AM

Orin-I think once again you've got the right idea. A few thoughts. No; the civil rights movement should not, in any respect, be about taking individuals and forcing them into opportunities that they simply don't want or lamenting the fact that they don't have them. That said, it is somewhat irresponsible to take "preference" data, to the extent that we have it, at face value without probing further. So, for example, during the de-segregation of schools and neighborhoods pursuant to the passage and enforcement of civil rights laws in the 1950's and 1960's, it might have been the case that African American individuals reported feeling or simply felt that they'd prefer not to attend x school or live in y neighborhood. Taking that preference, even if it had been widespread, at face value, someone might have concluded that the laws were unnecessary--or worse. This would ignore, however, the reasons why a person from a minority background might have been discouraged, intimidated, or simply turned off by the culture they'd find, treatment they'd receive, etc., at the new place--even if the new school or neighborhood were physically more attractive, had more resources, or was more prestigious. The problem was deeper (and clearer) and required cultural change, the passage of time, and sometimes the National Guard.

Here, we have to look at the heights of this very prestigious and influential profession and at least question whether its structure, culture, or demands are so unfriendly to one sex (a protected class under federal civil rights law) that the numbers are as horribly skewed as they are at the top levels. It is hard to imagine why the distribution of people willing to work hard enough and show enough skill to have the power, influence, money, security, etc. that comes with partnership (especially in this very dismal economy) would naturally be so skewed in the general population, absent more specific, subtle, and insidious deterrents. It is hard to fathom why such a disproportionate number of women, having paid and sacrificed so much for their educations where they sat alongside men, would choose to opt out of prestige, wealth, power, and challenging work. This is not about individual preferences; it is about the skewing of preferences across groups that cries out for at least a closer look.
A final point--this phenomenon is not relgated to "biglaw." If we look at captains of industry, law school deans, and even law school professors, we still see disparities (sometimes gaping) between male and female presence. I don't think that we can simply sit back so many decades after legislation designed to provide equality of access and opportunity in education and in the workplace and conclude that women, in such large numbers, have opted not to pursue the highest levels of that aspect of public life that is professional employment.

Posted by: Kerri Stone | Nov 18, 2011 7:47:06 AM

Kerri writes:

**************
It is hard to imagine why the distribution of people willing to work hard enough and show enough skill to have the power, influence, money, security, etc. that comes with partnership (especially in this very dismal economy) would naturally be so skewed in the general population, absent more specific, subtle, and insidious deterrents. It is hard to fathom why such a disproportionate number of women, having paid and sacrificed so much for their educations where they sat alongside men, would choose to opt out of prestige, wealth, power, and challenging work.
**************

I appreciate the response, Kerri. The numbers can be the result of lots of different influences, I think, but there's one in particular that seems worth noting: Sociological studies repeatedly show that women greatly value wealth and power in men, while men do not value wealth and power in women nearly as much.
http://www.telegraph.co.uk/news/uknews/1561991/Men-seek-beauty-women-want-wealth.html

Of course, that's just a descriptive claim, not a normative one. But given that these preferences do seem to currently exist, at least at an aggregate level, I would think it at least partially explains why men might on average be more willing than women to give up having a life and to commit themselves to jobs that are known to for their propensity to acquire wealth and power.

Posted by: Orin Kerr | Nov 18, 2011 2:23:48 PM

I know this is a generalization and certainly not true in all cases, but I also think that in a traditional male-female relationship, women are more willing endure male partners who are married to their jobs and spend obscene hours at the office, and men are on average less willing to endure a relationship where the woman spends an obscene amount of time at work. If a woman wants a successful relationship with a man, she must often limit her career choices. How many men do the same?

Posted by: SLC | Nov 18, 2011 4:12:40 PM

"Both female partners and female associates lag behind their male counterparts in pay, and the difference largely shows up in the respective bonuses paid to each."

I might be wrong, but my impression is that every AmLaw100 firm either pays bonuses lockstep (everyone in the same associate year gets the same bonus) or mechanically based on hours billed (e.g. 2200 hours = 10k; 2400 = 15k), with the hours-based bonuses being standard outside of a handful of lockstep NY firms. Bonuses at biglaw firms, as far as I know, are very rarely discretionary in the sense of being based on a subjetive evaluation of an associates performance (a process that could allow a pro-male bias to sneak in).

Unless there was some evidence for a contrary explanation, I would assume the bonus gap is simply based on hours billed. This may sound hard to believe, but to a certain extent how much an associate bills is often based on how aggressively they seek out work and volunteer for tasks instead of reserving time for a personal life. Of course you can argue that women are for whatever reason at a disadvantage when billable work is assigned--but a more straightforward explanation is probably different preferences in hours worked.

Posted by: Matt | Nov 21, 2011 4:08:39 PM

Matt, here is the information and analysis straight from the report:
"Firms cite a number of reasons why they pay different amounts to different associates,whether they are first-years or more senior. One common answer is that firms vary salary dependingon the office in which an associate practices. Another frequent response is that bonuses aredependent on billable hours, which naturally might vary from person to person. However, a numberof the criteria firms cite for paying different amounts are less objective, for example: (a) work quality, (b) corporate citizenship, and (c) non-billable activities such as pro bono, recruiting and business development.It strains credulity to believe that women associates across the board are underperforming their male colleagues along all of the dimensions of practice which are considered when bonuses aredetermined. At least provisionally, therefore, the data suggest that firms' bonus systems incorporate a degree of discretion that permits gender-biased decision-making. Further study of this area couldbe enlightening."
---
I, like the study's authors, would like to see more information about factors like firm culture, how work is distributed, how supervising attorneys and work are assigned to associates, how mentoring works (formal and informal), etc. before I stop wanting to probe into these statistics.

Posted by: Kerri Stone | Nov 21, 2011 4:32:19 PM

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