‘Women start off in equal numbers in most areas of private practice, in general. Most of the problems come at the retention level.’
By Jan Pudlow
Here’s the No. 1 phone call Linda Bray Chanow, executive director of the Center for Women in Law, receives from women law partners: “He’s bringing in less business and he’s getting more money, and I’m sick of it.”
“Women won’t stay where they aren’t valued. How do you show value? Compensation. If women think they are not paid as much as their male counterparts, they will leave,” said Chanow, at The University of Texas School of Law, who co-chaired the ABA Toolkit for Gender Equity in Partner Compensation, an initiative of the ABA Presidential Task Force on Gender Equity.
One of the biggest surprises in her work, Chanow said, was learning that the more advanced women are in the legal profession, the more likely they are to experience gender bias. Enduring harsh working conditions, seasoned women lawyers are more likely than junior lawyers to be the only woman in the room. She said 40 percent of law firms have only one or zero women on management teams, and it’s even worse for women of color, where 50 percent of law firms have only one or zero women of color on management teams.
Chanow addressed The Florida Bar Special Committee on Gender Bias, chaired by President-elect Michael Higer, where experts talked about research on everything from how the brain works with implicit bias (unconscious bias as opposed to explicit, blatant bias), how to interrupt bias, benevolent bias, gender stereotyping, and fixed versus growth mindsets (a growth mindset person is able to bounce back from failure believing it does not define them, whereas a fixed mindset person believes intelligence and talent is fixed at birth).
The bottom line: What, if anything, can be done about gender bias in the legal profession?
The committee, created by Bar President Bill Schifino, was in response to a Young Lawyers Division 2015 survey, emailed to a random sample of more than 3,000 female members of the YLD that found 43 percent of the 464 respondents reported experiencing gender bias during their legal careers. Schifino ordered another, broader survey of both male and female Florida lawyers.
Here’s a sample of what the new 2016 Florida Bar survey on Gender Equality in the Legal Profession revealed:
• Nearly half (47 percent) of female respondents believe that female lawyers are not compensated the same as male lawyers for comparable work, while 6 percent of male respondents believe this to be true.
• More than half (55 percent) of male respondents report that their 2015 total income, before taxes derived from the practice of law, is more than $100,000 — compared to 37 percent of female respondents who report the same.
• More than half (54 percent) of all female respondents believe that female lawyers have to work harder than male lawyers to achieve the same results, while only 12 percent of male respondents believe this to be true.
• Nearly half (46 percent) of all female respondents believe that male lawyers attain partnership status faster than female lawyers, while 12 percent of male respondents believe this to be true.
Deborah Rhode, director of the Center on the Legal Profession and director of the Program in Law and Social Entrepreneurship at Stanford University, cited a national survey that showed women are rated lower on qualities of assertiveness.
“Women risk seeming to be too feminine or not feminine enough,” Rhode said, citing Donald Trump’s description of Hillary Clinton as “a nasty woman” as illustrative of that stereotyping.
A lesson for aspiring women lawyers, Rhode said, “is to develop a style that is assertive, without being abrasive.” Women, she said, need to learn how to negotiate on their own behalf and “develop a sense of entitlement to ask for what they deserve.”
Women also need to “give up perfection on the domestic front.”
“Women start off in equal numbers in most areas of private practice, in general. Most of the problems come at the retention level,” Rhode said. “The inflexibility of work-family structures. It’s not a level playing field. It’s not worth it. Law firms have to make the climate more welcoming. One way to do that is to be sure you are putting people with concerns about these issues in leadership positions in the firm, to show that an equal playing field of the law firm is a priority. That just hasn’t happened in a lot of institutions. There’s a lot of lip service. But in terms of policy priority, we’re not quite there yet.”
Men as Allies
Don’t just target women, Rhode said; “Otherwise, you are just speaking to the converted. . . . It’s important to have men as allies in these efforts. Men are heard more forcefully, and they’re not viewed as whining or asking for special treatment. Reward allies in the struggle, and work together and view them as problems for the profession, not just women.”
Rachel Godsil, director of research and co-founder of the Perception Institute, and a law professor at Seton Hall, collaborates with social scientists on empirical research to identify the efficacy of intervention to address implicit bias, racial anxiety, and stereotype threat, and provides training to judges on behalf of the National Association of State Judges.
While people may be sincere in their commitment for gender equality, Godsil said, our brains operate on a subconscious level, where implicit bias lurks.
She gave this example: A passenger on a Delta airlines flight was in medical distress, and the flight attendant asked if anyone on board was a doctor. When an African-American woman raised her hand, the flight attendant ignored her, even though she was indeed a doctor.
Godsil described a study where orchestras are choosing musicians. A screen was installed so the musician’s gender could not been seen. At first, there was not much change in hiring men over women. When someone noticed there was a “click, click, click” sound of women’s high heels across the stage, they were told to take off their shoes first or walk on rugs.
While the orchestra conductor doing the hiring was “utterly unaware of bias,” once there was a true screen blocking the musician’s gender from view, there was a 25 to 45 percent increase in hiring women musicians.
Data Is Everything
“Data is everything. It tells us where we are going wrong,” Godsil said.
She advised to “gently but clearly share the research. . . . Any assumption we are objective has been crushed by research.”
After the daylong seminar of hearing from the experts, the members of the Bar’s special committee were asked what concept resonated the most, how they felt about the work, and how the Bar should proceed.
“In terms of how I am feeling, you know, I feel hopeful, but in a lot of ways I was sad and mad at times,” said Higer. “And all of those things motivate me. I have a daughter who is 25. She’s an engineer in a very male-dominated field. . . . And I would like to think she has opportunities out there. . . . The notion that some of the most important people in my life, some of whom are in this room, have been disadvantaged in some way, that bothers the heck out of me and motivates me even more so.”
He suggested creating “some type of blue ribbon or seal of approval for law firms,” by creating criteria in ways law firms could achieve more equality.
Leora Freire, president of the Florida Association for Women Lawyers, said, “Problems people faced back in the 1980s are the same problems we are still facing today. So while we’ve made progress, it’s a slow process. Certainly at FAWL, we celebrate those small victories, but there is still a lot of work to be done. It’s a little overwhelming.”
Paul SanGiovanni, on the Bar’s Board of Governors, began by saying to laughter: “Hello, my name is Paul, and I have implicit bias.” As a trial lawyer at Morgan & Morgan, he admitted that he worries about jurors’ implicit bias and would not want to choose a female expert witness if opposing counsel’s expert is male, or use a woman colleague for closing arguments.
“What I’m feeling? Like I should apologize for my X chromosome. I’m a little bit like we’re ivory tower and certainly we have to do that to get to the concept. But you really have to appreciate that the reason we get up every morning is to make money, because you have to send your kids to school and put clothes on their back.”
Bar members, SanGiovanni said, have to understand “if you are trying to make more money in your firm, it costs you money if you are not using your entire talent pool or if you are frustrating your talent pool. You really have to turn diversity into dollars and cents to get people on board.”
Gill Freeman, a retired 11th Circuit judge who is now with JAMS arbitrators and mediators, has a long history working on gender equality issues. She chaired both the Florida Supreme Court Gender Bias Study Implementation Commission and the Supreme Court’s Standing Committee on Diversity and Fairness.
“The concept that resonated the most with me is the idea of structural change. If we make recommendations that appear to be in any way entitlements for women or minorities, it is going to fall on deaf ears. It is going to fail,” Freeman said. “I’ve heard from many of you that, yes, we have to convince law firms that diversity is profitable. But I think what we have to put out there is how to get the best, qualified candidates to fill your roles in your law firms and do the work and make the most money for you. It really needs to be more neutral than giving women or minorities an opportunity. Been there, done that. It didn’t work.”
Freeman said she would look at best practices in hiring, professional advancement, and compensation; for example, creating “objective measureable standards for promotion and partnership.” She would explore how to create a “diversity-friendly firm culture that comes from management down” and “how a firm is going to deal with harassment and overt discrimination, because they often don’t.”
‘A Good Lawsuit’
“Now, I remember in my old law firm, we had one partner who brought in a lot of business, but he harassed women shamelessly. And ultimately law firms have to learn that even if somebody brings in a lot of business, it is not OK to be overtly discriminatory or harassing. I guess sometimes a good lawsuit shows them the profitability of that partner is not worth it,” Freeman said.
“How am I feeling? Cautiously hopeful. I have to admit that I more or less gave up five years ago in terms of much of what I had been doing. The reason middle-aged women are leaving is because we are tired. We have a layer of garbage that you have to put up with in this profession just by being a woman. Then the fact that you are a lawyer is a very hard and very stressful job for anyone, men and women. Then when you add the layer of discrimination and bias on top of that, it gets more wearing and more stressful. After 20 years or so, you basically have had enough.
“Now, in May I will have graduated from law school 40 years ago, so I feel like I’ve stuck it out an awfully long time. But I am cautiously hopeful that if we approach this now from a different point of view, we might have more success than we have in the past.”