Women as Lawyers and Leaders

Volume 1 • Issue 4 • May 2015
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Women as Lawyers and Leaders

The rise of women in the legal profession

Women were first admitted to the American Bar Association in the United States in 1918. Female attorneys have traveled an exhilarating yet rocky road since—from token representation in the 1950s and ’60s, to working in the trenches, shoulder pads and all, in the 1980s and ’90s, and finally to achieving numerical parity in law school admissions, if not the profession itself, in the 2000s.

Together, these first generations of women in the law make up an incredibly accomplished group: they include three Supreme Court justices, two U.S. attorneys general, the first women state and federal judges in many regions, the first women deans of Ivy League law schools, and thousands of other successful women, including Samantha Power, Elizabeth Dole, Hillary Clinton, and Michelle Obama.

The history of women in the legal profession offers a unique vantage point from which to view the progress of women in society, both in the United States and worldwide. The legal profession is one of the most powerful, well remunerated, and respected in the world. Thus, women’s progress in the law is both a standard bearer and an emblem of progress in many cultures. The law not only plays a foundational role in a democracy, but is often a stepping stone to higher levels of leadership in business and public life. As such, opening the law to all citizens should be a goal in democratic societies. Yet if the law has not been particularly welcoming to white women, it has been even less so to women of color and those who otherwise depart from a traditionally male, Anglo-Saxon conception of lawyering.

In many ways, opening the bar to the broad range of human diversity is at odds with traditional conceptions of power in many societies, whether those axes of diversity fall along lines of race, ethnicity, class, sexual orientation, or physical disability. In that sense, the diverse women who have joined the profession in the past century stand at the vanguard of everything feminism once fought for and still stands for: assertive, persuasive women, in control of a room and advising deals—whether in a small town arena or at the highest levels of government and business.

As the introduction to the Harvard Law School (HLS) Career Study’s Preliminary Report notes:

Our findings are relevant to all those who care about the role of law in society. Legal professionals play critical roles across all segments of American society, most noticeably through the courts, but also in government, business, nongovernmental organizations, and other important institutions. Indeed, the Congressional Research Service’s report profiling the 113th Congress (2013–2014) found that 169 members of the House of Representatives (38 percent of the House) and 57 senators (57 percent of the Senate) held law degrees. Many of these representatives—although certainly far from all—graduated from Harvard Law School and other prestigious law schools.

In this issue, we examine data from the HLS study and After the JD (AJD). Together, the two studies provide a wealth of data and insight into the rise of women in the legal profession and what it means to practice law today. We also talk with women in the legal profession across a range of generations and backgrounds: practicing attorneys, legal scholars, general counsel, judges, and business leaders, many of whom juggle children and their careers.

The Takeaway

It’s well known that American women have been at parity in law school classes for more than two decades. In one of the most powerful professions in the world, they have made significant inroads. But to gain equal representation at the highest levels, the culture of work must adjust to a societal structure in which dual-income families are now the overwhelming norm. Flexible policies that encompass the lifespan of a lawyer’s career and make room for periods of time at less than a breakneck pace will benefit men and women alike.

Harvard Law School Career Study and After the JD, Waves 1–3

The Harvard Law School Career Study (HLSCS) combines data from two unique sources: a comprehensive career survey of graduates, and admissions data and transcripts. The Center on the Legal Profession designed and administered the survey of four graduating classes: 1975, one of the first classes where women represented a significant percentage of students; 1985; 1995; and 2000, the last class that had been out of law school long enough to achieve important career milestones and the class best comparable to the nationwide sample in the After the JD study. Data was also collected from a random representative sample of female and male graduates from the 1950s and ’60s.

By focusing on HLS graduates, the study examines women and men who enter the legal marketplace with largely similar elite qualifications. By studying women and men who are all graduates of a single prestigious law school, divergences in career paths are more easily associable to factors other than qualifications. In this issue, we present data from the study’s Preliminary Report.

After the JD, a study conducted under the auspices of the American Bar Foundation, is a longitudinal study that tracks the professional lives of more than 5,000 lawyers who entered the bar in or around the year 2000 through their first 10 to 12 years after law school. The first wave of the study was conducted in 2002–2003, the second wave in 2007–2008, and the third and final wave in 2011–2012.

The early vanguard

The United States saw its earliest female lawyers begin to appear at the close of the 19th century. Myra Bradwell was an early pioneer and suffragist: the wife of a prominent Chicago lawyer, she apprenticed in her husband’s office, then founded, edited, and managed a legal newspaper—the Chicago Legal News—that became a widely read nationwide legal publication.

Bradwell fought to change state laws giving women ownership of earnings and property in marriage in 1869, then petitioned both the Illinois State Supreme Court and the U.S. Supreme Court to be allowed to practice law. Her efforts did not succeed, but in 1890, four years before her death, the Illinois Supreme Court suddenly approved her application from nearly 20 years before. Two years later, the U.S. Supreme Court did the same. After Bradwell’s death, her daughter, Bessie Bradwell Helmer, took over the helm of the Chicago Legal News and became one of the first women to be admitted to the Illinois bar after her mother.

Swept along by the first wave of feminism, which brought women’s suffrage, hundreds of female lawyers sought employment during the 1920s—only to be turned down, then stopped short by the Great Depression. In the 1930s and ’40s, Wall Street firms—Milbank Tweed, Sullivan & Cromwell, Cahill Gordon—began hiring their first women associates. (The same firms wouldn’t make a woman an equity partner until the late ’70s and early ’80s.)

During World War II, a shortage of candidates saw some firms hiring women—only to demote them to secretaries and librarians when the war ended. By the time women began entering HLS in 1950, hundreds if not thousands of women had already graduated law school over the preceding 50 years—despite living in a time when many women were lucky to get jobs as secretaries, if they worked outside the home at all.

In the 1960s, women made up about 3 percent of the legal profession. Women like Geraldine Ferraro, Janet Reno (HLS ’63), and Patricia Schroeder (HLS ’64) were all turned down for jobs at major firms just out of law school. “In the 1960s, women had to be highly motivated in order to make it through those three difficult years,” Mary J. Mullarkey (HLS ’68) a now-retired chief justice of the Colorado Supreme Court, wrote in 2004. “During my student days, I never met a female law student who was in school because her parents insisted that she go to law school or because she could not think of anything else to do after college.”

In this climate, Harvard’s class of 1953 admitted 14 women (about 3 percent of the class). The HLS study presents a picture of the period, in which Harvard women did surprisingly well: 93 percent obtained full-time employment after graduating, compared to 98 percent of men. For women, 46 percent of those jobs were in law firms—another relatively high figure given the times (52 percent went into public sector jobs, such as government positions and nonprofits).

The first class of female graduates of Harvard Law School.

The first class of female graduates of Harvard Law School. Image courtesy of the HLS Library.

Despite the challenges, the first generations of women to graduate from HLS reported near-universal satisfaction with their decisions: 89 percent said they would still choose to go to law school, and 88 percent were happy with their career (even more than men, who reported 85 percent career satisfaction). Remarkably, 100 percent of all women respondents said they were satisfied with their decision to become a lawyer (vs. 93 percent of men).

Progress, but not enough

Elizabeth “Betsy” Munnell was a member of the HLS class of ’79, when, she recalls in an interview with The Practice, women made up 20 to 25 percent of her class. She went on to a career as a partner and rainmaker for Edwards Angell Palmer & Dodge in Boston. “I hated every minute,” she says. “None of us enjoyed themselves. It’s a rare person who found it particularly fun to be here, even when very seized by fascination for the law.”

However, she didn’t feel “beaten down” by the experience. “All of us faced enormous barriers to advancement that we didn’t expect to see,” she says. “But I think when you’re in the vanguard of something, and you’re actually a minority in some respects, you feel perhaps the confidence that you are in the vanguard—that you’re special because you made it to the vanguard.”

Munnell is disappointed by progress in the profession since. Though women are at near parity in graduation rates, they’re still not reaching the partner suites at anywhere near those levels. “Maybe we’re making a little progress, but not enough,” she says. “Imagine that in 35 years, all we’ve done is increase women graduates from 25 percent to 50 percent.”

“Women’s liberation powered our college years—feminism is a better term—and we all felt quite sure that not only would the population eventually be 50-50 in terms of new hires, but that, if not 50-50 among partners, we would certainly be in a very high concentration. Instead, there’s been literally almost no change whatsoever.”

In those early decades, women were admitted in token numbers at Harvard and most other law schools: enrollment for women hovered between 3 and 4 percent through the 1950s and ’60s—a grand total of 500 women a year nationwide. In 1968, as social activism swept like a brushfire through American youth, women’s first-year enrollment jumped to 7 percent nationwide. Each year thereafter saw increases: by the fall of 1972, that percentage had doubled to nearly 16 percent, and by 1977 it had doubled again, reaching 30 percent.

The class of 2017 has reached gender parity. Source: HLSCS Preliminary Report

The class of 2017 has reached gender parity. Source: HLSCS Preliminary Report.

In Pinstripes and Pearls (Scribner 2003), Judith Richards Hope writes about the women in her HLS class of 1964:

In 1961, we didn’t really understand that we were storming the barricades, or that we were joining—and to some extent even starting—what turned out to be a revolution. Back then, law was a fraternity in every sense, a brotherhood bound by tradition, education, experience, and centuries of history. Except for the woman holding the scales of justice, “law” came complete with all of a fraternity’s paraphernalia, too: the exclusive men’s clubs where the deals were struck and the old boys’ network parceled out the opportunities; the all-male lounges in many courthouses and legislatures where cases were settled and legislation negotiated; and the men’s executive washrooms in law firms and corporations, not to mention in the robing room of the United States Supreme Court. We didn’t let it bother us too much. We couldn’t—it would have sunk us for sure.

As Harvard’s law school classes reached 20 to 25 percent enrollment for women in the late 1970s, it was an era “when it was possible, for the first time, for women to have the same expectations of professional and personal fulfillment as men,” Jill Abramson wrote in her study of the women of the HLS class of 1974, Where They Are Now (Doubleday, 1986).

Nancy Gertner, a retired judge for the federal U.S. District of Massachusetts who now teaches at HLS, echoed the sentiment in an interview with The Practice. “My generation of women and the women before me—really the first women who became judges—for the most part had the experience of the most egregious kind of discrimination, and had a sense about what they wanted to reform.”

“Every time I gave a speech,” Gertner says, “I would get up and say I refused to be congratulated for being one of three women on the District of Massachusetts bench, because now—two decades after law schools began to graduate equal numbers of men and women—that’s a scandal.”

Visible representation

1200px-O'Connor,_Sotomayor,_Ginsburg,_and_KaganToday, the U.S. Supreme Court has three women among its seven judges, the most the highest court has ever seen. In May, Loretta Lynch (HLS ’84) was named the first female African-American attorney general for the United States. The 2016 U.S. presidential primary contest will be the first to have two high-profile women candidates in the race: Hillary Clinton and Carly Fiorina, the former CEO of Hewlett-Packard. Such women are the new vanguard, as closely watched today as the first significant populations of women in law school.

There is other good news. Women have been at functional parity in entering law school classes since the fall of 2000, when they made up 49.4 percent of entering law school classes. However, those numbers dropped slightly, to 46 or 47 percent, after two years. On a slightly broader measure, women have made up more than 46 percent of entering classes since 1997—as Gertner notes, nearly 20 years ago. For the preceding decade, they made up more than 40 percent of entering classes, hitting the 40 percent mark in the fall of 1985.

As a result of this steady growth, women are seeing gains in the field as well. Women now make up 34 percent of practicing attorneys. The judiciary sees similar numbers: women hold a third of Supreme Court, circuit court, and state appellate judgeships, and a fourth of federal court and all state court judgeships, according to American Bar Association counts. They’re also one-fifth of law school deans, nearly half (46 percent) of associate deans, and two-thirds of assistant deans.

They’ve seen gains in corporate legal departments: one in five general counsel at Fortune 500 companies, and 17 percent of general counsel at Fortune 1000 companies, are women. Recent data from the Association of Corporate Counsel (ACC) suggest these numbers are growing rapidly. In the ACC’s 2015 survey of nearly 2,300 chief legal officers and general counsel, 34 percent of respondents were women. The ACC also recorded a jump in the number of women chief legal officers among Gen X-ers, 12 percentage points higher than the boomer generation, suggesting a strong leadership class following upon the achievements of their predecessors.

But the numbers go down from there. Women make up just 17 percent of law firm equity partners, according to a 2014 estimate from the National Association of Women Lawyers—including nonequity partners, they’re one in five partners overall. They’re just 4 percent of managing partners of the largest law firms. Women make up a third of all lawyers at law firms, according to 2013 National Association for Law Placement (NALP) figures; women of color make up just 6.5 percent of all lawyers, a number that’s remained stable since 2009. Meanwhile, women of color experience the highest rates of attrition among associates: two-thirds leave before their fifth year at law firms, and 85 percent by their seventh year. Women of color are 2.5 percent of the NALP’s count of all partners (by which 7 percent of all law firm partners are minorities).

It’s worth noting that diversity varies considerably across geographic regions: Miami, San Francisco, and Los Angeles do best in the NALP count, with 9 percent of partners in Miami minority women (where a third of all partners are minorities), compared to just over 4 percent in Los Angeles (with 13 percent minority partner representation) and San Francisco (where women are 26 percent of partners). Some cities, such as Boston, Minneapolis, and Portland, Oregon, are at or above average on numbers of women but fall behind in minority representation, while inland cities tend to have the lowest numbers of both: minority women are 1.7 percent of associates in Salt Lake City, where white women are about 12 percent of partners, and minorities of either gender make up just 1.7 percent of partners in Nashville.

Meanwhile, earnings disparities abound. While public sector jobs see near parity in income (women earned 96 to 98 percent of men’s incomes in the third wave of the AJD study), income in every other employment setting is subject to a substantial gender gap. In the first wave of the AJD study, women just out of the gate—two or three years into practice—earned a median salary of $66,000, compared to $80,000 for men. The gap continues to widen over the course of a career: by the third wave of the study, 12 years into practice, men were earning 20 percent more than women overall. Meanwhile, men are two to five times as likely to make partner—even controlling for factors like grades, hours, and time out of the profession.

These disparities may be partly explained by the fact that the law—similar to politics, business, technology, and the hard sciences—is still highly homogenous. Other professions, such as medicine, accounting, and academia are much further along toward broad measures of diversity. It’s a bleak picture, as many have noted.

It matters how women fare in the profession. As the HLS study writes:

Simply put: if women who graduate from Harvard and other law schools encounter more challenges and have less opportunity than their male colleagues, then these women may very well be less able to assume the kind of important leadership positions that lawyers have traditionally played in our society. Indeed, given America’s commitment to, in the words inscribed above the door of the Supreme Court, Equal Justice Under Law, a legal world in which women lawyers have less opportunity to succeed than their male peers threatens the very legitimacy with which the public views the law, lawyers, and the legal profession.

New data, new challenges

The HLS and AJD studies provide particularly rich data sets for understanding more about the role and responsibilities of women working in the profession.

The studies challenge several longstanding hypotheses. For example, women in both studies now by and large do as well as or better than men academically. (In the Harvard study, women had slightly lower first-year grades, but caught up with men by the end of law school in cumulative GPAs, in part because they continued to be engaged in their courses at higher rates than men.) Women are also at parity among clerkships, securing 51 percent of all clerkships in 2012. Since judicial clerks are generally drawn from the ranks of the highest grade earners, this provides some evidence that they’re also at parity in terms of the top grade earners in each class.

In addition, there is data to indicate women work as many hours as men, if not more. In the Harvard study, those employed full-time in law firms reported working an average of 49 hours a week. But, contrary to the standard story, women in law firms worked, on average, more than men across all cohorts, with those in the class of 2000 working an additional eight hours—equivalent to a traditional full day—more than their male peers. Women also report working more hours than men in ACC surveys.

Source: HLSCS Preliminary Report.

Moreover, contrary to the prevailing narrative that discrimination is decreasing significantly over time, the percentage of HLS women who report discriminatory conduct has actually risen over the years, from a low of 30 percent for the class of 1975 to a high of more than 55 percent for the class of 2000. Moreover, while women consistently report experiencing discrimination more frequently than men, the latter percentage is also rising, from a low of 13 percent for the class of 1975 to a high of 21 percent for the class of 2000. While women work more hours than men, they are still subject to discrimination. In the Harvard study, women in the 1950s and ’60s cohort were unlikely to report discrimination—just 17 percent did—but most simply left the question unanswered. The study notes: “Perhaps like other stories of discrimination and humiliation suffered by those of this generation—whether these indignities were as a result of gender, race, religion, or some other personal characteristic—these early pioneers simply may have chosen not to talk about the difficulties they faced, instead focusing on the opportunities they received.”

It’s unclear why reports have risen over time. It is possible that women in earlier classes were subjected to far more overt forms of sexism than later cohorts, but that the women in more recent cohorts have less tolerance for the discrimination that continues to exist. For men, the fact that the percentage claiming to have experienced gender-based discrimination remains both very small and relatively stable, while other reports of discrimination have risen over time, suggests that the growing diversity of the male population is causing the growth in the percentage of men reporting discrimination.

Despite this, women in all cohorts continue to report very high levels of satisfaction with their job and choice of career. In a 2014 study of work-life balance among chief legal officers and general counsel conducted by the ACC, 58 percent of both women and men also reported being happy with their overall balance. In the Harvard study, men’s satisfaction levels are primarily driven by the rewards of work—rewards sufficient to offset significant dissatisfaction with the substance of their work. Women, however, express much higher levels of satisfaction with the substance of their work, while expressing significant dissatisfaction with the rewards. Interestingly, neither men nor women expressed much satisfaction in their control over their working environments.

Source: HLSCS Preliminary Report

Private- and public- sector jobs; levels above zero indicate satisfaction, and below, dissatisfaction. Source: HLSCS Preliminary Report.

Why would women report such high levels of satisfaction, even while earning less and experiencing far greater levels of discrimination? Indeed, in the third wave of AJD, women in the largest firms reported higher levels of satisfaction than men. Called the “paradox of satisfaction,” it’s a mystery that has long puzzled researchers. Swethaa Ballakrishnen, a research fellow at the Center on the Legal Profession, suggests a “vanguard” effect: early women entrants to the profession may be happy enough with the myriad intellectual rewards and autonomy of their work that these benefits outweigh any disadvantages. Later generations are not so sanguine.

As the Harvard study states:

Stepping back from the particular details, this analysis underscores … [that], while many factors will undoubtedly influence how a given lawyer perceives the mix of goods presented by any particular job, gender is likely to continue to play a significant role. … Even women who graduate from Harvard Law School continue to face important challenges in the workplace. These challenges have undoubtedly shaped the way these graduates understand the benefits and burdens of particular legal careers. As more women move into the legal profession both in the United States and around the world, understanding these distinct challenges and opportunities will be increasingly important to the ability of every employment sector to attract and retain top talent.

Earnings gap persists

For all the canards the two studies challenge, some pernicious features of the legal profession are confirmed.

An earnings gap between men and women is particularly pronounced in the law—it is reflected in the Harvard study, AJD, and recent ACC studies. Ronit Dinovitzer is the principal investigator for AJD and a professor at the University of Toronto. “The takeaway story from AJD is that, even from the very beginning of lawyers’ careers, there is an earnings gap between men and women,” she comments. The primary driver of the earnings gap is private law firms, not the public sector, since public-sector pay scales are nearly equivalent.

Women earned 83 percent of men’s raw earnings two to three years out of law school, according to AJD data.

Over the entire sample, women earned 83 percent of men’s raw earnings two to three years out of law school. In a paper written with Nancy Reichman and Joyce Sterling of the University of Denver, Dinovitzer examined the cause of this gap, restricting analysis to those working in private law firms. “Everyone generally says the reason women don’t earn as much as men is that women are burdened by childcare and they’re making different choices,” Dinovitzer says, such as choosing to leave employment. But the first wave of AJD looked at recent law graduates—the vast majority of whom were unmarried and childless.

“We controlled for all the things you would generally think cause an earnings gap,” Dinovitzer notes: credentials, law school, GPA, firm size, area of practice, hours worked, marriage status, children. “We put all of them into our models. Even when we controlled for all of those things, we end up finding that women continue to earn less than men”—5.2 percent less, in fact.

“Men are earning this not because they’re working more hours, not because they’re working in bigger firms, and not because they’re working in a more-lucrative practice setting,” she says. “What we ended up concluding is that the majority of this earnings gap, of this 5 percent, is what we call unexplained—which means that there is a devaluation of women in the labor market.”

Men simply earn more dollars for every credential they bring into the labor market, Dinovitzer explains. “For every increase in their GPA, for example, they earn more. For every hour they work, they earn more. Their credentials command more money compared to women on the labor market. That was our basic conclusion.”

According to AJD data, men were about twice as likely to be equity partners, and thus sharing in the overall profits of the firm, while women were more likely to be nonequity partners.

The earnings gap widens over time. At the third wave of AJD, men were earning 20 percent more than women, on average. Men in the largest law firms in the third wave (109 total) were earning a $290,000 median income. For women under the same conditions (60 total), the median income was $191,000. Dinovitzer explains that analysis of the data is still ongoing, but the difference is probably due to partnership status: men were about twice as likely to be equity partners, and thus sharing in the overall profits of the firm, while women were more likely to be nonequity partners.

For decades, Dinovitzer notes, the presumption has been that once enough women entered the “pipeline” for advancement in the legal profession, they would surely advance, and earnings would even out. “People love the pipeline story,” she says. “We see it in the story about engineering, we see it in stories about MBAs: we just don’t have enough women. But the point is, we have enough women now. This is not the first class of women to be at the 50 percent mark. We’ve got to start looking at other issues.”

Parity among the elite?

Meanwhile, for those who advance in the profession, 61 percent of male and female HLS graduates working in law firms report their current position as being “equity partner/shareholder.” As the literature would predict, men—just over two-thirds—are more likely to report being equity partners than women—about half—though this difference is not statistically significant. Moreover, the overall percentage of female partners in the Harvard sample—48 percent—is far higher than in law firms generally (at 20 percent).

Recent trends in nonequity partnership are reflected among all HLS grads: there is a significant increase in the number of nonequity partners beginning with the 1995 cohort, where the overall percentage of nonequity partners jumps from just under 9 percent and 12 percent for the 1975 and 1985 cohorts, respectively, to over 23 percent for the 1995 cohort and almost 25 percent for the 2000 cohort. However—and contrary to reports elsewhere, as well as the national sample in the AJD data—there is no significant difference between the women and men who end up on the nonequity end. In other words, the difference between Harvard women and men who are nonequity partners is statistically insignificant.

That HLS graduates are much more likely to make partner than a national sample is probably unsurprising. But that women Harvard grads are so likely to make partner—nearly half of all women reporting—may be a hopeful sign.

If only it were that simple. Research on the legal profession makes clear that in today’s law firms, making partner is just the beginning of a new competition to become a “partner with power” in the organization. One measure of whether a given partner has achieved this status is whether he or she holds an important leadership position within the firm. In examining this question, the Harvard study found significant disparities between the management positions held by women and men. For instance, of respondents who ever held the title “managing partner,” 82 percent were men; 75 percent of those reporting that they had ever held the position of head of a practice group or area were men. Although the percentage of women holding these positions in the sample is larger than studies of women’s representation in these positions typically report, it remains low given the relatively higher percentage of HLS women who have become equity partners in the sample. The fact that women are less likely to hold these leadership positions has important consequences both for their own careers and for the governance, growth, and culture of the law firms in which they work.

Similarly, although nearly all of the lawyers working in law firms in the Harvard sample reported serving on committees, there was a significant difference in the type of committee by gender. As any observer of law firms knows, not all committees are created equal. Men traditionally have dominated what might be considered the “power” committees—committees dealing with recruiting, promotions, compensation, and management. On the other hand, women were more likely to have served on the diversity and quality of life committees.

Source: HLSCS Preliminary Report

Source: HLSCS Preliminary Report.

Midcareer: The pipeline problem begins

Between about the seventh and eighth year of practice—by the second wave of the AJD study—associates begin to migrate out of law firms. Yet the reasons men and women give for this change tend to differ significantly. In addition, some women move to part-time work or drop out of the workforce entirely.

In the HLS study, there is a general migration of HLS graduates out of law firms across all cohorts. For example, 57 percent of the 1985 cohort went to law firms for their first job (55 percent of men; 59 percent of women). By the time they were surveyed 25 years later, the number working in law firms had dropped to 37 percent overall (44 percent of men; 26 percent of women). This trend is consistent with the third wave of the AJD study. Although both men and women in the Harvard study moved into the business sector, men were significantly more likely to do so in positions where they did not practice law—and where they made a lot more money. Women were more likely to hold jobs in the business sector where they still practice law, primarily in-house counsel offices.

Although both men and women in the Harvard study moved into the business sector, men were significantly more likely to do so in positions where they did not practice law—and where they made a lot more money.

In the AJD study, women’s participation in the labor force had also dropped by the second wave, when 96 percent of men were working full-time, along with 76 percent of women—a number that did not change four years later, at the third wave. Thus, roughly one in four women had moved to part-time work or left the workforce entirely by the eight-year mark after passing the bar.  (As a result of the study’s design, it’s not possible to say that proportion is made up of the same individuals, but only that the proportion of women out of the workforce remained steady.)

Perhaps unsurprisingly, children were the primary reason: 15 percent of respondents said they were working part-time in order to care for children, and 9 percent had left the workforce for the same reason. Men in the AJD study were almost universally unlikely to reduce hours after having a child, however: 96 percent in the third wave worked full-time.

Why do women have higher rates of attrition at law firms? And why do they feel they need to leave the workforce when they have children? Such decisions always occur as a result of a unique constellations of influences and pressures for each individual; below, we explore some of the factors that likely play into their decisions. Many affect both women who choose to have children, and those who don’t.

Structural elements of disparity

A number of factors affect women’s progression in the law, including:

Leadership opportunities

“There is a good, strong pipeline, but there are a number of challenges women still face in the workplace in terms of being able to claim an equal seat,” Veta Richardson, CEO of the Association of Corporate Counsel, says in an interview. She points to evidence that women are less likely to be given assignments that will allow them to move up or interact with executive management. “I think that a number of the old stereotypes still need to be broken in terms of the way the workplace looks at women in development and opportunities.”

lawfirmleadership

Source: HLSCS Preliminary Report.

Unconscious bias

Unconscious bias refers to the tendency—which most people are completely unaware of—to make assumptions regarding specific groups of people, particularly in- and out-groups, relative to their own social position (for more on this concept, see the Speaker’s Corner). Researchers suggest one cause of women’s failure to advance to leadership in greater numbers is an unconscious assumption about who should lead. “Who we naturally think of in our brains when we think of a leader—it’s still predominantly a male image,” says Ursula Wynhoven, general counsel and chief of governance and social sustainability for the United Nations Global Compact.

Wynhoven mentions Harvard’s Implicit Associations Test, which measures split-second associations between words and concepts, such as male, female, nurturer, or leader. (Try it out here.) “Even those of us who work on women’s empowerment issues take that test and find that we have a bias in favor of men as leaders, despite our best intentions.” When women have been at parity in law school classes for nearly 20 years, yet the needle hasn’t budged in women’s leadership during the same period, she says, “That’s when I think it’s appropriate to raise the issue of unconscious bias surrounding women involved in these decision-making processes.”

Machismo culture

Joan Williams, director of the Center for WorkLife Law and director of the Project for Attorney Retention, has described how law firms’ culture of overwork valorizes long hours and cuts short the possibility of family time, since caring for families is seen to be at odds with traditional definitions of “breadwinner” masculinity. When in effect, such a culture expects longer hours of men who are parents, but fewer for women parents. Some studies have documented that men in fact tend to work longer hours after having a child. Women who are parents in such a culture are held to the same norms, since family life is so undervalued within it. Those expectations of long hours automatically put women at a disadvantage. The “second shift” of child care, says Wynhoven, “makes it harder to put in, even if you wanted to, the same amount of extensive hours that maybe the ideal worker could put in.”

Lack of role models

While earlier generations may have been prepared for a male-dominated workplace, those entering the profession in the 1990s and 2000s—who were raised among far less gendered cultural norms—are almost certainly less so. A lack of role models and resulting isolation in the workplace may play a significant role in whether women see themselves as candidates for leadership or drop out altogether. “When the wall of photos here at the U.N. in a meeting room of the directors of a particular entity are all men—these things have an impact that we’re not even necessarily aware of,” says Wynhoven.

The care dimension

The structural limits of combining parenting and the workplace fall heavily upon women, Wynhoven says. “Women still have the vast majority of care responsibilities for children and other family members.”

In April, the United Nations released “Progress of the World’s Women 2015–2016,” a report about the status of women around the world. “One of the things the report highlighted is the care dimension,” she says. “Until we get that sorted, women will often have the second shift.”

Senior women at the United Nations—also represented in low numbers—tend not to have children, she says. “We have the same percentage issues here at the UN, I regret to say. We should really be able to walk the talk. So it makes it hard. I think when you’re looking at those role models, you just don’t see how you can have it all.” (For more on parenting and the law, see below.)

High personal expectations

High-achieving women often have high expectations of themselves, when a self-forgiving attitude might be more productive given the amount they’re juggling. More is expected of parenting, too, Wynhoven notes. “Parental expectations these days—they’re just so much more extensive than when we were kids in terms of the intellectually stimulating environment you should be creating for your child, their different activities, and the things you’re doing with them at home. These have tended to land disproportionately on women—and of course you’re also supposed to be gorgeous, too, right? Beautifully dressed and immaculately put together.”

Heading in-house

The structural features of many law firms—long hours, little flexibility, and a machismo culture in which women may be subjected to invidious outright or unconscious bias—may be related to the broad exodus from law firms documented in both the AJD and Harvard studies.

Major career shifts occurred across gender at about the seven- or eight-year mark, AJD found. At the first wave, several years after the bar, women and men were working in private law firms in relatively equal numbers: 65 percent of women and 71 percent of men. Yet, by the second wave, eight years after passing the bar, 50 percent of women were working in private firms (a 15-point drop). Men also left in droves, going from 71 percent to 58 percent in private firms (a 13-point difference). In the third wave, employment remained relatively stable across the sample. “Everyone is leaving private law firms over time,” says Dinovitzer.

“How do we characterize this?” Dinovitzer asks. “Sometimes I feel like saying this is about men’s careers beginning to look like women’s, to take on patterns we typically thought were for women. It’s not just women leaving private law firms.”

“Everyone is leaving private law firms over time,” says Dinovitzer, a principal investigator in the AJD study.

She points out that the number of men and women attorneys moving into business (everything from general counsel to opening a yoga studio) is also virtually equal:  18.5 percent of women and 19 percent of men worked in business. In addition, while historically women have been more likely to work in the public sector—for government entities, public defenders offices, and so on—AJD found, again, a less dramatic difference between men and women after 12 years of practice: 24 percent of men worked in the public sector, compared to 33 percent of women.

The overall picture, Dinovitzer says—at least in terms of employment setting—is one of greater similarity than difference. “On the one hand, yes, women do have a different profile than men. Their dominant profile is perhaps more similar to that of men. It’s not that the majority of women are in the public sector. If you were to look at just the shape, the general distribution is more similar to men than different.”

A move to in-house corporate counsel may be particularly attractive for women with children. Nicole Bigby is a partner and general counsel at Berwin Leighton Paisner, a U.K. “silver circle” firm, and a mother of two. The rise of women in-house has side benefits, she points out. “In some ways, perhaps a bit of a collateral benefit of a leaky pipe coming out of the private sector has meant that women have moved into in-house counsel positions. Traditionally, it was seen to be more family-friendly and the hours were more flexible. … But you’re now seeing, as women also move up the ranks, they become really quite visible and totally powerful female general counsel role models, who are also in the position through supply chain management with their law firms to say, ‘Well, actually, I want to see a diverse team. I want to see a team that replicates or mirrors the sort of diversity that I need to manage. Not only my legal team, but the business units my in-house lawyers manage.’”

“As women also move up the ranks,” says Bigby, a partner a Berwin Leighton Paisner, “They become really quite visible and totally powerful female general counsel role models.”

Indeed, some in-house counsel are doing just that. Joe West served as associate general counsel at Walmart in the 2000s. During his tenure there, he instituted requirements that all of Walmart’s outside firms establish flexible work arrangements for their attorneys, West told The Practice. “The feedback that I received was tremendous from female lawyers, but especially from women partners,” he says. “A number of them felt like it would make it possible for them to continue on the track they were at, and make it less likely that other female lawyers who were associates and who were contemplating starting a family would drop out.”

West now heads the Minority Corporate Counsel Association (MCCA), which conducts a yearly survey of women and minority in-house attorneys. In MCCA’s most recent survey, even though minorities were hired and even promoted at a higher rate, they continued to leave firms in disproportionate numbers, he says. “The issue really isn’t an issue of attrition,” he says. “That’s part of the reason why there is such a gap at the leadership ranks in law firms between men and women. They still leave in larger numbers and in disproportionate numbers than men.”

While West agrees flexibility is a driver of attrition among women in law firms, it’s not the only one. “Another one, frankly, has to do with the culture of the law firm environment as compared, say, to in-house environments.” MCCA tracks minority representation at the general counsel level in Fortune 500 and Fortune 1000 companies, where growth for women of color has been “much more robust,” he says, than in law firms. “I think part of the reason is that in corporate law departments, there is a greater premium placed on collaboration. Collaborative work environments tend to favor women more than the über-competitive, sharp-elbow environments that you find in large law firms. In large firms, there is a premium placed on hoarding of contacts and hoarding of resources. If you are the person who hoards resources or hoards contacts, who doesn’t play well with others in corporate law departments, you are shunned and ostracized, and eventually you’re eliminated from the group. I don’t think it’s an accident that there is greater retention and greater advancement opportunities for women in-house than in law firm settings. The cultural differences between those two are really, really stark.”

Another factor West points to: professional development is much more institutionalized in corporate settings. “In in-house environments, you are almost required—particularly if it’s a large department—to develop the talent that reports to you. You don’t see that as much in law firms. Particularly after the economy took a downturn and you had more partners choosing to work longer and, again, guard more jealously and zealously their contacts and resources. People didn’t make the effort to develop talent coming up through the ranks generally, much less someone who looked differently than they did. But you do have that in-house. That’s the other difference you see, and that has worked to the detriment of the careers of a lot of women; again, even more so women of color.”

Legal partnership patterns

More than a few female lawyers have been heard to exclaim in exasperation as they try to manage the competing demands of their careers and personal lives that “What I really need is a wife!”

In 1829, Supreme Court Justice and former HLS professor Joseph Story described the law as “a jealous mistress that requires long and constant courtship.” Nearly two centuries later, many believe both the explicit and implicit messages embedded in Story’s infamous quip continue to hold true. To achieve success, today’s lawyers must put in longer and more constant hours than ever before. And the women and men who do so still work in careers that were designed not only for a man, but for a man who has a wife who does not work. Indeed, more than a few female lawyers have been heard to exclaim in exasperation as they try to manage the competing demands of their careers and personal lives that “What I really need is a wife!” In this section, The Practice examines how attorneys have attempted to integrate work and family commitments. The word “balance” is expressly not used as, like any other tension among large and complex commitments, it is unlikely that these domains will ever be in equipoise.

Across all the cohorts, women were less likely to be married than men. Apart from the 1975 cohort, women were less likely to have ever been married than men. Virtually all (94 percent) of the male law firm partners in the sample were married, compared to only two-thirds of female partners. A large disparity exists with respect to partners who have never been married, with 18 percent of female respondents falling into this category as compared to 2 percent of male respondents. Notably, however, there is no difference between the percentage of married women who have become partners in law firms (66 percent) and those who have not (65 percent)—and women who did marry and then become partner had spouses who worked less than they did.

hours

Source: HLSCS Preliminary Report.

Across all cohorts, women reported having a spouse or partner who earned a higher income than the spouse-partners of male respondents. This trend continues with respect to respondents who are partners in law firms, with the spouse/partner of female law firm partners earning more than twice as much as the spouse/partner of male law firm partners. This data provides some modest corroboration to support the thesis that male lawyers are more likely to have a spouse/partner who is in a less demanding job than the spouse/partner of a woman partner. Unlike hours worked, the study found no difference in the incomes of the spouses/partners of female respondents who are law firm partners compared to those who are not law firm partners.

IncomePartner

Source: HLSCS Preliminary Report.

For women, children first? Combining parenting and a legal career

Are the problems structural or personal? If the choices at first glance seem personal, they may be still structural—if the possibility to remain in the workforce seemed more realistic or attainable, more women might choose to do so. Indeed, many women currently out of the workforce indicate they intend to return.

Researchers have proposed a number of answers to these questions, says Ballakrishnen. “There’s a range of theories,” she says. “But the most obvious one is that [a legal career] intersects with women’s life courses very differently than it does for men.”

currentjob

Source: HLSCS Preliminary Report.

Women’s continuing disproportional responsibility for the requirements of the family “requires them to make very specific work versus life choices that men similarly placed don’t have to make,” Ballakrishnen notes. “So if a woman is choosing to stay on a partner track and choosing to put in 20 hours a day, five, six, seven, six days a week, she’s making a very conscious different choice about whether she’ll have children, when she can have those children, when she’ll get married, what that partner will mean to her, et cetera, in a way that a man who’s making those choices with work does not quite have.”

To begin, women were also less likely to have children—35 percent in the third wave of AJD, versus 28 percent of men (at about 40 years of age across the sample). When men did have children, they were more likely to have two or more children. That women in the law aren’t having children isn’t a tragedy unless those women actually wanted children, but felt their career didn’t allow the option. Researchers have documented a broad trend toward lower birth rates among educated women. Still, the disparities are stark.

For example, in the Harvard sample, across all cohorts and job sectors, men are likely to have slightly more children (2.3) than women (2.1). However, when looking at lawyers with no children, the difference between women and men is far more dramatic. Across all employment sectors, women are far more likely than men to have no children—31 percent and 19 percent, respectively. Although a gap exists for lawyers working in law firms (7 percent), it is significantly higher for lawyers working in the public sector and in business (practicing law)—15 percent and 13 percent, respectively.

Although that might make law firms appear to be relatively family-friendly compared to other employment sectors, the correlation between partnership and children tells a different story. For example, the percentage of female partners who have no children (24 percent) is twice as large as that of male partners with no children (12 percent). Moreover, while most partners—almost three-fourths—have two or more children, men are more likely than women to be in this category (77.5 percent and 64.1 percent, respectively).

There are documented penalties to having a child, particularly for women in the workforce. Studies show women who are pregnant or have children are frequently judged to be less competent than their male or childless female peers (“I had a baby, not a lobotomy!” one lawyer protested). They also take a financial hit: one study found women who took a year off lost 20 percent of their lifetime earnings. Women who took two or three years off sacrificed 30 percent. The media has often characterized these patterns as women “opting out”—simply choosing to stay home. But women’s high rates of satisfaction in the profession and with obtaining a legal degree, that seems far from a thorough accounting of the complex choices women who want children may feel compelled to make.

Dinovitzer notes, “I don’t think it’s as simple as women are opting out. I think it’s far more complicated than that, because people respond to their context, and people respond to the rewards that they’re given in the labor market as well. “Yes, there are women who make a choice not to work, but the question is, why are they making that choice? Some of them are turning down good positions, and some of them are saying, ‘Hey, if I’m not going to be valued in the workforce, if I’m not getting challenging work and challenging assignments, then I’ll look for something else.’”

ActionsTaken

Source: HLSCS Preliminary Report.

Source: HLSCS Preliminary Report

Source: HLSCS Preliminary Report.

Many women may feel pressured to make a stark choice: child or career. Indeed, in the ACC study of work-life balance, 70 percent of women respondents who were caregivers reported they thought having a child was detrimental to a career.

Ballakrishnen notes the roots of these decisions often go much deeper. “We’ve been socialized to say, ‘Hey, you should work really hard. You should go to law school. You should get the best education you can. But then also remember you are the primary caregiver for your family.’”

This puts firms that do make an effort to provide flexible arrangements in a difficult position when their efforts to retain women fail. “The firms put their hands up and think, ‘We’ve done everything we can, and women are the ones who are actually choosing to leave.’ What we don’t realize in that puzzle is that women are choosing to leave because you socialize young girls in ways that you don’t socialize boys, because gender binaries are the biggest difference in American society—and every society, really. We classify based on gender constantly, and we sort of have different assumptions of who should do child care and who should be balancing and juggling these odds, and they’re scripted in ways much more quickly for women than they are for men.”

Given these disparities, it is not surprising that significant differences in workforce participation between HLS female and male graduates continue to exist. For both women and men, as the number of children increases, participation in the full-time workforce declines. The rate of decline, however, is significantly different for the two groups. Men with one child are only slightly less likely than men with no children not to work full-time (83 percent and 88 percent, respectively). Although the percentage of full-time workers declines more significantly for men who have two or more children, their overall participation in the full-time workforce remains at about 75 percent; of the remaining quarter, around 10 percent are working part-time with the rest out of the paid workforce.

Women, however, follow a very different path. With no children, female HLS graduates in the sample were as likely as their male counterparts with two or more children (73.7 percent and 73.6 percent, respectively) to be in the full-time workforce. This percentage declines by 6.7 percentage points, to 67 percent, when having one child, and by another 18.7 percentage points, to 48.3 percent, when female respondents have two or more children.

Source: HLSCS Preliminary Report

Source: HLSCS Preliminary Report.

Although there are undoubtedly many reasons women leave the full-time paid workforce after having children, the fact that more than half of women in the Harvard sample with two or more children have done so, with nearly a quarter out of the workforce altogether, is nevertheless a cause for concern. Whether purely as a matter of voluntary choice—or, as is often the case, a choice made in the shadow of what women reasonably believe is possible given the expectations of employers and society—the fact that so many talented female lawyers are not working full time, particularly at a time when the demand for talented and highly credentialed lawyers to tackle the complex problems facing the world today is so high, represents both a lost opportunity and a potentially looming crisis.

The maternal brick wall

Meanwhile, the lack of flexibility in law firms is simply too great a hurdle for many women—what the Center for WorkLife Law’s Williams and others have called hitting the “maternal wall.” When flexible options exist, they may be ad hoc, created for individuals rather than instituted as firm-wide policy, and thus not reliably supported or enforced. In a 2011 study, Stanford Law School’s Deborah L. Rhode found that more than 90 percent of firms report having part-time policies, yet only 4 percent of lawyers actually use them.

Interestingly, and contrary to some reports, women in the HLS study who worked part time were unlikely to report having left the practice of law, suggesting that they had negotiated just such an ad hoc arrangement. Of those who reported working part-time, nearly 70 percent said they were practicing law—nearly the same number as among both women and men working full-time. Women in this study may be the beneficiaries of a growing number of flexible positions among firms.

Even after moving in-house, women are often still concerned about time demands. The ACC’s work-life survey found 43 percent had considered moving to another company for balance reasons, compared to 25 percent of men. Women in the study reported working 47 hours on average, compared to men’s 50 hours. On the bright side, notes Veta Richardson, CEO of the ACC, in an interview. “Women are certainly very adept at juggling multiple responsibilities. Women are contributing significantly more than a 40-hour week. And in addition to that, they’re taking on even more responsibilities at home. So women are the ultimate jugglers. Perhaps they can do their work in 47 hours, whereas it takes the men 50.”

Williams’ maternal wall documents how many women hit a career full stop when they have children. But as Facebook’s Sheryl Sandberg argues, women may step back well before they even have children, in what she calls “leaving before you leave.” Gertner, the retired judge from Massachusetts, takes up this line of argument in “Feminism, Stalled: Thoughts on the Leaky Pipeline.” Women leave, she writes, “because the workplace had not changed materially over the past three decades, even with the new numbers of women, and neither had the family. So it was more than the idyllic pull of motherhood on the one hand; it was the push of real obstacles in the workplace on the other.”

This language of push and pull reflects a basic structural problem: that women “choose” to leave may not be so much a choice as a response to structural conditions. Gertner continues:

Women plan for their professional exit years in advance. They do not pursue the most difficult specialties or challenging jobs because someday they will want to have a better work/life balance. Perhaps, they do not even try for that equity partnership, knowing that it will wreak havoc with her childrearing responsibilities. The moment a woman starts thinking about having a child, she does not raise her hand anymore at work—no promotions, no new projects, no taking a seat at the table. If women lawyers do “lean back,” and leave the firms long before they qualify for partnership consideration, the pool of qualified women will surely diminish, making it harder and harder to prove discrimination, and letting the firms more and more off the hook in their promotion decisions.

Women’s failure to achieve the success their numbers would have predicted is not because of inadequate mentoring or insufficient networking. We have to critique the structural impediments to women’s progress—the very organization of the legal workplace, the policies that enforce the “maternal wall,” the inadequacies and costs of daycare, and the government and private employment policies that reinforce traditional stereotypes about mothers and workers.

The ideal worker: High expectations for everyone

The sociologist Joan Acker has proposed the concept of the “ideal worker”—one who has no obligations or priorities outside work and is perpetually on the clock. That worker, she notes, is historically male.

There’s a “constant tension between having an ideal worker” in the law, Ballakrishnen notes, in which firms say, “‘Hey, we’re spending all this money on inclusion and diversity, and we’re going to have more women, and we’re going to have more people of color.’ It actually really doesn’t work because, once they’re in, you’re still expecting them to talk the talk and walk the walk of your ideal worker, who’s most often not a person of color and a man.”

But men, too, increasingly chafe at these expectations. Time with family and loved ones is important to virtually everyone, and men leave large law firms at similar rates to women, as Dinovitzer points out.

In 2013, a departing Supreme Court clerk for Justice Ginsburg took to the pages of The Atlantic to describe his next move: staying at home with his 1-year-old daughter while his wife embarked on a nonstop medical residency. “Men appear to be just as dissatisfied with the stickiness of gender-based norms as women,” Ryan Park (HLS ’10) wrote. “Nearly half of fathers report dissatisfaction with the amount of time that they are able to spend with their children—twice the rate of mothers who say the same. The gender-equality debate too often ignores this half of the equation. When home is mentioned at all, the emphasis is usually on equalizing burdens—not equalizing the opportunity for men, as well as women, to be there.”

In a 2012 Pew survey, similar numbers of fathers (50 percent) and mothers (56 percent) said they struggled to balance the demands of work with raising a family. And both fathers (48 percent) and mothers (52 percent) said they would stay at home with their children if financial necessity didn’t require them to work a job. There’s evidence a father’s time with children is good for the health of both the child and the man—including one study showing a reduced risk of death in men who took paternity leave.

A year after leaving his Supreme Court clerkship, the author returned to the job market. In interviews with law firms, he noted his commitment to accommodating his wife’s schedule and caring for their daughter. “This may well have cost me an offer or two,” he wrote:

Most of the senior partners I met with responded stiffly, with raised eyebrows and a bemused remark on how times have changed. (Sometimes, though not often, this was accompanied by a wistful aside about the time they’d lost with their own, now-grown children.) Younger partners of both genders, however, usually responded with warmth, understanding, and even enthusiasm, based on their own experiences managing a dual-career household.

Women are more likely to establish formal leave or part-time work arrangements with employers, often doing so at significant personal and career costs. In a recent study, a researcher at the Boston University School of Management found men often won’t risk those penalties—but find ways to take the time anyway. In a summary published in Harvard Business Review, Erin Reid described her finding that some men at a major consulting firm were in fact faking the 60- to 80-hour workweeks expected in that setting via a variety of stratagems, such as focusing on developing a local client base to reduce travel and organizing team members to cover for one another when parenting responsibilities cropped up. (Women in the study faked hours as well, but at a much lower percentage—11 percent vs. 31 percent of men.) One man said he had just returned from five days of skiing with his son: he answered emails in the mornings and evenings, without anyone, clients or coworkers, the wiser.

The MCCA’s West says his in-house team at Walmart encouraged more men to take advantage of flextime arrangements, both internally and in conversations with outside counsel. “What we found anecdotally,” he says, echoing the consulting study, “was that men actually do enjoy almost the same level of flexibility as women do. They just tend not to do it in as advertised or formalized a way because of the stigma. I think once people come to that realization, it will start removing some of the stigma associated with flexible work arrangements. Then those types of arrangements will work the way they’re intended, which would be, ultimately, to facilitate retention.”

The generational divide along parenting is likely to grow. Williams notes that members of generations X and Y increasingly value family over success at work. “Not only do young women increasingly feel entitled to be both ideal workers and ideal mothers,” she writes, “but young men also feel increasingly entitled to take a more active role in childrearing.”

The goal, Williams writes: to replace the “selfless-mother model and the breadwinner model with the model of a balanced worker, one who combines serious work commitments with serious family commitments and also with serious commitments to long-term self-development and enriching community life.”

Making parenting possible

There is considerable evidence for the business benefits of offering flexibility to permanent employees. A 2014 study of the high billable-hour requirements common at most law firms points to the effects of long-term sleep deprivation on neurocognitive performance, as well as studies showing that reasonable limits on work hours can actually improve productivity. “Limiting hours logically should produce more efficient and ethical lawyering, while making law firms more feasible work environments for women,” its author concluded. In other settings, offering work-life flexibility has been shown to improve service, morale, and loyalty. Meanwhile, diverse teams are linked to increased sales revenue, more customers, greater market share, and greater relative profits.

Firms with better attorney retention may also have a market advantage. “It’s about retention,” the MCCA’s West emphasizes. “The fact is, retention is important to the client. I think in a lot of large firms, they think huge attrition is just a necessary cost of doing business. But corporate clients don’t like attrition. It’s expensive. You have lots of relationships and institutional knowledge [you lose] when firms have to rehire and retrain, and they sometimes want to do it at the client’s expense. The goal really was to try to stem the tide of attrition among the ranks of women and minority lawyers, particularly women who happen to be minorities, but also for the benefit of the client and the benefit of the company—to be sure that we retained those lawyers who were doing really good work for the firm.”

Offering work-life flexibility has been shown to improve service, morale, and loyalty.

The Pregnancy Discrimination Act was passed in Congress in 1978, preventing discrimination on the basis of pregnancy in the workplace. Yet women who are pregnant, as well as those with children, continue to face broad discrimination in the workplace. Indeed, it may be the most socially accepted, frequently unremarked form of discrimination still in effect. The argument against such discrimination, Williams notes, is based on equality, not accommodation: in contrast to accommodation claims, she writes,

it is possible to design workplaces that reflect not only the bodies and traditional life patterns of men, but also those of people (disproportionately women) who need time off for childbearing, childrearing, and other family caregiving. Designing workplace objectives around an ideal worker who has a man’s body and men’s traditional immunity from family caregiving discriminates against women. Eliminating that ideal is not “accommodation”; it is the minimum requirement for gender equality.

The impulse to blur the distinction between discrimination and accommodation sends the unstated message that the woman ‘asking for accommodation’ is demanding special treatment. But the real problem lies with workplace structures rather than with the women. Solutions to work-family conflict lie in redefining the ideal worker by changing norms, practices, and policies.

Women who are pregnant continue to face broad discrimination in the workplace.

A focus on making family life possible for dual-income families should have easy bipartisan appeal (that is, unless conservatives are in fact nostalgic for outmoded and impractical family patterns, rather than focused on the well-being of parents and children as they profess to be). Williams notes: “People across the political spectrum place a high value on family care—it is hardly an issue on the cultural fringe.”

Businesses often object that the costs of parental leave are simply too great. But contrast them with the cost of training a new associate. In a 2015 LexisNexis survey, a variety of firms reported average training costs for the first two years of employment at $19,000 annually per attorney. Williams notes that there are economic benefits to retaining employees via part-time arrangements—in client service, replacement costs, and improved quality and productivity.

Deirdre Stanley is general counsel and vice president at Thomson Reuters. Some jobs, she argues, aren’t feasible in the context of flexibility, particularly leadership positions that require being constantly on call. Yet, she says, individual contributor positions are often good candidates for flexible positions. “The problem is that we default too often to the fact that it has to be structured this way because it was always structured that way, right? People shouldn’t be polarized. It isn’t an either/or.”

An increasing corporate interest in reducing real estate footprint has led some organizations to encourage employees to work from home, she notes, allowing employees greater flexibility and corporations reduced costs via in-office desk sharing. “What’s going to make this most likely is when the cost becomes low enough to do things in a flexible way, which is what we’re moving toward. Once you start to have this intersection of cost with things from a flexibility standpoint—which may work better for women anyway—that’s when it’s really going to take off.”

Shifting values

What’s often missed in the discussion about women juggling family and career, Stanley points out, is that men haven’t historically had it all either. Indeed, sacrificing family for work is practically a cliché of modern manhood.

Younger generations may increasingly opt out of these binaries, says Sandra Yamate (HLS ’84), CEO of the Institute for Inclusion in the Legal Profession. “As we see more and more younger people who are entering the profession with their different generational values, some of this may end up beginning to happen a little bit on its own. It’s simply going to become the reality that all lawyers, regardless of gender, want to have a more fulfilling life, and it’s probably not going to be structured along the same lines that the profession has been structured for so many generations.”

Berwin Leighton Paisner’s Bigby emphasizes the validity of traveling at different speeds during a career, and “shifting the bell curve” for the broader population of women attorneys, not just the extraordinary women who’ve been in the vanguard. “There isn’t necessarily just one way to do a role or one trajectory which happens to be a straight line straight up—actually, there are other options,” she says. “You may make a move laterally which may give you really valuable industry experience or government experience, which at a point in your life may be important to you. Then there are other ways to come back into the pipeline, or move around the pipeline, or pick up your speed in the pipeline, if you want.”

“The reality is that all lawyers, regardless of gender, want to have a more fulfilling life, and it’s probably not going to be structured along the same lines that the profession has been structured for so many generations,” says Yamate, CEO of the Institute for Inclusion in the Legal Profession.

“There is certainly a very visible issue in relation to women in senior positions in law firms, and it is not dissimilar to broader challenges that we see in the corporate space more generally,” Bigby says. “But it also forms part of a general challenge around being far more inclusive and diverse across ethnic and racial and LBGT issues. We do need to look at this as a much more holistic issue. That may mean actually being a bit more open-minded about the way people may move around, or what they need to do at different points in their career—which actually may mean thinking outside of the law firm organization. It may mean working in a more flexible environment, either at a client’s or another entity. But actually doing that planning with the best interest of the employee in mind is what’s most important.”

Broader definitions of diversity are a goal for many. “How much are organizations really willing to change to reflect a different demographic?” asks Amy Schulman, venture partner with Polaris Partners and CEO of Arsia Therapeutics. “There’s no doubt that, for women like me who are profoundly committed to seeing women and people of color succeed in positions of leadership and succeed at a greater rate, it is daunting that the numbers haven’t changed despite all the effort and intensity. But, for me, that just makes me all the more committed to doing what I can. I think individuals can make a difference. And institutions are aggregations of individuals. But at the end of the day, if each individual who is in a position of leadership and who is receptive to this makes that effort, then the organizations that we’re part of will change.

“You can’t give up on this,” Schulman says. “It’s too important; it’s too important to the generations that come after us, and you have to have a passion for it. It can’t be just kind of abstract, because it gets messy and it’s hard and complicated, and people get discouraged. You get scrutinized as leader, but you have to have that commitment.”

Now a professor at the University of Southern California and a partner at Quinn Emanuel, Susan Estrich was the first woman president of Harvard Law Review. She concludes the book Sex and Power (Riverhead Books, 2000), a meditation on women in politics, life, and work:

For me, and I hope for my daughter, feminism is a lesson in the possibilities of being a truly autonomous person. I teach it, and try to live it, as a critical perspective that opens up possibilities, not one that shuts them down and turns viewers into victims. See the unfairness, the discrimination, the line-drawing, the status quo, as what it is; see it so you are not bound by it. Understand that you are not alone, that it is not you, that this is bigger and beyond you. Understand those things not so that you will be paralyzed, but so that you will have the strength to act. Know that the law is on your side and that much of what was once considered acceptable no longer is; understand that revolution is possible, that we have already changed the world, and all we have to do is finish the job.

Reflecting that determination, Ballakrishnen notes that, while earlier generations may have been satisfied to simply get in the room, those who’ve matured in a far less stratified environment will have different expectations. “I’m more likely to look for stuff that primes gender than someone in a previous generation is. I’m not just thankful for the opportunity,” she says. “We’re not okay with just okay. We want more, and we’re not afraid. So the institutions which are going to come out ahead are the ones that see that and respect it and are likely to give it to us.”

“Change may be occurring from a lot of different directions,” Yamate notes. “I think that our sense of being a partner in a large firm in years to come may not actually be our model of success. It might take years and years and years to achieve that kind of parity, but that may be because our value system may be changing, just like we’ve seen significant societal shifts toward not only acceptance but support and alliance for LGBT rights. The time may come when we wonder, ‘Why was that an issue?’ Our values will have shifted, and those who really want to be high-powered partners in large law firms, working tons of hours and hopefully being compensated adequately for that, that will be one success story. But there will be others, too. And as more women enter the profession, that’s what we’re seeing.”

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Women as Lawyers and Leaders Volume 1 • Issue 4 • May 2015

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