Are Older Women 'Unemployable'?

Trying to change the invisible, unattractive, undesirable and unemployable view that many people have of older women lawyers is fruitless and hopeless.

Portrait Of Senior BusinesswomanI binge-watched (a polite term for letting everything else fall by the wayside) the third season of Grace and Frankie on Netflix. It’s the story of two very different women whose lawyer partner husbands fall in love with each other and ditch their respective wives to marry. The two cast-off wives share a house and gradually become friends. I know; many of the male readers are now thoroughly turned off by this idea and won’t read any further. So be it, but for women of “a certain age,” the show is very timely.

It stars women for whom the age of seventy is in the rearview mirror. The third season shows their efforts to start and run an online business while confronting all the sexism and ageism that still rages. (I won’t describe the product; you can find that out on your own.)

The actress Jessica Lange has said that what happens to older actresses in Hollywood is just a microcosm of what happens to women generally as they age: “Whether you want to say they become invisible or they become unattractive or they become undesirable, or whatever it is.” 

I would add to that list “unemployable.” And that’s true, not just for older women in Hollywood, but for older women lawyers (and others) as well.

A little pop quiz here (and let’s stipulate for the purposes of this quiz that I’m talking about women sixty-plus):

1. How many “senior partners” in Biglaw are older women?

2. How many general counsel at Fortune 500 companies or even Fortune 1000 companies are older women?

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3. How many older women are visible in the profession, but let’s exclude government, academic and judicial roles?

4. How many older women are rainmakers? (Let’s exclude here the “traditional” areas of practice for women, such as family law, trust and estates, and the like.)

Have you run out of fingers and toes yet?

In addition to the adjectives mentioned above, there’s also the bias that people have against assertive women

No surprise there. We know about the bias that men have against assertive women, and it’s no surprise to any woman who has been in this profession (or others) for any period of time that other women are biased against assertive women. Tell me something I don’t already know.

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It’s how we dress, our hairstyles, our figures and other characteristics that don’t hamper men at all, but can be the kiss of death for women lawyers when there are women jurors and/or if it’s a high-profile case. (Marcia Clark was the poster child for this unhappy reality.)

We women lawyers have to be assertive, even aggressive, in order to advocate effectively for our clients. That’s the rub: women lawyers, especially older women, are damned if they do, damned if they don’t.

But wait, there’s more. How about a bias against “higher class” women? 

Coming from an advantaged social background benefits only men and not women. You read that right. Women from that background can be seen as “flight risks,” e.g., leaving for other pastures, whether greener or not. I thought “flight risk” applied only to bail motions, but now it’s been extended to women coming from advantaged social backgrounds who are seeking Biglaw jobs. No one says that a man is a “flight risk” in hiring; that’s only in bail motions.

However, looking at all the lateral moves over the past few years, it appears that that theory is just as applicable to men. 

That’s not to say that some Biglaw firms haven’t taken proactive steps to reduce partner head count when those partners don’t make the numbers. 

When I was in-house, I was always amazed at how many lawyers moved from one firm to another to another every two years or so, believing their business was portable. Promises of business being brought to the new firm obviously unfulfilled. No more “free ride” of several years.

“Senior” women, and by that, I mean age, leave firms of varying sizes to strike out on their own or with others. Older women lawyers don’t have to retire; they redirect, they reinvent. They’re setting up their own firms or partnering up because they realize that they have a greater shot to do well than remaining in places where they are permanently stuck in neutral, if they even still have jobs.

No more fighting for origination credit, no more fighting over dollars, no more fighting internally, period. Allocating origination credits leads to wide disparity in pay. One report said that male partners in Biglaw make forty-four percent (not a typo) more than their female counterparts. The reason? Origination credits. Why am I not surprised, especially when I hear from women partners that this is a constant battle

I remember when I started law school, back in the dinosaur days of 1973, when women were entering law school in large numbers. We hoped that we would lead the charge to diversify a profession that was almost exclusively male and white. Fast forward (or slow forward, take your pick) to today; while there have been gains, there haven’t been enough.

The buzzword of diversity is still more preached than practiced. How many times does a diverse attorney attend a pitch meeting with in-house counsel and then that attorney is never used on the case? I thought so.

HP is instituting a diversity holdback mandate of up to ten percent. 

It will be interesting to see if firms commit to increasing diversity or whether they find other ways to deflect the impact of that potential holdback. You know what I mean.

Trying to change the invisible, unattractive, undesirable and unemployable view that many people have of older women lawyers reminds me of Albert Camus’s essay about Sisyphus pushing the rock up that mountain. His task was futile and hopeless. 

My crystal ball is in the shop; all I know is that the more things change, the more they stay the same.


old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.