The Only Way For The Legal Profession To Change For Women May Be Through Litigation
A lack of progress is why columnist Jill Switzer discourages women from applying to law school.
I sound like a broken record. I am so very tired reading about the latest “initiative” to figure out why experienced women are leaving Biglaw and/or the profession. I am so very tired reading the latest survey results that lament the slow tortoise-like progress of women and minorities in the profession. Why is this so difficult to figure out? We’re reputedly smart people.
Have there been surveys, initiatives, and the like before? Yes. Where are they? People say “thank you for sharing,” and then shove the results in drawers or saved in an email folder or another place, with not a further look. They’re in the “stall” box. How many times does the wheel have to be reinvented?
As I asked in a column not that long ago, does the ABA really need another initiative about why older women are leaving the profession? I don’t think so.
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ABA Media Relations proffers three theories for why older women lawyers are leaving: “work/life balance, unconscious bias, and the pay gap.” How about explicit bias? I’m not at all sure that explicit bias is any more extinct than the dodo bird. As for implicit bias, it’s everywhere, just look around you.
As a friend of mine, a Harvard Law School graduate practicing for more than 30 years, said, somewhat acidly, all they have to do is ask. Women will be more than happy to reply. How about not getting plum assignments, not getting origination credit, how about not getting paid on a par with the male lawyers, how about not being in positions of power in law firms, how about corporate counsel not sussing out equally or more qualified women outside counsel? Women of a certain age, especially 50-plus, see opportunities pass them by and decide that they are better off in a different environment and so they leave, one of the reasons being to have more control over their lives and their practices. Another is to practice in a more hospitable atmosphere, one that welcomes contributions of women lawyers.
So, let’s assume that the ABA initiative arrives at some startling conclusions (one never knows) and there will be a call to action. So what? What difference will it make? What do you think? I don’t think it’ll make much, if any, difference. There have been studies, initiatives, ad nauseam, but until organizations, corporations, law firms, and the like “show, don’t tell,” it’s just more platitudes, more “we have to do better,” and very little, if any, changes. It’s just words, words, words.
I don’t apologize for my cynicism, as I think it’s well-founded. When I was admitted to the bar, just about 41 years ago (yikes!), I and other women attorneys, who composed perhaps 20 percent of the profession in those days, thought that we would be able to make a difference, to make the profession less male-centric, to make the profession more collaborative, more efficient in getting to resolution. Ha! What were we smoking?
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Yes, women now compose half or better than half of the entering law school classes, but take a look around. What do you see? How many women do you see first chairing “you bet your company” civil cases or massive personal injury cases? (You see more women in the criminal courtrooms.) Yes, there are many more women judges and commissioners and women compose the majority of the California Supreme Court and women compose one third of the justices on the Supreme Court. The composition of the judiciary is certainly better now than in the past.
Nicole Black discusses the recent 2017 Women in Law Firms report by McKinsey in a recent ATL column. The headline says it all, that “women lawyers are slowly chipping away at the glass ceiling.” Can’t we speed up this process? Can’t we take some sledgehammers, rather than ice picks? While global warming may make the chipping go faster, it doesn’t mean that the barriers to success that women lawyers face will melt any faster.
Joe Patrice reports that a Biglaw firm just elected its first woman chair. Wouldn’t it be nice if someday, the adjective “female” or “woman” and/or the word “first” are no longer used as descriptors in the same sentence?
Nicole Black comes to the same conclusion that I reached a long time ago: “the overall statistics regarding the advancement of women and minority lawyers remain depressingly abysmal.” I couldn’t have said it better myself. Perhaps the only way to get our profession to change its attitudes is through litigation. As far back as 1984 in Hishon v. King & Spalding, sex discrimination litigation was one way to get the attention of a law firm.
However, you can win the battle, but lose the war. How many women have decided not to pursue litigation because of the fear — and it’s well-founded — that they’ll never find work again? Even if there’s a confidential pre-litigation settlement, word gets around and jobs become even scarcer, especially as women grow older.
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The New York City Bar Association 2016 Benchmarking Survey of the progress (or lack thereof) made by signatory firms that have pledged to increase diversity can be summed up, in its own words: “only 43% of associates are white men compared to 76% of partners; 45% of associates are women compared to 19% of partners and 28% of associates are racial/ethnic minorities compared to 9 % of partners.”
These days I discourage women from going to law school. Why? Pile on massive student debt, difficult employment prospects, and if you get a job, what is the likelihood of rising to the top? I understand that some may say that’s a defeatist attitude, but I think it’s a realistic one right now. Who said that insanity is doing the same thing over and over again, expecting a different result?
Jill 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.
