Women's Issues

Water Is Wet, The Sky Is Blue, And Women And Minorities Continue To Face Bias In The Legal Profession

This bias and discrimination against women and minorities in our profession has to end.

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In 2016, The American Bar Association’s Commission on Women in the Profession, the Minority Corporate Counsel Association, and the Center for Worklife Law at the University of California, Hastings College of the Law launched a survey “…seeking to understand in-house and law firm lawyers’ experiences of bias in the workplace.” It has just published its report on the status of women and minority lawyers in the profession. Am I the only one tired of these reports, which tell women and minority lawyers nothing that we don’t already know? At what point in time do these reports start to insult our intelligence, or have they already? At what point do these reports morph from all talk into concrete, visible action?

The latest one, released last week, is another example of the limited, if any, ability these reports have to result in change. This one, on gender and racial bias in law firms and corporate law departments, is just a different spin on the age-old problems that women and minority lawyers have, but to its credit, the report offers some suggestions. Whether they’ll be followed is another matter altogether, and as we all well know you can lead a horse to water….

I was not familiar with the terms “Prove it Again (PIA)” and “Tightrope Bias” (am I a dinosaur or what?) until this report, but I certainly know about PIA, the concept that women and minority lawyers have to work twice as hard to get the same recognition as their male colleagues.  Women and minority lawyers are often confused with non-lawyers, such as administrative staff and court personnel. How many times in my career have people assumed that I am a secretary there to take notes in the meeting, a court reporter, a paralegal, a court clerk, the client (when the client was male), a social worker? You name it, I’ve been called it, and that doesn’t even go into what I’ve been called by opposing counsel.

Tightrope bias? I know about that as well. The report describes that as “…pressure to behave in feminine ways, including backlash for masculine behaviors and higher loads of non-career-enhancing ‘office housework.’” In that category would be organizing events, celebrating staff birthdays, getting cakes and cards, and other forms of office housework. I plead guilty to that, along with probably just about every other woman lawyer. In my various work environments, female staff would make their resentment known if I didn’t volunteer for my share of “office housework,” believing that it was part of a female corporate attorney’s job description. Woe unto me if I declined or said I was too busy. Male lawyers were not expected to lift a finger. How many times have men done any office housework, let alone been asked or even volunteered to do that?

Tell us something what women and minority lawyers don’t already know. We can all agree that these issues are rampant, but tell us what the profession is going to do about them.

This report is different from others in that it offers a toolbox of things to do, some concrete ways of what should be done in both law firms and corporate legal departments to increase diversity, calling them “bias interrupter” tools. I like the name, but can bias truly be interrupted? I would like to think so, but I wonder.

So, the report provides tools for how to interrupt bias in hiring, assignments, performance evaluations, compensation, and sponsorship best practice recommendations. (The first four are straightforward; the last one is described as identifying top talent, pairing that talent with a trained senior level sponsor who will be held accountable, and developing goals and milestones. Doesn’t that sound like a form of mentoring with numbers?)

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Sounds all good, but realistically how many law firms and/or corporate law departments will take the time and energy to go through the comprehensive checklists set forth in the report?  If time is indeed money, how many lawyers are going to sacrifice billable hours to accomplish the tasks set forth in the checklists? Unless lawyers are compensated for these non-billable hours, will there be any rush to follow these suggestions?

Does the legal profession need its own #MeToo, #TimesUp movement? Does the profession need its own New Yorker’s Ronan Farrow to investigate our profession and write about it? Who was it who said that sunlight is the best disinfectant? (Justice Louis Brandeis.)   Will it take more courageous women and minorities in the profession to call out those whose implicit (and explicit) biases have squelched promising careers or impeded upward movement in law practice?

This bias and discrimination against women and minorities in our profession has to end.  Perhaps the recommendations in the report will be taken to heart and actually used. My guess is that I’ll be taking a dirt nap long before there’s any meaningful change in the treatment of women and minority colleagues. The report suggests that if there’s not meaningful change, then rinse, repeat, and then “you will need to ratchet up to stronger bias interrupters.”

This ratcheting up should be easy. Accountability needs to come in the only form that most people understand: money. Perhaps compensation should be adjusted when goals for diversity are not met, whether they are in hiring, assignments, credits, compensation, and other matrices of a lawyer’s career. Perhaps achievements in diversity should be rewarded as much as successful lawyering.

Money is what most people understand and the more at stake the better. (The unresolved Leslie Moonves severance package is one example.) Hitting people where it hurts might be the only way to get their attention, keep it where it should rightfully belong and result in meaningful change. We don’t need one more report that tells us what we already know.  We don’t need one… more… word.

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old lady lawyer elderly woman grandmother grandma laptop computerJill Switzer has been an active member of the State Bar of California for more than 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.

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