Law Firm Biases Continue To Thwart Women: But Why? Unconscious Bias

Posted on 08-18-2015 by
Tags: #WomensEqualityDay , woman lawyers , rainmakers , Latest Headlines & Stories

The article below has been republished in full courtesy of Law360, written by Melissa Maleske.

U.S. law firms are not hiring or promoting more female attorneys than they were a year ago, a failure that everyone from in-house attorneys to BigLaw bosses says can only change when the industry confronts its deep-rooted unconscious bias about women in law.

“There is ample evidence that we are all affected by unconscious bias," says Jami Wintz McKeon, who became chair of Morgan Lewis & Bockius LLP in October. "The best way for firms to address this is to be aware of it. Because it is unconscious bias, we effect change when we discuss it and make people aware of it.”

Law360’s 2015 Glass Ceiling Report, a survey of 308 firms, displays a dismal picture for women. Law firms reported that about 33.5 percent of their total attorneys were female, which is up only slightly from 32.69 percent last year. And the survey's partnership statistics continue to show how difficult it is for women to advance at their firms: women constitute about 21.5 percent of law firm partners, just slightly up from 20.9 percent last year.

At the current growth rate, it will be 2072 before women make up 50 percent of U.S. law firm partners, and even hopeful industry observers don't see things improving anytime soon.

“A lot of it is unconscious bias and things that are harder to get at in terms of changing behavior or perceptions,” says Brande Stellings, vice president of corporate board services at Catalyst, a nonprofit focused on workplace opportunities for women.

“I think about conversations I’ve had in the past with partners who would say, ‘I’m reluctant to invest in mentoring this young woman associate because I know she’s going to leave.’ It becomes a self-reinforcing cycle, and different decisions like that accumulate,” says Stellings, a former BigLaw and in-house attorney.

Many legal industry diversity experts cite the research of Harvard University's Mahzarin Banaji, which focuses on the assertion that all humans carry implicit biases that may affect the way they treat others. In the law firm environment, biases may be manifested through disparate mentoring and networking opportunities, language used in performance evaluations, and promotion and compensation decisions.

Education and open lines of communication can help firms avoid making assumptions. Jenny Waters, executive director of the National Association of Women Lawyers, benefited from a law firm that supported her as a young attorney and mother and allowed her to adopt a reduced schedule. But she says law firms should also keep in mind that every woman approaches her practice differently and not all mothers want to avoid long hours and frequent travel.

"One thing I experienced from time to time was that people were trying to be protective of my schedule, more so than I would have been if I had been asked," says Waters, who made equity partner at her former firm shortly after returning from maternity leave.

Metrics can play an important role in gender equality by uncovering previously undetected bias-driven shortcomings and putting them in the spotlight so they can be taken into consideration when law firm leaders craft policies and procedures.

“It’s important to set the tone about what’s important and to continuously implement policies, and part of it is instituting metrics,” says Bobbi Liebenberg, senior partner at Fine Kaplan & Black RPC and former chair of the American Bar Association’s Commission on Women in the Profession. “If you don’t understand how your women and diverse lawyers are faring, how will you ever change that dynamic?”

Law firms can put checks on performance reviews, for example, to uncover ways that men and women may be evaluated on different terms. They can track how many of their female attorneys are doing substantial work to ensure they’re not serving as token women on their clients’ assignments. And they can use the numbers to strengthen internal initiatives as well as to demonstrate true commitment to meeting client diversity demands.

“We hear from general counsel and senior in-house counsel that maybe there needs to be stronger metrics for success,” says Amar Sarwal, the Association of Corporate Counsel’s vice president and chief legal strategist. “We’ve seen it work best when in-house departments engaging in a convergence process ask in [requests for proposals] about diversity issues and how law firms staff matters. [The in-house bar] wants robust data sets from the law firms that demonstrate they’ve actually given their female partners and associates a substantial role in their matters.”

It may be the corporate world that ends up driving law firm equality. Sarwal says that at the largest companies, there has been a significant upswing in female GCs and minority legal recruitment, but in-house counsel are frustrated about the lack of progress on gender diversity at law firms.

“The feeling from the inside bar is that it just hasn’t taken root,” Sarwal says. “The unfortunate thing about law firms is that it really takes getting their backs against the wall before they really change.”

But things will change, attorneys say, as corporations grow more diverse and place higher demands on law firms to keep up. Waters pointed to the significant influx of female attorneys taking on in-house, nonprofit and government roles.

"I think it will be a great force of change as women and minorities reach the decision-making level," Waters says. "They will demand more diverse teams from their firms. And they're doing it now: We see from our in-house members that women are really embracing the power they have to make that change."

Stellings says that corporations historically have paid more meaningful attention to diversity and inclusion programs as part of talent development and succession planning. But for law firms, it’s not just a matter of playing catch-up. While it takes time for efforts to pay off, law firms can't just sit back and wait for results, she says — they need to make the issue a firmwide priority.

“Law firms have been doing a lot recently, but some are excelling at it more than others,” she says.

"It sounds overly simplistic, but one lesson is to be really intentional about it," she added. "Firms have made progress when they make it an issue for the firm as a whole."

Methodology: Law360 surveyed 308 U.S. firms, or vereins with a U.S. component, about their overall and female head count numbers as of Dec. 31, 2014. Only U.S.-based attorneys were included in the survey.

The above article has been republished in full and is courtesy of Law360For the latest breaking news and analysis on energy industry legal issues, visit Law360 today.


Posted on : 24 Aug 2015 2:35 PM

this topic always fascinates me.  We go around and around in circles trying to figure out how to solve the problem of women leaving the firms.  But until women are the heavy rainmakers and decision makers, it will never change.  And how do we get to that place when women are being driven out, either consciously or unconsciously by the decision makers?

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