March 2009 - Posts
We are grateful to YLS third-year and conference volunteer Erin Phillips for the following recap:
Presentation: Cynthia Calvert & Robert Nelson
Cynthia Calvert, with the Project for Attorney Retention in
DC, spoke about covert biases and negative underlying assumptions about women
that often negatively effect women lawyers’ evaluations in law firms, and can
lead to women feeling pushed out of the firm. Types of underlying bias can include maternal
wall bias against women who are or may become mothers. Ms. Calvert also spoke about the importance of
supervising attorneys in retaining junior lawyers, and especially junior women
lawyers. The good news in Ms. Calvert’s
presentation was that we can control underlying bias, and that law firms can
take action to keep women lawyers by instituting non-stigmatized reduced hours
Robert Nelson presented data from the After the JD
longitudinal study of the entering bar class of the year 2000. Some of the most important, or surprising,
preliminary conclusions presented by Mr. Nelson are that there is a difference
in the percentages of men and women lawyers who are having children during
their careers, that men are much more likely than women to achieve equity
partnership in law firms, and that, after 7 years of the study, women only make
91% of what men marking.
One particularly interesting question from the audience was
related to the current economic crisis and how it might effect women lawyers. The question was: With the current economic
crisis, are underlying assumptions and biases, which can lead to negative
evaluations for women lawyers, going to lead to disproportionate numbers of
women lawyers being laid off from law firms? Cynthia Calvert noted that no one has really
looked at the data on that yet, but anecdotal evidence suggests that we should
be very concerned about this possibility.
VIDEO LINK: http://ylsqtss.law.yale.edu:8080/qtmedia/ylw/OptOutMorningPanel032809_s.mov
Many thanks to YLS third-year and conference volunteer Mytili Bala for the following summary of Judge Nancy Gertner's keynote address.
Judge Gertner’s Keynote Address, March 27, 2009
The first wave of feminism sought to treat women the same as men, insofar as women are like men: they asserted that women would be willing to work as hard as men, put in the same number of hours as men, and to some extent resist having children like men. In contrast, the second wave of feminism sought to recognize that women and men are different, but that these differences should not call into question women’s professional lives. This second wave of feminism has clearly failed in reaching this ideal; we now realize that work is not family-friendly, and family is not work-friendly. Workplace flextime opportunities have only reinforced traditional roles in the workplace: after children, women work less while men work more.
Amidst this backdrop, Lisa Belkin’s free choice theory (that women opt out because of the pull of motherhood) and the “mommy myth” (articles artificially heightening the complexity of motherhood) obscure the problem of inequality rather than address it. Dialogue of women leaving the workforce should be discussed using the rhetoric of public obligation rather than private choice.
VIDEO LINK: http://ylsqtss.law.yale.edu:8080/qtmedia/ylw/OptOutKeynote032709_s.mov
We are grateful to YLS third-year student and conference volunteer
Meagan Reed for the following recap of the introduction and first panel
that took place on Friday, May 27.
Introduction & Panel I: Defining the "Opt Out" Problem
Yale Law Women President Jennifer Broxmeyer and Conference Co-Chairs
Jill Habig and Diana Rusk explained in their introduction, statistics
help to explain why we can't seem to talk about women in the legal profession without talking about women leaving the
legal profession: Despite comprising 50% of graduating law school
classes, women hold only 20% of the top-level jobs (judge, general
counsel at major corporations, equity partner at law firms, etc.). The
first panel of the conference focused on responses to Lisa Belkin's
infamous New York Times article, "The Opt Out Revolution,"
which posited that this gender gap was due to highly-educated,
professional women voluntarily choosing family life over careers.
The panel, comprised of panelists E.J. Graff (a journalist), Pam
Stone (a sociologist), Paulette Brown (in private practice), and Audrey
Bracey Deegan (a director at Deloitte Consulting) and moderator Vicki
Schultz (a Yale Law professor), resoundingly challenged the notion that
women are in fact choosing to leave their careers, pointing out that:
- despite consistent media coverage about "women returning to the
home" since the 1950s, trends in the proportion of mothers who work
have actually steadily increased, not decreased;
- there is a disconnect between ex-career women's rhetoric (i.e. they
express staying home as a "choice") and their reasons for leaving their
professions (i.e. inflexibility in the workplace, being passed over for
meaningful assignments, etc.);
- so-called "opting out" is a distinct racial and socieconomic
phenomenon that does not describe the situation faced by the vast
majority of working women;
- the "opt out" myth is based in the idea that women's true role is in the family, whereas work is a choice that only fits around family
life, and thus ignores the
structural roots of the clash between gender, parenting, and work expectations; and
- former working mothers frequently express dissatisfaction with
domestic life (Betty Friedan-style), direct their career skills/needs
into potentially imbalanced forms of parenting ("intensive mothering"),
and have more trouble re-integrating into the work force than they
Ms. Brown discussed the marginalization of women of color within
firms and applied the "pushed out" phenomenon to them as well, noting
that 81% of women of color employed by law firms left their jobs within
five years, while Ms. Deegan responded with the belief that law firms
could be persuaded to modify policies that are driving associates away
upon learning of the "costs of attrition" of particular groups (such as
women of color and working mothers), defining "opting out" as a
"business problem" and not a "women's problem."
All of the panelists expressed hope for a "paradigm shift" in
work/family social structures, such that flexible employment hours and
non-linear advancement tracks (such as those adopted in Deloitte's
trademarked Mass Career Customization system) would become the norm
rather than the currently stigmatized path for a "second class" of
employees with multiple responsibilities to family and career, which
panelists viewed as contributing to some professional women's departure
from the workforce.
Introductory remarks: http://ylsqtss.law.yale.edu:8080/qtmedia/ylw/OptOutIntro032709_s.mov
Defining the Problem: http://ylsqtss.law.yale.edu:8080/qtmedia/ylw/OptOutPanel032709_s.mov
Thank you to everyone-- guests, speakers, and volunteers-- for making the conference such a resounding success! In the coming days, we will be posting a series of "recap" articles that describe the panels from Friday and Saturday. We will also be posting links to videos of each of the panels as they become available, so please check back often (not exactly sure whether those will be embedded in posts or on a side bar yet).
We are joined today by Deborah Epstein Henry, founder and president of Flex-Time Lawyers LLC, a national networking and consulting firm advising law students, lawyers, and legal employers on work/life balance and the retention and promotion of women attorneys.
Face the FACTS: Implement a Multiple Target Billable Hours Approach to Address the Economic Downturn
Every day, hoping to keep afloat, law firms are laying off attorneys in response to the economic downturn. Layoffs, however, do not provide the largest cost saving opportunities and they create many negative repercussions. These include: increasing severance and outplacement costs; eroding institutional knowledge; disrupting continuity of service; losing talent; declining productivity; alienating clients and potential future hires; delaying resolution of pending matters; and, increasing long-term recruiting, training and replacement costs.
To respond to the economic downturn and avoid the costs resulting from layoffs, many firms are considering restructuring and dispensing with the billable hour. Billable hour rates and hourly demands are reaching a ceiling while clients are demanding more value and showing less loyalty. The billable hour model creates inconsistent interests between clients and lawyers by penalizing productivity and efficiency. The billable hour also creates temptations to pad hours, hinders associate training, discourages pro bono work, and detracts from collegiality.
But progress in banishing the billable hour may be slow. Many firms are afraid to make dramatic changes during an economic crisis. The billable hour has been entrenched since the 1950s. Billable hours are a simple method that has been profitable to firms, that puts a value on a service which many argue is hard to accurately fix, and that fits within the profession’s characteristic risk aversion.
Another response to the economic downturn is to offer reduced hours and other alternative options. These options include: mandating or encouraging reduced hours with commensurate reductions in pay; offering more telecommuting to save on energy costs; encouraging unpaid sabbaticals; offering unpaid vacations; issuing wage and hiring freezes; cutting salaries and bonuses; making pension cuts; offering early retirement packages; cutting temporary staff; reducing spending on marketing and travel; and, redeploying remaining lawyers to busier departments. If firms applied these steps, the savings would be considerable and firms would be more profitable than if they issued layoffs. However, many firms are unwilling or unable to impose these changes on a large-scale basis to respond to the economic challenges facing firms. Some firms argue, for example, that the stigma surrounding reduced hours has kept usage rates low, resulting in fewer savings than necessary.
While the billable hour remains intact and firms are unwilling or unable to use large-scale reduced hours and alternative options to address the economic crisis, FACTS is a necessary alternative methodology for firms to create savings, avoid layoffs and maintain viability. In the FACTS acronym, the key is “T” which stands for Target hours. Under FACTS, the terms “full-time” and “part-time” are eliminated and instead, a firm creates four to six Target billable hour tracks. These different Target tracks are determined by office, department, level of experience and individual performance and they are based on the four to six most popular Target hours that attorneys’ bill. For example, one firm may establish six Target hour tracks of 1200, 1500, 1600, 1700, 1800 and 2000, after identifying that most attorneys’ hours cluster around these six Targets.
Compensation under FACTS is determined by firms setting salaries at the highest Target for each associate class, and then adjusting salaries downward for attorneys in the lower Target tracks. For example, if 2000 is a firm’s highest Target and third year associates billing 2000 are paid $200,000, a third year associate with a 1500 Target would be paid $150,000. Individual compensation may be further adjusted to reflect work quality, non-billable contribution and business generation, where appropriate. Lawyers billing lower Target hours (previously called “part-time”), would be eligible for promotion, although it may be delayed. Lawyers’ hours and compensation would be reviewed annually to ensure fairness and make necessary adjustments.
The “F” in FACTS stands for Fixed hours and it provides additional cost saving measures for firms. Lawyers working Fixed hours (called staff or contract attorneys at some firms) exchange high level work and the opportunity for promotion for more control over their hours. Firms with more predictable and less challenging work can assign it to Fixed hour lawyers at a significantly reduced pay rate.
While the “T” in FACTS addresses how many hours are billed and “F” focuses on the type of work, the three other letters in FACTS are about the way work gets done – “A” stands for Annualized hours, “C” stands for “Core” hours, and “S” stands for Shared hours. For more information, see Deborah Epstein Henry, “Facing the FACTS: Introducing Work/Life Choices for All Firm Lawyers Within the Billable Hour Model,” Diversity & the Bar (Nov./Dec. 2007).
Many firms have already implemented a multiple Target hours approach. In the 2009 Working Mother & Flex-Time Lawyers Best Law Firms for Women national survey, 26 out of 105 applicant firms reported using multiple Target hours. Eleven firms reported two Targets, thirteen firms reported three or more Targets and two firms did not report numbers. The Target tracks that applicant firms used ranged from 1200 to 2200 hours. The FACTS Multiple Target approach is an extension and expansion of what many firms are already doing. Under FACTS, all lawyers would work in four to six different Target ranges – these ranges more accurately reflect the reality of current attorney billing patterns. Each track would have commensurate salary adjustments and firms would not separately categorize reduced hour lawyers – they would simply be on the lower end of a firm’s Target hour tracks.
Under the FACTS Multiple Target approach, while firms would still incur the overhead of lawyers who remain employed but bill less, some of this overhead is unavoidable for firms that remain in their current office space. Firms that are able to redesign new office space could significantly reduce their overhead as explained here, see Deborah Epstein Henry, “Creative Ways for Law Firms to Survive the Economic Downturn,” The Balance Beam (2007-08). For firms that retain their existing overhead, the overhead must be compared to revenue generation to assess a firm’s profitability.
Under the Association of Corporate Counsel (ACC) Value Challenge Law Firm Profitability Model (the “Model”), the savings to law firms by applying a FACTS Multiple Target Hours approach is greater than applying a layoff approach. Firms are encouraged to input their own numbers into the Model to determine their increased revenue and savings by applying a FACTS Multiple Target approach rather than issuing layoffs.
In addition to the savings gleaned from applying the Model, there are other economic benefits under a FACTS Multiple Target approach that are considerable. Firms would pay proportionately less to most attorneys while avoiding the outplacement and severance costs associated with layoffs. Client frustration and alienation would be minimized by firms providing continuity of service and avoiding loss of institutional knowledge. Firms would also avoid the expenses and uncertainty of recruiting, training and hiring future talent.
Applying a FACTS Multiple Target approach would also address the intractable problem of stigma that has been an impediment to lawyers using reduced hour programs since their inception. Under the FACTS Multiple Target approach, all lawyers would work in one system, within a range of different Target Hours, and the terms “part-time” and “full-time” would be eliminated, thereby diminishing the risk of stigmatizing a small group. Additionally, the FACTS Multiple Target approach would be implemented as a cost saving initiative to preserve the viability of firms. Thus, the lower Target hours would be viewed as an economic imperative rather than an accommodation. In sum, by implementing a FACTS Multiple Target approach, firms will garner the additional cost savings they need to avoid layoffs while retaining the morale and productivity of their lawyers and the sustainability of their firms.
For more information, please visit Flex-Time Lawyers LLC at www.flextimelawyers.com.
© Copyright 2009, Flex-Time Lawyers LLC.® All rights reserved.
Last year, in just about every law firm interview, I heard about women’s initiatives, generous maternity leave policies, flexible telecommuting alternatives, and part-time options. Almost without fail, the interviewer vaunted the brand new flex-time policy or insisted that he or she had time to spend with family and friends. Though I took in this information with healthy skepticism, I was heartened by firms’ recognition that these issues mattered to me and my classmates. Or perhaps just to half of my classmates.
I asked my male friends what they talked about in their interviews or at firm receptions – “sports,” “the type of work the interviewer does,” “my résumé.” Meanwhile, a partner cornered my female friends to tell them about the firm’s new lactation room.
Now, my female friends and I certainly discussed our résumés, potential work assignments, and different practice areas. But we also talked about how we would make our jobs work with the rest of our lives (or vice versa). Given, in the very few instances where the interviewer didn’t mention “work-life balance,” I generally asked about it, and my participation in Yale Law Women welcomed conversation about concerns many women law students and lawyers have. But this is precisely the problem – reasonable billable hours, flex-time, parental leave are all seen as “women’s issues.”
The truth is that as many men as women find billing 2500 hours a year unappealing. Men too want to spend time with their families. Men too want a diverse and balanced workplace. We should be discussing these things with our male friends and colleagues. Interviewers should discuss balancing work and life with male students, and male students should ask about these issues.
I sincerely appreciate the efforts firms have made to attract and retain women lawyers.
But until men are included in the conversation, very little will change. And not just because men make up more than 80% of partners at law firms across the country. But because until we recognize that the same issues matter to men too, these “women’s initiatives” will always be seen as accommodation – that is, exceptions to a normal career. So yes, men are absolutely indispensable. Without the participation of men, I fear that efforts to retain women lawyers will fail.
Yale Law Women Conference Co-Chair
Yale Law School Class of 2009
Interesting piece in the New York Times published March 19. Warner notes that a lot of the news coverage (or at least, perhaps, NYT coverage?) of the recession has focused on what in reality is a very small part of the economic downturn-- job loss and economic hardship for the fairly to very well-to-do. After discussing the fact that this is a "classic blue-collar recession," she writes:
The kind of marital tensions that we’re seeing in the downwardly
mobile lifestyles of the rich and wretched, the family historian
Stephanie Coontz told me this week, aren’t necessarily typical of
couples further down the income scale, either. Wealthy families, she
said, have tended, with their work-around-the-clock husbands and
at-home wives, to have adopted a rather old-fashioned model of
marriage, with fixed sex roles. They’ve set the tone, but the rest of
the population hasn’t necessarily followed.
Increasing numbers of working class women now — in a downturn where
82 percent of the job losses have been among men – have become their
family’s sole wage-earners, it’s true. But their husbands, very often,
are holding their own at home just fine. For while the stereotype has
long been that working class men won’t do “women’s work,” Coontz said,
the truth is that in recent years they’ve had a better track record
than the most high-income men in sharing domestic duties. Twenty
percent of these men, in fact, actually do more housework and child
care now than their wives. “These people have been doing it for some
time and they’re much more ideologically committed to doing it,” she
said. “I think your worst offenders” (dirty coffee mug-wise), “are in
that top 5 percent.”
I would recommend reading the whole column. I was heartened by Warner's call to action for broader changes in the workplace:
There’s a deeper reason, too: paying attention only to the – real or
perceived – “choices” and travails of the top 5 percent hides the
experiences of all the rest. And this means that the needs of all the
rest never quite rise to the surface of our national debate or emerge
at the top of our political priorities.
This happened very obviously in the 1990s, when the New
Traditionalist story line hid the fact that many mothers at home were
actually either poor (and unable to “afford to work” if they had kids,
as Coontz puts it), or had had their nonworking “choice” made for them
by an inflexible workplace or a high-earning husband’s nearly 24/7 work
schedule. Years of public prosperity passed without any real action on
creating family-friendly workplaces.
While I think that Warner does a bit of a disservice in this piece to women who may be in the "top 5%" (of what? I'd like to know) but who face or faced the same challenges as the rest of all women, with inflexible workplaces or spouses or partners who (also?) have a very time-consuming profession, that may just be part of a larger disagreement with her views on opting out, or maybe a generational shift, or my own blissful naivete. She makes good points though, about the need for broader legislation-- paid leave, flexible workplaces. Take a look!
Today we are lucky to be joined by guest bloggers Jennifer Kohler and Brande Stellings of Catalyst. Ms. Kohler is an Associate in Advisory Services and Ms. Stellings is the Senior Director of Advisory Services, where she leads Catalyst's practice to advance women and promote inclusion within the legal profession.
Getting Beyond the “F” Word
Many organizations already support workplace flexibility as a means to recruit and retain talent and increase employee productivity. But is it enough? Our research, our consulting work with companies and firms, and the work of other organizations suggest it is not.
Although our reference to “flexibility” as the “f word,” is a bit tongue-in-cheek, the need to get beyond discussions of flexibility – and concentration on flexible work arrangements as the solution – is very real. As currently practiced in most organizations, flexibility has not been leveraged to its full potential. Instead, it:
- Focuses on the short-term
- Focuses on individual work solutions
- Is an accommodation for a select few
- Values time spent
- Regards employee needs, interests, and concerns about burnout as obstacles to accomplishing work
- Focuses on managing employee schedules
We hear all the time from women (and men) at law firms about these limitations. Utilizing a flexible work arrangement is often seen as a career derailer. A woman law firm associate told us, “Reduced hours schedules are a mommy track; they reduce the ability to do substantive, important work and limit advancement.” This perception is not without merit; in some law firms, working reduced hours is a barrier to attaining the top position in a law firm – equity partnership. This might explain why lawyers report one of the lowest levels of utilization of flexible work arrangements among professionals; although 98% of law firms offer flexible work arrangements, just 5.4% of lawyers availed themselves of reduced hour schedules in 2007, according to NALP. Of course, we know that not everyone wants to work reduced hours and it can be hard to know what the take-up would be in a world where working differently might not foreclose future opportunities. It is worth noting that at the “Best Law Firms for Women,” as awarded by Working Mother and Flex-Time Lawyers, 8% of lawyers worked reduced hours in 2007.
We also hear of other limitations: from a culture of secrecy where a flex-time lawyer is advised to hide the arrangement to perceptions that flexible arrangements are available only to women with children, leading to resentment from co-workers without children who feel that they are expected to pull late hours or heavy weekend work.
This is not to say that firms should abandon flexible work arrangements or the very laudable programs that some have put in place, many of which are hugely valued by their participants. In one innovative program, Weil Gotshal created a new partnership category, the Flex-Time Partner, which was created for new partners making a long-term choice to work on a flexible schedule. Another law firm, Gibbons, a 2009 Catalyst Award winner, has successfully created a flexible working culture, where women have combined both parenting and career success: more than two-thirds of the firm’s women partners are mothers.
These successes, although notable, are not the norm for many organizations. A shift in focus is required for many organizations. At Catalyst, we advocate adopting the larger paradigm of work-life effectiveness (“WLE”).
Catalyst’s approach to WLE combines flexibility with process improvements to support individuals, teams, and the bottom line. This approach goes beyond the traditional notion of flexibility as an individual employee “perk” to view effectiveness as a mutually beneficial partnership between business and employees. It is a management tool aimed at finding workplace solutions to common challenges affecting all employees and allows organizations to be more flexible, adaptable, and nimble – enormous benefits in a competitive and constantly changing global economy, in both good times and bad.
In the current economic environment, every program is under scrutiny. An integrated approach to work-life effectiveness need not be “on the chopping block,” as it can be a useful and viable strategy in place of downsizing. Some companies are cutting back on administrative operations, adding unpaid vacation days to reduce operating costs, or shifting work schedules to better reflect client needs, demonstrating that the strategies used can be more or less aggressive. The limitations posed by the billable-hour model – where time spent working on client matters is directly linked to increased revenue – may be weaker in this economy, where traditional ways of doing things are up for grabs. Law firms are working with their clients to come up with win-win billing solutions for both parties, ones where fixed, flat fees may reward efficiency over hours billed.
WLE, at its core, is about evaluating work and work practices and eliminating inefficiencies. It is about how the work gets done. While the law firm/billable hours environment does not naturally lend itself to time efficiency, the focus on strong performance and employee sustainability under any circumstance is very applicable. Recognizing when employees do their best work and capitalizing on it by allowing them to work early or late, starting from home or ending at home, scheduling meetings during a range of “core hours” can be part of bringing better work-life effectiveness into the law firm environment. Some law firms have been successful at this; because the emphasis is on getting the work done, the “face time” culture has diminished, although the trade-off requires being constantly connected to one’s Blackberry. This is precisely the point, however: focusing on work-life effectiveness means having candid discussions about the trade-offs associated with different approaches and options.
Keep in mind that WLE is an approach that meets the needs of virtually every employee demographic. Going far beyond the traditional view of flexibility as a “women’s issue,” WLE has the potential to meet the needs of men, single employees caring for aging or sick parents, the disabled, students, those with long commutes, dual-career spouses, younger employees, and more. We have seen from Phoebe Taubman’s blogpost here and her work at A Better Balance that the workforce of the 21st century law firm – both women and men -- desires better work-life balance and is willing to make trade-offs to attain it.
Employing WLE requires clear communication and business-based criteria and will not work in every situation. It must be presented and adopted as a business-based strategy that enables the organization to react quickly to changes in the economic environment. The approach also requires organizational support from leaders and managers, many of who are already employing elements of the approach in their daily juggling act but are not necessarily transparent about it. Recognizing and supporting WLE is critical, as is monitoring the success of fostering a WLE culture. Monitoring need not be a full-time job; however, as managers should already be paying attention to the productivity, satisfaction, and individual needs of employees, likewise, individuals should hold themselves responsible for managing these elements of their career.
In this ever-changing global work environment, the ability to identify what is most important and to focus effectively on priorities will help both individuals and organizations remain resilient against challenging external circumstances. WLE fosters a high-performance, sustainable work environment which has implications for success both now and in the years to come.
Some forward-thinking organizations have already begun to adapt to these changes. Deloitte’s Mass Career Customization is an innovative program that moves the discussion beyond flexibility to one about building careers and developing talent over the long-term arc of an employee’s career. It is now time for law firms to begin to build work environments that fit the needs of the 21st century workforce.
For more information, link to Catalyst and search for work-life effectiveness materials, knowledge products, and content experts. Also, feel free to check out the Catalyst publication, “Making Change: Beyond Flexibility: Work Life Effectiveness as an Organizational Tool for High-Performance.”
Just a quick post to point out some great things I've come across in the last week:
- Sharing the workload at work- and home: A San Francisco Chronicle piece that interviews Sharon Meers and Joanna Strober, the authors of Getting to 50/50: How Working Couples Can Have it All by Sharing it All and Why It's Great for Your Marriage, Your Career, Your Kids ... and You. There are some great thoughts here:
Q: You write about the "maternal wall." What is that?
Meers: There are a variety of
attitudes and entrenched policies that make it hard for women to
continue to be successful when they are mothers if they are working as
hard as they were before. There are expectations about how women will
perform once they are mothers that women have to overcome. Someone
called it postnatal hazing.
- Exemption from Service: Mothers in the Military and Fathers at Home: A great piece by Katherine Franke at Feminist Law Profs, cross posted from Gender & Sexuality Law Blog. This is the recent news coverage of Lisa Pagan, who showed up for deployment with her small children in tow. She received an honorable discharge so that she could care for her children, the reason being that her husband's job in sales required a lot of travel. Prof. Franke makes a critical point:
On the other hand, when I read the Times story I thought: what about
the children’s father? Can’t he take care of the kids? If their
positions had been reversed, and the IRR member called up for active
duty had been a man, do you think the military would have allowed him
to plead “family hardship” if his wife was unwilling to quit her job to
take care of the kids?
- Ms. JD put us on the front page (keep scrolling...). It's a *great* blog that links to a lot of excellent news stories and creates a lot of interesting content, like the latest in their Superwomen JDs series featuring an interview with Nicole Auerbach.
Today we are joined by guest blogger Professor Eli Wald. Professor Wald is Associate Professor at University of Denver Sturm College of Law. His academic interests include the American legal profession, legal ethics and corporate law. His recent research has examined topics such as the regulation of the corporate bar, increased lawyer mobility, attorney-client communications and the rise and fall of Jewish and WASP law firms.
Kicked Out or Opted Out? Gender Stereotypes in an Increasingly Competitive Large Law Firm World
When women lawyers leave jobs at large law firms, understanding whether they were kicked out or instead had opted out involves an analysis of gender stereotypes. But now that lawyers are leaving firms in unprecedented numbers, two specific aspects of stereotyping may have even greater explanatory power: some stereotypes can perversely help their targets when people in power change their attitudes towards particular stereotypical attributes (like “aggressiveness” of Jewish lawyers), and the impact of stereotypes may vary in different phases of a victim's career (Asian “attention to detail” may be perceived as a plus for associates but a negative for partners). Seeing how stereotypes work in these ways suggests a grim reality for women lawyers at large firms because an increasingly competitive work environment combined with an economic meltdown compounds the negative consequences of gender stereotyping.
Gordon Allport, a pioneering scholar of prejudice, defined stereotypes as exaggerated beliefs associated with a category whose function is to justify and rationalize conduct in relation to that category.
At large law firms stereotypes impact pre-hiring decisions such as who gets interviewed, who is invited for a call-back and who is offered a summer associate position. Stereotypes later influence retention decisions, such as who to mentor and how much training one receives, and they finally play a role in promotion and post-promotion decisions such as who makes partner, what kind of a partner (equity, non-equity etc) and how much sway one has as a partner.
Since women began to enter the legal profession in significant numbers in the 1970s, gender stereotypes have degraded their experience at large law firms. The gender stereotype exaggerates beliefs decision-makers at large law firms have about female lawyers. According to the gender stereotypes, women attorneys prioritize having a family and primarily caring for their children over a commitment to the firm. In addition, the stereotypes suggest that women lawyers tend to be less adversarial, less controversial and bring to the practice a professional temperament that Carrie Menkel-Meadow has called the “ethic of care.”
As a result of these exaggerated beliefs, male lawyers, historically the powerful decision-makers within large firms, typically conclude that women lawyers represent a higher risk of leaving the firm several years down the road and are not worth the investment in mentorship and training as their male counterparts. The gender stereotype thus leads to negative consequences as female associates tend to receive lower quality assignments. Furthermore, firm partners assume that because female associates prioritize their personal lives over their professional commitment, they will likely work and bill less hours relative to male associates and therefore will not be available during “crunch” time – late at night, over the weekend, and during family holidays.
These gender stereotypes may lead rational decision-makers within the firm to systematically prefer male associates to female lawyers. And the stereotypes will be self-reinforcing. Male associates will likely receive better assignments, superior mentorship and advanced training. Over time, male associates will therefore become better lawyers, rationalizing the biased decisions against women attorneys.
Gender stereotyping most obviously harms female attorneys. But it also harms law firms. The firms end up giving up, to an extent, on a significant pool of its own lawyers, relying on exaggerated assumptions as proxies for their hiring and promotion decision-making.
Unfortunately, that is not the end of the story. Two qualities of stereotypes compound the negative impact of gender stereotypes on women lawyers working at large law firms, especially at times of heightened competition and economic downturn. First, as pointed out by Allport in a different context, stereotypes may be positive or negative, or more accurately, stereotypes may have positive or negative consequences. Second, stereotypes have a dynamic influence, that is, they tend to interact and respond to changing practice realities, culture and ideologies.
That stereotypes may have beneficial consequences is evidenced by the experience of Asian-American associates at large law firms. Asian-American lawyers may benefit form the racial stereotype of “Asians work hard,” have a “strong work ethic” and are “loyal” to the firm. Especially under a competitive professional ideology that demands more and more billable hours and sacrifices in terms of one’s personal life, these racial stereotypes may lead decision-makers within the firm to give better assignments and superior mentorship to Asian-American lawyers.
The dynamic characteristic of stereotypes is demonstrated by the experience of Jewish lawyers. Jewish lawyers, who were systematically discriminated against by the large law firms on Wall Street under the old-boys’ club and pseudo-meritocracy professional ideology of the early and mid twentieth century, suffered from the negative ethno-religious stereotypes of having “oriental minds,” a “pushy immigrant mentality,” and a “money grabbing, manipulative” frame of mind, which was considered inappropriate given the then prevailing white-shoe professional ethos. As the professional paradigm changed, however, and became explicitly more competitive, emphasizing the financial bottom line (as in profits-per-partner), the same old ethno-religious stereotypes became an asset for Jewish lawyers. Aggressive representation was now considered an asset, shrewdness and manipulation on behalf of clients a model for client representation, and money grabbing a quality to celebrate. Jewish lawyers thus benefited from the “flip-side-of-bias,” under the new, hyper-competitive professional paradigm. See Eli Wald, The Rise and Fall of the WASP and Jewish Law Firms, 60 Stan. L. Rev. 1803, 1844-47; 1860-61 (2008); Eli Wald, The Rise of the Jewish Law Firm or Is the Jewish Law Firm Generic?, 76 UMKC L. Rev. 885, 929-33 (2008).
The dynamic, transient, nature of stereotypes may be further illustrated by the experience of Asian-American lawyers at large law firms. The very same racial stereotypes that may benefit Asian-American junior associates may later on harm senior associates seeking a promotion to equity partnership. Exaggerated assumptions about ”working hard,” having a “strong work ethic” and being “loyal” may be valuable in one’s early career at the firm, but may become a liability when coupled with other aspects of the racial stereotypes, such as “lacks imagination and creativity.” The combined effect of the racial stereotype may lead large law firms to refuse to promote a senior Asian-American associate to equity partnership, instead opting out to offer “promotion” to non-equity partnership or to “of counsel.”
Since the 1980s, large law firms have been experiencing a race to the bottom, a growing influence of the competitive, even hyper-competitive professional model and a decline in the old merit-based model. More and more emphasis is being put on the financial bottom line, profit-per-partners and rain-making capabilities, to the relative exclusion of mentoring, training and professional satisfaction.
Under this new professional paradigm, gender stereotypes have increasingly negative consequences for women attorneys. The hyper-competitive professional model, with its growing emphasis on an increased number of billable hours, demands of increased commitment to the firm in both the short and the long run, more aggression, and more explicit business orientation, tends to further exaggerate the beliefs of decision-makers within the large law firm about women lawyers. The gender stereotype, with its assumptions about female attorneys’ preferences for family life over their professional careers and their “ethic of care” style of practice, is less compatible with the increasingly prevalent hyper-competitive ideology of the large firm.
This is not to glorify the “good old days,” as women lawyers faced difficult challenges even under the old, so-called merit-based professionalism model now replaced by the new hyper-competitive model. The point, rather, it is to suggest that the consequences of gender stereotyping may be even worse for women attorneys under the new professional ideology now dominating large law firms.
Add bad economic times to the mix, and the negative impact of gender stereotypes gets compounded. The recent economic meltdown has caused numerous large law firms to freeze salaries, eliminate bonuses, fire associates, de-equitize partners and close offices. The unfortunate marriage of an economic downturn and a hyper-competitive professional ideology leads large firms to over-react and seek efficiencies, real and perceived. The unhealthy mix may lead such firms to further exaggerate assumptions made about female associates – about their commitment to the firm, willingness to work around-the-clock in the service of corporate clients, ability to tough it out, etc.
Efforts to better understand the experiences of women lawyers at large law firms, let alone effectuate change and break the glass-ceiling effect, must take into account the dynamic influence of gender stereotypes, their interaction with the current professional ideology among large firms and the compounded impact of exaggerated assumptions during times of economic instability.
The Project for Attorney Retention (PAR) released its yearly report on the percentage of women in law firms’ 2009 partner classes, and the news is pretty grim.
14 firms did not make a single woman partner (Cadwalader, Cleary Gottlieb, Dechert, Foley Hoag, Kaye Scholer, Lowenstein Sandler, Milbank, Schulte Roth, Steptoe, Strook, Venable, Wachtell, White & Case, and Wilkie Farr), and several others came in below 20% (Pillsbury Winthrop (9%), Latham & Watkins (10%), O’Melveny (11%), Howrey (13%), Finnegan Henderson (13%), Morrison & Foerster (13%), Winston & Strawn (13%), Locke Lord (14%), Nixon Peabody (14%), DLA Piper (15%), Ropes (17%) and Akin Gump (17%)).
The good news is that there were a handful of firms with partner classes that were 50% or more women (Cravath (67%), Dickstein Shapiro (67%), Wiley Rein (60%), Andrews Kurth (57%), Bryan Cave (56%), Arent Fox (50%), Baker & Daniels (50%), Hogan & Hartson (50%), Holland and Hart (50%), King and Spalding (50%), Luce Forward (50%), Simpson Thacher (50%), and Sullivan & Cromwell (50%)), and special mention goes to Arnold & Porter, Crowell & Moring, Perkins Coie, and Sullivan and Cromwell, who have all had new partner classes that were 40% or more women for the past 3 years.
Yale Law Women Conference Co-Chair
Yale Law School Class of 2009
The NYT has a fascinating chart today called Why is Her Paycheck Smaller? It charts median weekly pay for women against that of men for dozens of professions and color-coded by type of industry. An especially salient statistic: female lawyers make, on average, 22% less than their male counterparts. The article mentions, "Economists cite a few reasons [for the wage gap]: discrimination as well as personal
choices within occupations are two major factors, and part of the gap
can be attributed to men having more years of experience and logging
more hours." An interesting empirical question would be what portion of the difference is explained by those "personal choices," which are the center of the subject matter we hope to address at the conference. Other interesting factoids:
- Female retail sales workers make 35% less than males of the same occupation. What does this say about rainmaking?
- Female chief executives make 19% less than male CEOs.
- Female compliance officers make 33% less than male compliance officers.
- The largest gap: 40% disparity between male and female physicians and surgeons.
My in-house skeptic (the boyfriend) immediately took issue with what a "comparable" job was. While these occupations are split into broad categories, it is true that an attorney at a huge Wall Street firm is going to make immensely more than an attorney in a smaller firm in a smaller city. The same goes for an engineer at the top of R&D at General Electric with one working at a smaller company. Without comparing salaries within the same company, he thought this data was "intentionally inflammatory" and of little use. More useful would be information that showed whether there were differences in pay between women and men of the same class year at the same firm. Without this information, it's hard to know whether the data is skewed by the fact that a larger proportion of men work at larger firms than women do, but those who work in truly comparably companies make similar wages. While there is not much information about the methodology of the study, I think these broad snapshots are useful. The differences between workers at different types of companies, I think, are an expression of some of those "personal choices" that women make-- to work closer to home, to work at a smaller company that requires fewer at-work hours, etc. What do you think?
Today's student guest blogger is Helen O'Reilly, a member of the Yale Law School class of 2011. Helen is 28 years old and grew up in Jackson Heights, Queens.
When I graduate from law school in 2011, I will be 31 years old, married, and on the way to my first job as a lawyer. I will also be thinking about starting a family. The Opt Out Conference is of particular interest to me, and perhaps other older law students, whose entry into the legal profession may coincide with their entry into parenthood. Since starting as a first year student in August, I have followed with great interest the conversations within the Yale Law Women community about “family friendliness” and kinds of work environments that women can expect or demand from 21st century employers. This topic is personally very relevant, and I continue to wonder: If you have an infant child at the same time as an infant career, can both grow up as well as you may like?
On January 13, 2009, Carol Bartz was named the CEO of Yahoo!, and as I read more about her great professional achievement, I was struck also by her views on women’s attempts to “have it all” while also trying to do it all. In a More magazine article, Bartz said, "They [women] think, 'I'm going to cook a great breakfast, wash up the dishes before I leave, take the kids to school, call my college roommate on my way in to work, be a CEO all day, volunteer on the way home, do a little exercising, cook a wonderful dinner, help with homework, have sex.' . . . I don't think so." She advised that working parents should focus on doing one thing well at a time, instead of seeking the perfection of a daily balance. In a January 15th 2009 profile of Ms. Bartz, The Economist optimistically reported that “[y]ou can ‘have it all,’ as she does, but only by cutting life into compartments and then ruthlessly maintaining the boundaries.” According to the profile, when Bartz’s daughter, whom she had at 40, was a baby, she spent three days a week looking after her at home in Dallas. On Mondays she handed the baby to her nanny and flew to Silicon Valley for four days of work; then she flew home again at midnight on Thursdays. Describing this commute in More magazine, Ms. Bartz said, “It was awesome for me, and I don’t think [my daughter] is any the worse for it.”
Is this split between work and children a new way forward or an example of a sacrifice that women had to make, but should no longer? This Conference will be an opportunity to have a
conversation about this and other important questions with parenting
professionals – and students headed down that road.