Guest Blogger: Eli Wald
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.