Gender Bias In The Legal Profession
By Samarth Chaddha, Attorney
There was a time when female lawyers such as Cornelia Sorabjee had to fight for three decades to have the ability to practice law. Nowadays, we have come a long way with more than 50% of law students being women. However, the perceptions that plagued the likes of Cornelia haven’t quite faded away into oblivion. They are still very much a part of daily realities for most female lawyers, with studies showing that female judges are three times more likely to be interrupted during oral arguments as compared to their male counterparts.
Misguided Perception of a Lawyer
Often, the law is seen as a male, aggressive, and somewhat masculine profession. A considerable part of the job is bringing in business, and often speaking about one’s achievement as a lawyer. Women have been socialized into being uncomfortable for taking credit for their actions and talking about themselves. Many female lawyers will also be less vocal in negotiating a higher salary to keep their actions in line with pervasive societal norms about behavior that is acceptable for a woman. Also, many are mistaken to be court reporters or administrative assistants despite having many years of work experience as an advocate. What is worse, is that women in the legal profession are judged based on the merits of their outfits and have been lectured on what not to wear, such as not wearing skirts or wearing pantyhose if they do.
Such biases are fuelled by clients that feel men should hire women attorneys because this will make them seem sympathetic, or a woman should hire a male attorney who will be “tough.” Clients may also feel women cannot handle aggressive negotiations. Women always have to fight the perception of not looking like a lawyer and have to battle misguided notions of competence that are defined as behaving more like a man. They also feel they have less margin for errors, and errors are seen as fatal to their advancement within the firm.
Some barristers such as Charlotte Proudman have also faced significant backlash for exposing a male colleague who complimented her for her picture through Linkedin instead of praising her professional accomplishments. Instead of being lauded for revealing such a misogynistic comment, she was criticized with being labeled as a “feminazi” and even received cyber abuse threats of death and rape. Thus, many factions of society cannot come to terms with an outspoken lawyer and are labeled in a way that suggests they have characteristics that make them unemployable.
Exiting the law firm earlier than male counterparts
There is also a stampede out of the profession, as documented by a study done by the American Bar Association that addresses the reasons why female lawyers leave the profession. Women make up close to half of the associate class of lawyers in law firms but make up less than 20% of equity partners by the time they are aged 50. The women surveyed felt that their access to success was blocked by the lack of access to business development opportunities and lesser opportunities for advancement within their firm. Experienced women lawyers have to bear the brunt of child caretaking commitments such as leaving work when needed by the child, children’s extracurricular activities, and evening and daytime childcare. These factors rank as the top reasons for why women lawyers leave law firms.
Furthermore, law firms have not implemented policies such as having clear criteria for promotion to equity partner. The lack of such policies results in undermining the ability of firms to retain and advance female lawyers into more senior roles.
Gender Discrimination in Private Practice
It is interesting to note that more women than men are entering the legal profession, yet men make up the bulk of lawyers in private practice. Gender-discrimination suits are being filed at an increasing speed by women lawyers against law firms to contest their compensation and promotion practices.Many female plaintiffs have come together to challenge discrimination and harassment in their workplaces, often revealing their identities to support others in the act of solidarity. Such cases also show negative actions such as sexual harassment that are rooted in the power imbalance that is often present in male-dominated law firms.
A survey has indicated that at least two-thirds of female lawyers have experienced sexual harassment at the workplace. There have also been allegations against the law firm Morrison and Foerster for employment practices that hold back pregnant women and mothers. These were brought to light in a class-action suit that was worth $100 million by two ex-lawyers.
In law firms across the U.S. women represent just 36.3% of attorneys, as per the ‘Glass Ceiling Report’ which shows that there is slow progress towards increasing female representation. Female partners bill at an average hourly rate ($426) that is ten percent lower than that of males ($473), and this billing disparity continues regardless of the size of the law firm changing. In addition, there are certain areas of the law that are dominated by women, such as family law that have lesser rates of pay as compared to a more male-dominated field, such as corporate finance.
Furthermore, a recent study by the Financial Times of law firms in the U.K. shows that women still make up only 19.6% of full equity partnerships. The study highlights how the law is a lucrative but challenging profession with having to be on calls 24/7 coupled with stringent billing targets and pressure to drum up a new business. All of these pressures lead to firms opting for men that appear more ‘hungry’ rather than a woman who goes off on maternity leave. Also, women have to make a business case again after having a child resulting in them getting the title of a ‘Counsel’ rather than being made partner, which is a much less senior title.
Lack of Flexible Maternity Leave Policies
According to divorce lawyer Ayesha Vardag, female lawyers face maternity leave policies that reflect a mindset from a different era. The expectation is that one has to come back full-time, or else the firm or employers are not supportive. Such maternity leave policies need to encourage flexibility in the workplace, allowing women lawyers to gradually come back into the workforce by being able to work for just half a day in the initial period. Female barristers such as Joanna Hardy in the U.K. have tweeted, saying that it is time to abolish 09.30 AM listings in the court as this would help with childcare and retention of women at the criminal bar. In addition to having a maternity policy, she has suggested having policies for fair allocation of cases and support for returning to work.
Efforts to have more women in the workplace
As per a study done on women in the legal profession, the countries with the largest population, such as India and China, lag behind in how many women make up the legal profession. India stands at a mere 5% representation, while China is at 20%. However, a process called the feminization of the law has already begun. The 30 percent threshold has become to represent a target for many countries to aim for in terms of having women make up at least 30 percent of the lawyer workforce. The Mansfield Rule, named after the first woman to be admitted to practice in the U.S., represents an effort at law firms to consider diverse candidates such as women for 30% of open leadership and governance roles in the firm, including equity promotions and lateral hires.
Additionally, law firms in the U.K. and the U.S. are increasing efforts to retain more lawyers, especially at the top rung of the corporate ladder. Allen and Overy, a premier law firm, has created a returnship program for its experienced female lawyers to target the proportion of women partners in the firm to at least 20%. The Solicitors Regulation Authority, which is the regulator of the legal profession in the U.K., has created a ‘Women in Law’ pledge as a commitment to gender equality in the legal profession. This pledge aims to achieve gender equality in the senior ranks of the profession, and organizations that sign the pledge will submit an action plan on how they plan to tackle aspects such as pay, reward, and gender equality targets.
In conclusion, till law firms and lawyers across the legal spectrum make concrete efforts to boost female participation, it will be difficult to overcome the mindset issues that face female lawyers. It is staggering that despite seeing more women enroll in law schools, women are missing from the upper echelons at the top-levels of law firms. Investing in flexible work from home options will allow more women to juggle between the rigorous demands of legal practice and their own family commitments. Also, involving rainmaking partners in the development of women attorneys is an excellent idea and should be pursued by all law firms across jurisdictions. Till these happen, we will continue to see a marginal improvement in the number of women that stay on in the legal workforce.
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