I doubt I need point out to any of my readers the front-page
story in today’s Sunday New York Times’ Business
Section (above the fold, even!) headlined, "Up the Down
Staircase: Why Do So Few Women Reach the Top of
Big Law Firms," but in case you missed it, here
it is.
And here’s my
Letter to the Editor in response.
This issue—the relative paucity of women in senior
positions at large firms—is one that, I will now
share with you, has troubled me for some time. But
dwelling on "troublesome" issues, unless I have something
concrete to recommend, is not the stock in trade of
"Adam Smith, Esq." Nevertheless, it’s
klieg-light clear that the under-representation of women
in the partner ranks of AmLaw 200 firms has for many
years now not been the simple issue of the "pipeline."
My best guess at the explanation appears in my letter
to the editor (noted above).
What are your theories?
I wonder if it isn’t at least partly due to vastly different attitudes toward parenting between men and women.
In my completely anecdotal experience, more female attorneys are inclined toward staying home with children than their male counterparts. I have seen women take months off at a time when they have a child, where their male colleagues at the same firm take just a couple of days.
I have also observed, anecdotaly, that many women with children at law firms trade off time and responsibility at the firm for more time with their children. I have never heard of or seen a man make a similar choice.
I think there is some empirical evidence for the idea that women are much more likely than men to eschew duties and responsibilities, although I don’t have it on hand.
Assuming that there is some truth to the idea that women are simply making the rational choice to spend less time at the firm because they would rather spend more time with the family, that would certainly go at lest some of the way toward explaining lower rates of partnership for women, wouldn’t it?
Along the lines of the first commentor, I would be interested to see if there are studies of womens’ advancement in law firms measuring three cohorts — women with children, women without children, and all men. My suspicion is that in recent years, the latter two cohorts have similar statistical characteristics, and the real differences arise for women with children. (Not that this proof would excuse any disparate treatment for women with children, but it might point to the heart of where firms need to improve.)
Dear Bruce,
Please feel free to post as a “comment.” It is a deeply troubling issue and I so value the importance you give to the issue.
Best regards,
Ellen
—–Original Message—–
From: Bruce MacEwen [mailto:bmacewen@nyc.rr.com]
Sent: Sunday, April 02, 2006 5:37 PM
To: ‘Dr. Ellen Ostrow’
Subject: RE: Some Thoughts on “Why Do So Few Women Reach the Top of Big Law Firms” – Beyond the Billable Hour (TM) Issue # 42
Ellen:
This is very very thoughtful stuff; many thanks for sharing it with me.
Would you be open to my posting it on my site as a “comment?” Or would you prefer to retain your own “intellectual property” in it, as it were.
Alternatively, if you have put it up on a website of your own, would you mind sending me one or two sentences containing a link to it that would be suitable for my posting as a comment?
Thanks again; this deeply deeply troubling issue deserves far more discussion than it typically receives.
Best regards,
:Bruce
212.866.4800 (w)
917.359.0097 (c)
bruce@adamsmithesq.com
Visit my widely read site on
the economics of law firms,
AdamSmithEsq.com
——————————————————————————–
From: Dr. Ellen Ostrow [mailto:ellen@lawyerslifecoach.com]
Sent: Sunday, April 2, 2006 2:41 PM
To: bruce@adamsmithesq.com
Subject: FW: Some Thoughts on “Why Do So Few Women Reach the Top of Big Law Firms” – Beyond the Billable Hour (TM) Issue # 42
Dear Bruce,
I wrote this after reading your blog comments on the NYTimes article. Thought you might be interested.
Best regards,
Ellen
Ellen Ostrow, Ph.D.
Lawyers Life Coach LLC
8811 Colesville Road Suite 104
Silver Spring, MD 20910
Phone: 301-578-8686
Fax: 301-587-4327
Email: Ellen@lawyerslifecoach.com
Web: http://LawyersLifeCoach.com
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—–Original Message—–
From: Dr. Ellen Ostrow [mailto:ellen@lawyerslifecoach.com]
Sent: Wednesday, March 29, 2006 8:10 AM
To: billablehour@lawyerslifecoach.com
Subject: Some Thoughts on “Why Do So Few Women Reach the Top of Big Law Firms” – Beyond the Billable Hour (TM) Issue # 42
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http://www.myshingle.com/, Bruce MacEwen of
https://adamsmithesq.com/blog/, The Happy Feminist (http://happyfeminist.typepad.com/happyfeminist/),
Preaching to the Perverted
(http://www.gulbransen.net/preaching/), Opinionistas,
(http://opinionistas.com/) Jeremy Blackman
(http://jeremyblachman.blogspot.com/), and the Wall Street
Journal Law Blog (http://blogs.wsj.com/law/) all weighed in.
Lorraine Koc, President of the National Association of Women
Lawyers, issued a response.
The fact that the Times chose to address this issue at all
is of course, positive. That the attention of the legal community,
as well as the public at large, was at least momentarily focused
on this issue is also encouraging. It is a start – even if it was
a long time coming.
However, I found the article somewhat disappointing. O’Brien was
prompted to write his article by the recent initiatives on the
advancement of women by the New York City Bar and the Women’s Bar
Association of the District of Columbia. He addressed the issue
primarily from the viewpoint of Bettina B. Plevan, a senior partner
at Proskauer Rose and the President (only the second woman) of the
NYC Bar Association. Ms. Plevan has been a leader in that Bar’s
current efforts to advance the careers of women lawyers. But she
speaks from a minority perspective as someone who succeeded in spite
of the obstacles faced by most women attorneys in big firms.
Noticeably missing in the article are the stories of women who were
not fortunate enough to receive the mentoring and other opportunities
from which Ms. Plevan benefited. And it is their stories, more than
any statistics, that effectively communicate why so few women reach
the top of big law firms.
I have spent the past eight years listening to these stories as I’ve
coached women to develop strategies to overcome these obstacles. And
what constantly troubles me is that their stories become buried under
stacks of law firm initiatives and statistical reports and, in the
case of the NY Times article, lists of obstacles which are named,
but which leave the reader with at best a vague understanding of how
these obstacles actually function to stymie the careers of talented
women lawyers.
I shared many such stories at the first of four sessions of the WBA
Initiative and am happy to forward a copy of my remarks to anyone
interested. (Please email me at Ellen@lawyerslifecoach.com.)
Rather than repeat myself here, I’d like to elaborate on the obstacles
raised by O’Brien – to make them more real and palpable. If authentic
change is to be made, then there can be no ambiguity about the problems
women lawyers face. These obstacles must be instantly recognized, named
and effectively addressed by men and women in law firms.
Monica Bay’s response to the NY Times article, posted on The Common Scold
(http://commonscold.typepad.com/) on March 20, concludes with these words:
“Hmmmm…does that sound like a familiar refrain? Duh!
We’ll keep on hammering and hammering.”
I’d like to move at least a step beyond a familiar refrain.
So, here are the issues as presented by the Times, and my
efforts to elaborate:
1. IMPLICIT GENDER BIAS
“Firms want women to stay. Men at the firms want women to stay, and
women want to stay. So why aren’t they?” asks Karen M. Lockwood, a
partner at Howrey in Washington. “Law firms are way beyond
discrimination – this is about advancement and retention. Problems
with advancement and retention are grounded in biases, not discrimination.”
This was probably the most misunderstood statement in the article.
Almost every blogger expressed confusion about the difference between
bias and discrimination and I received scores of email from equally
bewildered lawyers.
The distinction to which Ms. Lockwood – who as president of the WBA
spearheaded DC’s Initiative on the Advancement and Retention of Women –
was referring is that discrimination is overt, explicit and legally
actionable while bias is subtle, implicit, and because the individual
behaving in a biased manner is often not conscious of his bias, difficult
to fight, legally or otherwise.
The concept of unconscious bias is crucial for a full understanding
of the problem of women’s blocked advancement – as well as the solution.
For the past 20-30 years, research in psychology has repeatedly
demonstrated that an individual can consciously believe in equity and
see himself as someone who would never behave differentially toward women
or minority group members – and at the same time, hold unconscious beliefs
that direct behavior without the individuals conscious awareness.
Our minds consist of both conscious and non-conscious processes.
Approximately 95% of our behavior is governed by non-conscious,
automatic processes. Our conscious mind has no awareness of these
processes. This is adaptive: it would be impossible to function
effectively if we had to make deliberate, conscious decisions about
when and how to turn on a light switch or brush our teeth every
day. Our behavior is efficiently guided by these simultaneously
occurring, multiple automatic processes.
In contrast, our conscious mind is the slower, intentional,
deliberate, long term planning process that thinks in language.
We tend to associate this part of our brain with our concept of
“mind” when, in fact, much more of our behavior is guided by our
non-conscious processes.
As an attorney, you’re probably particularly attached to the idea
that you are a rational agent who makes conscious choices about what
goals to pursue and how you respond to the social world.
But, if that were the case, why would you ever engage in behavior
that you know will hurt you (e.g. overeat, drink too much, fail to
see the doctor when you’re sick, etc.)? Although we associate the part
of our mind that thinks in words with our mind, in actuality our minds
work more like a law firm – many members (processes) thrown together who
often find themselves working at cross-purposes.
Keep in mind that this split between conscious and unconscious
beliefs is not unique to male law firm managers and senior partners.
For most of us, our non-conscious minds probably learned to respond
in prejudiced ways based on thousands of exposures to racist and
sexist views in the media or from role models. Many people have
learned to reject these attitudes on a conscious level and are offended
by the idea that they hold implicit prejudices that strongly influence
their behavior. And, as long as they are carefully monitoring and
controlling their behavior, they’re unlikely to actively respond to
stereotypes.
But most of the time, law firm life is crisis-focused. You’re trying to
meet deadlines and get work done so you can go on to the next project.
If you’re consciously focused on crafting an argument, you can’t be
simultaneously monitoring and controlling your responses to everyone
and everything else. This is when automatic, habitual, biased responses
are enacted.
Gender stereotypes are culturally-shared, socially constructed beliefs about
who men and women are and how they should behave. While the male gender
stereotype is consistent with the traditional picture of a lawyer (independent,
assertive, strong, competitive), the female stereotype is not.
Social psychological research has reliably demonstrated that visual cues easily
trigger these automatic responses. Since gender and race are often the first
distinguishing characteristics you see in another person, these visual cues
regularly elicit biased responses. (You can test your own implicit biases
at http://www.projectimplicit.com.)
Once an implicit bias is elicited, it affects what is perceived, how it is
processed, and what is remembered. Information consistent with the stereotype
becomes salient while inconsistent information is ignored. Psychological
research has demonstrated that work products attributed to women are evaluated
as poorer than those attributed to a man. The female gender stereotype is
inconsistent with conceptions of leadership, so women are less likely to be
viewed as having leadership potential. Implicit biases deprive women lawyers
of the presumption of competence their male colleagues enjoy. Because of this,
women typically have to work harder to prove their ability. Furthermore,
research indicates that when powerful men stereotype their female subordinates,
they behave in patronizing ways that weaken the performance of their
subordinates.
Successful women suffer as well. The same behavior viewed as assertive in a man
is judged as overly aggressive in a woman. Women are less likely to be
recommended for leadership positions and tend to be evaluated negatively
when they are leaders because of the discrepancy between our concept of a
leader and the female gender stereotype.
Joan Williams has been conducting research on “the maternal wall” at the
Center for Work Life Law at Hastings College of Law. Her own research replicates
findings from social psychology that motherhood is particularly stigmatizing.
This is the bias to which Karen Lockwood referred when quoted by O’Brien.
When Deloitte, the accounting firm, began its initiative to retain women,
consultants worked directly with managers on implicit gender bias. They
uncovered assumptions that a lawyer-mother who arrived late to a meeting
was “uncommitted” while the late arrival of a lawyer-father was brushed off.
If women are to advance in law firms, implicit gender stereotypes must be
explicitly addressed. Consultants such as Joan Williams and Cynthia Calvert
and M. J. Tocci and myself offer methodologies for doing this.
2. PUSH AND PULL FACTORS
O’Brien writes, “Although women certainly leave firms to become more
actively involved in child-rearing, recent detailed studies indicate
that female lawyers often feel pushed into that choice and would prefer
to maintain their careers and a family if a structure existed that
allowed them to do so.”
Workplace flexibility is a critical issue in large law firms.
(See, for example, http://www.pardc.org.) Current billable hours
requirements combined with rigid work structures make it virtually
impossible for a lawyer to have any life outside of the firm. This
issue extends beyond work/family conflict and increasingly affects men.
However, in my experience coaching attorneys, women are far more likely
to feel pushed out of their firms than to feel pulled to full-time
motherhood. Women with impeccable credentials struggle and fail to get
work assignments that will allow them to develop the skills necessary
for advancement. They get excluded from client meetings and business
development opportunities. They get brushed off by mentors who invite
junior men to chat in their offices. Women are ignored when they
don’t ask for credit and criticized when they do.
Many firms have adopted flexible schedule policies. However, these
policies are rarely used because in most large firms doing so is
stigmatized. Choosing to work reduced hours is often viewed as equivalent
to a lack of commitment to ones career.
What is overlooked in the utilization statistics is the extreme variability
in how the supervisors in any given firm implement balanced hours policies.
While some partners (often those with young children themselves) do their
best to make these schedules work for the attorneys who use them, others
do everything they can to sabotage their effectiveness. They call mandatory
meetings at times when balanced hours attorneys are scheduled to leave.
They accuse women of “staying home” when these women have been at a
deposition or hearing. They refuse to comply with assignment systems requiring
them to match work to attorneys’ schedules and career development needs,
insisting instead on their right to continue a “hey you” system for
assigning work.
I am frequently asked by firms to coach their women working flexible schedules.
It’s not that this is a bad idea, but it falls far short of what’s needed for
women to advance. And isn’t this further evidence of implicit gender bias?
Supervising partners need assistance learning how to work with attorneys who
maintain non-traditional schedules. Resistance to change is to be expected.
But without solutions that specifically address it, policies are bound to
fail to accomplish their stated goals.
3. Mentoring
The Times article suggests that although women are not being adequately
mentored, male associates also receive inadequate mentoring. Assigned
mentoring systems are a poor solution to the problem. Psychological
research shows that formal mentoring relationships are less effective
than informal relationships, in terms of career development, promotion
and compensation. In fact, there appears to be little difference between
the career outcomes of individuals who receive formal mentoring
vs. those who receive no mentoring at all. Male attorneys are more likely
to be the recipients of informal mentoring simply because 83% of law firm
partners aremen and people are most comfortable with similar others.
Another striking research finding is that the power of male mentors
only goes so far. While male protégés who have been mentored by men
are likely to receive both more promotions and higher compensation,
women protégés mentored by men receive promotions but less compensation.
Although mentoring is a necessary component of any initiative
designed to advance women in law firms, it clearly is not sufficient.
4. WOMEN DON’T SAY “I WANT.”
O’Brien attributes this quote to a law firm consultant and it may well
be that the quote was taken out of context. But it’s not unusual to hear
suggestions that if only women would change, they would advance. Of course
there is merit in helping women acquire skills necessary for managing the
challenges they face in firms. NAWL consistently tries to provide such
training and I certainly coach women to empower themselves in whatever
ways they can. The ABA Commission on Women in theProfession’s Women in
Law Leadership Academy has similar goals. But attributing the problem
of women’s advancement to what women do or fail to do comes awfully
close to victim blaming.
Psychological research indicates that women are just as competitive and
self-promoting as men in same-sex groups. They’re simply smart enough to
know the potential consequences of behaving inconsistently with their gender
stereotype in the presence of powerful men. Backlash against women who behave
more assertively has been repeadely documented.
Furthermore, to the extent that women do behave differently from men,
institutional support for the legitimacy of these differences is still
needed.
On March 21, Patrick Lamb (http://www.patrickjlamb.com/) posted this comment
on the blog, The Common Scold:
“Given the paucity of minority lawyers at major law firms, the lagging fortunes
of women should come as no surprise. I can’t speak for all large firms, but I
can for some. They are WM [white male] clubs. It’s hard to think of a single
major social issue where large firms have led. When clients force them to pay
attention to an issue they do. But not before…The waste of this talent pool
is a travesty.”
The fact is that most large law firms are monocultural clubs. Everything is
viewed through the lens of white male experience. Diversity requires an
organization to become truly multi-cultural. This means that differences are
more than simply tolerated or accepted – they are highly valued.
Large firms have a long way to go before they become multi-cultural organizations.
And until this occurs – whether through the increased numbers of women graduating
from law schools or client demand – the opportunities for significant numbers of
women to advance to positions of noteworthy power in law firms will be limited.
Without institutional change, our efforts to empower women lawyers are likely to
benefit these lawyers themselves, but not their current firms. Some women have
already abandoned the large law firm struggle in favor of women-owned law firms.
Many of these firms are becoming quite successful. Whether such firms will
become serious competitors of large firms remains to be seen – but there
are positive signs.
ISSUES NEGLECTED BY THE NEW YORK TIMES ARTICLE:
4. CROWD-FOLLOWING
Bruce McEwen, founder of the Adam Smith, Esq. blog, wrote a letter to the
editor of the Times
(http://www.bmacewen.com/blog/pdf/NYT.2006.03.19.BJMLettertoEditor.pdf)
in which he states:
“When a law firm entertains a proposal about how it might do business
differently, the all-but-universal but immediate question is, “Who else
is doing this?” And when the answer is, ‘no one really,’ the initiative’s
fate is sealed.”
This is consistent with my experience. Law firms want change – but not
more than other firms. I think the fundamental issue here is values.
I don’t think that the majority of partners with power in big law firms
are convinced of the business case. The costs of attrition have been
repeatedly presented, but few seem moved. Some clients have asked to
see firms’diversity figures, but it’s easy to inflate figures by including
non-equity partners. And many of these firms have institutional clients
who are willing to overlook the absence of diversity in a firm. Although
certainly there are many firm managers and senior partners who want to
increase opportunities for advancement for women either because they believe
it’s the right thing to do, or because they see it as an economic imperative,
most firms have not reached the “tipping point” needed for real change
to take place.
Superficial changes are made. For example, a firm may start a women’s
initiative but underfund it. A firm may have a balanced hours policy
in order to attract talented women lawyers, but as long as no other firm
has a significantly higher utilization rate, the partners as a group are
satisfied. The firm is equal to its competition for talent so there’s
no need to do more.
5. SHORT-TERM THINKING
The business case for diversity requires a longer time perspective than
one year out. However, most firms are focused on profits per partner
in the current year. If their clients aren’t clamoring for diversity now,
partners assume that things will remain this way. Those of us trying to
produce change can keep on “hammering and hammering” that diversity is
essential for the long-term economic health of the firm, but unless enough
partners with power buy this, we’re running in place.
The most compelling evidence to support diversity requires looking beyond
this year’s revenue. Costs of attrition accumulate over time. The loss of
clients to more diverse firms can be anticipated. The competitive advantage
that firms which advance women will enjoy is around the corner. But seeing
these metrics requires long-term thinking.
6. RAINMAKERS
The issue of rainmaker satisfaction is almost as taboo as the issue of
implicit bias. Rainmaking is typically done by a small minority of partners
– usually men. Because they bring in the greatest amount of revenue, they
hold the greatest amount of power.
Of course, every law firm is a business, and every business must be profitable.
But firms publish their profitability every year in the American Lawyer
in order to attract lawyers whose goal is to earn the most possible. Every
large firm manager fears that short term losses in profitability will result
from efforts to increase flexibility and diversity. There is always another
firm with higher profits per partner that year to woo away the rainmakers,
eroding the economic base of the departed firm.
Not long ago I had an interesting conversation with partners at a financially
successful, large consulting firm that had accomplished more in its efforts to
advance and retain women than any large law firm. These partners noted that
their business model did not allow for a partner with power equivalent to that
of a law firm rainmaker to emerge. Every manager was measured by the same
criteria, so no individual or small group of partners had such a disproportionate
amount of influence.
Initiatives that effectively advance women in law firms must address
profitability issues from the perspective of firm managers and key partners.
It’s difficult to imagine the conversation continuing without these issues
being put squarely on the table.
To end on an optimistic note: I regularly coach women attorneys to become
rainmakers. Once these women recognize that they need not mimic the approaches
of their male colleagues, they’re freed to develop their own unique styles.
As their comfort increases they realize how powerful their networking skills
and connections can be in enabling them to bring in significant business.
The road to power in large law firms is paved this way. Opportunities for the
advancement of women lawyers increase as more women become rainmakers. Large
firms might want to concern themselves with whether these women rainmakers
will want to stay.
[Bibliographic sources available upon request.]
***********************************************************
BEYOND THE BILLABLE HOUR (sm) is published monthly by
Ellen Ostrow, Ph.D., founder of Lawyers Life Coach LLC.
Ellen’s articles have been published by over 25 bar
associations and numerous other law-profession publications.
Lawyers Life Coach LLC is a firm providing executive and
career coaching to attorneys. Lawyers Life Coach LLC
specializes in providing virtual (by phone with e-mail
and fax back-up) coaching to lawyers determined to
achieve professional success without compromising the
quality of their lives.
Ellen Ostrow, Ph.D. established Lawyers Life Coach LLC
to coach busy lawyers who might benefit from the insights
gained from her 26 years as a psychologist combined with
her experience and familiarity with the legal profession.
She provides individual and group coaching and consultation
to attorneys and law firms throughout the country on issues
related to work/life balance, strategic career design,
effective communication, leadership, and client and
associate development and retention.
A nationally-recognized expert on issues facing women
attorneys, Ellen has been an invited speaker for attorney
groups throughout the U.S. and is frequently quoted in the
legal and public press.
Ellen holds a Ph.D. in Clinical Psychology from the
University of Rochester. She received her coach
training from MentorCoach â„¢ and now serves on their
faculty. She is a member of the International Coach
Federation.