Big Law Is Still an Old Boys’ Club

The legal industry needs to come to terms with its gender bias, unconscious or not

anna dorn
anna dorn
May 8, 2018 · 8 min read
Credit: tomozina/iStock via Getty

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On HBO’s hit series Insecure, Molly is a Type A third-year associate in Biglaw, a colloquialism for the world’s top law firms. On season two, Molly mistakenly receives the paycheck of her white male coworker, a slacker, and realizes that he makes significantly more money than she does. In earlier episodes, Molly struggles to bond with the firm’s powerful, white male partners who seem to care only about golf. These scenes demonstrate Biglaw’s seemingly impenetrable glass ceiling, as well as how it remains an “old boys’ club.”

While sexism is not exclusive to any one industry, it is more prevalent in historically male-dominated spheres like law. For example, in Bradwell v. Illinois (1873), the U.S. Supreme Court upheld Illinois’ right to prohibit women from practicing law on the basis of their sex, illustrating how women were historically discouraged or barred entirely from studying and/or practicing law. Unfortunately, Biglaw hasn’t done much to counteract the the field’s history of female exclusion. This is particularly disheartening given most women I spoke to while researching this article told me they entered the profession not to gain power or fortune, but rather to combat injustice. Keep in mind that a Biglaw job is typically needed to pay off staggering law school debt, where being $200,000 in the hole isn’t unreasonable.

“Most major U.S. law firms were founded by, and initially employed only, white men,” legal reporter Stephanie Russell-Kraft wrote this fall in Bloomberg’s Big Law Business, citing a conversation with Sheri Zachary, director of career development and inclusion at Saul Ewing Arnstein & Lehr, LLP. “Now, as women and people of color have entered the ranks, they’re bumping up against ingrained power structures and obstacles to their career advancement.” As the work of corporate lawyers “impacts nearly every realm of business,” Russell-Kraft told me, “it has ripple effects” when corporate lawyers are predominantly white men. Likewise, Biglaw litigators shape the law, which, for obvious reasons, should not merely reflect the perspective of white men.

My friend Sarah*, who worked for four years in Biglaw before moving to a smaller firm, recounted a situation resembling that of Molly’s on Insecure: The men at her former firm had an obvious camaraderie, which translated to the men being assigned better cases and getting to work with the firm’s decision-makers. As it was harder for women to penetrate the boys’ club, Sarah told me, they were given less meaningful assignments. Female lawyer friends of mine have reported being assigned clerical work while their male colleagues get to litigate or draft contracts, and their teammates discussing case strategy in the men’s bathroom. As a first year associate, Sarah learned that her male colleagues clocking the same or similar hours were being paid at least $10,000 more than her, and this was before their bonus, which she only assumed was also unequal to her own.

According to a 2015 survey by the National Association of Women Lawyers, the gender compensation gap remains wide: The typical female equity partner earns 80 percent of what a typical male equity partner earns. What’s worse is that, compared to the pay gap recorded a decade ago, the chasm has only widened. Men also continue to be promoted to non-equity partner status in significantly higher numbers than women. In 2015, women represented 18 percent of equity partners, only a 2 percent increase over the previous decade. This statistic is notable in comparison to other areas of law: Women make up around 25 percent of general counsel in corporations, 30 percent of law school deans, and 27 percent of the state and federal judiciary.

In Biglaw, Sarah said she “essentially only worked with white men.” Likewise, Rachel*, who has worked in Biglaw for three and a half years, works primarily under six men and only one woman at her firm. Whenever Rachel has voiced that the firm is 99 percent white and male, she hears something along the lines of: “Well, this is a progressive city, and we all care about diversity.” Rachel’s firm is in San Francisco. On all-male teams, Sarah felt like a “second-class, second-rate citizen,” explaining that the men avoided making eye contact with her for up to 20 minutes at a time during meetings.

What’s more, Sarah was excluded from meaningful conversations and routinely objectified: Male bosses told her that witnesses would prefer to talk to her because she’s “young” and “pretty,” and asked her to sit next to the client during trial so that the jury would see a “pretty face” beside the defendant. Rachel told me she receives frequent comments from her firm’s male partners about her lipstick, and, at times, is told she “looks tired,” which she finds particularly frustrating given her fatigue is due to long work hours. While working on a trial against an all-female team, Sarah told me her colleagues made countless sexist jokes, including suggesting that one of the opposing attorneys was sleeping with the judge. Likewise, Rachel reported that a male partner in her firm thinks saying “#MeToo” as a punchline to “any joke” is “hilarious.”

In Biglaw, Sarah says she was never her true self: “I’m afraid that the real me doesn’t fit into the law firm culture.” Rachel similarly explained that working in Biglaw as a woman requires a “delicate balance of not being too forceful, but also not appearing weak/ignorant/naive.” Sarah changed firms primarily to follow a female partner, whose mentorship she greatly valued. She’s since worked on allowing her real personality to come out, and has noticed her happiness and work improve as a result.

Wake Forest Law professor Smith* introduced me to the term “gender sidelining,” which is used to describe “subtle yet pernicious forms of unequal treatment that often are not actionable under anti-discrimination or other laws.” Gender sidelining discourages women from being their best selves at work, rather, as Sarah and Rachel described, encouraging them to engage in coping mechanisms like “strategic overcompensation” and “emphatic sameness,” which typically require women “to hide or sacrifice an important part of their female identity to succeed in the workplace.” For these reasons, as Russell-Kraft reported, it’s increasingly common for women to start their own firms rather than persist in Biglaw.

According to Smith, the biggest challenge female attorneys face is figuring out “how to succeed on their own terms, rather than being forced to fit into a stereotypical model of professional success designed by men, for men.” In her opinion, current partnership models often “place female attorneys between a rock and a hard place, penalizing them both for traditional expressions of femininity as well as non-conformance with gendered notions of how women should look and behave.” Too often, this model assumes that “mothers and other women of childbearing age will necessarily be less dedicated and dependable because of their current or future family obligations, while ‘family men’ are generally not saddled with these potentially damaging stereotypes.” Demonstrating this, Sarah told me she won’t have kids until she makes partner based on how she’s seen pregnancy “stymie the careers of high-achieving associates.” Smith encourages “law firms to consider redesigning their part-time and telecommuting policies, to allow more realistic and reasonable pathways to success for working mothers and fathers.”

While analysts have attributed the Biglaw gender disparities to everything from lack of mentorship to women’s failure to self-promote, it’s become clear that unconscious gender bias also plays a major role. Lauren Rikleen, president of the Rikleen Institute for Strategic Leadership, says, “I do not believe anyone wakes up thinking about how to treat women differently than their male colleagues, [but] unconscious bias shows how people make decisions that can have disparate impacts.”

A concrete example from lawyer and author Kathleen McGuinness for Ms. JD: When a consultant studied 268 written lawyer evaluations from a major Wall Street firm, she “found that men and women whose work quality was described similarly in narratives received different numerical scores, with the men ranking higher.” Men were also three times more likely to make partner than women. When the consultant presented the findings to the firm’s management, who had hired her, they declined to make any of the changes she suggested. The consultant observed that this firm was getting panned as being “one of the worst places for women to work, [but] their philosophy was that there will always be people who are willing to break their backs to work here.”

Adding insult to injury, the “old boys’ club” tends to have a chilling effect for women speaking out against sexism. Inspired by the #MeToo movement, employment lawyer Beth Mora tried to mobilize members of her local bar association to anonymously share their own stories. She only received five responses to her mass email, and three were from men. She received a few phone calls from women who told her they were afraid to chime in because their bosses might identify them and retaliate.

Mora’s experience did not surprise me. When I sent a similar mass email to my lawyer friends for this piece, only two responded. When I emailed a women’s legal organization, I received the following response: “I could not suggest anyone within [the organization] who might want to speak on the record regarding misogyny and the law.” A few months ago, when I included a Biglaw anecdote in a separate article, I received an onslaught of panicky texts from the friend who relayed it as soon as it went live, insisting that I change the location of the unnamed firm.

According to law professor Ellie Margolis, speaking out against sexism can be “career suicide” for female lawyers. For this reason, many women have taken to anonymous online outlets to share their #MeToo stories. When Oklahoma attorney Susan Curtiss founded GIRL ATTORNEY, LLC, she says the company name came from when, about a decade ago, she would tell her clients to call her past firm and “ask for the girl attorney,” because she was the only female lawyer at the office. Curtiss launched the site in July 2016 to provide support to female lawyers in similarly isolated situations. She put privacy walls around each of the state-specific Facebook groups she later created, and made the network invite-only. Starting with 46 of her own Facebook friends, the site has grown into a national community of roughly 16,000.

Relatedly, inspired by the #MeToo movement, a Twitter community was built around the hashtag #LadyLawyerDiaries, providing a supportive outlet for female lawyers. For example, a law student recently tapped the community for advice on how to handle a male colleague taking credit for her ideas, or “bropropriation.” Another woman asked how to handle constant interruptions when she’s speaking to her all-male team.

Smith says that to reduce sexism’s impact in the legal field, law firm leaders must acknowledge its adverse effects on the firm and the field as a whole. For example, a 2010 McKinsey & Company global survey reported that companies with the greatest gender diversity had better than average operating results and returns on equity. Smith also noted that, among other things, workplace sexism reduces the number of women in influential leadership roles, contributes to higher rates of turnover of qualified female employees, decreases morale and productivity, heightens tension and mutual distrust between the sexes, and wastes “millions of dollars each year on churning costs and litigation expenses arising from sexual harassment, sex discrimination, and gender sidelining.”

Attorneys in management roles must work to reduce the harmful effects of sexism, Smith stresses, by providing meaningful opportunities for every member of the firm — from the managing partner to the recent hire — to engage with issues like privilege, discrimination, diversity, and gender sidelining. “These sessions should not be finger-pointing,” Smith clarifies, but rather “should foster empathy” by exploring the harmful and widespread consequences of sexism “on women, men, the law firm, and the legal field as a whole.”

Diversity consultant and attorney Paula Edgar says that advancing women in Biglaw takes “deliberate and strategic action.” Law firms should hire consultants to help assess the exact issues and implement firm-specific solutions. “Without deliberate strategies,” Edgar says, “equity and inclusion will not happen in the law firm culture organically.”

*Name changed for privacy

anna dorn

Written by

anna dorn

vagablonde (unnamed press, may 2020); bad lawyer (hachette books, spring 2021); read my newsletter

All Rise
All Rise

About this Column

All Rise

Many fetishize the law as a universe based entirely on logic and reason and insulated from emotion and bias (despite that human conflict is at the heart of all legal disputes). Thankfully, books like The New Jim Crow and documentaries like 13th have begun to shed light on the widespread racial injustices in our legal system, but fewer have recognized the patriarchal underpinnings upon which the law rests. In this column, Anna Dorn explores how misogyny steeps into our criminal justice system by examining a range of defendants.

Many fetishize the law as a universe based entirely on logic and reason and insulated from emotion and bias (despite that human conflict is at the heart of all legal disputes). Thankfully, books like The New Jim Crow and documentaries like 13th have begun to shed light on the widespread racial injustices in our legal system, but fewer have recognized the patriarchal underpinnings upon which the law rests. In this column, Anna Dorn explores how misogyny steeps into our criminal justice system by examining a range of defendants.

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