Kimber Russell: This episode is the second part in our analysis of the legal profession's leaky pipeline. So if you haven't listened to last week's episode yet, make sure to check it out.
This week, we focus on retention of women lawyers, but not before we place today's challenges in their proper historical and sociological context.
I'm Kimber Russell. This is LST's mini-series about women in the law, where we discuss implicit bias, some promising solutions, and more.
Broader sociological trends help explain many of the challenges women face in the legal workplace. We talked to one of the nation's leading experts about evolving gender norms and behavior.
Stephanie Coontz: My name is Stephanie Coontz. I teach history and family studies at the Evergreen State College, and I am the director of research for the Council on Contemporary Families.
The last 50 years have seen a lot of economic and political and social changes, but I would say that one of the deepest and most extensive has been in the norms and behaviors of men and women. It's been quite stunning.
Kimber Russell: Today the vast majority of Americans thinks that breadwinning should be shared and that men should be involved at home just as much as women should be involved at work. But back in the 60's—
Stephanie Coontz: The general attitude was that men and women were totally different and that it was men's job to be the provider. More than 70% of Americans believed that the proper family is one where a woman stayed at home and took care of the child raising and the men took care of the money earning. And neither of them should intervene in the other's business. This has been overturned in the last 40 years.
Kimber Russell: In that time we saw massive entry of women into the labor market, driven by two separate forces.
Stephanie Coontz: One was that woman began to get really unhappy with their exclusion from the exciting economical and educational boon of the post-war era. And many women were bored in just trying to be housewives and entered the labor force in order to find more excitement and more meaning. But then in the 1970s we also got the big recession and a lot of inflation and a lot of pressure on women to enter the workforce. So you got a period between the 70's and 80's when you had woman entering the labor force some for really exciting reasons, some resentfully. But for whatever reason they were entering it, they were calling on men to change their behavior at home and at work, and you saw a period of real intense gender conflict or at least confusion. But by the 1990s we were beginning to see just tremendous changes in people's attitudes.
Kimber Russell: But attitudes and actions don't always line up. And that's still true today.
Stephanie Coontz: What we find is that men and women really want to share these things equally. But when they actually come up against the kind of childcare arrangements and work policies we have in the United States, I used to say we are like the Neanderthals but then I discovered that Neanderthals did a better job of caring for dependents than we do. But we are the only industrialized country who does not guarantee paid maternity leave; most of them also have paid paternity leave now. So couples run into this impossible bind where if the man does stay home, he doesn't get paid. The woman, who tends to be paid less, drops out of work for a while to have the baby because there aren't good paid leaves and guaranteed return to your job. And that drives her even further behind, which makes it even more difficult for the man to take time off.
Kimber Russell: So how has the breakdown of work at home changed? According to the Council on Contemporary Families, married men in heterosexual relationships pick up more housework than they used to. In 1965, women, depending on the study, did between 7 and 22 times as much cooking, cleaning, and laundry as men. Today, they do between 1.5 and 3 times as much.
So it's not a perfect balance, but that's real progress. And when kids are in the picture, the kinds of household tasks that men do have changed.
Stephanie Coontz: They're not just doing the fun playtime with dad.
Kimber Russell: Yet, Stephanie told us, it's still true that women tend, upon marriage, to make more career accommodations, especially when they have children.
So whether it's attitudes or pragmatism —
Stephanie Coontz: People get into this vicious cycle that reinforces the woman's second class position at work and the man's second class position within the family. So men and women make choices that would not necessarily be their first choice, but they try to accommodate the reality of our totally inadequate work family policies and childcare policies.
Kimber Russell: When a couple needs to sacrifice, it often comes down to money. Who has the better job? Who makes more?
Stephanie Coontz: Even though we have very strong views about gender equality, we have very, very unequal wages and our low-wage jobs are much lower paid in relation to high-wage jobs than those in many other countries. Since women still tend to cluster in those and those tend to be the women's jobs, you can see why men do not want those lower paid jobs.
Kimber Russell: The big question, then, is how do we break out of the vicious cycle, and actually achieve parity in the legal profession? Stephanie points to stereotypes of men as one huge obstacle.
Stephanie Coontz: The biggest obstacles to gender equality now are not the continuing prejudices or stereotypes about women, but the ones about men. Women have been fighting against the feminine mystique. When we look at young girls we find that they are now prepared to believe that they could do anything that boys can. They no longer try to be bad at sports, which my generation was actually told to do. They think that they can be high achievers intellectually and athletically, in all those things. But we find that boys have been much slower to adopt the idea that they could do things that were traditionally used to be associated with girls. Girls feel free to do traditional boys activities; but boys are still reluctant on to do what was once seen as women's work or girls' work. And they are teased and bullied by other boys, even once they're out of middle school they still get bullied and harassed and they pay a financial penalty.
Kimber Russell: The result of gender typecasting is not theoretical. It affects people from all walks of life. Joy Diaz Graf is the attorney we heard from in an earlier episode. She works for the federal government.
Joy Diaz Graf: I think whether it's spoken or not spoken, traditional gender roles still exist where a lot of people think that men can be out until 8:00 working and it's not a big deal as long as the mom or the wife is home. And I think, even myself, I put that pressure on myself because my husband could be home before me, but as a woman too you feel that you have to do these things or other people are going to judge you. You judge yourself — that you're not the best mom or the best that you can be if you can't do all of these things that traditionally you're supposed to do as the wife and mother.
I think it's important to put realistic expectations on yourself. You're not going to be able to make it to everything like you want to, and that's okay. You don't have to be the supermom, the super wife all the time. You can find a balance where two days a week you stay late at the office and your husband or your significant other picks up the slack. You have to find a schedule that works for you.
Kimber Russell: We spoke to Thomas Dominic about his time as a litigator at one of the largest law firms in the country.
Thomas Dominic: When I came in I was a bit older than the other associates. The other, older attorneys had children and families and such, but I was one of the only people who was married, and certainly the only associate coming in who had a child.
Kimber Russell: During his recruitment, the firm played up the family-friendly atmosphere. Part of the pitch was that his office was in Cleveland. And everyone who worked there said it was a great place to bring up a family.
Thomas Dominic: It's not New York City. It's not Chicago. It's not Washington. We care about our weekends and our kids and our soccer games and all that stuff. So it was said not to be as stressed out as those places.
Kimber Russell: During his recruitment, a partner told him how he was able to eat dinner with his family every evening.
Thomas Dominic: But in exchange for being with his family for dinner every night, he said that he would get back online at eight or so until midnight or one o'clock.
It wasn't a point in time realization that, oh my goodness, what they are saying is family-friendly and what my idea of that is vastly different.
But I also found that the same partners who were making these overtures to how family-friendly it was and how great of a workplace it was, were the same ones who were getting divorced or never seeing their children. And they were not the sort of people that I wanted to grow up to be like.
Kimber Russell: Recent research about millennial beliefs and bias leaves room for optimism, but shows just how deep these structural challenges go. In Hey Sweetie, we heard from Dr. Elizabeth Dickinson, a business school professor at the University of North Carolina.
Elizabeth Dickinson: Millennial males are much more egalitarian until they get into the workforce and realize that there are very deep barriers that prevent them from actually acting on those beliefs Why? Because I'm tapping back into that stereotype and that schema of: male is work.
Thomas Dominic: Just like every other firm in the country, mine trumpeted the fact that it had paternal leave as well as maternal leave for when you have a child and you should take it and all of that. So that is what the HR people were saying and what the administrative people were saying, but then when it came time to take it, of course it was a little bit different.
For instance I had one male colleague who had a child, and he pointed out hey I'm going to have a child, I'm going to take my paternal leave, that's cool, right?
And everyone was like yeah, sure, sure, no problem. Do it, it's your benefit to use and we don't have a problem with that. But then, as soon as he took off to be with his young daughter everyone was peppering him with emails and questions. And they were all like, well you still are going to be in contact right? I mean you're still going to work from home? So it wasn't really a leave at all, it was more like an extended work from home period for that particular individual.
Kimber Russell: Gender stereotypes linger in other ways. Certain tasks or non-billed work fall more to women than men. Remember Lea Guitierrez? She's the Chicago government attorney we heard from in Hey Sweetie.
Lea Guitierrez: One of the things that comes to mind is office birthdays. Planning, some sort of celebration of peoples' birthdays I can't think of a man in the office that does that. That's women all the time.
Kimber Russell: Maybe this doesn't sound like a big deal, but just imagine you're considering someone for a promotion. Do you prefer the candidate who plans really great birthday parties? Or the person who is involved with the money?
Here's Rita Greggio, who we also heard from in Hey Sweetie.
Rita Greggio: One thing that I have noticed is that certain areas that people typically think of as belonging to men like finances, when committees are formed, sometimes woman do get left out and it's not something that people notice, I think it feels natural to people that, "oh the finance committee will be headed by men."
Kimber Russell: And what about relationship building? This happens in the office, but it also happens after work. It's especially difficult for mothers, as Lea and Rita explain.
Lea Guitierrez: People go golfing or what not, I haven't seen that so much in government. First of all I have to acknowledge that, to some degree, I can't answer the question because I probably wasn't included in a lot of those invitations so I don't know what they are. But to the extent that I do know what they are, a lot of times it's, 'let's go have a drink after work' or something, and often times, I don't know if it's a conscious excluding of woman, but often times for myself, I as a mother have other obligations after work and so even if those invitations were extended to me, I wouldn't be able to attend. So I'm not there and I'm not showing my face in those situations and I'm not benefiting from whatever inside information is shared.
Rita Greggio: You might not even think to invite someone because you know that they have these duties, and I think in general we still think of those duties as falling to woman. So I think there is more of, there is more of a chance that you might not invite a mother because you expect her to go home and take care of the kids, or pick up the kids as opposed to a father; even if that father participates and is present in the home.
Lea Guitierrez: Prior to becoming a mother I was definitely invited to more social activities and I don't know whether it was a conscious decision to stop inviting me because I became a mother or whether it was because I declined to go, so people stopped asking. But I definitely was included more in social activities prior to becoming a mother. In terms of my progression since becoming a mother, I don't feel there's been a negative impact on my progression. Maybe it's a little bit slower than it would have been if I was not a mother. But I can think of times where, for instance, I get that call that my daughter has a fever and she's kind of laying around lifeless and I that actually was a call I got. The response I got was, "so are you leaving?" So, I think that things like that, like having to take off when your kid get sick, having to take off work when school is closed or things like that can have, and to some extent have had, a slight bit of a negative impact on my career progression.
Kimber Russell: For both Lea and Rita, and countless other women, assumptions — even ones that are probably true — make the environment more difficult to navigate, especially with respect to the accrual of insider knowledge that's key to career advancement. Women are told, and there's no doubt that leadership at firms and in government believe, that there's equal opportunity to succeed. After all, the workplace has evolved past pinched posteriors and explicit limitations on women. The trouble is that limitations are harder to detect, and harder to remedy.
Here's Elizabeth Dickinson again.
Elizabeth Dickinson: Small things really add up. After 20 years and I don't get partner, how do I really know why I didn't? It's kind of enough to make someone sort of paranoid. It's difficult to parse out how much of it was something that I did or didn't do — this pebble that turns into a boulder in over the course 20 years that just knocks me down and I don't know why.
Kimber Russell: One way to navigate these limitations is to control what you can. Cheryl Balough changes her behavior.
Cheryl Balough: We all play different personas all the time. We don't act the same way with our Grandparents as we act with our children. We take on those different roles, and I think you have to do that in whatever situation you find yourself — assess what persona do you need to take on? It might be second nature, it might be that at home they are used to picking up after their young kids so they do it without thinking.
Kimber Russell: So how do you actively suppress other personas?
Cheryl Balough: You have to think about how do you react and if you have a tendency to slip into those kind of roles you have to make a conscious decision not to do that. Say this is how I act here. If that means you dress in a different way, you sit in a different chair, you give yourself different props, or other things that remind you that you need to act in a particular fashion in the office environment or in the client setting, then do that.
If you are sitting in a conference room with clients, colleagues and it's time to make a decision what you are going to do for lunch, that's not when you want to be calling on the nurturing aspect of your persona, and say, ‘oh I will go and get itl.' That's the time where you need to act as a peer with everyone else there. There are other times where the nurturing is okay: you are trying to help someone understand something that perhaps they don't grasp this easily.
Kimber Russell: We here at Law School Transparency want to give a special thank you to The University of Denver Sturm College of Law. Denver hosted a roundtable about retention of women lawyers. You can listen to this discussion, moderated by me and the show's executive producer Kyle McEntee, however you're listening right now. You can also visit LSTRadio.com to read transcripts, guest bios, and get a sneak peek at what's to come.
Denver Spot: This is Bruce Smith, dean of the University of Denver Sturm College of Law, an innovative private law school dedicated to the public good. You can learn more about Denver Law, Denver's only law school, by visiting law.denver.edu.
Kimber Russell: Cheryl Balough told us how she exerts control by adopting different personas at work. But you can't control your firm's culture — you can only choose where you work. Here's Joy again.
Joy Diaz Graf: When you're interviewing for different law firms and jobs, mostly in the firms where billable hours are a big thing. When you're a young woman, I think in the back of their minds they're thinking, oh she's going to get married soon. She's going to want to have kids. How does that fit into ‘we want you to work 80 hours a week? You need to be here every Saturday.' I felt like since I already had kids coming out of law school, and they were young, I really didn't feel like I could take one of those jobs or that I was necessarily welcomed into those jobs or that type of lifestyle. I just felt like it wasn't overt, but you kind of get the sense that wasn't really what they're looking for or really want when they're trying to hire associates right out of school.
Kimber Russell: A lot of this comes down to what organizations value.
Joy Diaz Graf: When you're working at a law firm or even at the state attorney's office, they look at how many hours you put in and what you're doing, and they take that as your "commitment," how many hours you put in at the office, which isn't necessarily what your commitment is. Some people can get 10 hours worth of work done in eight. It's not necessarily how many hours I am at the office. It's how good I am at what I'm doing and can I get it done.
Kimber Russell: Kim Amrine is the partner and diversity director of a large Midwest firm who we heard from last week. We asked her to weigh in on Joy's impression.
Kim Amrine I don't necessarily agree with the generality that all law firms are looking for you to bill 80 hours a week and if you can't do that then they have no interest in you working there. I do think that there is a balance. You have to look at salary and compensation vs. billable hour requirement. I mentor students in other law firms and they sometimes say we don't have the billable hour requirement, but once they are there for a year and a half they learn there is actually a hidden billable hour requirement of 2000 hours. Or the stated requirement is 1950 but the expectation to be successful and valued is that you at least bill 2100 billable hours. The difference I found in just 200 hours per year is real. And it's hard to understand that concept until you begin to do it and live it and breathe it and to see what that means for you.
Across the board in professions people are working longer and harder. Law is no exception to that. We are a business, and that makes it tricky.
Kimber Russell: It also comes down to what peer employees value. Shayann Heiser-Singh was a partner at a very prominent Chicago law firm.
Shayann Heiser-Singh: I'm not sure that this a thing that you can really blame the employers, there is definitely a huge social component to this. Where other men working there will be like come on dude seriously what are you going to do for 2 months? Are you going to change diapers for... there is this kind a brotacular attitude that happens sometimes. I think it makes it difficult for men to take whatever parental leave is available to them. In that area I think there is some room for improvement there and it can happen on both sides.
First, men who work at places with parental leave policies they need to take their leave. And they should support coworker and colleagues who have leave to take. And utilizing those benefits that are available, they also help women, because it is a less of a stigma what is available to them.
The employers also have a role to play. They need to make it crystal clear and loud that they really want to support men who want to go home to support their family.
Kimber Russell: This harkens back to what Stephanie Coontz said about male stereotypes. If men are not empowered to publicly value family, the vicious cycle for working women will continue.
In the U.S., we still fight some truly ridiculous battles. In the first episode, we talked to Kathryn Cockrill. Kathryn is the attorney from South Carolina who told us how her previous boss enjoyed access to a non-metaphorical boys club.
Kathryn Cockrill: He fired his marketing director in her first week back of maternity leave. I have a two and a half year old little girl, and I felt like I was going to be let go and I don't know if that's part of the reason why I had to part ways when I became a mom, but I had to almost hide the fact that I was really into being a mom, and I think I had to sever that when I was at work. And I didn't bring a lot of pictures. I had to drop the mom thing at the door when you got to the office because nobody was interested in it. He wanted to hear me say I enjoy being at work more than being at home with my child.
I love being a lawyer and I love what I do, and I hope that my daughter will look up to me and say wow look at my mom, she's a lawyer and she does a really good job and she runs a really successful practice, I can do anything I want. I never wanted to feel the way I felt the first year I had my daughter where it was every time my daughter was sick I was stressed out about I have to take care of her, she's my child, she can't go to daycare, but my boss is going to kill me if I don't go to work today. He's going to be over it, I'm going to be fired. I always felt like I was going to be fired.
And he's since said, I heard him say to other people that he'd never hire another woman attorney again because the two other women I'd worked with left right after I did. And he was more of a moderate. He wasn't as bad as they are down here.
Kimber Russell: Duke law professor Katharine Bartlett calls this situation a double bind.
Katharine Barltett: People will assume if she has pictures of children in her office, that she is more concerned about her family than she is about work and that she is over devoted to her children and they make that assumption based on a cue that they are getting that this is more of a mother than a worker. On the other hand if they come into the office and they know she is a mother and she has no pictures of children on her desk, that violates the kind of concerns that women ought to have about their children. So they'll penalize her for that.
Kimber Russell: And that's not a great way to make people feel included. Here's Elizabeth Dickinson again.
Elizabeth Dickinson: A lot of these programs make people say: We have diversity. Look at all the woman coming into our firm, if they are not making it to partner, there are so many resources for them. "Is it something that we're doing? I don't know but probably not because, look at all of these resources that we have and we're giving them time off when they have children and start families, or when they need to do elder care."
So diversity is sort of when you get those "different looking bodies" but then how do people actually feel being in that firm? And that's the concept of inclusion. So if you're not really enacting meaningful programs to get people to feel included, then the efforts are completely wasted.
Kimber Russell: The consequence of a non-inclusive culture is that people tend to leave. But even a sense of belonging doesn't mean you'll succeed in a given environment.
Recall the examples of seemingly little ways that women are disadvantaged. Less insider knowledge. Less important non-billed work. Penalties for valuing family. Unidentified and unaddressed implicit bias. These add up over time to career stagnation.
Mentoring helps, but strong mentoring networks are fairly new. Tapping into these networks can be especially difficult for women and people of color. There are simply fewer people like them at the levels where people are empowered to mentor.
Here's Lea Gutierrez again.
Lea Guitierrez: In order for somebody to be successful, they not only have to be talented but they have to be mentored and to some degree sponsored by someone. And the likelihood of getting that mentorship and that sponsorship is reduced because typically people are going to mentor people and sponsor people who are similar to them.
I am not saying that it is conscious. "I am not going to mentor woman" or "I'm not going to mentor people of color." It's just human nature for people to feel more comfortable with people who are like you.
Kimber Russell: One of the people who did manage to ascend to the top is Virginia Hoptman, the appellate litigator and former partner at a large law firm we heard from in Hey Sweetie.
As an associate in the 1980s she traveled with a male partner for a hearing with a key client.
Virginia Hoptman: I went out to the regional IRS office in Oklahoma. I remember him telling me that his wife wasn't comfortable with him traveling overnight with women, so I made a day trip to Oklahoma City.
Kimber Russell: She traveled from DC to Oklahoma City via Houston early in the morning. After the hearing, she hopped back on a plane to travel back to DC via Chicago.
Virginia Hoptman: I guess that sounded reasonable to him but it didn't to me.
Kimber Russell: As a result, she missed out on meetings over several days at the client's headquarters — an opportunity lost where she could have developed relationships.
But Virginia's challenges weren't just internal. In many cases clients push firms to staff cases with diverse lawyers. In others, clients are the problem.
Virginia Hoptman: I remember being told that I couldn't be visible on a particular case that I was taking a major role on. The partner kind of put his hands up in the air and he could do nothing about it because it was the client's cultural preference to have only men in the room, they would be uncomfortable with women.
Kimber Russell: There's no question it's better today for young women lawyers than back then. And Virginia succeeded despite these experiences. But these scenarios, which played out across the profession several decades ago, affect who's at the top today.
Virginia Hoptman: If you're in the bigger firm where you've got more institutional clients, I do think it's much harder for women and minorities to actually build that book. And an awful lot of the book is built by passing down institutional responsibilities. Whether it was a Japanese client or the Oklahoma story, it was obvious that a young woman associate would have a much more difficult time growing into or being given increasing client-based responsibilities because of the discomfort of the male partners.
I don't think in either of those situations there was overt discrimination. I honestly don't think the persons involved, it would ever occur to them that they were overtly discriminating. It seemed pretty overt to me, but I realized it wasn't coming from an intention to do that. It was more from assumptions and comfort levels.
You know I really think people underplay to a certain extent the power of affinity groups and I think if you have you know years and years and years and years of the old boys' club, even if they're not trying to discriminate at all that's just going to be naturally who they're comfortable with, with people who come from that same sort of ilk — the sons of you know their buddies — as opposed to you know people who are different, whether it's women or minorities.
Kimber Russell: Consider the managing partners of the largest law firms. The women in these positions were almost all associates in the 1980s. The same goes for today's judges, politicians, and law school deans. Back then, there were barely any women partners, law professors, or judges. It made the path to those positions that much more narrow.
Here's the former chief justice of the Arizona Supreme Court, Ruth McGregor.
Ruth McGregor: I graduated from law school in 1974. We had about 12% women in our class and ten years later, it was up to about 35% and 40% in most law schools. So it was really the beginning of the change for women in the legal profession. I went to law school at Arizona State University, now the Sandra Day O'Connor School of Law, and was part of the group of women, the first women to be hired by the major Phoenix law firms. And I was first woman lawyer hired at my law firm, Fennemore Craig.
Kimber Russell: Today, many more women are in position to mentor the next generation of lawyers. Chief Justice McGregor's first years of practice, however, stand in stark contrast.
Ruth McGregor: There were just so few women and they were not at the large firms. We had, when I first started, an unofficial women lawyers group that met at a roundtable in the Arizona club, one table. And we had two superior court judges, Sandra O‘Connor would come sometimes, and then there were a few of us who had started the practice. We were really lacking women mentors.
Kimber Russell: Women are in a much better position to effect change in the legal profession, whether from the bench or in legal education, the private sector, or the government.
But based on our conversations with scholars and other experts, the next frontier seems to be implicit bias. And that's a landscape with many unknowns. Here's Kim Amrine again.
Kim Amrine:It's difficult, complicated work. You can't just have a program or a policy that's going to make everything different. And we've been at that for a long, long time. We've been doing a lot of good things in this space: we have a lot of women's initiative work, we have a lot of updated policies, we have flexible policies but these are not necessarily the answer. It's really about looking behind the systems and where unconscious bias can manifest itself, and what can we do to minimize that? We're not going to totally eliminate it tomorrow and kind of where are we seeing it rear its head in the largest ways and how can we have dialogs to minimize and change our system?
Kimber Russell: Thanks for tuning in. Stick around and listen to the roundtable discussion we held at the University of Denver Sturm College of Law about retention of women lawyers. I'm Kimber Russell. This episode was produced by Kyle McEntee. Theme music by Brad Kemp. Thank you to all of our guests and to Olympia Duhart, Marissa Olsson, Ashley Milne-Tyte, Caren Ulrich Stacey, and Susan Poser for your help. We also want to thank Diversity Lab for a generous donation very early in the project. Next week, we'll hear from two attorneys about how their religion, race, and gender transition intersect with being a woman attorney.
Women in the Law is a production of Law School Transparency. To learn more about LST, visit lawschooltransparency.com. To learn more about this mini-series, visit LSTRadio.com/women.