Working toward pay equity

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Gender equity in the law

March 2014, Volume 50, No. 3

Working toward pay equity 

Lori E. Andrus

Women lawyers are still paid less than their male counterparts. Why hasn’t the legal profession overcome this problem, and what can lawyers do to address it?

In 1875, the Wisconsin Supreme Court offered this pronouncement on women’s capabilities:

We cannot but think the common law wise in excluding women from the profession of the law. There are many employments in life not unfit for female character. The profession of the law is surely not one of these. The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife.1

It took nearly 100 years—until the 1970s—for all accredited law schools to eliminate gender-based restrictions.2 And, at the rate things are progressing, it may take 100 more to achieve pay equity between male and female attorneys.

In addition to the other barriers women face in the legal field—sexual harassment, unconscious stereotypes, lack of opportunity—the gender pay gap is particularly disabling because of its compounding effect over a career. As Lilly Ledbetter explained, “When we lose 23 cents every hour, every day, every paycheck, every job, over our entire lives, what we lose can’t just be measured in dollars.”3

While women have made slow progress into the ranks of partnership and other leadership positions in the legal profession, the gender pay gap persists. Although it is difficult to pinpoint the exact differential between the compensation of male and female attorneys, one comprehensive national study, “After the JD: First Results of a National Study of Legal Careers,” showed that for lawyers entering the profession in 2000, women were paid 83 percent of what their male counterparts were paid.4 “After the JD” is a longitudinal study tracking the professional lives of more than 5,000 lawyers during the first 10 years of their career. The study used a stratified random national sample, based on questionnaires administered two to three years into the new lawyers’ careers. The sample was representative of the national population of lawyers first admitted to the bar in 2000. It sampled lawyers from 18 geographic areas across the country, including the four largest legal markets (New York; Washington, D.C.; Chicago; and Los Angeles). Almost 70 percent of respondents worked in private law firms, and about 16 percent worked in government. About one-quarter­ of the new lawyers in private practice were in offices with more than 100 lawyers, but a substantially larger proportion (48 percent) were in offices with 20 or fewer lawyers. The second iteration of “After the JD,” published in 2009, showed only marginal improvement in the gender pay gap, with women lawyers earning about 85 percent of what their male counterparts earned.5

Also in 2009, the National Association of Women Lawyers (NAWL) found that women equity partners typically earned about $65,900 less than their male counterparts (88 percent of what the men earned), and male nonequity partners averaged $25,000 more than female nonequity partners (the women earned 91 percent of male lawyers’ earnings).6 In 2011, NAWL found that male lawyers were paid more than their female counterparts at all levels, with women equity partners earning 86 percent of the amount their male peers earned.7 Not all studies agree that the pay gap is narrowing, however, and at least one major survey found the differential between male and female partners’ average compensation to be widening in recent years.8

Frequently, the pay disparity is chalked up to the idea that women earn less because they choose to opt out of the legal profession to raise their children, or they choose lower-paying positions to accommodate their home life. This explanation is problematic: More and more, men are taking on greater responsibilities for raising children and maintaining the household. This explanation also contains an incorrect assumption about the rate of female lawyers’ departure. Contrary to popular mythology, women are not significantly more likely to leave legal practice than men.9

More than one study has found a “marriage penalty” in female lawyers’ paychecks.10 Also, while mothers are held to higher performance and time commitment standards than nonmothers, fathers are held to lower performance and time commitment standards than nonfathers.11 One study found that mothers were 79 percent less likely to be hired, 100 percent less likely to be promoted, offered an average of $11,000 less in salary, and held to higher punctuality and performance standards.12

The problem, it seems, runs deep.

A persistent problem

There are several theories why women in the law have not yet achieved pay equity. One suggests that the characteristics traditionally associated with women are at odds with those traditionally associated with professional success, such as assertiveness, competitiveness, and business judgment.

Yet professional women tend to be judged unfavorably when they depart from traditional stereotypes and adopt “masculine” authoritative styles.13 This puts women in “a ‘classic “double-bind” situation’ in their attempt to be effective advocates, for women that act too feminine and compassionate may be perceived by the jury as being weak, and women that act overly aggressive may be perceived by the jury to be ‘too pushy and abrasive.’”14

As the U.S. Supreme Court described it: “An employer who objects to aggressiveness in women but whose positions require this trait places women in an intolerable and impermissible Catch-22: out of a job if they behave aggressively, and out of a job if they do not.”15

Many people believe that differences between the sexes exist and that women are indecisive, for example, while men are naturally good at decision-making. But biological gender differences do not support such stereotyped beliefs, for “psychological research finds few characteristics on which men and women consistently differ along gender lines, and even on those characteristics, gender typically accounts for only about 5 percent of the variation.”16

Despite that fact, male attorneys are generally considered more credible than female attorneys, regardless of whether female attorneys perform better or demonstrate greater ability that their male counterparts.17 Women generally “must work harder to garner the same level of respect as a male counterpart of the same level of ability.”18

Another possible explanation involves “devaluation,” wherein judgments about someone’s value are negatively biased against women. For example, studies have shown that when employers are provided identical resumes, with the only difference being the use of a female first name or a male first name, the employer is more likely to hire the male candidates.19 Similarly, female musicians auditioning behind a screen so that their gender was obscured resulted in a significant boost (of 30 percent) in hiring rates than when their identity was obvious to the evaluators.20

This is not to say that female lawyers are uniformly devalued. In certain circumstances, women can be perceived as being super-competent when, for example, they excel in areas typically regarded as masculine.21 Also, jurors generally perceive visibly pregnant female attorneys as innocent and of a higher moral authority.22

Female attorneys tend to achieve greater success in the courtroom when paired with a man. Studies have shown that, at trial, differences in decision error rates, win rates, and settlement positions are correlated with the gender of both plaintiff and defense counsel.23 Plaintiff trial teams consisting of a female and a male attorney are correlated with superior win rates (59 percent) and lower decision error rates (46percent) than teams comprised of two male attorneys (52 percent and 52 percent, respectively).24 In settlement negotiations, the average offer submitted by male/male teams was 18 percent of the average award; the average female/male team offer was 31 percent of the average award.25

Recent scholarship explains that today’s gender discrimination is less overt than it once was. Academics refer to today’s mode of gender discrimination as “second generation.” Second-­generation discrimination involves “social practices and patterns of interaction among groups within the workplace that, over time, exclude nondominant groups.26 In second-generation claims, “exclusion is frequently difficult to trace directly to intentional, discrete actions of particular actors, and may sometimes be visible only in the aggregate.”27 “It is particularly intractable, because the participants in the conduct may perceive the same conduct quite differently. Moreover, behavior that appears gender neutral, when considered in isolation, may actually produce gender bias when connected to broader exclusionary patterns.”28

Second-generation challenges that women lawyers typically face include cultural issues, such as the perception that a woman is overly aggressive when she is just being assertive, but also facially neutral workplace policies and practices that result in advantages to men, such as compensation systems that more heavily reward case generation rather than overall contribution to the litigation.

The entrenched nature of some of the harmful stereotypes about women suggest that the problem needs to be fully understood by leaders in law firms and the court system before true equality in the profession can be realized.

What can you do?

There are steps that law firms can take to help remedy the gender gap in salaries. For starters, firms should develop unbiased attorney evaluation systems. “Because women are not, in a default mode, seen as having ‘what it takes’ to be a lawyer, they must demonstrate higher levels of competence, or demonstrate competence over and over again, to be judged as equal to men. In this way, gender operates as ‘a subtle but continuous drag’ on women’s performance evaluations.”29

Moreover, “evaluators are more likely to notice and remember information that confirms an applicable stereotype than information that contradicts it.”30

Gender bias in evaluation systems—even in firms with the best intentions—is a problem. Between 3 and 7 percent of white women say they have received at least one unfair performance review, compared to less than 1 percent of white men.31

Whenever possible, performance objectives should be specific, objective, and measurable.32 When writing attorney evaluations, provide clear, detailed, and factual examples of behavior and base comments on actual performance and not potential or effort. Consider how you may have contributed to the attorney’s performance, and search your own behavior as a supervisor for signs of subconscious bias. Draft the comments in the evaluation before assigning a score, to reduce the chance of arbitrariness in assigning ratings between male and female attorneys.

When hiring, consider having an administrative assistant white out the names of the applicants on resumes you are reviewing. Be careful not to make negative assumptions about female applicants’ commitment to the job. Check yourself to be sure that you are not giving fathers an advantage over mothers in your assessment of their potential.

Regarding compensation schemes, law firms should design and implement objective metrics for compensation criteria. For example, don’t determine associate pay on an ad hoc basis. Consider setting lockstep base salaries for attorneys based on clearly defined experience criteria, and be sure that any bonus structure does not institutionalize unintentional gender bias.

When handing out assignments to junior attorneys, be careful not to confine female attorneys to research and writing (or other “backseat” roles). Allocate tasks fairly, and give female attorneys the chance to succeed in developing new cases, taking depositions, and examining witnesses at trial.

In court, it is important for a woman to establish credibility early and for others not to undermine it.33 For example, women are addressed by first name or familiar terms twice as often as male attorneys.34 Court personnel, collaborating attorneys, and experts should be mindful of the unconscious perceptions that female attorneys are subject to, and they should do their best not to perpetuate harmful, if unintentional, behavior toward women in the courtroom.

Lori E. Andrus is a founding partner of Andrus Anderson in San Francisco. She can be reached at lori@andrus anderson.com. The author would like to thank Collyn Peddie, whose substantial research she built on in preparing this article.

Notes:

  1. In the Matter of Goodell, 39 Wis. 232, 244 (Wis. 1875).
  2. Deborah L. Rhode, Perspectives on Professional Women, 40 Stan. L. Rev. 1162, 1166 (1988).
  3. Lilly Ledbetter, Speech, Democratic National Convention (Charlotte, N.C., Sept. 4, 2012); see Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).
  4. The NALP Found. for Law Career Research & Educ. and the Am. Bar Found., After the JD: First Results of a National Study of Legal Careers 60 (2004).
  5. The NALP Found. for Law Career Research & Educ. and the Am. Bar Found., After the JD II: Second Results of a National Study of Legal Careers 67 (2009).
  6. Natl. Assn. of Women Laws. & NAWL Found., Report of the Fourth Annual National Survey on Retention and Promotion of Women in Law Firms 8, 11–12 (2009).
  7. Natl. Assn. of Women Laws. & NAWL Found., Report of the Sixth Annual National Survey on Retention and Promotion of Women in Law Firms 19 (2011). At press time, the 2013 NAWL report was not yet available but was expected in early 2014.
  8. Jeffrey A. Lowe et al., MLA Partner Compensation Survey 12 (2012).
  9. Marilyn Tucker, Will Women Lawyers Ever Be Happy?, 24 L. Prac. Mgmt. 45 (Jan./Feb. 1998).
  10. Rebecca Korzec, Gender Bias: Continuing Challenges and Opportunities, 29 Litig. 14, 14–15 (Spring 2003); see also Shelley J. Correll et al., Getting a Job: Is There a Motherhood Penalty?, 112 Am. J. of Sociology 5 (Mar. 2007).
  11. Joan C. Williams & Consuela A. Pinto, Fair Measure: Toward Effective Attorney Evaluations 18 (2d ed., ABA 2008).
  12. Id.
  13. Deborah L. Rhode, ABA Commn. on Women in the Profession, The Unfinished Agenda: Women and the Legal Profession 15 (2001).
  14. Mary Stewart Nelson, The Effect of Gender on Jury Perception and Decision-Making, 28 L. & Psych. Rev. 177, 180–81 (Spring 2004).
  15. Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
  16. Rhode, supra n. 13, at 30; Deborah L. Rhode, Speaking of Sex: The Denial of Gender Equality 37–38 (1999).
  17. See also Kittie D. Warshawsky, The Judicial Canons: A First Step in Addressing Gender Bias in the Courtroom, 7 Geo. J. Leg. Ethics 1047, 1075 (1994).
  18. Nelson, supra n. 14, at 185 (quoting Ashley Kissinger, Civil Rights and Professional Wrongs: A Female Lawyer’s Dilemma, 73 Tex. L. Rev. 1419, 1424 (1995)).
  19. Rhea E. Steinpreis et al., The Impact of Gender on the Review of the Curricula Vitae of Job Applicants and Tenure Candidates: A National Empirical Study, 41 Sex Roles 509 (1999).
  20. Cecilia Rouse & Claudia Goldin, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 738 (2000).
  21. Reiko Hasuike, Credibility and Gender in the Courtroom: What Jurors Think, in Jean MacLean Snyder & Andra Barmash Greene, The Woman Advocate ch. 6 (ABA 1996).
  22. Nelson, supra n. 14, at 181; Warshawsky, supra n. 17, at 1080.
  23. Randall Kiser, Beyond Right and Wrong: The Power of Effective Decision-Making for Attorneys and Clients 81 (2009).
  24. Id.
  25. Id.
  26. Susan Sturm, Second Generation Employment Discrimination: A Structural Approach, 101 Colum. L. Rev. 458, 460 (Apr. 2001).
  27. Id.
  28. Id. at 469.
  29. Williams & Pinto, supra n. 11, at 16.
  30. Id.
  31. ABA Commn. on Women in the Profession, Visible Invisibility: Women of Color in Fortune 500 Legal Departments (2012).
  32. A good resource for firms interested in this area can be found in Williams & Pinto, supra n. 11, which was published by the American Bar Association Commission on Women in the Profession.
  33. Nelson, supra n. 14, 182, 184; Report of the Missouri Task Force on Gender and Justice, 58 Mo. L. Rev. 485, 641 (1993).
  34. Nelson, supra n. 14, at 181, 183.


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