The Role of Men Promoting Women In the Legal Profession
by Herb Rubenstein
“Men should do for women what they do for men.”
Dr. Laurie J. Bassi, Ph.D, Lead Author,
Good Company: Business Success in the Worthiness Era
“Don’t Put Talent Where It Cannot Get Out.”
Gabriella D’Andrey, Founder, Maryland State Opera
Introduction
There has been very little progress in the number of women in senior legal positions in private law firms and in the judiciary in the recent past. Rarely, in discussing this issue of implicit, if not explicit discrimination against women in the legal profession, is the question asked, “What is the role men should play in assisting women achieve equal status in the legal profession?” This article addresses that question.
This paper contributes to the ongoing discussion in the legal profession of how to promote women more fairly and more successfully in our profession. The authors are attorneys who have worked in the legal field of law for decades. One was told that if she had children, she would not make partner at her law firm. The other has had two female clerks in his law firm who went on to be nominated for Federal Judgeships and they both now serve as Federal Magistrate Judges. This paper contributes to the ongoing discussion in the legal profession of how to promote women more fairly and more successfully in our profession.
This article addresses that question. The issue of the suppression of women in the legal profession is not a new one. For the first 160 years of our nation’s history (1789-1949), no woman was appointed to a judgeship in the U.S. Federal Courts. For most of the past two decades, women have constituted a majority of law school students (approximately 52% according to NALP - Law Placement Score Card https://www.nalp.org/reportondiversity), so we know there is a large pool of qualified female lawyers for senior positions in the legal industry.
Books and articles have been written supporting fairer treatment for women for decades, and still, to this day, in spite of the Pregnancy Discrimination Act (PDA) as applicants and even some judges will attest, some law firms, when interviewing potential associates, ask the female and not the male associate applicants, if they plan to have a family. This is clearly an illegal question to ask. (See also: https://employment.findlaw.com/hiring-process/illegal-interview-questions-and-female-applicants.html).
Current Status – Re-examined
There have been many great efforts by women and men to promote women in the legal profession. Unfortunately, while these efforts are significant in that they will pave the way to more actions like this, they have been insufficient to make a significant dent in the pervasive discrimination against women in the legal profession. It is fair to measure progress against discrimination of a “minority group” by comparing their percentage in the population and their percentage in certain positions compared to their overall percentage in the population. As stated earlier, women have made up a majority of law school students for decades. Today, women only hold approximately 20% of the “equity partner” positions in law firms. (Source: ABA; National Law Journal). Less than 40% of the State Judges are women. (See: https://www.nawj.org/statistics/2019-us-state-court-women-judges – Source: The State of the American Bench, Forster-Long, LLC). Only 27% of the federal judges are women. (http://www.abajournal.com/news/article/the_percentage_of_women_in_the_federal_judiciary_is_the_same_as_men_with_th)
Thus, with men “overrepresented” in current “equity partner” positions, in judicial appointments, in political positions that appoint many of our judges, unless men change their previous hiring and appointment practices, women will continue to be underrepresented in senior positions in the legal profession. Therefore, the question, “What role men should play in assisting women achieve equal status in the legal profession?” must be answered in a way that guides men in the legal profession going forward.
Moving Forward to Promote Women In The Legal Profession
The role of men is straightforward. It must, at a minimum, be as follows:
1. Recognize that discrimination against women in the legal profession is both illegal and an ethical violation of the oath taken by lawyers.
2. Identify every form and act of discrimination against women in the legal profession undertaken by men or women and communicate awareness of this discrimination immediately to the party or parties committing the discrimination.
3. If the discrimination does not cease, and if actions are not taken to correct past discrimination by the parties discriminating against women in the legal profession, report this discrimination in a public manner.
4. Actively promote women to positions of leadership in the legal profession just as in the past they have actively promoted men to positions of leadership in the legal profession.
5. Conduct proper, objective due diligence for every hire, every promotion, and every judicial appointment by actively seeking to identify women who are qualified for positions of leadership in the leadership profession. For far too long men have used the argument “I hired the best person I knew for the job,” but failed to look far and wide for women who were equally qualified, or even more qualified than the man they hired for, or appointed to, the position.
6. Set targets in their law firms, in state and federal judgeships, with real timelines to begin to equalize the number of men and women in senior positions in their firms and the judiciary.
7. Be sure that their recruiting efforts are designed to equally attract women and men for associate and senior positions in the firm and for potential appointment for judgeships.
8. Publicly identify situations in the legal profession where men and women are not being treated equally and call out other men who do not treat women equally in the legal profession.
9. Create pro-family policies in their law firms and legal organizations that provide ample family leave, accommodations in the number of hours demanded when parents of either gender have children under ten years of age and not eliminate women or men who seek to work fewer hours for their first decade of child-rearing from being able to obtain senior positions in the law firm or legal organization over time. (See our companion article titled, “The Pro-Family” Law Firm).
Anticipating The Counter Arguments to This Article
As lawyers, our job is to anticipate and defeat counter arguments to our position. We do this below.
Counter Argument Number 1: Aren’t you doing affirmative action or even creating a quota of women for senior leadership positions in the legal industry?
Answer. For 160 years in the American Judiciary we had an affirmation action program for men and a quota on women in the judiciary. That quota was ZERO. For over a hundred years we had a quota on women who were allowed to practice law. That quota was ZERO. We are not doing this. We are saying that women should be treated equally, and that the two-hundred year-old policy of affirmative action for men in the legal profession must stop now.
Counter Argument Number 2: Since the purpose of a law firm is to make money, especially for its equity partners, women who want to work less and therefore earn less while raising kids should be excluded from the benefits of being a partner since they have not earned it.
Answer. The professional career for a lawyer or a judge can span fifty years or more. Female lawyers, (along with some male lawyers) who voluntarily reduce their hours of work to help raise children and care for family members, do so for generally less than a decade during their careers. Therefore, delaying equity partnership until some level of economic production is achieved by a woman, or similarly situated male who reduces their hours of work during their child rearing years, may be supportable. However, denying a female lawyer (or a male lawyer who reduces his hours of work) to allow for more time raising children of assisting other family members the rightful, equal opportunity to achieve partnership, or a senior legal position, or a judgeship during their fifty-year span of being a lawyer must stop now.
Counter Argument Number 3: Aren’t men better lawyers and better judges than women?
Answer. If one wants to make that argument, one needs to provide evidence. Based on our research, we have found no valid statistically reliable study that shows this. This implied statement of male superiority based on some unsupported opinion of “merit,” is at its core a prejudiced, sexist argument and fundamentally at odds with the law, with legal ethics, and with the bedrock principal of American jurisprudence of equality before the law.
Counter Argument Number 4: Women can’t be as good of rainmakers in law firm (business development or salespeople) in law firms because men represent most of the clients in the legal profession.
Answer. We know of no study that supports this argument. For too long the business development dollars spent by law firms have benefitted male lawyers much more than female lawyers. Tickets to sports events help men obtain and keep legal clients more than they help female lawyers obtain and keep legal clients. All law firms and legal organizations must ensure that their business development and marketing budgets, and how they represent the firm, do not discriminate against women, as they have in the past.
Counter Argument Number 5: Aren’t you really trying to destroy the traditional family by pushing women into senior positions in the legal profession, including equity partnerships and judgeships, when they should be taking care of the children?
Answer. Our argument for equality for women is “pro-family,” Law firms that tell female associates or applicants for jobs at their law firm, that if you get pregnant you will not become an equity partner, are “anti-family.” Law firms that do not give ample and equal, paid family leave, (same benefits to both male and female lawyers) are the ones who are “anti-family.” In fact, the authors of this article are developing a scorecard to measure how “pro-family” law firms in the US really are. We expect that most law firms when properly rated and evaluated using our objective “pro-family” scorecard will fail the test, and should be recognized publicly as being “anti-family. “
Counter Argument Number 6: There is no profession other than teaching where women are making great strides in attaining senior positions, so it is unfair to single out the legal profession for discriminating against women.
Answer. This is a false statement. The medical profession is making great strides in having women attain senior positions in this field. The legal profession could learn a lot from studying how the medical profession is succeeding in this area. Lawyers are not stupid, and can end discrimination against women if they choose.
Conclusion
It is time men stood up, as the power holders in the legal profession, and not only changed their ways, but called out their “colleagues in discrimination against women” and demanded that women get equal treatment in the legal profession. Anti-family law firms need to be “outed” and women need to come forward and speak out when they are discriminated against. Women have feared doing this because they have, correctly, believed they would be “blackballed,” by the male-dominated profession. Blackballing someone, actually blocking their legitimate success and rise in the legal profession, is the ultimate form of discrimination.
Today, women of courage, which means just about every woman, should take it on themselves to talk with men in the legal profession to get them on board to identify and call out discrimination against women, and to get them to give women a “fair shake” in the legal profession. This will not only improve the status of women but will improve the legal profession and the reputation of the legal profession which has been dragged down more by male lawyers than female lawyers. Not every female lawyer is perfect, or even senior partner or judge material, but many more women are great lawyers, and senior partner, and judgeship material, than we see in those positions today.
I conclude this article with the two opening quotes:
“Men should do for women what they do for men.”
Dr. Laurie J. Bassi, Ph.D, Lead Author,
Good Company: Business Success in the Worthiness Era
“Don’t Put Talent Where It Cannot Get Out.”
Gabriella D’Andrey, Founder, Maryland State Opera