Women in the Law: Marginal Progress and What We Can Do Moving Forward

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As we mark Women’s History Month by reflecting on the vital role women have played in American history, it’s important to recognize that inherent biases plague all professions, and law is no exception. Although some progress has been made in recent years, we still have a long way to go.

Studies show that any gradual progress is much too slow. In 2021, the American Bar Association reported that current projections suggest that there will be equal distributions of women and men in the legal profession in 2181, more than 150 years from now. Therefore, if profound changes are not made, our children nor we will see gender equality in the legal field in their lifetime. Reaching gender equality needs to be more than just a topic of discussion; it needs to be an active exercise. Although we have identified the issue, we need to focus our inquiry on the specific areas holding back women’s advancement and what can be done to change this.

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When people think of biases, they often assume the person with those biases is inherently wrong and engaging in these behaviors consciously and maliciously. Although that might be true for a tiny portion of the population, it is not valid for most. This way of thinking may be why progress toward correcting this well-defined problem could be faster. Everyone in the legal profession should take a good hard look at this issue, regardless of their gender identity and what biases they think they do or do not have.

I have talked to several colleagues to help identify the key issues women face in the law. These highly successful women all express the same struggles: lack of mentorship, “fitting in” to the legal culture, frequently being underestimated, feelings of inadequacy, and lack of flexibility in work schedules.

Regardless of intent, the disparity of women in leadership positions at law firms makes it hard for women to “fit in” with their firm’s male-dominated culture. The 2021 Report from the National Association of Women Lawyers (NAWL) Survey on the Promotion and Retention of Women in Law Firms highlights this disparity. The trend is clear—the higher the position, the lower the percentage of women in that position. NAWL reported that although the percentage of women associates in law firms was 47% in 2020, the percentage of women who were non-equity partners in that same year was only 32%. When the ranking moves to the even higher equity partner level, that number lowers to only 22%. With this apparent disparity, young women who enter the profession are immediately at a disadvantage as their chances of finding a mentor and “fitting in” are much slimmer than their male counterparts.

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So, what can we do to improve this? The obvious answer is to look at the disparate treatment of men versus women at the same level in your firm. Each candidate should be evaluated on their accomplishments and compared accordingly. Some factors that should be considered are salary amounts, title, and work performed by each employee. An analysis of these objective factors can help remove any implicit biases that we have. The 2021 NAWL survey highlights the disparity in salary. According to that survey, women at every level are paid a lower wage than their male counterparts. Consistent with the common trend, the higher the level, the more the gap increases. NAWL reported that women who were equity partners in 2020 received only 78% of the compensation their male counterparts received.

Based on the above statistics, it is unsurprising that women often feel inadequate and have trouble “fitting in.” Notwithstanding these statistics, my experiences and those of other colleagues confirm that these inherent gender biases are rampant. By way of example, a few years ago, I appeared for mediation with a client. The mediator welcomed me as a “little girl” and told me that the “lead lawyer” on the case needed to be present. I explained to the mediator that I was, in fact, the lead lawyer on the case. He looked puzzled and offered me some “snacks.” Luckily, I was far enough in my career to recognize that these things happen and had no bearing on my abilities.

Despite my immediate “disadvantage,” we settled the case for an amount that made my client happy. Although some people reading this might be surprised that this happened only a few years ago, conversations with several female colleagues confirm that such incidents are common. The secret is in being able to overcome these inherent biases without allowing others to make you feel inadequate. Although these biases are slowly disappearing, we need to mentor young women better to navigate these waters. Having a mentor is vital to understanding this harsh reality.

Aside from mentorship and an evaluation of each employee based on objective factors, another possible solution is the option of flexible work schedules. If we learned anything from the COVID-19 pandemic, we learned that remote and flexible work arrangements could benefit our practice. This policy should be openly offered to all employees. A flexible work schedule can help retain talented employees with family and childcare responsibilities. This type of policy can significantly aid in retaining women who report disproportionate family obligations to their male counterparts.

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Although social inequality and gender discrimination are recognized as severe problems in today’s society, we need to focus on the solution rather than the problem. Everyone needs to acknowledge that their biases are implicit and use their problem-solving skills to work toward a solution. Once we do that, I see a positive future for women in the law. And this makes the most sense. Why would we not want to keep the talent that women bring to the legal profession?

Marina Pacheco

Marina R. Pacheco is a partner with Kabateck LLP with expertise in several areas including personal injury, class actions, employment law, construction defect, public entity liability and product liability.

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