“This is a Man's World”: How Female Attorneys Face Implicit Bias in the Legal Profession and How Law Firms Can Change the Culture

BY ZOE RYDZEWSKI, LAW STUDENT AND MSBA SUMMER LAW CLERK

AS BOTH A WOMAN and law student, I am often told that I am entering a profession dominated by men. Yet, as I sat in my 1L doctrinal classes, I noticed something...I was surrounded by women. So why is it that the profession is still considered to be male dominated when I see more women in my law school classes than men? The legal profession was historically dominated by white men until the 1920s when women gained the right to vote and the right to practice law. Since then, women have been carving out their place in the legal profession. In 2018, the number of women attending law school outnumbered men for the third year in a row and in 2019, half of all the JDs awarded went to women. Women are entering law firms in equal numbers as men, with most summer associate programs at law firms hiring an equal number of men and women. Yet, only 20% of managing partners or equity partners are women. So, why are law firms seeing a higher attrition rate of female associates compared to males before they can rise to leadership positions within the firm?

What types of bias do female attorneys face in the legal profession?

Besides the common struggles that women face in the workplace including unequal pay and sexual harassment, women in the legal profession have to work against specific gender biases as well. In a study published in the Law & Social Inquiry Journal, which used both qualitative and quantitative data from a large sample of lawyers, researchers found that women of color are about 3 to 4.5 times more likely to perceive discrimination than men, and white women are also 2.5 to 3 times more likely to perceive discrimination than white men. The study also found that women across all races and ethnicities were significantly more likely than men to have a client request a different attorney because of their gender. Notably, the study found that working in the private sector versus the public sector also was a statistically significant predictor of perceived discrimination, with women facing less discrimination in the public sector.

Women in supervisory positions also reported more perceived discrimination than white men in the same positions and women in lower positions. As women move up the ladder in firms, they are more likely to receive pushback from a subordinate attorney who believes a white male should be holding the leadership position. This data suggests that women are not just leaving firms because of a lack of opportunities for promotion, because even if promoted to a leadership position, they may still leave due to the resistance they get as a female in a position of power. In a study conducted by the American Bar Association Commission on Women in the Profession, women of color reported that they are mistaken for administrative staff, court personnel, or janitorial staff twice as often as white men, and white women reported that they were mistaken for these personnel 44% more often than white men. Women of all races report they feel pressured to look and behave in feminine ways and are often assigned more “office housework,” such as administrative work, than white men. As in many types of professions, women in the legal profession are often penalized for assertive behavior compared to white men exhibiting the exact same behavior. When surveyed, 56% of white male lawyers felt free to express assertive behavior compared to only 40% of female attorneys of color and 44% of white women attorneys.

Women of color reported that they are mistaken for administrative staff, court personnel, or janitorial staff twice as often as white men, and white women reported that they were mistaken for these personnel 44% more often than white men.

These biases are not only prevalent in the workplace but are present in the courtroom as well. In a study conducted by Arizona State University, researchers found that after 700 participants watched videos of male or female lawyers delivering a closing argument for a murder case using an angry tone, the participants used positive aspects of the angry closings to rationalize hiring the male lawyer but found the women lawyers who expressed anger to be “less competent, as well as shrill, hysterical, grating and ineffective.” Female attorneys are forced to walk a narrow path as they represent clients in front of judges, juries, and fellow attorneys plagued by implicit biases.

What can firms do to combat these implicit biases?

Berry Appleman & Leiden, voted the number one law firm for women by the National Law Journal for the second year in a row, attribute their successful retention of female attorneys to their large representation of women in leadership positions as well as their remote working opportunities and flexible scheduling, which are attractive to women who are trying to juggle their career and family responsibilities. Providing women with mentorship opportunities, an exclusive network for female attorneys to connect with other women outside of their practice area or office, and celebrating the achievements of female attorneys can also increase retention of female attorneys. Firms can also implement training programs for all staff to address implicit bias in the workplace. The American Bar Association issued a guide in 2018 on how to integrate bias interrupters into law firms in order to combat biases that research tells us still are rampant in the legal profession.

How COVID-19 brings an opportunity to level the playing field for female attorneys

The COVID-19 pandemic has forced attorneys to transition to remote work and has inadvertently normalized the concept of working from home. Cushman & Wakefield’s Legal Sector Advisory Group, in a report titled Bright Insight: The 2020 National Legal Sector Benchmark Survey Results, found that after several months of attorneys working from home “almost all respondents (90%) believe that more than 10% of attorneys will work remotely on a regular basis." Firms may use the pandemic as an opportunity to cut real estate costs and downsize on office space as they allow more attorneys to work from home. Although this may benefit female attorneys who rely on remote opportunities to balance childcare and their career, the law firm culture still must change to address the implicit biases women face in the legal profession.