Image of Why women lawyers are walking out the door at BigLaw (hint it involves glass ceiling discrimination)

Why women lawyers are walking out the door at BigLaw (hint it involves glass ceiling discrimination)

This past week the American Bar Association (ABA) and ALM released “Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice.

The information and statistics in the report bear directly on the ways in which many experienced women lawyers still find a glass ceiling firmly in place at their firm. For example, the report notes that: “BigLaw is no stranger to the loss of experienced women attorneys. While entering associate classes have been comprised of approximately 45% women for several decades, in the typical large firm, women constitute only 30% of non-equity partners and 20% of equity partners.”

The report takes on several pressing issues, including:

  1. What are the everyday experiences that contribute to the success of women and men in big firm practice?
  2. What are law firms doing to advance women into the top echelons of leadership, what actually works, and where is innovation needed?

Everyday experiences that contribute to success for men and women in firm practice

While noting that a number of areas of agreement exist between male and female attorneys in terms of overall job satisfaction, the report found that stark differences remained in specific areas, including:

  • “Recognition received for their work”: 46% of women are dissatisfied or extremely dissatisfied compared to 15% of men.
  • “Methods by which compensation is determined”: 38% of women are dissatisfied versus 17% of men.
  • “Opportunities for advancement”: 33% of women are dissatisfied as opposed to 11% of men.

Perhaps most jarringly is the rate at which senior women attorneys report negative work experiences related to their gender:

  • Been mistaken for a lower level employee: 0% men; 82% women
  • Experienced demeaning comments, stories, jokes: 8% men; 75% women
  • Experienced a lack of access to business development opportunities: 10% men; 67% women
  • Been perceived as less committed to his/her career: 2% men; 63% women

What works (and what doesn’t) for BigLaw firms trying to foster long-term careers for women

BigLaw firms appear to recognize that attracting and retaining a diverse workforce, including experienced women attorneys, is important to the firm’s overall success.

But another striking finding in the report is the disconnect between how law firm leaders and male partners believe their firms perform in advancing experienced women, compared to the less rosy view of experienced women:

  • “Is gender diversity widely acknowledged as a firm priority?”: 88% of experienced men agreed versus 54% of experienced women.
  • “Has the firm succeeded in promoting women into leadership?”: 84% of experienced men agreed compared to 55% of experienced women.

In terms of policies that experienced women lawyers say are effective, the report summarizes that: “the policies that at least 75% of women believe are important to advancing senior women are work from home (78%); paid parental leave (76%); clear consistent criteria for promotion to equity partner (75%); and a formal part-time policy for partners (75%).” The authors of the report conclude that “when a firm does not implement these policies in a meaningful way, it is undercutting its ability to retain and advance women into senior roles.”

Are law firm partners considered “employees” or “employers” under Title VII?

A related issue is whether women partners in law firms should be considered an “employee” or an “employer” in terms of asserting a claim for employment discrimination under Title VII.

This matters a great deal because if she is deemed an employer, then the partner will not be covered by Title VII of the 1964 Civil Rights Act’s (and most other federal laws’) anti-discrimination provisions.  And this legal question is increasingly playing out in law firms around the country.

Whether a law firm partner is an “employer” versus “employee” under Title VII is fact-specific and will vary from case to case. Some of the non-exhaustive factors to consider in assessing whether a partner will be protected by Title VII and similar anti-discrimination laws are:

  • are you part of a very large firm, or a smaller one in which you may have relatively more control over your work and compensation;
  • are you an equity partner (Kirleis and Bluestein v. Central Wisconsin Anesthesiology, 679 F.3d 944, 953 (7th Cir. 2016));
  • do you have equal authority to hire and fire other shareholders; and
  • do you share in the profits of the firm/company and are you personally liable for its debts (Kirleis)

The ABA’s illuminating report gives law firms across the country a lot to chew on and demonstrates the need for sincere and consistent attention to this issue.

 

Eric Bachman litigates employment discrimination and whistleblower retaliation cases. He can be reached at (202) 769-1681 and ebachman@zuckermanlaw.com. Bachman is Chair of the discrimination and retaliation Practices at Zuckerman Law. Previously, Bachman served as Special Litigation Counsel with the U.S. Department of Justice’s Civil Rights Division, and a Deputy Special Counsel with the U.S. Office of Special Counsel.