Lady Justice Can't Break the Glass Ceiling
Tina Wong
December 10, 2010
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There is little sociological disagreement that women and racial minorities continue to face serious barriers in advancement up professional ladders and in business at all levels. The Glass Ceiling Commission, formed by the Doles among others, offered this insight in 1995: “Minorities and women are still consistently underrepresented and under utilized at the highest levels of corporate America. For example, 97 percent of the senior managers of Fortune 1000 Industrial and Fortune 500 companies are white,and 95 to 97 percent are male; in the Fortune 2000 industrial and service companies, only 5 percent of senior managers are women, and almost all of them are white; African American men with professional degrees earn 21 percent less than their white counterparts holding the same degrees in the same job categories. But women and African Americans are not the only ones kept down by the glass ceiling. Only 0.4 percent of managers are Hispanic, although Hispanics make up eight percent of America’s workforce. Asian and Pacific Islander Americans earn less than whites in comparable positions and receive fewer promotions, despite more formal education than other groups”. The Economist put it succinctly when they stated that, in fifteen years, all that has changed is “the mindset of... businessmen” (2009). Worse, while in some areas there have been serious improvements, in others there have been declines: “One survey found that women executives in the United States were earning an even lower percentage of their male counterparts’ remuneration in 2000 than they were in 1995” (The Economist, 2009; Glass Ceiling Commission, 1995). It is possible that had to do more with growth in male CEO wages rather than a decline in women's incomes per se, but nonetheless, the problem is serious. However, questions remain: Why is this consistent barrier to promotion and equal pay still around? What could be done to solve the problem? Explanations range from the “mommy track” depriving women, rightly or wrongly, of promotion opportunities due to expectation that they will not stick around; a simple generational problem, wherein the first generation of highly-trained female executives have yet to come into their own; lack of role models; to the pernicious effect of “old boy's networks” and sexist discrimination. In the legal industry, the reasons for the continued existence and effect of the glass ceiling for women is a lack of role models, sexist perceptions about what lawyers should be and are, the old boy's network, sexism's role in causing inaccurate estimations of the skill of women, lower status of women in general, and similar effects of patriarchy and sexism.
The evidence of sexism in the legal profession is rampant. Women are the majority of law school graduates and applicants (Wingert, 2010; McLeod, 2008; CNN Justice, 2008). But women are underrepresented both versus their share of the general population and their share of law school graduates in law firms and in the legal industry: “Despite more diversity initiatives, as well as maternity-leave and part-time policies that are generally viewed as female-friendly, women remain dramatically underrepresented in law firms leadership ranks, according to a new study from the National Association of Women Lawyers. In the average law firm, for instance, just one or two women are among the members of the firm’s highest governing committee, and very few firms place women in the role of overall managing partner. Women account for just 15% of equity partners—a level that hasn’t budged in the past five years. Overall, women comprised 34.4% of all lawyers in 2008, according to data from the Bureau of Labor Statistics” (O'Connell, 2009; Law360, 2009). Women make 85 cents on the dollar to their male counterparts. Minority women are doubly disadvantaged (Jezebel).
While engaging in comparative analysis between countries is obviously a deeply thorny problem, evidence indicates that the problem is just as profound in other industrialized nations. In Japan, traditional sexist notions about womens' role are found everywhere (The Economist, 2009). Similarly, in Australia, women have been graduating from law schools at as high a rate as 60% of their graduating classes yet female solicitors are one-quarter as likely to be partners as men and are only 18% of barristers practicing law (McLeod, 2008)! Britain certainly has its own legal glass ceiling (Benning-Prince, 2010). This provides yet more indication that a major contributing factor to the discrepancies in status and success is sexism itself and entrenched Western notions of the proper role of women that fifty years of feminism have combated. After all, if it was something about the market structure or politics of America, the same signs would not be seen elsewhere, and yet it is.
Is a representation of below 50-51% of women in any industry a sign of sexism per se? Yes and no. Unless one subscribes to clearly false sexist notions of a fundamental, genetically-based differences in the capabilities of men and women as regards the legal profession, it is obvious that, in a just society, women would approximate within noise level variation their representation in the population: Roughly 50-51%. However, it is fair to argue that perhaps women are underrepresented only because there are less qualified women, for whatever reason. But the evidence indicates otherwise: Plenty of qualified female legal professionals face wage and employment discrimination. In any respect, one would then have to ask why women were not being trained to the same degree. Women might be getting less social approval for their ambitions to enter the legal profession and might be being subtly guided away by teachers, guidance counselors and peers; similarly, women might be “ghettoized” into academic tracks that will not lead to legal success, or into alternate legal-like careers and studies.
Take the fact that 48% of summer associates and 44% of first-year associates are women but only 16% of firms' equity partners in the most prestigious firms are women (Bruno, 2007). Women have only a “fraction” of the success of men in the legal industry. The statistics for associates are themselves illustrative, as more like 50-60% of women are graduating from law school. As The Economist argues, the glass ceiling is not found at one location. At each new threshold, more and more women are lost. Women who are interested in law get shunted into other majors and professions; pre-law women are shunted out of law; law school graduates find less options at the entry-level; and at each step up the ladder, more and more women are lost vis-a-vis men, prevented from advancing. For example: While “women are well represented on law reviews in the lower ranks, making up 44 percent of law review staffers and 46 percent of those in leadership...only 33 percent of editors-in-chief are female” (Weiss, 2010).
The problem begins right at law school (Harvard Working Group on Student Experiences, 2004). Women participate less due to their ideas being ignored or given too little attention, if not being mocked. Men receive higher grades even with prior success controlled, but different subject matters prove more hospitable to women as did different professors and teaching styles. This suggests that educational reform and teaching instructors and professors how to be more effective at teaching women and proactively promoting female participation must be part of the solution.
The generational argument, that the first generations of female law students and law classes that were majority female, seems compelling on its face, but it unfortunately has been proven wrong over time (McLeod, 2008). A substantial number of quality graduates and professionals have been a part of the industry for almost thirty years now, yet we are not seeing signs of inequality budge. But a modified version of the argument could be accurate. It may not just be the number of female professionals that matters, but also the acceptance of those professionals and the slow disappearance of the older generation not used to women being found at all ranks of the legal industry. However, there is another problem with this hypothesis. First: It seems to be trivial, conceding the sexist factors against women rather than denying them or explaining them. Second: It assumes that social change is automatic. It could easily be the case that change will not happen simply because of generational changes but will have to occur on legislative, economic and cultural levels through conscious activism.
Similarly, the “mommy track” is an uncompelling reason for the gap for several reasons. For one thing, the average time that most people stay at businesses has declined subtantially (Fraser, 2008). Many employment specialists don't recommend staying on at a job for more than five years, and many job hunters are bouncing from position to position within a year! The idea that women need to show that they are willing to stay for years flies in the face of the shape of the modern economy.
Further, the idea that women want to have children and take time off while men don't is itself based on an “assumption of male breadwinning” (Wise, 2008). After all, men might also want to take time off to raise children, yet this option is not legally nor socially protected. To then “blame” women's decisions rather than sexism itself is galling. As Tim Wise puts it, “And so long as the society is a male-dominated one, in which men express a preference not to rear children, no matter what women might prefer, they will have little choice but to do the child-rearing and homemaking. Given a choice between that, and not becoming a mother at all, most women will choose to sacrifice a few years of their career. But we can hardly assume that such a choice is rooted in some biological or deeply-ingrained feminine set of values” (2008).
The impact of pregnancy is also often exaggerated. Many women find that they are threatened with demotion or termination based on taking sick days for their children, despite the fact that they didn't take any more sick days than others (Collins, 2009). “[T]he 'mommy penalty' may be a result of employers’ perception that mothers are a liability or the employers’ unwillingness to offer mothers the flexibility needed for success” (Collins, 2009). Similar flakiness on the part of men is tolerated. In fact, law firms have started using part-time contract lawyers for repetitive or low-priority tasks, another decision they have made that denies women equal opportunities (O'Connell, 2009).
Finally, why must women be fired if they leave to raise children? Why can't they simply return to the position? In the legal profession, partners often take long vacations or sabbaticals, prepare for long defenses with many other people participating and collaborating, leave to teach, and so on. The fact that institutions are not designed to accommodate pregnancy is a sign of sexism, not an explanation that disproves it. The fact that “fathers tend to receive a “daddy bonus” in the form of higher salaries when they have a child” indicates that institutions have chosen a solution which penalizes women and rewards men; why not adopt the opposite (Collins, 2009)?
The old boys' network is a particularly big problem in the legal industry (Glass Ceiling Commission, 1995). Since partnerships are the key way to get ahead, as well as editorial positions, and since seniority is such a key part of the legal industry both in the public and private sectors, the fact that the existing elite is largely old white males is a substantial deterrent for women. Women can be just as qualified or more qualified than men, but without knowing the people who give them the positions and the chances, they can't advance.
Some argue that women have the advantage of beauty and can deploy their sexual wiles to advance. Not only is this a sexist argument buying into the mythology of women using their sexuality on helpless males, it also concedes the point that men control the options for promotion and so women must use such tactics to advance. But in any case, beauty and sexuality might gain some initial benefits in advancement, but eventually lead to expectations of women being less intelligent or hard-working irrespective of their actual behavior: “Beauty can be its own glass ceiling” (Dokoupil, 2010).
As in so many other areas, women face a “double trap” or a dilemma posed by sexism. They can be viewed as weak, too willing to roll over and negotiate instead of sticking things out, not persistent, too nurturing, not tough enough, etc. Or they can be viewed as cold, soulless witches. The Glenn Close character in Damages is a good example of this archetype, and contributes to the role model problem (Kanter, 1977). It is unimaginably difficult to navigate between this Scylla and Charybdis, and this stress gives women in law yet another problem to manage that their male cohorts do not. Studies show that this problem explains why women are often not as aggressive in pushing for raises, status in the company and promotion. When men push for promotion and raises, they are viewed as ambitious, hard-working, studious and diligent. When women do, they are viewed as “less nice”, backstabbing, too ambitious, and less cooperative (Wise, 2008). Thus, it is clear that womens' behavior is not to blame for their unequal treatment in the legal industry.
Lorelie Masters notes that this subtle mistreatment is particularly stressful, since it is so subtle and yet is a constant assault on the self-esteem and worth of the women participating in the industries (Bruno, 2007).
Female doctors repeatedly report being assumed to be less effective or trustworthy, or being confused for nurses; similarly, black doctors repeatedly report being assumed to be less effective than the archetypal white male doctor. The same problem shows up in the legal industry. Women are perceived as less professional than men, less likely to be effective lawyers, and are far more likely to be thought not to be a lawyer or thought to be lower rank than they are (Liberman, 2007).
Television portrayals of lawyers help in amplifying the association of law with masculinity. Whether it be Jack McCoy or Matlock, the archetypal lawyer is male. While shows like Law and Order: SVU have tried to focus on female ADAs, even this tends to promote “ghettoization”, the idea that women should stick to rape cases or divorce or whatever other field rather than playing with the big boys. While it is fair to note that this is realistic and these shows attempt some degree of fidelity, that reasoning prevents there from ever being good role models.
These factors have led to a reduction of women interested in law school and careers (Jones, 2007). “Since 2002, the percentage of women in law schools has declined each year, according to the American Bar Association. Five years ago, women made up 49 percent of law school enrollment. This year, 46.9 percent of law school students are women. And while the number of applicants overall has dropped in the past two years, the percentage decline in the number of women has been greater”. Part of the issue is that the economy has made people more likely to consider working immediately rather than going back into school. A vicious cycle emerges: Law firms have a publically known reputation for not promoting women and treating them equally, causing women to eschew the profession, making the firms even more male dominated. What could be the solution?
Educational changes to train women to deal with the pressures of being women in the law industry could be part of the solution (Bruno, 2007). Lorelie Masters argues that women are often taught erroneous ideas of meritocracy, that they simply have to work as hard as male partners to advance. In fact, they must work harder and be very strategic as to what work they do and how to present themselves. Teaching them this and preparing for it could combat frustration and prevent women from leaving their course of study and career advancement early. Programs like the National Constitution Center's “What Glass Ceiling” are part of this initiative.
Similarly, the role model problem can only be bridged by role models and mentoring work (Bruno, 2007). Firms have to provide mentoring programs of successful women. Colleges similarly need to reach out to successful female lawyers and make them a resource, featuring them prominently to energize their female students. Television shows need to promote female lawyers more effectively and not play to traditional stereotypes.
A major part of the solution will just have to be educational initiatives. “Rather, this emphasis is important because privileged women often have the greatest resources and incentives to challenge such inequality. Making those who occupy positions of influence more aware of unintentional biases and subtle sexism is a necessary step in the creation of a just society. We are still a considerable distance from that goal. We see women so frequently in positions of power and in non-traditional occupations that we lose track of where they are absent as well as the dynamics that might explain why” (Rhode, 2007).
Feminist jurisprudential theory is also a key way to emphasize womens' interests. If women feel that they are using a theory that emphasizes their unique concerns and allows them to defend the interests of other women, they are more likely to be involved (Weisberg, 1996).
Ironically, one of the solutions could be the legal system itself. Kende has advanced an argument for a method of using litigation against partners that discriminate against women. The beauty of this approach is that not only does it leverage existing civil rights legislation, but it also is terrible public relations for these firms and exposes their old boys' networks. Legislators can assist this process by expanding existing civil rights enforcement and legislation.
A constellation of factors cause glass ceilings to prevent women from rising at every level. Women's legal contributions are underrated, men's overrated. Schools are not comfortable for women and too comfortable for men. Law firms have decided to promote mens' prerogatives over women and buy into antiquated sexual relations. Conservative scholars erroneously blame the “mommy track” and womens' lack of ambition and ability instead of sexism. Women face discrimination in hiring, promotion and raises, as subtle sexism causes their superiors and colleagues to ignore or revile their contributions. Role models are so rare that their mistakes are amplified, their very tokenism itself becoming a problem (Carli, 2001). But what is clear is that women do not find it easy to climb the ladder of the legal industry. Proactive reforms, cultural and economic change, and activism will be necessary, not just waiting for change to happen. Sociologists and anthropologists will be a key part of this process.
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