Gender Bias in Law Firms:  So Many Ideas But So Little Progress

A culture changing idea hackathon has been sponsored this June 23-24, 2016 to occur at Stanford’s “Diversity Lab.”  The event is called the “Women in Law Hackathon.”  The idea is to gather mega law firm leaders to generate innovations that will translate into higher rates of pay and advancement for women in the practice of law.

My first response is to say that an unexecuted innovation is a hobby, not a business.  The irony is that the best and the brightest have been generating unexecuted ideas for decades.  The numbers do not lie, and big law firm management is like the accused in a murder trial whose only defense is insanity.

These mega firms have gotten off easy.  Few have been sued by their gender handicapped associates, likely because the career damage of suing is perceived as greater than the social justice that might be achieved.  But the reality is that women are suing in a variety of industries, including the legal, and suing as a class.  The result may be that law firms are especially exposed because the talent and experience of women is undisputedly substantially similar to their better paid, faster advancing male colleagues.

Law firms are especially vulnerable because they are held to a higher standard of understanding to follow the anti-discrimination laws.  Conscious disregard of the law is a more likely finding against the top 10% of the Ivy League graduating class.

But as a mechanism of social change, class action lawsuits are perhaps the last choice.  The better choice is voluntary proactive change for reasons of basic morality, if not just good business practice.  Recruiting, rewarding, and keeping the best legal talent makes sense.  This is so obvious, and so clearly transcends gender considerations, one wonders, why would anyone practice gender discrimination?  The answer, I think, is that the biases that drive discrimination are usually subconscious.  [For an academic review of whether it is practical to impose liability for a subconscious motivation, see Shin, “Liability for Unconscious Discrimination.”  Read all 57 pages.]

A Start:  15 Reasons for Gender Bias in Law Firms and 15 Recommendations.

The following is my own list of why discrimination by law firm management is so entrenched despite official policies and publicly stated good intentions:

 1.  Top dogs have an economic stake in keeping matters the same. Conferring power to another group just seems contrary to self-interest.

Recommendation:  Reward managers for advancing competent women to pay parity and higher management levels.

2.  Top dogs fail to see the bigger picture of shared success through shared competencies and contributions.

Recommendation:  Reward mentors who identify and groom top contributors currently underrepresented.  Assign specific mentoring goals.

3.  Bias cannot be addressed if it is not recognized and accepted by the person practicing the bias. [IMPLICIT BIAS PROJECT – HARVARD.] Take the Test.

Recommendation:  Require all stakeholders to take the free online Harvard Implicit Bias test for gender bias.

4.  An attitude of “If it’s not broke, don’t fix it” (i.e., the “victims” do not assert the need for equal pay / equal opportunity). Therefor there is no perceived discomfort with the status quo.

Recommendation:  Openly publish to all employees the pay ranges and and the criteria for any differences in pay.   Actively encourage employees to voluntarily share individual pay rates.  [The 2016 CA Fair Pay Act prohibits policies that restrict this right or retaliation for exercising it.  Read the Act.] Develop an open system for employees to challenge pay differences.  Yes, this is a frightening initiative for an employer, but the payoff will be increased motivation of associates to produce. [That is, the natural competitiveness of lawyers can be expressed on a transparent level playing field with “points” measured in dollars.]

5.  Lack of education, limited experience, and gaps in career are used to justify pay differences, of non-hires, or denial of promotion, and these are legitimate considerations except when these same disparities arise out of the discrimination itself.

Recommendation:   Bring an end to a pure “billable hours” measure for compensation and promotion.  That is, project an associate’s annual billable hours by extrapolation from her historical average hours pre-leave, without handicap for maternity, pregnancy or family medical leave.  Denying promotion or pay parity because of the use of legally mandated leave rights is simply wrong and illegal.  Go a step further, grant more leave than required by law without handicapping the parent.

6.  Who in his right mind would insist on paying more to a candidate than the candidate was willing to receive based on her earning history?

Recommendation:  A history of underpayment by other firms because of gender does not justify your firm continuing the pattern.  The solution:  Set a pay range for each level of responsibility and pay it to any candidate meeting the qualifications for that range without regard to prior earnings history.

7.  A shift in assumptions and attitudes requires effort. In a fast paced stressful work environment, proactive changes, such as recreating a systems of recruiting, hiring, and promotion is just too time consuming and costly.

Recommendation.  Create an operational system.  Creating a system to counter a previous dysfunctional system does require effort, but because it is created as a system, rather than an ad hoc adjustment for each new case, the effort and time is mostly front loaded.  General policies are not enough.  Create and complete specific checklists for each hire and promotion.  That is, see that policies are followed and hold people accountable.  Incorporate the duty into the performance review system.

8.  Firms reside too much discretion in an individual decision maker without a practice of independent review when a minority member (or gender candidate) is denied hire or promotion.

Recommendation:  Create not just a committee, but an outside independent committee, and include a devil’s advocate.  As Shakespeare would tell you, the King’s fool was kept for the very reason he could get away with saying what the courtiers could not.

9.  Diversity training is confused with changing attitudes and bringing awareness. Diversity training helps, but “affirmative action” policies that actively seek qualified minorities and women to apply achieve more, especially when accountability by performance measures and potential discipline are more effective in achieving diversity.  [Hiring itself must remain based only on merit.  But, the goal is to increase the likelihood of minority applications].   Stated differently, first, women are advanced, and then men (and women) change their attitudes.

Recommendation:  Biased attitudes change because behaviors first change.  Yes, this is something like a societal “fake it until you make it.”  Seeing minorities in positions of power and influence brings about a new awareness that there is nothing necessarily exclusive about minority status and shared power.

10.  Job lead networking accounts for a major source of opportunity for jobs and promotion. If the networks are themselves insular socially, they will tend to provide information to persons of the same gender/race/age.

Recommendation:   Referral systems are too often ad hoc, informal, and secretive, leading to unfair advantage if minorities are excluded.   People need to be encouraged and trained to supply inside information to persons not represented equally in upper income and upper management. Also, openings need to be posted in ways that are:  a) clear; b) prolonged; c) widely disseminated; d) weighted for objective factors; e) monitored for abuse of subjective factors that may be carriers for bias.

11.  There is a lack of sustained commitment to equality that is (1) measured for results on set criteria and (2) on a specific timeline, (3) supported by organizational structure and (4) managerial rewards and punishments.

Recommendation:  Formalize an affirmative recruitment policy and mentor recruits.  Set criteria that will define “success” in achieving change.

12.  Larger societal “dis-junctures” in education, in job training and opportunity, in family stability, in child care expectations, in role modeling, in cultural stereotyping of womanhood and manhood, and income levels and crime rates all create outcomes that reinforce a bias that the minority or gender is inherently “second class” or “lower class.” The internal environments of law firms have to become countercultural.

Recommendation:  Impress employees that while the larger cultural biases inevitably seep into private business, this business is pushing back by saying “enough.” Host forums and discussions with different racial, ethnic, gender, age, disability groups to share differing views on the question of whether prejudice is a feature of U.S. society.  It seems minority bias is a sensitive and potentially explosive topic, which likely accounts for why there is so much fear, avoidance and denial of a continuing problem.

13.  It is imperative to set aside moral judgments based on the operation of subconscious bias, and to address the effects of the subconscious bias the same way a medical prescription would be used to address the symptoms of an underlying infection. Experts must address the infection independently of the patient’s awareness of its presence or causes. And, an individual’s sincere denial of a bias must not impede addressing the objective evidence of bias.

Recommendation:  Get past labeling prejudice as evil. Address it as an illness.  Set up “treatment programs” that model Alcoholics Anonymous.  Encourage regular meetings that encourage admitting there is a problem, and that people need help overcoming their denial.

14.  Bias is not merely expressed by a biased decision maker against a so-called victim, but the “victim” herself may fail to either be aware of the operation of bias, or hesitant to challenge the suspicion of bias as a practice. Worse, the “victim” may collaborate in the bias by accepting uncritically that her current station or current pay rate is “fair” in view of her historical pay rate. She fails to press for information of what men are paid for equal skill, responsibility and achievement.  [2016 changes to the California “Fair Pay Act” allow employees to freely exchange compensation information, and protect employees from retaliation for sharing that information.]

Recommendation:  Help so-called victims see how they have come to “buy in” to limitations set by the larger society.  Create retaliation free confidential outside reviews of grievances that charge bias in the employment decision process.  Give employees reason to believe assertiveness will not be punished.

15.  Minorities who are excluded from the camaraderie and support of top managers fail to see the opportunity for advancement.

Recommendation:  A mentor is assigned to every minority associate.  The mentor is required to report to upper management on the kind and frequency of mentoring delivered.  When possible, a top manager of the same minority status is paired with the associate to be coached in the unique strategies needed to cope with the realities of entrenched resistance to change.

Conclusion.

Systemic problems require systemic solutions.  Good ideas do not produce good results.  Good ideas with systems that execute on those ideas produce good results.  This article makes fifteen recommendations for effecting systemic change at the level of the firm.  This “cellular” approach may be a beginning for larger community wide change.  Would it not be appropriate that the priests of the law would mediate this process of change by their example?  If law firms take the lead, it will be because of courageous leaders in those firms that introduce the discomforting, sometimes awkward and embarrassing subject of gender bias as a topic of open dialogue.   Good management of this process will require patience, frequent explanation, a non-judgmental approach that all stakeholders “own” the problem, and a most importantly, a focus on results, not just more talk.

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