{"id":53696,"date":"2016-09-30T11:27:00","date_gmt":"2016-09-30T16:27:00","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/supreme\/legal-commentary\/the-new-aba-report-on-women-and-law.html"},"modified":"2016-09-30T11:27:00","modified_gmt":"2016-09-30T16:27:00","slug":"the-new-aba-report-on-women-and-law","status":"publish","type":"supreme","link":"https:\/\/supreme.findlaw.com\/legal-commentary\/the-new-aba-report-on-women-and-law.html","title":{"rendered":"The New Aba Report On Women And Law"},"content":{"rendered":"\n
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THE NEW ABA REPORT ON WOMEN AND LAW: Why The Solutions The Report Proposes May Not Work In The Real World <\/h1><\/td>\n <\/tr>\n

By JOANNA GROSSMAN <\/h2>
<\/a>\nlawjlg@hofstra.edu<\/a>
\n—-\n
Tuesday, May. 22, 2001<\/div><\/td>\n\n <\/tr>\n <\/table>\n

The ABA’s Commission on Women in the Profession just issued its third report \non the status of women lawyers called, “The \nUnfinished Agenda: Women and the Legal Profession.”<\/a> The Commission, chaired \nby Stanford Law School Professor Deborah Rhode, identifies significant obstacles \nto the success of women lawyers and makes suggestions for eliminating them. <\/p>\n

The ABA Report delivers a timely and important message\u0096that equality continues \nto elude women lawyers. It concludes that while women lawyers continue to be undercompensated, \nundervalued, sexually harassed, and victimized by discrimination and bias, the \noverarching perception is nevertheless that they have attained full equality. \n<\/p>\n

The report makes useful suggestions for future research, which may be helpful \nin developing future ways women can overcome the profession’s obstacles. But unfortunately, \nsome of the report’s current proposals for changing the profession do not account \nfor legal disincentives and cultural barriers that make them unlikely to work \nwhen applied in the real world. <\/p>\n\n<\/b>

Obstacle #1: Myths about Meritocracy<\/p>\n\nthe myth that equality has already been achieved, and that the legal profession \nis already fully meritocratic.\n<\/span>\n\n \n \n
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Despite hard evidence of persistent and entrenched gender inequality in the \nlegal profession, many fail to see it. This barrier, which Professor Rhode has \nidentified elsewhere as the “‘No Problem’ Problem,” is perhaps the most insidious. \n<\/p>\n

The failure to perceive inequality leads to complacency about gender issues, \nand a corresponding failure to invoke problem-solving mechanisms. To combat these \nmisperceptions, the ABA Report encourages better and more systematic assessment \nof gender inequality problems. <\/p>\n

Among the type of assessment suggested are surveys designed to assess the experience \nof women lawyers with respect to a variety of benchmarks (compensation, promotion, \nleadership, work structure, and satisfaction). <\/p>\n

The push for surveys makes sense. Surveys and studies can aggregate and publicize \nthe individual, private experiences of women \u0097 and that, in turn, can convince \nlawyers, judges, and the public that there is a problem to be reckoned with. For \nexample, surveys about sexual harassment in employment and education\u0096conducted \nlong before “sexual harassment” became a household phrase\u0096certainly had this \neffect. <\/p>\n\n<\/b>

Obstacle #2: Gender Stereotypes<\/p>\n\n

\n\nAnother important barrier to women’s equality arises from persistent gender \nstereotypes. This barrier, which is certainly not unique to the legal profession, \ntakes several forms according to the ABA Report. <\/p>\n

The legal profession offers a Catch-22 to women, according to the report: Traditionally \nfemale characteristics are undervalued by the profession, yet women tend to be \npenalized for exhibiting masculine traits. <\/p>\n

For example, a woman who is traditionally feminine may be seen as too timid \nto be a litigator even though she is adept at settlement. A woman who is an aggressive \nlitigator, on the other hand, may be seen as a “bitch.”<\/p>\n

In addition, women are held to higher standards than men, and rated as less \ncompetent than men even where they are objectively equal. Women are also evaluated \nusing subjective criteria that validate gender biases, so that, in a sense, they \nare doomed to fail before they are even evaluated.<\/p>\ntools for eliminating gender bias in performance evaluations. The report’s suggestions \ninclude monitoring evaluations for stereotypical remarks, and teaching evaluators \nhow to make objective performance reviews. \n

The ABA report is correct that performance evaluations could certainly be conducted \nmore fairly. But both law and the reality of law firm culture make that unlikely. \n<\/p>\n

Law firms rely almost exclusively on partners’ subjective evaluations of associates \nin making partnership decisions. And employment discrimination law not only permits \nthem to do so, but also, as a practical matter, insulates such decisions from \nallegations of discrimination. Because of these realities, employers have very \nlittle incentive to adopt the practices identified by the ABA as ideal. <\/p>\n

The ABA report also advocates placing greater reliance on objective, “outcome-related” \ncriteria in women’s performance evaluations. Ironically, early on, women’s advocates \nurged law firms to rely less on objective criteria, such as the prestige of the \nlaw school a woman attorney attended, or her service on the law review, because \nsuch criteria disadvantaged women. Now, however, the ABA is suggesting that reliance \non objective criteria will enhance fairness.<\/p>\n

But it is not clear that women would fare better in a system that puts more \nweight on objective “outcome-related criteria.” In the context of private practice, \nmany of the potential objective measures, like rainmaking or trial experience, \nwould work against women, due in part to other forms of discrimination and stereotyping. \n<\/p>\n

For example, a woman may not get trial experience as an associate, because \nshe is stereotyped as being likely to be better at brief writing \u0097 then have \nher lack of trial experience held against her when she is up for partner. <\/p>\n

Or a woman may find she is less successful as a rainmaker because male clients \nprefer to work with men, or because male partners prefer to send business to younger \nmale lawyers \u0097 then have her lack of rainmaking held against her when she \nis up for partner, or when, as a young partner, her compensation is determined. \n<\/p>\n\n<\/b>

Obstacle #3: Lack of Mentoring and Support Networks<\/p>\n\n

A third important obstacle to women is the lack of role models, mentors, and \nsupport networks for women lawyers. This has been identified as a persistent problem \nby every study of women in the legal profession. That part is easy. What is difficult \nis figuring out why it happens, and how to combat it. <\/p>\n

One explanation certainly lies in the numbers: There are fewer women in positions \nof leadership to be mentors to younger women. Other explanations lie in culture \nand attitudes. <\/p>\nbecause they feel more comfortable with men, because they take men more seriously \n\u0097 or even, in some instances, because their wives dislike their working with \nwomen. Women who themselves attain success in law sometimes fail to mentor younger \nwomen to avoid drawing attention to their own gender, or because they feel those \nwomen should have it as hard as they did. \n

The ABA Report recommends formal mentoring programs, though it recognizes that \nassigned relationships often don’t prosper. (Unfortunately, assigning someone \na mentor is often like “assigning” them a friend \u0097 an attempt to create a \ncompatibility that may not exist naturally.) <\/p>\n

Another, perhaps more promising recommendation in the report is to encourage \nwomen’s networks across organizations. Women’s bar associations, support groups, \nand executive golf groups can all serve this purpose. <\/p>\n

Interestingly, sex discrimination law has thus far had very little to say about \nmentoring \u0097 though it can, by policing other forms of discrimination (such \nas in hiring and partnership), help greater numbers of women reach the top. <\/p>\n\n<\/b>

Obstacle #4: Family Responsibilities<\/p>\n<\/u>\n

By and large, places where women practice law make it hard to fulfill both \nfamily and professional responsibilities. And it is, of course, not news that \nwomen tend to be more burdened with family responsibilities than men, nor that \nwork\/family conflicts are pervasive.<\/p>\n

Law firms and other employers have responded to widespread complaints about \nwomen’s work\/family conflicts (and laws telling them they have to respond) by \nenacting a variety of policies designed to ease women’s burdens. Accordingly, \nmost firms report that they have some family-friendly policies on the books, like \npart-time schedules or generous family and medical leave. <\/p>\n

But the gap between policies and practice is tremendous. Very few women utilize \nthese opportunities, and those that do often lose opportunities for advancement.<\/p>\n

The ABA Report identifies “best practices” like flex-time, telecommuting, and \ngenerous leave policies as ways to reduce the impact of work\/family conflicts \non women. But, ultimately, the Commission has the same problem that feminist lawyers \nand scholars have\u0096there is no easy way to reconcile rigorous careers with \nthe demands of motherhood. Until men begin to really share the burdens of childrearing, \nworking women will continue to struggle. <\/p>\n\n<\/b>

Obstacle #5: Sexual Harassment<\/p>\n\nthe problem of sexual harassment \u0097 and the ABA report is no exception. Predominantly \nsuffered by women, sexual harassment takes an incredible toll on physical and \nemotional health, career advancement, and economic well-being. And, as I have \nargued in an \nearlier column<\/a>, sexual harassment continues to be an entrenched problem in \nthe legal profession. \n

The ABA Report calls for employers to enact effective policies that provide \neffective, safe grievance mechanisms for victims of harassment, and that are calculated \nto punish harassers. <\/p>\n

But Title VII, the federal statute under which employers can be held liable \nfor sexual harassment committed by their employees, already gives employers the \nincentive to take those actions. Yet surveys continue to report widespread harassment \nin almost every employment setting. <\/p>\n

Whether anti-harassment policies have any effect on the incidence of harassment\u0096or \nsimply serve to insulate employers from big damages awards by allowing them to \nuse the policy as part of their defense\u0096needs to be explored. And clearly, \nmore needs to be done to combat the problem of sexual harassment than the enactment \nof policies alone. <\/p>\n\n<\/b>

Obstacle #6: Gender Bias in the Justice System<\/p>\n\n

In focusing on gender bias in the judicial system, the ABA Report picks up \non two decades of work by federal, state, and local task forces designed to study \nthat problem. <\/p>\n

These task forces\u0096and the ABA Report\u0096cite many types of bias: disrespectful \ntreatment of women by judges and opposing counsel; valuation of the credibility \nof women lawyers, litigants, and witnesses below that of their male counterparts; \nand judges’ reliance on demeaning stereotypes about gender in deciding cases. \n<\/p>\n

The ABA Report points to a model plan for combating gender bias drafted by \nthe National Judicial Education Program. Among other things, the plan calls for \nongoing monitoring of gender bias problems, anti-bias education, codes of conduct, \nand bias complaint mechanisms. <\/p>\n

These proposals may be a more effective tool than the law, which has so far \nfailed to get at the problem of gender bias in courts.<\/p>\n\n<\/b>

Conclusion <\/p>\n\nincoming law students are now female\u0096a sign taken by some to mean that the \ntrends in legal education and the profession are changing. \n

But the report also coincides with a new study of women in legal education \nby Hofstra Law School Professor Richard K. Neumann, Jr., the results of which \nare much less optimistic. Neumann’s study reports that female faculty fare worse \nthan their male counterparts in almost every measurable category, and female students \ncontinue to be the victims of discrimination in and out of the classroom. <\/p>\n

Perhaps the best place for the profession to start combating discrimination \nis in its training grounds: law schools.<\/p>\n<\/span> \n\n

\n\n\n<\/a>\nJoanna Grossman, a FindLaw columnist, is an associate professor of law at Hofstra University, where she teaches Sex Discrimination, among other subjects. Grossman’s other articles on sex discrimination and sex harassment may be found in the archive of her pieces on FindLaw.com.\n\n

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