THE NEW ABA REPORT ON WOMEN AND LAW: Why The Solutions The Report Proposes May Not Work In The Real World

The ABA's Commission on Women in the Profession just issued its third report on the status of women lawyers called, "The Unfinished Agenda: Women and the Legal Profession." The Commission, chaired by Stanford Law School Professor Deborah Rhode, identifies significant obstacles to the success of women lawyers and makes suggestions for eliminating them.

The ABA Report delivers a timely and important message–that equality continues to elude women lawyers. It concludes that while women lawyers continue to be undercompensated, undervalued, sexually harassed, and victimized by discrimination and bias, the overarching perception is nevertheless that they have attained full equality.

The report makes useful suggestions for future research, which may be helpful in developing future ways women can overcome the profession's obstacles. But unfortunately, some of the report's current proposals for changing the profession do not account for legal disincentives and cultural barriers that make them unlikely to work when applied in the real world.

Despite hard evidence of persistent and entrenched gender inequality in the legal profession, many fail to see it. This barrier, which Professor Rhode has identified elsewhere as the "'No Problem' Problem," is perhaps the most insidious.

The failure to perceive inequality leads to complacency about gender issues, and a corresponding failure to invoke problem-solving mechanisms. To combat these misperceptions, the ABA Report encourages better and more systematic assessment of gender inequality problems.

Among the type of assessment suggested are surveys designed to assess the experience of women lawyers with respect to a variety of benchmarks (compensation, promotion, leadership, work structure, and satisfaction).

The push for surveys makes sense. Surveys and studies can aggregate and publicize the individual, private experiences of women — and that, in turn, can convince lawyers, judges, and the public that there is a problem to be reckoned with. For example, surveys about sexual harassment in employment and education–conducted long before "sexual harassment" became a household phrase–certainly had this effect.

Another important barrier to women's equality arises from persistent gender stereotypes. This barrier, which is certainly not unique to the legal profession, takes several forms according to the ABA Report.

The legal profession offers a Catch-22 to women, according to the report: Traditionally female characteristics are undervalued by the profession, yet women tend to be penalized for exhibiting masculine traits.

For example, a woman who is traditionally feminine may be seen as too timid to be a litigator even though she is adept at settlement. A woman who is an aggressive litigator, on the other hand, may be seen as a "bitch."

In addition, women are held to higher standards than men, and rated as less competent than men even where they are objectively equal. Women are also evaluated using subjective criteria that validate gender biases, so that, in a sense, they are doomed to fail before they are even evaluated.

The ABA report is correct that performance evaluations could certainly be conducted more fairly. But both law and the reality of law firm culture make that unlikely.

Law firms rely almost exclusively on partners' subjective evaluations of associates in making partnership decisions. And employment discrimination law not only permits them to do so, but also, as a practical matter, insulates such decisions from allegations of discrimination. Because of these realities, employers have very little incentive to adopt the practices identified by the ABA as ideal.

The ABA report also advocates placing greater reliance on objective, "outcome-related" criteria in women's performance evaluations. Ironically, early on, women's advocates urged law firms to rely less on objective criteria, such as the prestige of the law school a woman attorney attended, or her service on the law review, because such criteria disadvantaged women. Now, however, the ABA is suggesting that reliance on objective criteria will enhance fairness.

But it is not clear that women would fare better in a system that puts more weight on objective "outcome-related criteria." In the context of private practice, many of the potential objective measures, like rainmaking or trial experience, would work against women, due in part to other forms of discrimination and stereotyping.

For example, a woman may not get trial experience as an associate, because she is stereotyped as being likely to be better at brief writing — then have her lack of trial experience held against her when she is up for partner.

Or a woman may find she is less successful as a rainmaker because male clients prefer to work with men, or because male partners prefer to send business to younger male lawyers — then have her lack of rainmaking held against her when she is up for partner, or when, as a young partner, her compensation is determined.

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

One explanation certainly lies in the numbers: There are fewer women in positions of leadership to be mentors to younger women. Other explanations lie in culture and attitudes.

The ABA Report recommends formal mentoring programs, though it recognizes that assigned relationships often don't prosper. (Unfortunately, assigning someone a mentor is often like "assigning" them a friend — an attempt to create a compatibility that may not exist naturally.)

Another, perhaps more promising recommendation in the report is to encourage women's networks across organizations. Women's bar associations, support groups, and executive golf groups can all serve this purpose.

Interestingly, sex discrimination law has thus far had very little to say about mentoring — though it can, by policing other forms of discrimination (such as in hiring and partnership), help greater numbers of women reach the top.

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

Law firms and other employers have responded to widespread complaints about women's work/family conflicts (and laws telling them they have to respond) by enacting a variety of policies designed to ease women's burdens. Accordingly, most firms report that they have some family-friendly policies on the books, like part-time schedules or generous family and medical leave.

But the gap between policies and practice is tremendous. Very few women utilize these opportunities, and those that do often lose opportunities for advancement.

The ABA Report identifies "best practices" like flex-time, telecommuting, and generous leave policies as ways to reduce the impact of work/family conflicts on women. But, ultimately, the Commission has the same problem that feminist lawyers and scholars have–there is no easy way to reconcile rigorous careers with the demands of motherhood. Until men begin to really share the burdens of childrearing, working women will continue to struggle.

The ABA Report calls for employers to enact effective policies that provide effective, safe grievance mechanisms for victims of harassment, and that are calculated to punish harassers.

But Title VII, the federal statute under which employers can be held liable for sexual harassment committed by their employees, already gives employers the incentive to take those actions. Yet surveys continue to report widespread harassment in almost every employment setting.

Whether anti-harassment policies have any effect on the incidence of harassment–or simply serve to insulate employers from big damages awards by allowing them to use the policy as part of their defense–needs to be explored. And clearly, more needs to be done to combat the problem of sexual harassment than the enactment of policies alone.

In focusing on gender bias in the judicial system, the ABA Report picks up on two decades of work by federal, state, and local task forces designed to study that problem.

These task forces–and the ABA Report–cite many types of bias: disrespectful treatment of women by judges and opposing counsel; valuation of the credibility of women lawyers, litigants, and witnesses below that of their male counterparts; and judges' reliance on demeaning stereotypes about gender in deciding cases.

The ABA Report points to a model plan for combating gender bias drafted by the National Judicial Education Program. Among other things, the plan calls for ongoing monitoring of gender bias problems, anti-bias education, codes of conduct, and bias complaint mechanisms.

These proposals may be a more effective tool than the law, which has so far failed to get at the problem of gender bias in courts.

But the report also coincides with a new study of women in legal education by Hofstra Law School Professor Richard K. Neumann, Jr., the results of which are much less optimistic. Neumann's study reports that female faculty fare worse than their male counterparts in almost every measurable category, and female students continue to be the victims of discrimination in and out of the classroom.

Perhaps the best place for the profession to start combating discrimination is in its training grounds: law schools.