Mcle Self-study Article: Identifying, Discussing, and Responding to Gender Bias in the Legal Profession

• Publication year: 2019
• Author: Chris Chambers Goodman

MCLE Self-Study Article: Identifying, Discussing, and Responding to Gender Bias in the Legal Profession

Check the end of this article for information on how to access one MCLE self-study credit.

Chris Chambers Goodman

Christine Chambers Goodman is a professor at Pepperdine Law School. She teaches Comparative AntiDiscrimination Law, Evidence, and Trial Practice. She has participated in the Sudreau Global Justice Program in Uganda and India, and taught in the London Program. Professor Goodman serves as an administrator to the Black Law Students' Association and Women's Legal Association, and has been a mock trial team coach. She writes on equal protection topics, including affirmative action, preferences, diversity, and racial privacy, as well as evidentiary and criminal law issues. The second edition of her book, California Evidence, in Aspen's Examples and Explanations series, was released in 2018.

I. INTRODUCTION1

A significant number of women continue to experience gender bias both in and out of the courtroom, in all areas of the practice of law. In some cases, the discrimination is quite blatant and in others more subtle or implicit. Statistics demonstrate that inequality in the legal profession has only improved slightly in the last forty years. As one author notes,

[a]lmost every woman has had the experience of being trivialized, regarded as if she is just "some dumb girl," even if you had a few productive accomplishments that can be expected. When viewed simply as "some dumb girls," women are treated dismissively, as if their thoughts or contributions are unlikely to be of value and are unworthy of consideration.²

Several of the common occurrences identified by attorney Connie Lee, in her student note, and confirmed by audiences of female attorneys throughout the state of California, include: "1. being mistaken for a secretary or paralegal; 2. being called a term of endearment; 3. being critiqued for her voice sounding shrill or too high; 4. being treated differently; and 5. having clients express a preference for male lead trial counsel."³

In those trials where the male and female attorneys are similarly qualified, almost a quarter of those included in one particular study believed that, in the courtroom, women are disadvantaged because of how others react to them.⁴ Stereotypes, stigmas, and negative associations can be off-putting to say the least, but also downright debilitating for some female attorneys. While significant progress has been made in enhancing the representation of women attorneys nationwide, imbalances and iniquities remain.

Specifically, with respect to gender discrimination against women, what is different in the field of real estate law? The most noteworthy difference that participants in our panel "#MeToo #TimesUp: Strategies for the Real Estate Law Workplace" at the CLA Real Property Section Retreat pointed out is the perception of gender imbalance in terms of specialization, seniority, and overall influence and power. Additionally, small slights and micro-inequities were other issues raised by the audience and panelists.

This article begins with highlights from a few stories by real estate practitioners describing their real-world experiences in Section II. Section III provides a brief overview of the statistics of women in the legal profession, as well as some federal and California state laws and rules impacting gender discrimination. It is important to keep in mind that there are different legal standards for gender discrimination and sexual harassment and this article focuses on gender discrimination rather than sexual harassment.⁵ Section IV analyzes certain patterns of behavior and responses to gender bias and sexual harassment. Finally, Section V identifies some best practices and evaluates response strategies.

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II. EXPERIENCES OF SOME FEMALE REAL ESTATE ATTORNEYS

During our panel discussion, we asked the panelists and the audience to identify instances of gender bias that they have personally experienced, witnessed, or been informed of. While none of the incidents were shocking to most participants, the volume was surprising to some. Examples of some of the verbal occurrences included, "Calling me 'Girl'" or being greeted with "Hey, Beautiful!" and "Don't you look very nice today?" to "Really? She is pregnant again?" when being informed of an impending maternity leave.

Participants in the panel discussion identified patterns of bias that not only include certain adjectives, but also certain "required skills" in job descriptions that impact job application pools. When the adjectives used are those more associated with male attorneys such as "competitive litigator," "rainmaker," "proven firm leader," some qualified women may opt out of applying. Similarly, studies have shown that women are less likely to apply for a job if they do not feel they have all of the required skills, whereas many men will apply when they know they possess only a few of those listed skills.⁶ In addition, when there is only one woman in the applicant pool, her chances of getting the job are very low. When there are two or more females in the applicant pool, the chances of a woman being hired increase significantly.⁷

Another institutional roadblock is the issue of pay equity over time. Equity in compensation is exacerbated by lower starting salaries for women, which is often a product of women not negotiating their salaries at the start of their employment. Once they start "behind the curve," with lock-step increases, it is even harder for women to make up the difference in pay and they tend to fall further behind the curve with percentage point increases over time. Additionally, the following factors contribute to the challenge of equal pay for women in law: (A) books of business and how their value is counted, including identifying and allocating source credit, (B) sharing source credit for generated revenue and books of business (which more women note that they feel pressured to do), (C) decisions about who deserves origination credit, and (D) where the credit goes after retirement (also known as succession credit).

III. THE STATS AND THE STATUTES

A. Statistics

First, let's start with a brief statistical overview to set up the context. Gender representation in the legal profession has improved significantly, with a decline in the percentage of male attorneys compared to the rise in the percentage of female attorneys. Male attorneys moved from 92% of the legal profession nationwide in 1980 to 64% in 2018.⁸ This change in the composition of the legal field amounted to a more than 400% increase in women attorneys during that time period, from 8% of all attorneys being women to 36%.⁹ That said, there is much more that can be done at the partner, managing partner, and general counsel levels within law firms and other similarly structured organizations. While the number of female students matriculating into law school far exceeds the number of male students, upon graduation, the gap between these numbers narrows and the number of female attorneys starting as law firm associates is only 45%, a mere 4% of large firm managing partners being female.¹⁰ For women of color, the statistics are even more concerning. They make up about 3% of law firm partners, and less than 13% of law firm associates.¹¹ In contrast, in big business, the representation of women lawyers has made advancements. As Fortune 500 General Counsel, women constitute about 21%, and for Fortune 501-1000 General Counsel, women attorneys comprise 16.8%.¹²

In the judiciary, particularly at the higher levels, women have made more significant strides compared to those practicing at law firms. Females are about 22% of all judges in state court, and about 27% of the judgeships of state and federal courts combined.¹³ Women of color comprise about 8% of the judiciary in state courts.¹⁴ In the federal courts, women range from 33% of the United States Supreme Court Justices to 36% of Circuit Court judges and 34% of District Court judges.¹⁵

While the numbers are encouraging for many, they are discouraging for others when we ask how female attorneys actually feel. A recent survey of women lawyers nationwide noted that 85% perceive negative gender bias in the professional generally, 75% perceive negative gender bias from opposing counsel, and two-thirds perceive negative gender bias from their own clients.¹⁶ About two-thirds of female attorneys surveyed think their own male peers do not accept them as equal, with half of them perceiving negative gender bias from their superiors, and about two-fifths perceiving this negative gender bias from their own peers.¹⁷

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For purposes of illustration, following is an anecdotal example. A senior male attorney is reading a transcript of a deposition conducted by a junior, female associate. He thinks she was not "tough enough" when engaging with the deponent and reports that to her supervising partner, who is also male. That supervising partner, without reading the transcript himself, accepts the feedback that she is not "tough enough," and in the future: (1) declines to assign that junior female associate to take or defend any difficult or challenging depositions, (2) informs the junior associate during her evaluation that she is "not sufficiently assertive," (3) recommends a meager bonus, if any at all, (4) decides she is not worth mentoring compared to another junior lawyer, and/or (5) refuses at a future time to support that same associate's bid for partnership.

By contrast, what typically happens with a male lawyer who performs the same as the above-mentioned female attorney in a deposition? Some find that it may go unnoticed and no comment would have been made regarding the male associate's performance during the...