FacultyFaculty/Author Profile

Unconscious Gender Bias in the Legal Profession: How Women (and Men!) Are Impacted -- And How They Must Work Together to Fix It


AMY TAUB: It is now my pleasure to turn this briefing over to Michelle Browning-Coughlin.

MICHELLE BROWNING-COUGHLIN: Thank you, Amy. Welcome, everyone, to the presentation on unconscious gender bias in the legal profession. I'm very happy to be here with you today to talk about this topic.

I hope that as we go along, as Amy invited you to do, that you'll feel free to submit questions. And I do appreciate that several of you have already submitted quite a few questions in advance. I'm going to try to answer questions as we go along through the materials that I provided, particularly those ones that were sent in advance.

And for those that you send in during the time, at the end, if we have time, we'll definitely try to get to those. If not, at the end of this presentation, I provided my contact information, and I very much welcome you to feel free to follow up with me after this presentation to work through any other questions that you may have. So with that being said was going to slide 2.

Of course, being lawyers, we just left disclaimers-- have to throw this out there that while my firm and My Mother's An Esquire organization and the other organizations that I'm affiliated with certainly support diversity and inclusion, I nonetheless want to just make clear that the views that I'm expressing here today in the presentation do not necessarily represent the views of any of those parties. And of course, nothing in this presentation constitutes legal advice-- slide 3.

As you probably saw in the materials describing this briefing, we're going to discuss five main topics. Before we get to Kim and the PTA president, I'm going to tell you a little bit about me. I'm going to also talk to you a little bit about unconscious bias generally. Then after that, we'll learn a little bit about Kim and the PTA president, about their stories, and then dig into some of what we know about how unconscious bias affects us in the legal workplace. After that, we're going to discuss some ways both men and women are subjected to unconscious gender bias-- how that plays out in the legal workplace in different ways.

We'll briefly talk about the ways in which women also can engage in unconscious gender bias. And after exploring this issue, we'll turn to a couple of things I propose are not solutions for addressing unconscious gender bias. Namely, echo chambers and fix the women type seminars.

We'll move from that to a number of different solutions that legal employers can consider for their workplaces to determine where they need to make changes that can reduce the attrition rate of women in the law and reduce the impact of unconscious gender bias on all of us. And as we go along, I'll try to share stories about situations that either I've experienced or that have been shared with me throughout my years of practice. And I'm sure many of you have stories of your own, and I welcome you to share those with me as well-- and slide 4.

So I thought it would help if I would tell you a little bit about me, in part, because my passion for this particular issue comes a lot out of my experiences as a lawyer and also as a social worker, formerly. And but also, because I'm asking each of you to do with this presentation-- I too must continuously look at how my background, my upbringing, my professional and personal experiences, my race, my gender, my socioeconomic status-- how all of these things impact my views of the people that I encounter and work with and how they may lead me to have unconscious biases that I need to get in check.

So as noted in the slide above, my practice area is intellectual property and data privacy, which I love. I love my clients, and it's a very exciting practice. But as I've practiced, I developed a passion for diversity in the profession and particularly, a focus on gender diversity and a focus on motherhood in the profession. As a result of this passion, I serve on the Kentucky Bar Association's Diversity in the Profession committee, also the National Conference of Bar Presidents Diversity and Inclusion committee. As noted at the beginning, I chair our women's law forum here at Wyatt called Wyatt Women's Network.

But I think my most passion project and important effort in this area has been the development of MothersEsquire, which is an online community and affinity Bar Association, that I founded in 2013, focused on providing support for women lawyers with children and particularly, in light of the attrition rate of women in the law. I'll also mention that I began practicing law in 2009, after graduating from law school as a nontraditional student.

After I worked as a social worker for a number of years, I decided to go to law school. And my husband I ended up having our first baby before we started school. So I became a stay at home mom by day and a law student by night.

We had our second child over December break, during second year of last fall. And as noted above, in the ensuing years, I became a minivan driver extraordinaire, the remember of all the stuff, and the designated answerer of all the school calls and emails. And I'm sure there are others of you out there who also hold those roles.

My husband, meanwhile, took on a slightly different nontraditional gender role. He's a schoolteacher, and he became the doer of all the dishes and laundry and the buyer of all the groceries. And I tell you this because I think negotiating who does these things-- who does these parts of our daily lives-- is a very important part of this discussion. And while we're talking about professional life, I think the division of duties at home, at school, and in communities plays a significant role in this conversation. But we'll touch on that more as we go through.

So a couple more pictures. I'm a mom. I have to show you pictures of my kids.

But as I noted a moment ago, my husband and I had our second baby during my two L year. So this is a picture of me on the day of my two L clerkship interviews. Suffice it to say, the interviewers could probably figure out I was pregnant. And by the way, that little nine pounds, three-ounce baby was born seven days after law finals that's semester. And she's the younger one in the white dress in that picture of to the right.

I was able to get a clerkship that summer, and I learned a lot. It was a great experience. But I was trying to pump at work, meet all the double hours goals, attend all the social events. And of course, it was challenging. Perhaps the most challenging thing, though, were some of the offhand comments that I began to receive, like a male associate who came into my office and told me that his wife was a stay at home mom with their kids. She was a lawyer, but she was a stay at home mom with their kids because their kids were her priority, which certainly was a comment that was well intentioned. But it came across in a way that made me feel that I was supposed to be making a different choice.

And as we go to the rest of the thoughts, we'll explore how these kinds of unconsciously made comments can undermine women's confidence and their success when they are encounter it over and over again-- sometimes, we call it death by 1,000 cuts-- both at work and in social settings. Well, upon graduating from law school, I did join the ranks of big law and had two toddlers in at that time. Somehow I've blinked, and I now have the two-- the tween and teenager that you see pictured here. And every state has bought a new set of challenges and rewards.

So I think with my background in mind and I'm certainly calling to mind your own backgrounds and how you've gotten to where you are today. I think let's dig into talking about unconscious bias-- what it is and some people ask if it even exists. So let's look at slide 6.

An unconscious bias is defined as a type of mental shortcut. It's the way that we are able to process all the information we have to process quickly so that we can make quick decisions. Our unconscious biases, which can be positive or negative. So there's a tendency to think of unconscious bias as being something negative, but some biases can be very positive. That they're based on, as I mentioned earlier, our upbringing, our background, or life experiences in the cultural context in which we live.

In Malcolm Gladwell's bestselling book, Blink, he describes unconscious or implicit bias like this. All of us have implicit biases to some degree. This does not necessarily mean we will act in inappropriate or discriminatory manner-- only that our first blink sends us certain information.

Acknowledging and understanding this implicit response and its value and role is critical to inform decision making and is particularly critical to those decisions, which must embody fairness and justice. And certainly, that quote "seems apropos" to the legal system. Having biases-- I think it's important to acknowledge is not the cause of the problem.

Again, these are mental shortcuts. It's not the bias that's the problem. It's not being aware of the potential bias and allowing that bias to go unchecked.

I want to also mention that there are lots of types of unconscious bias, and there's too much for me to possibly cover here. So today, we are focusing in on gender bias. All of these other forms of bias, racial bias and so on, are incredibly important. But certainly, this can't cover all of that.

But I think as we have this dialogue, we can think about those things as well. I think as we are able to recognize where we may have biases and certainly, we can learn to reduce the likelihood that our unconscious biases could cause us to make assumptions about others, particularly in the legal setting-- slide 7.

So the title of the slide says it all. We are all biased and acknowledging it helps though interestingly MRIs have been able to show unconscious bias actually occurring at the brain level. And so there's actually scientific evidence to show how unconscious bias works in our brain.

And one of the ways that has been talked a lot, about trying to study unconscious bias is the project implicit the Harvard University has done. Now some people question the credibility of the results of that study because of the ability, the difficulty, that is in duplicating the results every time that someone does it. But nonetheless, it's an interesting exercise, and I do think it provides us with valuable information about how our minds work when encountering people of different backgrounds from the eyes. So if you haven't ever tried it, the link is listed there. It's worth a few minutes of doing to see how it works for you.

This ABA article, that I've cited here below, about eliminating implicit bias says of the things to do is to recognize that bias is all around us, that we all do have biases. It's not a blame issue, and we need to acknowledge them. And to try to look around you to become aware of bias in your legal environment.

So numerous studies have shown how bias can impact our interactions and our daily lives, across, not just the legal profession but in all fields. So, for example, studies have shown that if you're a Latino, you're likely to get less pain medication than a white patient. If you're an elderly woman, you're likely to receive fewer lifesaving interventions than an elderly man.

If you are a man being evaluated for a job as a lab manager, you will be given more mentorship, judged as more capable, and offered a higher starting salary than if you are a woman. If you're an obese child, teachers are more likely to assume that you're less intelligent. Black students have been found to be more likely to be punished than a white student behaving the same way. There are thousands of studies showing how unconscious bias can impact how people are treated in almost every setting. There are numerous studies in the legal environment as well.

One that you may have heard of before that has to do with racial bias in a legal setting was a 2014 study in which 50 partners from 22 different sized firms evaluated memos written by 30 associates. Half of the evaluators were told that he was white, and half are told that the writer was black. The group analyzing the black memo found more errors and was more judgmental or more critical of that memorandum, even though it was the exact same memo. Performance evaluations are another source of bias.

A Fortune Magazine study found that 58.9% of male reviews contain critical feedback versus 87.9% of female reviews. Males are more likely to receive constructive feedback than negative feedback, compared to females. And the word "abrasive" appeared 17 times in reviews of women and in no review of men. So there can be a double standard-- an unconscious double standard-- in how the performance of men and women is evaluated.

And there's other subtle ways in which unconscious bias can appear. Recently, I was attending a legal leadership conference for lawyers, and a prominent male attorney was asking a panel of men and women attorney questions about practice of law. And despite the fact that all the men on the panel had already mentioned the fact that they were parents, the moderator of the panel turned to the two women on the panel and asked only them how they were able to balance parenting and practice of law. And while this was a totally well-intentioned question, it points the unconscious assumption that women are the caretakers while men work.

Another example of unconscious bias that I personally experienced was when I attended a presentation on business development put together by two male attorneys. To liven it up, they included a lot of humorous movie and TV clips about people engaged in business development. So they had Jim and Dwight from The Office trying to sell paper, and the salesman in Glengarry Glen Ross being yelled at and so on.

In front of a room of approximately half male and half female associates, these two presenters unconsciously showed clip after clip of men selling to other men. Not one single woman was in any of the clips that were featured. Again, while subtle, these kinds of experiences signal to women that they do not belong. And to undermine both men and women's confidence in women's abilities, like in this case, to be able to originate work-- slide 8.

Let's talk about something really important here. So we're talking about how these unconscious bias can impact all of us. One thing that's really important is that we focus on that this cannot be a blaming game. As we've already pointed out, we all engage in unconscious biases sometimes. These are mental shortcuts.

Men are not the enemy. Women are not the enemy. The way for us to reduce gender inequity is to understand that some of these reactions or beliefs are kind of hardwired and figure out where we can disrupt those belief systems-- those unconscious biases.

Really, really importantly, I'm going to stress this throughout the presentation. Reducing gender equity requires us working together. So it cannot be about just deflecting blame or being defensive, and it can't be about blaming others either.

I think we have to assess our own challenges with this issue, acknowledge it. And then learn how we do or do not act in compliance with those belief systems that we have. And I want to point out to you that this may be why diversity training of the '80s and '90s has been shown not to be very successful, and it's actually worsened outcomes. This notion that everything is the fault of white, older men does not help anyone.

And while certainly, there are people everywhere who occasionally engage in some sort of explicit bias, much of what goes on in legal workplaces and in fact, in all workplaces, is unconscious bias. And it's not all perpetrated by men. So as we go through today's presentation, our goal is not to be defensive or to blame. It is for all of us to, again, assess our own blind spots and figure out ways that we can address them-- slide 9.

There are a lot of types of cognitive biases or unconscious biases. I've listed here five that seem particularly relevant to the legal environment. Affinity biases-- tendency to like people who are like yourself, to look in positive terms about people that you like-- the halo effect, groups think. We've all heard of groupthink before-- where we're in a group, and you try to conform, so you don't necessarily share the ideas and sometimes, can result in a negative outcome.

Confirmation bias-- where you're seeking out information that confirms your already existing beliefs. These are all the kinds of biases that when used in the legal environment, can impact who gets the opportunity to give a client tips, who gets to promote to partnership, who gets awarded origination and a client, who gets to be first chair at a trial-- those kinds of things. There are other forms of unconscious bias as well, including some specific forms of bias that lead researcher in this area, Joan Williams, believe are fairly specific to women. And those are listed on slide 10.

Joan has put forth four particular bias patterns that women face. And then Joan is, I think, founder of the Center for Work Life Law. And she believes these four bias patterns are particularly challenging for women. So to prove it again-- bias is a tendency for women and frankly, minorities as well-- to have to prove their competence over and over again, there is a tendency for men to be judged on their potential and to have an assumption of confidence whereas women are asked to continually prove their competence.

The tightrope is about how women are required to walk that fine line between being too masculine or feminine-- so too aggressive or to too much of a pushover. The importance of this to women in many settings there is a lot of importance to this in the way that women interact on a daily basis. But for example, negotiating is certainly an area where you can see how this would play out.

It's often said that women don't negotiate, and that's why their salaries are sometimes lower than their male colleagues. However, studies show that women do want to negotiate. But when they do try to negotiate, they're often viewed in a negative light for doing so. There are unconscious assumptions about women that they are to be modest and self-effacing. And so appearing aggressive or ungrateful in a negotiation are characteristics that can actually cause women to walk out of the negotiation and not being seen in a good light.

Sometimes, women walk that tightrope of bias by not negotiating because they fear the repercussions that may occur. So again, this is about trying to balance this masculine versus feminine characteristics-- an issue that women often face.

Maternal wall bias or motherhood penalty is somewhat self-explanatory. It's an unconscious bias pattern that we're going to explore in much more detail in a few minutes. And someone asked a question specifically about that. So I'm looking forward to going over how that impacts us in the legal profession.

Tug of war is someone somewhat controversial, I think, because it had to do with how gender bias can actually promote conflict between women themselves. Essentially, that idea that women face such an uphill battle themselves in the legal profession or elsewhere that they can distance themselves from each other or become competitive with other women. So let's look at slide 11.

All right, as we promised, let's talk about Kim and the PTA president. And that's going to be on slide 12. So I heard this story when listening to an audio book, and it really was intriguing to me. It's about Kim. So Kim O'Grady had a strong skill set and excellent prior work experience and was seeking a new job opportunity.

After sending out resumes for numerous positions Kim had received only rejection letters and not a single interview in a four-month time span. After looking at his resume with fresh eyes, Kim, who is a man, realized that the hiring professional know that he had been working with over the years, who were probably looking at his resume were assuming he was a woman based on his name. And also, about the reference on his resume to being married with children, he thought that that would show stability.

When he made one simple change-- just adding Mr. In front of his name-- he was asked to interview for the next two jobs for which he submitted his resume. And ultimately, accepted the second job. And in 2013, Kim wrote a blog about this experience entitled "How I discovered Gender Discrimination." And slide 13.

OK, the PTA president-- this is really another story about the power of gender with resumes. I mentioned-- I'm sorry, on this slide, we talk about a Stanford University study, where three identical resumes were sent out-- 100 traditionally male name, 100 traditionally female name. And then sometimes the resumes-- both the men and the women-- would mention volunteering with the PTA, which would cue the resume reviewer to assume that the candidate had children.

Women with references to children on a resume were only half as likely to get an interview callback as women with whose resume did not mention children. And women which wrote children on their resume were 79% less likely to get a callback than a man. I think that's whether or not he had children listed on his resume.

Men with references to children on their resume were slightly more likely to get an interview callback than men without. And women with references to children were also evaluated as deserving $11,000 less of a starting salary than women with no children and 13,000 less than a male candidate. And so recall these resumes were identical other studies have shown that not only are women less likely to be hired, but that women are less likely to be considered for leadership positions. There are studies that show that men are unconsciously far less willing to put women in leadership positions.

As one study shares, unconscious bias also emerges during deciding on right candidates for leadership positions through preconceptions of what good looks like, while senior managers genuinely agree about the need for diversity at leadership level, they kind of fall back on unconscious beliefs when making final hiring and promotion decisions. They have thought that it's easier to, again, align strategies behind people with similar backgrounds to them. And so the end result of this pattern is a management team with little diversity. And we really talked about this in group or affinity diversity earlier.

It's easier to feel that you can align with people with similar backgrounds. And that can result in women getting less opportunities at leadership. Now looking at slide 14.

The next few slides, we're going to look at the gender gap in law, specifically. So all of these studies or statistics come from the ABA Commission on Women in the Professions, A Current Glance at Women in the Law. And each of them provide citations to where the studies came from as well. Almost half of associates are women. And I think it's really important that we talk about why that's relevant.

There's a tendency to say there's a pipeline problem, but the challenge with that assumption is that there have been almost 50-50 women attending law school for quite a few decades. So to say that there's a pipeline problem would be a myth, where we are seeing as a leaky pipeline further down the line. So a large majority of staff attorneys, who are not partner eligible or are females.

Only about 15% of equity partners in law firms are women, and fewer than 2% of equity partners are women of color. And only about 5% firm managing partners are women. You can see the slow decline in the AmLaw 200 of women from summer associates to associates and down into partnership, as well as managing partner being the lowest-- on side, 15.

Also, look at the pay gap. A typical female equity partner earns 80% of what a typical male partner earns, which is actually down from a decade ago. So the gap has gotten wider, rather than narrower over the past decade. There's a tendency to say that women are billing less, and it is true that studies show that women do tend to bill only about 78% of what a typical male equity partner bills. However, when you look at all of the hours, we're looking at women recording several more hours per year-- significantly more hours per year-- than their male colleagues.

And the question about that comes to, what are the non-bailable administrative type assignments and work that are being required of women that may cause them to not be able to compete on the billable hour basis? Several studies support this gap in the pay, and I know some people may question or say that, well, that's because women choose certain practice areas. However, a survey that was just released last month shows that if you're a women partner that you earn 27% less than your male partners. When you compare median pay, the gap lowers somewhat to 19%, and it specifically said that the gap still existed once practice areas had been taken into account. So a female equity partner working in the same country and practice area and who made partner in the same year as her male counterpart could still expect to earn $125,000 less-- slide 16.

The national gender gap in law also covers general counsel. So in the Fortune 500, you see that there are significantly less women than men in those areas and those roles-- about 25%. For the next tier of Fortune companies, it's even less.

Slide 18 shows that women also represent only about a third of administration in law school, and I believe that the professor ranks are even less. And as shown on slide 18, women also only represent about 27% of federal and stateship. Again, the sources for those studies are all provided on the slides.

Another survey conducted in March of 2018-- it was a worldwide survey-- shows that nearly 8,000 people participated, but there was a significant number of women. And that 74% of men and 48% of women reported progress on gender equality. The respondents say that the main barriers were unconscious bias-- what we're talking about today-- unacceptable work-life balance, traditional networks and paths to success, and resistance to flexible working practices. So that's a pretty brand new survey that is actually worldwide-- might be worth looking at.

OK, on slide 20, this is an important question. Does gender inequality even exist? And I appreciate a couple of you who actually submitted this question. I think what studies show is that one significant barrier to addressing gender inequality is that we may not acknowledge the issue, and that men tend to view gender equality as an issue that has already been achieved whereas women see it as just in the early stages.

And so one of the reports that I read said that even in companies with less than 10% of women executives, men think that there's a level playing field, and that there are plenty of women leaders. And this perception gap could explain why so many employers are still struggling to crack this code and retain and promote more women, despite all the initiatives that are available. So I would add to that story of when I was serving on an interview panel for a law firm several years ago, and we were talking about how important it was to consider diversity.

And one of the participants in that-- one of the male partners said that he was trying to make it clear that he was referring to racial and ethnic diversity. And which I was very supportive of and excited about. However, I also mentioned gender diversity, and he said, oh, that problem's been solved a long time ago. So perception matters, and I hope that that helps to answer the question about gender inequality, although I'll also point to slide 21 here, which is something that was recently published in a magazine.

And I've tried to conceal the identities of the people in the magazine because I certainly don't want to call anybody out. But I think that this is kind of a telling example. When this magazine asked what the real estate industry could do to promote better gender equality, they asked for men and pictures four men and gave four men's answers to this question in the magazine, which I think certainly reveals a bit of a blind spot there.

Notably, one of the man's answers said that the real estate industry doesn't need to do anything to promote gender equality more than it is. Current gender inequality is a function of the difference of men and women's cultural lifestyles. However, I think this quote really drives home the unconscious bias underlying his perceptions.

So let's turn to 22. And I see that we're already at 1:30. I'm going to try to move somewhat more quickly through the rest of this.

As I mentioned, men and women both suffer the consequences of unconscious gender bias in the legal profession but in different ways and in different contexts. So on slide 23, I've listed a number of cases that have recently been filed or have been filed in the last several years against law firms-- specifically, based on gender-based complaints. I'm not going to have probably enough time to go through each of these cases in detail. I will provide you a few snippets from them, but I would encourage you to read these cases.

Again, all of the firms deny the allegations that are put forth in these complaints, but the stories that you will hear might resonate with you or might shock you or offend you or make you want to look at how these sometimes subtle, sometimes not subtle issues can arise within a law firm setting. Just running kind of quickly through these. Griesing versus Greenberg Traurig was filed in 2012. And some of the things that jumped out of that case at me was first of all, Griesing had actually filed a complaint with the EEOC. And they had concluded-- the EEOC-- had concluded that there was reasonable cause to support class-like claims of gender discrimination in that case and reasonable cause to support claims that women are treated less favorably and that Ms. Griesing had been retaliated against.

The gist of the complaint was that the male shareholders, in one of the particular offices, received more compensation than similar situated females, that the business-generating opportunities were given more frequently to men, and the higher titles were given to men than the female shareholders. One of the statements was that one of the CEO had said that the female shareholders in the particular office were worthless, and that another individual had commented that female shareholders are lucky to get paid as much as they do. And another factor in this complaint, that I think was interesting, was that they characterize their compensation decisions as somewhat of an art form. So that they weren't based on any kind of objective criteria.

Campbell versus Chadbourne grabbed some headlines because of the $100 million damage claim. When an, again, female partner claimed that there was pay discrimination, according to Law360, this case was ultimately settled for $3.1 million awarded to the female plaintiffs.

In Rebeiro versus Sedgwick, again, was alleging that female attorneys are paid profusely less than their male counterparts. Like most of the other cases, the complaint points to an all-male leadership of the firm, as well as low number of women who have made it into leadership in the firm. And the complaint actually states that the first woman to serve on the executive committee was not appointed until 2016, which was after Rivera had formally alleged the gender discrimination, in this case. Again, there was a comment in the complaint about the partnership agreement and promotional decisions being based on personal attributes or essentially subjective kinds of decisions.

And then another situation that occurred in that case with when Ribeiro was in a meeting with approximately 60 equity partners, and one of the practice group chairs singled her out and told her she needed to learn how to behave. This case eventually settled.

[? Hawk ?] versus [? Septillion ?] Johnson is a newer case that was filed by an associate, in this case, also alleging pay discrimination. She was originally hired as a contract attorney, and she alleged that she was paid even after she was promoted to a traditional associate. She was paid significantly less than the male associates. And that pattern continued throughout her years there, despite her bringing that complaint to the compensation committee. And that case is still ongoing.

Bertrand versus Proskauer is $50 million claim that was originally files as a Jane Doe suit against the firm's DC office, alleging substantial gender disparities. In this case, there were also allegations of comments made about the partner's physical appearance and making her feel uncomfortable based on that. Also, the partner compensation was a big part of that complaint as well. One of the comments in the complaint is that the firm's five highest-paid male partners earned more than double the amount that the five highest-paid females earned. This case is also ongoing.

And Knepper versus Ogletree-- this case also was about pay compensation. And on average, it says Ogletree currently pays its male shareholders approximately 110,000 more than its female shareholders in target compensation and bonus. And that it also further points to criteria for promotion that are unequally put on the individual. So males are able to be promoted without having to meet the requirements that the female lawyers were having to meet in order to be promoted.

That was the main issues and not a formula-- again, the formula. Any kind of formula was disfavored for being able to determine compensation. They also did allege that women were excluded from systematically business development opportunities, including pitches, conferences, award ceremonies, networking events, and other occasions for professional growth. That case is also ongoing. And many of you may have seen that recently.

There was a Jane Does one through three filing against Morrison Foerster-- one of their California offices. This one, in particular, talks about alleged discrimination against women in law firms who are pregnant or who have young children. The complaint alleges that repeatedly, women who took advantage of maternity leave were systematically paid less when they returned, were not promoted with the rest of their class, even while their billing rate went up with the rest of their male colleagues that were in their same class. And that moreover, when they returned from their maternity leave, which they were withheld work assignments and other opportunities, causing them not to be able to meet their goals.

When allegedly someone said, what happened with this associate, a male partner retorted, well, she became a mommy. So this case has just gotten started. And again, we will have to see how these things play out. But these are a number of cases that have recently been in the news about gender discrimination in the legal practice.

Also, I wanted to mention in one of these cases that one of the facts that was alleged is that a woman had confronted a male colleague about a male member of the compensation committee about why she was making so much less than a male colleague that was at her same level. And he retorted that the men needed to get paid more money because they had families to support. And this is, unfortunately, a story I've heard repeated several times by people that I've known over the years is that when they found out they were being paid less and they confronted firm's management, they were told it was because the male lawyer had a family to support and therefore, needed more money. I encourage you, again, to read those cases and to learn more about what's going on in those allegations.

And slide 24 talks about the flip side of this. Men also suffer with bias against them as caregivers. I've noted here a number of cases that have been filed by men. These two cases-- listed here on slide 24-- are talking about men who requested paternity leave in law firms and how they ended up having to claims suits because they were not able to access that leave. They believe that men were discriminated against as caregivers, and this goes back to that tightrope argument.

Men and women are expected to act within gender norms. And as a result, men who try to act in a caregiving role are often given negative feedback within their firm. So you can read the quotes here. The slide 25 also talks about another aspect of this is that even when men are offered paternity leave, they feel as if they cannot take it.

So it says male lawyers are having trouble utilizing all their parental leave, due to cultural norms that frown upon men choosing family over work. This means that they either feel stigmatized, so they don't request the leave. Or when they take the leave, they return to hostile environments. And I've actually seen these things happen among the people that I know distantly through the legal practice. And so I did have someone tell me once that taking paternity leave would be career suicide.

So men are also subject to unconscious bias about what roles they are supposed to play. And ultimately, if a man is not able to help, then certainly, the stigma then attaches more to a woman. So this creates a reinforcing cycle, where men aren't able to act as caregivers and forcing women to step into a stronger role as a caregiver, which then ends up again reinforcing these issues.

On side 26, I thought I would share with you some real-life postings and experiences of lawyers that I know around the country. So as a mug here pictured is clearly not the court reporter, which was a mug that my friend, Susan Carns Curtiss, who is the founder of an organization, an online social networking group called Girl Attorney. And she had that made because she had had so many experiences of someone asking her if she was the court reporter. I also included a somewhat lengthy post-- with permission-- that was in MothersEsquire. And so like to read through some of it.

So the first poster said, I know I'm not the only person completely frustrated when I tell women that I have a fabulous attorney referral. And she responds thanks, can you please forward me his name and number? And when clients also refer to judges as he. And then later, it says there's a judge who said, I've been told more than once that, well, you don't look like a judge. And someone's asking if somebody could please bring a cup of coffee while you wait for the attorney.

On 527, another woman's experience of finding out that her colleagues said that she was hired only for diversity purposes, not because she earned it. And that she was later told, if you don't understand it, don't just sit in your office and cry. And they wanted to take it easy on her.

Slide 28 is I'm going to point out, in particular, the one that says where they have an entire meeting with a client and a partner. And they're referred to throughout the meeting as the partner. But at the end, the client says, oh, aren't you the paralegal? And you can always go back and read through the rest of these comments later. I'm just going to read the highlights.

On 29, I thought this one was interesting is that where I would wear my law school t-shirt, or people would notice the college decal on my car, 90% of the time, at least they would say, oh, is your husband in law school? Another one of these comments also mentioned that a relative told her that by going to law school, she had taken away a seat that a man could have had. So those are just some real-life experiences of women lawyers that I know.

Turning to slide 30, we'll talk about a prevalent form of unconscious bias- the motherhood penalty. And part of my share of my life experience with you is because this is something that I'm pretty passionate about having gone through and experiencing what it was like to start practice as a mom and experience what that was like. And sort of a double bind of being in both of those roles and feeling that you want to be ultra-successful. You're kind of a type A, driven personality to begin with, and you want to be ultimately very successful as being a mom and being a lawyer. And how the motherhood penalty can challenge those things about you.

Studies from Stanford University of Claim and Institute for Gender Research have shown repeatedly that mothers are viewed by employers as not only less committed to their jobs but less competent. Employers may not consider mothers for promotions or other opportunities based on an assumption that she's not interested in advancement. And there is evidence also, which I think is very interesting, that the motherhood penalty impacts women, whether or not they ever plan to have children. There's just an assumption that she will have children, and that it will eventually affect her competence and her commitment to the job. Again, she became a mommy, as stated in the case.

So slide 32 talks about just, again, this double bind. So mothers are typically viewed as not committed to their jobs. And so the studies have shown that if women are really, really highly committed, they can change that perception that they are competent. But what happens is the highly competent mom ends up being viewed by others as selfish or arrogant, dominating, less likable, and less warm. So kind of like Goldilocks, except there's no just right.

Slide 32 talks about the fatherhood bonus. So studies have shown that fathers are more likely to be hired than single men, and that they tend to be offered higher salaries, as we talked about earlier with the PTA president. But the flip side of that is are men allowed to equally engage in caregiving activities? And do women and men both unconsciously or consciously judge men's capacity as caregivers? What about how men are viewed in [? Kant ?] Family Court?

I had a female attorney tell me-- knowing I was giving this presentation-- that she had an experience where she was in family court. And she was having to help make a guardian decision about a male attending court that day. And she had said, oh, well, how is he going to be able to take care of a newborn baby?

And the other attorney said to her, he can take care of her just like a mom could. So she had made an unconscious assumption that because he was a man, he would not be able to take care of the newborn. And she felt very conscious about that but was able to think through that and realize what she had done.

Slide 33 is a topic I'm particularly passionate about. It's something that comes up very frequently in MothersEsquire. It's a kind of unconscious bias against mothers too against breastfeeding lawyers. This photo was posted in MothersEsquire and is used here with permission showing the view that a woman lawyer got to have a women's conference, involving a women's legal conference.

She called in advance. They said there was going to be a space. So she had taken an active role in trying to ensure that there would be a face. She was told there would be a space. And instead, she was here sitting on the bathroom floor.

This can really create a signal to women when this happens-- whether in courtrooms, courthouses. There's constantly posts about courthouses not having any place for women to breastfeed and having to constantly search and search and search to find a place, going to depositions where adequate breaks aren't provided, going to conferences where there are no accommodations. This can certainly send an unconscious message to women that they're not included, and they're not being provided for for means that they have, while being a mother.

Slide 34 talks about some other forms of the double bind. Men are significantly more likely to critique female sort of behavior. We talked a little bit about that already.

Men are likely to attribute women's success to luck or external factors, rather than their internal abilities. Someone asked me to talk a little bit about Me Too. And in light of the amount of time that we have, I'm not going to get into it a lot. But there are challenges-- and not to be political at all-- but what's sometimes called the pimp's role.

This idea that men are fearful of being with women alone can also create a challenge. And lastly, benevolent sexism-- and this can be something a little bit different to talk about. But there are a number of research studies that show that men in what we call "traditional marriages."

So men who maybe have stay at home spouses disfavor women in the workplace and are more likely than the average of all married men to make decisions that prevent the advancement of qualified women. So that men who do have traditional marriages tend to view the presence of women in the workplace less favorably, perceive that organizations with higher number of female employees are operating more smoothly, perceive organizations with female leaders as relatively unattractive, and deny qualified employees opportunities for promotions. Another article showed that actually 69% of equity partners, who are women, have a spouse or partner who works full-time whereas only-- I think it was only half of male attorneys. Approximately half of male attorneys have wives at home.

So these unconscious biases about your own personal relationship can sometimes seep into the workplace. And so it's something to at least evaluate and be aware of if those things can be impacting the way that you view women in the workplace. And again, some of this is also benevolent or benign sexism they call it. And where the point is to try to protect women to think of a woman as being caring and nurturing and to want to do things that would protect that woman. So it's not always done with a bad intention at all. It can sometimes be benevolence.

Slide 35 and it briefly hit on a couple of or three important concepts also in gender equity [INAUDIBLE] office housework, unpaid labor, and emotional labor. And I provided some brief snippets about each of these here, and some studies that might give you some more material to talk about these things or to read on these. But also, housework is that concept of the person who takes notes, the person who makes the coffee, the person who organizes the party.

The people at work or the person who even sometimes sits on a committee that isn't really advancing their career. And so I remember feeling like I needed to bring food to events-- those kinds of things. And that can impact women-- the amount of hours they have in a day and the ability for them to engage in such an assignment that are impacting their career and advancing their career.

Similarly, emotional labor is that sense of the amount of material that women have to remember. Like I said, I'm the reader of all the calls and school emails, and I'm the rememberer of all the stuff. And all of that stuff takes up a significant amount of time and energy, and there's a lot to be said about emotional labor for the impact that it can have on women in the workplace.

And on slide 36, I snuck a funny picture in here of my husband and I both volunteering at work. But I think it's as kind of silly as this picture is, what's behind it really is a very important concept. Women's unpaid work is the backbone of the American economy. According to Gillian Berman in an article she wrote in MarketWatch.

The assumption that women will take on childcare and other responsibilities may mean that they are subconsciously cast out for career opportunities like more travel, international placements that could lead both to career development and to more money. Business-- me and my husband, like I said, volunteering at lunch. And when I look at that volunteer list, it is almost 98% women that are doing the volunteer work. And so these kinds of obligations disproportionately expected of women make competing in the legal workplace, especially under big law billable hour pressure, very challenging. So the combination of all of these things together can lead women to shift down their careers or leave their career altogether.

On slide 38, I wanted to talk briefly about how women may also engage unconscious bias against women. And one thing that's really important about this is that this is not to be a negative. It's just that we, again, we all engage in biases. And so interestingly, there was a lot of flack about this study that the ABA published.

In a survey, legal secretaries said they did not prefer working with women. Now some said-- about half-- said they didn't have a preference at all. But of the rest, all of them said they would prefer to work with a man-- a man instead of a woman. And many of them had negative things to say about other women.

And I think this is a really important issue in the law firm setting because of what we talked about administrative work that has to be done and the number of administrative hours that women do. If women are in a setting where they aren't getting as much assistance as their male colleagues, that can also lead to a lowering of billable hours. Whenever I'm asked this question about women having unconscious bias about each other or why women are worse to work with them then men are, which is kind of an inevitable question, I do like to think about, reflect on a couple of things. Like what experience does she go through to get to the leadership position that she's in? And are our expectations about how she should act different than our expectations about a male colleague that would be in her same position?

So do we have unconscious bias against her because we expect her to be nice or caring or supportive, or we expect different qualities from her than we expect for a male colleague who would be in the same position. So I think it's important that we sort of check that belief system about other women. It's something important to talk about.

Turning over slide 39, I'm going to briefly mention echo chambers and sticks the woman approaches. I really get worried when I see ongoing women's seminars and negotiation strategy. All of those things are great. It's really important for us to all embrace skill building, but I worry that the [INAUDIBLE] the women approach is focus attention and resources on kind of an issue blame or victim-blaming mentality and don't really address systemic barriers. So sometimes, I like to say as much as I really enjoyed the book, Lean In, I think had a lot of great comments in it. Leaning into a brick wall is only going to get you so far. So we have to look at systemic issues.

41 talking about an echo chamber is really important. And I think if we learn nothing else today, if we talk about nothing else today, it is that it is very important for us not to keep talking in echo chambers about our concerns about unconscious gender bias. We have to talk about these things together.

And so women's groups that do not engage men will not ultimately be effective in changing patterns and may, in fact, engender distrust. So it's really important that women's groups do engage men. And it's OK to have women's groups because I think it's important to have a forum for supportive and team building discussion, but just preaching to the choir is not going to really advance the issue.

On slide 42, we're going to talk quickly about some concrete ways the legal profession can reduce the harmful impact of unconscious gender bias and why it matters to the bottom line. Now not all of these ideas are going to work for every organization. But hopefully, it can inspire some discussion or some thought processes on ways to reduce unconscious gender bias in the legal workplace.

On slide 43, I wanted to mention that gender equality is not just the right thing to do. It's not just because it's a socially positive step. Research from Catalyst shows that companies with a higher percentage of women in executive positions have 34% higher total return to shareholders that companies with the most women directors outperform those with the least on return on invested capital by 26%.

The financial performance of US companies found that those with at least three women on the board had median gains in return on equity 11% higher and earnings per share 45% higher than companies but no women directors. The studies go on and on to show that companies have gender equality do better financially. And notably, for law firms, there's a very real cost to having attrition rate of women as high as they are. The on average loss cost of the attrition of each associate is up to $400,000, according to the report that I've cited there.

So some concrete things that we can do-- as we wrap up in these next few minutes are-- implement unconscious gender bias training. Someone submitted a question to me about research. I have cited here an article that mentioned some research-- I'm sorry-- some training about research that's been shown. I'll get this out in a second.

An article that talks about a type of training that has been shown to be effective. And so I recommend that you look at that article and read about it. Unfortunately, diversity training of the past has sometimes been shown to actually decrease the likelihood that women and people of color would be able to advance in the organizations. And again, that goes back to that idea of the past having a blaming sort of impact. Unconscious gender bias is looking again at how we can provide these real-life strategies and give participants action items and really be aware of striking a good balance between providing information and without having to raise defensiveness.

Slide 45-- I'm going to point you to, again, another website. This is also a project for Joan Williams, looking at using bias interrupters. So these are tools that you can implement that would help to sort of interrupt a moment where it would be likely that gender bias might play a negative role on women in the workplace or men in the workplace. So for example, one of the things is looking at a system by which everyone can be held accountable for office housework and using objective criteria for performance on performance reviews, which is something we heard over and over again in those cases that we reviewed earlier.

Slide 46-- can we make management committees gender balanced? If not, what's stopping that? What's stopping looking at compensation or recruiting and management committees, and looking at ways to make those more gender balanced. Also, do non-lawyers specifically or other affinity groups, other diverse attorneys, have a voice on these committees, whether or not they're members of the committees, do they have a voice? And have these committees engaged in unconscious bias training?

On slide 47, this is a very hot topic. And clearly, from the cases, something that firms may want to consider is conducting pay audits and instilling pay transparency into the culture of the legal environment. You can look at having a third party do these pay audits. Potentially consider lockstep associate salaries if that would work for your firm's culture. Instituting objective criteria-- and the one point is to do not penalize men or women who need to take maternity leave through compensation because certainly, that is likely to lead to attrition.

48-- In slide 48, I've put a number of slides here or a number of points together that I think are family-focused ways that firms can help to address the attrition rate related to motherhood penalty. So one thing that I think is really, really critical that we are just starting to really talk about, I think, is offering paid parental leave. And I really need to focus on paternity leave there. And not just offering it but communicating to male attorneys that it is acceptable and expected to take paternity leave.

Also, one comment that I've heard numerous times from a number of women attorneys is that their maternity leave is labeled a vacation, or they were called repeatedly. I actually witnessed somebody call a woman on maternity leave the day she had her baby to ask her about a case file. So I think it's important that we offer these important benefits, and that we respect them for what they are.

Looking at flexible working arrangements-- it's really important that being aware of flexibility stigma. Providing breastfeeding accommodations-- we don't want pictures of women sitting in bathrooms pumping. I think that sends a very important message to women that their skill set is desired in this profession, if we can accommodate that need. And then looking at the long game, when it comes to parental leave and billable hours, that's incredible insight investment that firms make and attorneys.

We need to not let that be derailed by a year in which our billed hours are lower-- those sorts of things, I think, we need to take a long game view looking at long-term retention of women or men who take leave for parental reasons or other caregiving reasons as well. And I continued some more ideas about motherhood penalty strategies on slide 49. So for women who maybe want to move to a reduced basis, that can sometimes be challenging so consider project-based work or a catch-up opportunity where the hours are structured. But at a little work requirement but that they true up at some point in time to help women who are then going be on to the hours that they've agreed to.

Consider hiring women after gap years-- one possible look at providing services that support women or parents with young children. for childcare breastfeeding, travel support, and Milk Stork. I saw a number of law firms have instituted the Milk Stork service.

Consider parenting across the spectrum of parenting and other caregiving responsibilities. And be sure that in from when the lawyer groups have support. I talked a little bit more about that on slide 50-- about the need for women's affinity groups to have a voice and for them to involve men as well. And for them to be supported with a budget with support from management.

And also to show that these initiatives can make a difference in the number of women equity partners. Slide 51 talks about assigning work and origination fairly. This is something that there is a lot of research on. I really encourage you to read a report that was coauthored by Joan Williams as well called New Millennium StainedGlass Ceiling, the Impact of Law Firm Compensation Systems on Women. That's available at attorneyretention.org.

The disk looks at how to balance out glamour assignments versus the grunt assignments, how to really address bullying origination, which can really impact the gender pay gap that occurs over the years, as women move into equity partnerships. And to ensure that the systems are created that disincentivize bullying around origination. On slide 52, looking at reviews and negotiations that women may engage in and being sure-- don't call her abrasive. Let's find objective criteria that focus on performance and use those objective criteria to Judge all attorneys and consider implementing training as a system.

Number nine is looking at ways we can incentivize behaviors through compensation potentially, through gathering information on who's engaging in mentoring women of diverse attorneys, who's engaging in sponsorship of women and diverse lawyers, and also general counsel can create a diversity bonus-- or potentially penalty-- for outside counsel based on what the lawyer-- the GC at Hewlett Packard did recently where she sent out a letter mandating diversity on the teams of lawyers that were staffing their cases.

Slide 54-- it says, let's use some tools to gather data. And I've listed here a number of tools that are available to the ABA or other organizations. The Mansfield Rules-- one that has recently gathered a lot of momentum, looking at how law firms can show that they are diverse-- both for gender and racial diversity as well as LGBTQ diversity.

It's a very good tool to look at, as well as the others that I listed here. Also, listed on slide 55-- a number of organizations that are focused on women lawyers and diversity that might provide you with more information or new models of practice like montages legal that hires women on a project basis. And not just women, but women are a vast majority of their members.

On slide 56, I provided some suggested reading. I have lots and lots more. If you want anything else, you're welcome to contact me.

On 57, I just reviewed our topics again, today. And this hour flew by very, very quickly. So on 58, I've provided my contact information. I welcome you to send me any questions.

I hope I answered most of the questions that you submitted to me earlier. And if not, I welcome you to contact me afterwards and let's have a discussion. Thank you so much for having me today.

AMY TAUB: We are now out of time. I would like to thank the listeners and today's excellent speaker, Michelle Browning-Coughlin, for a very interesting and timely presentation. Michelle, we appreciate your remarks.


AMY TAUB: Thank you. Bye-bye.


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