Bar News Masthead

June 17, 2020

By Natalie Laflamme

There are issues in life where progress ebbs and flows. As many of you know, each decade the NHBA Gender Equality Committee surveys our profession’s progress toward overcoming gender disparity. If you are feeling like our recent progress has sent mixed signals, the data shows you are right. Comparing the latest survey of 2017 with GEC’s historical data, there has been improvement since the first survey in 1987. More women have entered the legal profession, been appointed to the bench, become partners in law firms, and, overall, report less overt gender discrimination. While things have progressed, that progress appears to have slowed or even stagnated.

One major gap that has not closed is the perception gap. There is a large difference in how male and female attorneys perceive issues of gender equality in the profession. Female attorneys are much more likely to perceive gender disparity or differential treatment than male attorneys. This gap existed in both the 2009 and 2017 surveys.

Those surveys presented a series of statements about the treatment of male and female attorneys and asked respondents to either agree, disagree because there is equal treatment, or disagree because the opposite is true. The 2017 data reported that 55% of female attorneys agreed that “male attorneys tend to attain more respect/status than female attorneys,” while only 16% of male attorneys agreed that statement was true, for a perception gap of 39%. (More male attorneys, 50%, disagreed with that statement on the basis that there was equal treatment). There was a similar 40% perception gap in responding to the statement “male attorneys more easily progress up the pay scale than female attorneys,” with 55% of female attorneys and 15% of male attorneys agreeing. Those beliefs remained virtually unchanged since 2009 when 54% of female attorneys and 16% of male attorneys agreed.

This disparity was found in every question in the entire section. For example: “female attorneys have more difficulty being promoted than male attorneys,” (52% of female and 15% of male attorneys agreed); “male attorneys attain partnership status faster than female attorneys” (48% of female and 15% of male attorneys agreed); “female attorneys have more difficulty being hired initially than male attorneys,” (25% of female and 9% of male attorneys agreed); and “male attorneys are more likely to be assigned choice cases than female attorneys” (35% of female and 8% of male attorneys agreed). Once again, the 2009 data also reported this perception gap.

Female attorneys were also more likely than male attorneys to have observed certain behaviors. Sixty-six percent (66%) of women had, in the past year, personally observed or experienced frequent, occasional, or one-time use of inappropriate names, titles, or terms of endearment toward female attorneys outside of court, in routine interactions among attorneys and law firm staff. Only 26% of men reported observing this treatment of female attorneys. Sixty-five percent (65%) of female attorneys, compared with 23% of male attorneys, had observed condescending treatment of female attorneys by male attorneys or staff members. Sixty-one percent (61%) of female attorneys have heard a sexist joke during routine interactions in the last year, but only 38% of male attorneys reported the same.

Why do male attorneys perceive far less gender disparity than female attorneys? Some of the open-ended responses to the 2017 survey hint at three explanations. First, many men do not view gender equality as an issue that has anything to do with them. Several male respondents stated that they had no opinion on certain questions because they were male and their comments were not relevant. Second, while both male and female respondents commented on how much progress has been made over the past few decades, a number of male attorneys viewed this progress as complete. One respondent suggested that female attorneys should accept “the fact that gender discrimination is a relic of the past.” Several individuals pointed to the fact that more women had joined the bar, or were graduating from law school, as an indication that there was no longer any inequality and doubted that “this much time and effort on gender is warranted.” Third, it cannot be ruled out that some male attorneys deliberately choose not to see any discrimination or gender inequity. A handful of respondents attacked the very idea of the survey itself and demonstrated a hostility toward even examining these issues. The “premise” of gender inequality was called “ridiculous and stupid,” as well as “stupid, divisive, and sexist.” Others stated that the survey was “a waste of time” and predicted that any data gathered from it would likely be “entirely useless.”

Although, we may not convince everyone that gender inequality still exists, work can be done to narrow the perception gap. The large differences in men and women’s experiences and perceptions in our profession demonstrate that relying on subjective, personal, or anecdotal judgments about gender equality may not give a real or complete picture. Just because people do not perceive problems does not mean they are not there, but it does make it less likely that the problems will go away. Until everyone — both women and men — notice inequality, the profession is unlikely to make further progress.  For useful tools on how to recognize gender disparity in your firm, please log in to the NHBA member portal and navigate to the GEC’s Materials and Links page.

Natalie Laflamme is a solo practitioner and a member of the NHBA’s Gender Equality Committee

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