Examining Equality in the Practice of Law: The Scales of Justice are Still Not Balanced
While perusing previews for the new television series “A Handmaid’s Tale, based on the book by Margaret Atwood, I made the mistake of reading the comments. It is disheartening to see how many people today falsely believe that we have achieved true gender equality, particularly in the realm of careers. Many of the comments were from men, often making statements like “there are plenty of women in my field, so I don’t see a problem.” But even more dispiriting were the comments from women espousing things like “I am treated perfectly fine so all women must be too”.
As an attorney who has practiced both plaintiffs’ side and defendants’ side employment litigation, I can assure you that there are plenty of meritorious lawsuits which definitively demonstrate that women are not being treated equally in many fields. Perhaps more surprisingly, I have come across much inequality in my own field, indeed in my own professional life, from people who should damn well know better. Because I wondered if my own experiences in law were simply anecdotal, I cast a small net into a social media group comprised of other legal mothers. The stories I read were at times shocking and in other instances downright horrifying. If nothing else, it signifies that the legal world still has a big hill to climb before proclaiming that women lawyers and men lawyers are “equal”.
I will begin the demonstrations with my own tale. I have been practicing law for a little over ten years. For the most part, I have been fortunate to at least feel equal to my male cohorts. The only noticeable exception happened after the birth of my second child. I worked in a small law office with only two partners above me, both men. Until my pregnancy (my first pregnancy had been somewhere else), I felt extremely comfortable with them. As I was approaching the birth, they brought on a single, newly graduated male, to cover for me. At the time, I did not think anything of it. Nor did I worry when, after I returned from leave three months later, they decided to keep him employed as well. As the next year unfolded, I recall things that should have been red flags at the time but I was desperate to give my bosses the benefit of the doubt. I can still recall the Christmas debacle, where my junior associate was gifted with a pricey silk shirt and tie for court, and I was tossed a pair of target mittens and cheap foot spa with the female paralegal and secretary. Perhaps I should have paid more attention to the stupid comments like “How many kids do you have now, three!??” (I only had two at the time and I was the only person in a six person office with kids besides the bosses). But the end result was the same. I found myself replaced less than eighteen months after my son was born.
This “baby tax” was not unique to my situation. Other law mothers I have canvassed reported similar findings. One reported a firm policy of giving an extra performance review to employees who were not on track to make a certain number of billable hours for the year by June, singling out only the three mothers who had just had babies. Others reported that having babies immediately made their bosses assume that they did not want to stay on the partner track, saying “mommies don’t make partner”. One stated that a male associate said to her after getting pregnant “too bad, I liked working with you.” Some reported being the butts of jokes for using pregnancy to get out of certain types of cases or clients. Even law students were not immune. One reported that her constitutional law professor told her that if she was going to “pull stunts” like having an ectopic pregnancy she should just drop out of law school.
Then there was a whole host of stories centered on sexual harassment. Male attorneys who joked to yawning women about “their husbands giving it to them good”. One reported that males were taken to a party where the senior partner kept a scoreboard for the partners tallying how many associates they had slept with. Some reported having to deal with whistles or cat calls. Others reported being hit on by senior associates either in the office or at work conferences. One stated she was told by a senior male partner that she was not “attractive enough” to snag a husband so she needed to use her personality, which would “take time” and her fertility was waning.
Then there is just the patently double standard. Of course there is the discrepancy in pay, where some women reported discovering that they earned less than their junior colleagues. But in many instances there was an overtly less type of discrimination through diminished respect. This ranged from being called by their first names (as opposed to “Mr. Smith”), to being ignored by female secretaries, to being mistaken for someone other than the attorney. Some had husbands who were also attorneys and could therefore watch this double standard directly play out. In one case, the husband reported having a client tell him that he was better to deal with than that other “bitch” (who was unknowingly his wife). Others reported having clients, judges, and colleagues speaking to their husband but ignoring them. One had a judge tell the lawyer she needed to “smile more”. Another dismissive judge told the two female attorneys to stop with the “girl talk”. Many assumed that the woman was not the attorney, but a court reporter, or even a client. In one situation, the attorney reported that the case involved a motion wherein a man had purchased a breast augmentation for another woman. When the attorney went in to argue the motion, the judge asked “why is the client here?” (Side note: she did win the motion).
This diminished respect flowed to work product. Women attorneys reported getting called out on pleadings or letters that were exact duplicates of those filed or used by their male counterparts. One reported using the same letter but having her letter referred to as “nutty and overbearing”. Others reported having to do more menial tasks, such as making binders. Still others were often passed over for credit when they did something well.
These stories are but a small sampling of what transpires in the legal field. For brevity purposes, I either truncated a story or omitted it entirely. If nothing else, it makes me wonder what would happen if I asked this question on a larger scale. But one definitive point can be made: women and men are not treated equally in the practice of law. This conclusion should give everyone pause. Because if we cannot trust an industry that intricately knows about anti-discrimination laws and is clearly cognizant of the potential for lawsuits to regulate itself, how can we possibly impute this ideology to any other field? Put another way, if attorneys blatantly ignore the risks of lawsuits to discriminate, why would we assume that every other career field is practicing equality? The plain truth is that we cannot.
We cannot espouse “equality” simply because we see females earn a degree or pursue a certain career. We cannot assume that discrimination exists simply because we have not personally felt discriminated against. Until the stories above become the exception to the rule, we have not reached true equality, at least in the practice of law.
Wendy Marcus
I am mediocre mom!
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