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Unpacking the Gender Equality Struggle in Senior Legal Positions

David J. Sachar, J.D.

Director, Center for Judicial Ethics – National Center for State Courts 

Equality is a cornerstone principle for a free society. Without gender equality, the legal profession is not living up to that ideal. The legal system should be a leader – a beacon of progress for equal rights. If the public can see a lack of gender equality in the courts and legal profession, why would they believe that the system is fair? Gender equality is a necessary goal for the legal profession.


First, we must address the fact that gender equality is a major issue and how it became so.

“When it comes to gender equality, things are much better in 2023 than they were 50 years ago.” Pithy statements like that are often recited. There are two main problems with being satisfied with that kind of benchmark. First, the goal is equality – not mere improvement. Secondly, there is a lack of understanding of just how unequal the world has been for women to advance in professions. Often cited examples from the early 20th century are eye-opening – but can be discounted because “that was a long time ago”.


In more recent decades, the battle for women to be safe, much less accepted in a profession like the law, has been daunting. And maybe forgotten. Leaders in law firms grew up with these facts – no doubt leading to implicit bias that remains. In the United States, women could still be terminated for being pregnant – until 1993. This is just one of a few examples that created an overt and covert layer of bias. The result was an exclamation, “Women cannot handle their own business – they need men to guide them. They are not equal.” The power structure, men who are now in their 60s and 70s, were engrained with these views of women from advertising, television, and the law itself. We should not be surprised that the result was that even when women were welcomed into the profession – assuming “welcomed” is the right word – they were not considered serious candidates for leadership or fiduciary roles in law firms. The impact of biased policy and law was to make women less likely to pursue managerial positions or to be considered for them.


Recently, the United States has shown a notable increase in professional equity by women in law firms in the years leading up to 2020. But there are also indications that the global pandemic slowed that growth. As has been the case in the workforce, women are affected by absence when taking off time for family, childbirth, and other responsibilities. Many articles detail the inequity with numbers, statistics, and other evidence-based research. Suffice it to say that women are still negatively affected by a lack of opportunity and by the legal workplace being less conducive to the additional responsibilities they have at home.


However, great opportunities are coming. A growing number of women are pursuing legal education. In the United States, as of 2020, over 54% of law students are women - according to the American Bar Association. The legal profession should not just wait for women to rise in the profession based on numbers, though. There are also plenty of studies to show that even when the numbers are closer to equal in participants, an unequal number of men are selected for managerial positions. The changes must occur now. Those changes are not made using mere ratios – there should be policy and framework reconstruction that will create the environment for gender equality in senior levels of the profession. These include:


o   Education and training. Law firms and the legal profession in general should host training sessions that reinforce our industry's commitment to equality. This would include sexual harassment and bystander training.


o   Noting that training is vital – it must be promoted by management, attended by management, and presented in cooperation with management. Training cannot appear to be “for the young people” or the “next generation”. It should be seen as something that applies to all.


o   Check and revise the standards for performance evaluation. Are they based on male paradigms? Do they covertly set up women by using coded standards? Are there metrics that will make family leave look like objective negatives in the evaluation process?


o   Policy is set by management. Management is old and male. A wholesale examination of law firm policy should be undertaken. Women should be allowed to opine on the effect of policies on their ability to be promoted or to perform the duties of leadership.


o   Men in leadership roles should have a plan. What can be done to ensure gender equality in the future for a law firm, government office, or judicial staff? Are there hiring practices that create equal opportunity for new clerks and employees?  


o   Men should find ways to encourage women to seek management roles and champion opportunities for women. Positions, awards, speaking, writing, and projects should all be conducted with an eye on gender diversity. 


o   And men should encourage other men to speak up on the issue of the work needed to promote a truly equal legal workplace. Men in leadership positions should be vocal. They should make it known that they value female colleagues. It should be clear that men are on the side of equality.  


o  Being an ally takes effort, as does ignoring the obvious gender equality issues we face. As Margaret Atwood wrote in her novel The Handmaiden’s Tale, “[w]e lived, as usual, by ignoring. Ignoring isn't the same as ignorance; you have to work at it.” Men in the legal profession will have to decide whether to put their effort into being allies or on the wrong side of history in the struggle for equality. 


o   Law firm leaders should openly, boldly, and actively let people know where they stand. A known goal of equality in leadership opportunity must be transparent in management planning. Being a clandestine supporter will not change the world. It rarely, if ever, truly has. 


Change will occur when work is done. Then the legal profession will clearly appear to be a leader in gender equality. The opposite is true when courts, law firms, teaching panels or other groups in the legal profession do not have gender inclusion it sends a message. The message is that women are not needed, not experts or not leaders. None of these messages are true. But the lack of inclusion can perpetuate those lies and embolden those who oppose gender equality.  


 Gender equality in the legal profession has gained traction in terms of total numbers. But high-ranking and leadership roles are still lagging. It is incumbent upon the members of the bar to study the reasons for the gap, resolve to change the status quo, and put into motion efforts to promote inclusion at all levels of law firms and other legal organizations. Citizens look to the courts and the bar to learn about the law. Let us promise to teach them that we will always work towards fairness and equality.


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