This article is part of a new book from ARC Group

and written by former law partner Patricia Gillette as part of the book “Beyond Bias: Unleashing the Potential of Women in Law.”

gender discrimination — Image:Shutterstock

Patricia Gillette – Whatever we are doing in law firms to increase gender diversity in positions of economic and institutional power is not working. How do we know that? Simply look at the statistics.

The number of women equity partners, in top rainmaking positions, at the top of the compensation schedules in law firms, and in lead positions for trials and deals has been stagnant for the last several decades.

And what are law firms doing about that? The same thing they have done for years – offering special training to women to account for the alleged skill deficiencies that keep them from moving up in their firms. The titles of the training programs may change from year to year and the trainers may change as well. But what doesn’t change? The number of women in positions of power in their firms.

Why is that? Is it because women just can’t be taught the skills they need to be successful power brokers? Is it because men are natural born leaders who can move into power positions with ease and successfully perform their responsibilities without the training that women supposedly need? Is it because women aren’t really ambitious and don’t want the power and financial rewards that come with leadership positions in their firms? These are some of the “explanations” that have traditionally been offered to account for the deficit in the numbers of women in positions of power in law firms, leading to the conclusion that if firms could just find a way to fix the women, all would be well.

Thus, law firms have been trying to “fix the women” for years – without success. And, unless one buys into the idea that women are not as able as men to assume positions of power, clearly something is wrong with the approach law firms have been taking to correct the lack of gender diversity in top leadership and power positions.

So what if we consider a new premise. What if we consider that it is not the women, but the system that needs to be fixed?

What we know about work assignments, client contact, lead counsel positions, compensation levels, and leadership positions is that these opportunities are, for the most part, controlled in most firms by white men. So that when those men are looking for attorneys to fill those positions, they consciously or unconsciously, look first towards people who look like them and maybe to the one or two women who have somehow gained some visibility in the firm. But most women are not on the radar screen for these positions.

In the past, firms have addressed this by giving women special “leadership” training or business development training. And while those are certainly valuable skills that are vital to the success of any attorney – regardless of gender – the effort to move women into positions of power cannot stop there. Why? Because training only works if it is coupled with opportunity. And it is the opportunity that has been lacking in the equation for firms trying to increase the number of women in positions of power.

How do firms change that? Below are several ideas that law firms could consider to ensure that women are able to maximize the training they are receiving and move into positions of power and leadership.

1. The Mansfield Rule

Arabella Mansfield was the first female lawyer admitted to practice in the United States. This rule is named after her because it too would be a first for the legal profession. The Mansfield Rule is modeled after the Rooney Rule that was adopted by the National Football League to increase diversity in team managers. The Rooney Rule requires that there be at least one diverse candidate in the candidate pool for any NFL team manager opening.

The Mansfield Rule takes the same approach, but applies the Rule to all of the positions in law firms where power is wielded: the chair position, executive committee membership, compensation committee membership, practice group leaders, office managing partners, pitch teams, lead trial counsel positions.

The Rule requires that the candidate pool for each of these positions or committees committees be made up of 30 percent women and other minority groups (although firms can certainly consider a higher requirement). It does not require that a woman be selected for the position or committee, but they must at least be considered.1

Why does this work? Because it raises the visibility of qualified women in the firm who might not otherwise be noticed and prevents firms from falling into the trap of giving leadership jobs, where these do go to women, to the same one or two. And, perhaps more importantly, it leads firms to think seriously about succession planning. With a mandate to consider at least one woman for each of these positions and committees, the firm will likely start identifying and nurturing potential candidates for these positions and committees before the selection process begins.

This type of organized and thoughtful approach to attorneys who will be eligible to assume leadership positions in the firm not only increases opportunities for women, but also forces the firm to be more intentional in its development of future leaders. And it allows women who have received leadership training to utilize that training by being given opportunities to move into a leadership position in the firm.

2. Enhancing opportunities for building client relationships

Business development training is necessary and useful for firms. But, again, if it is done in a vacuum or in an environment where women are excluded from client opportunities offered to male attorneys, its impact is minimal. So, in addition to business development training, firms should consider several other actions that build upon the training:

● Succession planning for institutional clients – To the extent a firm has institutional clients that are tied to baby boomer partners, it behooves the firm to think strategically about how it will manage that client relationship after the baby boomer partner leaves the firm. The selection of that successor should be intentional. And that provides an opportunity to force consideration of a woman for the successor position. Of course, the person has to be acceptable to the client, but by requiring partners to consider gender diversity in making the decision of who will be selected, it is highly likely that more women will be given opportunities to take on major clients of the firm – opportunities that without succession planning would likely not be offered to them.

● Monitoring of pitches and lead counsel assignments – Exposure to clients is a huge part of successful business development. Yet most firms do not monitor who is selected to participate in major pitches for new business or who will meet with potential new clients. Instead these decisions are left to the partner who is heading up the pitch or the meeting. The same is true for lead counsel assignments on major litigation and corporate matters.

And these lead counsel positions can offer women opportunities to demonstrate their legal skills to clients, obtain recognition externally, and build their reputations within the legal community.

If the firm begins to monitor these kinds of opportunities – accounting for the gender of the attorneys chosen to participate – it can determine if men are being selected more often than women and can then take steps to correct that situation. And if more women are given opportunities like these, they can put the business development training they receive into effect.

3. Scanning performance reviews and feedback for gender inequities

Language is a powerful tool in law firms. The way an attorney’s skills are described and the way attorneys describe themselves can impact opportunities. All the training in the world cannot combat internal documents that detract from or do not adequately describe the potential of the attorney. There is no question that some words convey greater abilities than others, even though that might not be the intention of the writer.

For example, saying that Sally’s presentation showed a lot of poise and preparation is not the same as saying Bill had incredible presence and was clearly well prepared for his presentation.

While it may seem subtle, the former statement is more reserved and more feminine than the latter and can lead the reader to think that Bill is a stronger and better advocate than Sally. We also know that women tend to underreport and downplay their strengths when asked to describe their achievements. So women will often attribute a success to “the team” while men will state that they “led their team” to great success. Again, a subtle change, but clearly conveying a different message and leaving the reader with a different impression of the two attorneys; the woman who bills herself as part of the team seems less responsible for the result than the man who led the team.

To avoid this kind of unintended consequence, firms can use programs that scan memos for gender based language – thus leveling the playing field and conveying praise and criticism more evenhandedly. This may result in stronger statements by managers about the women attorneys who work with them and may keep women attorneys from downplaying their own achievements and skill sets.

4. Implicit bias training

Everyone has biases. And lawyers in law firms are no exception to this rule. Raising consciousness about these implicit biases that hide in the shadows of everyday decision making in firms is critical to moving more women into positions of power and leadership. Because even if women are ready to move into these positions, the implicit biases of the men in power may keep them from doing so. For example, a male partner may choose not to put a women just back from maternity leave as lead counsel on a case that requires a lot of travel, remembering how his wife was distressed at having to leave her newborn for business. The intent is not necessarily bad, but the outcome is a denied opportunity for a woman. Whereas that same opportunity would likely not be denied to a new father.

If we want to increase the number of women in leadership positions in our firms, we have to begin to recognize and address these kinds of implicit biases. While they cannot be eliminated, attorneys can be trained to recognize their biases and to check their colleagues if they exhibit bias.

The beauty of these systemic changes is that they are easy to implement. More importantly, the impact of most of these actions can be measured. Thus, firms can determine whether the actions they are taking are in fact making a difference and, if they are not, the firms can try something different.

This idea of measuring whether actions designed to increase the number of women in power positions actually work seems like an obvious concept – it has been used in business for years.

But, it has not been the practice of most law firms. Instead, firms have simply checked the box for various gender diversity and retention actions they take and never looked back to see if they are having the desired impact on the numbers. And that has led to the conclusion that the women in our firms are somehow deficient – leading to more training and still no increase in the number of women in positions of power.

The answer to this vicious cycle is for firms to take a more holistic approach to the desired goal of increasing the number of women in leadership positions. History tells us that training alone is not the answer because training without systems that provide opportunities for the persons trained to use what they have learned, cannot move the dial. Providing such training may feel good and even bring recognition to the firms for their efforts, but it does not address the systemic issues that keep women from advancing in their firms.

Of course, for law firms it is easier to say they need to fix the women rather than fix the system. But as long as access to opportunities to move into power positions is denied, the numbers will remain the same. Change that access, open the opportunities, level the playing field, and give women an opportunity to use the training they have received.

That is how firms get real bang for their buck. And that is how we finally move the dial.