Monday, March 8, is International Women’s Day. So how are we doing?
Bain and Company recently released results of a survey, reported in the Harvard Business Review, of 1,800 business people worldwide. Eighty percent believed that companies benefit from a gender diverse workforce; 75% reported having initiatives in their workplace to improve gender parity; but less than 25% felt those initiatives were effective.
When it comes to the law, women have been in the law practice “pipeline” for over three decades now; there are currently more women than men graduating from law school, where women have for some time made better grades than their male counterparts, which has resulted in women joining the ranks of prestigious firms in large numbers over the years. Whether for culture or client reasons, women’s initiatives abound.
Yet women leave the practice of law (not just change jobs) much faster than men—although not because of low performance—and constitute a mere 16% of partners in major law firms.
How have women done in the current recession? Better than might have been predicted. According to a National Law Journal article entitled "Bad Times Could Have Been Worse for Women," "women lawyers have not suffered more in the current recession than their male counterparts. At least not when it comes to headcount at NLJ 250 firms." According to The National Law Journal’s 2009 survey of the nation’s 250 largest law firms, the number of women lawyers at those firms decreased overall by 2% during 2009, compared to an overall headcount loss of 4%. And while the average number of female associates fell to 112, compared with 124.7 in 2008, the average number of women partners went up slightly, to 41 from 39.4.
Nonetheless, the National Association of Women Lawyers’ November 2008 report "The Third Annual National Survey On Retention And Promotion Of Women In Law Firms" reveals an alarming difference between the amount of power and money men and women have in large law firms: “At every stage of practice, men out-earn women lawyers… Male equity partners earn on average over $87,000 a year more than female equity partners. In 99% of large firms, the most highly compensated partner is a man.” The report also notes that women have no presence at all on 15% of the nation’s largest firms’ governing committees.
And to further complicate things, one managing partner of a large firm claims that in spite of beefing up its diversity credentials and trotting them out in response to every RFP a socially conscious potential client has submitted, he believes that those credentials have not gotten the firm one piece of business.
What’s going on here? If clients and firms resolve to be gender blind, shouldn’t all this work out fairly to both genders in the end? Are law firms, clients and others paying lip service to a bigger umbrella that in fact they don’t put their money (and matters) behind? Or are women not in fact up to the heavy lifting that firms require? Or perhaps we as firms are doing a poor job of delivering and following through on those diversity initiatives that women want? Or maybe the initiatives are out of touch with want women are looking for?
In other words, what do women want?
A lot of ink has been spilled over that question. In and out of the arena of practicing law.
The authors of the Bain and Co. survey mentioned above urged firms to develop "less rigid promotion processes and career paths" in order to better accommodate women.
“If companies want to help more women climb the corporate ladder, they have to go beyond flex jobs or flex hours. Instead, they need to develop less rigid promotion processes and career paths — and actively promote and ‘de-stigmatize’ flexible career arcs within the organization. For companies, the pay-off can be huge: not only will they double their talent pool of leaders as more women return to the workforce in senior positions; they will also retain more male and female employees in the long-run and slash retraining costs.”
In a study conducted by Rutgers’ Center for Women and Work, more than 70% of the women lawyers who had left their jobs during the previous five years said their previous employer was not supportive of full-time flexible alternatives, while only 30% described their current employer as unsupportive of such arrangements.
“An important new finding of this study is that women lawyers often choose an exit strategy when faced with the dilemma of choosing between work and family obligations,” the study said. “The business case for more family-friendly approaches to the practice of law could not be more clear.”
A study of thousands of associates using Westlaw throws some interesting light on the question. Eighty percent of the associates worked in AmLaw200 firms and the remainder worked at firms with more than 80 attorneys. The gender split was 50/50.
Four types of associates emerged. The group dubbed Career Practitioners, who are driven, aspire to partnership, and will take on as much work as a firm gives them, constitute 23% of the associates and are 60% male. Flexibility Seekers, about 23% of the associates and 60% female, are looking for a satisfying career that allows work-life balance and become less interested in partnership over time.
The third group, Called Lawyers, 24% of the total, have the highest percentage of females (63%) and the highest percentage of non-Caucasians (35%). This group is the most satisfied with compensation and the most passionate about the practice of law. Called Lawyers are as willing as the Career Practitioners to volunteer for committees or other firm work, but for different reasons. They also significantly value their personal and family time, and in this are more closely aligned with the Flexibility Seekers than with Career Practitioners. The fourth group, the Willing Workers, representing about 30% of the associates, have no particular passion for the law, but are willing to work hard and follow directions – unusual for attorneys who are typically highly autonomous. Willing Workers will become partners as a means to higher income, but they are loath to sacrifice quality of life. Their motto is: "Work hard, play hard, retire early."
Note that three of these four groups place a high value on lifestyle or family obligations. And that women are most populous in those groups. Doesn’t that support the sneaking suspicion more than a few have had that women aren’t really in it for the long and hard haul, like the grizzly senior partners they are meant to succeed? Doesn’t that kind of information make a myth out of the vaunted goal of diversity?
A critical finding here is that according to survey respondents, the same proportion of lawyers in all of these groups are rated satisfactory or above on performance reviews. That is, no one group is more likely to be better lawyers than the others.
If performance is – and it should be – the primary criteria, there is essentially no difference among the four groups. Therefore, if firms promote the first and familiar group (with a larger male population) over the second and third groups (with larger female populations) or even the fourth group in the hope that they will be the best associates and partners, firms would be unnecessarily reducing their pool of candidates likely to be good lawyers by up to 75% for no good reason.
Yet in fact Career Practitioners tend to hire other Career Practitioners, whether they are men or women, black or white, just as MBTI "Thinkers" tend to hire other Thinkers, resulting in law firm environments that are extraordinarily well suited for only one stripe of lawyer in many respects, forestalling every advantage that real diversity might bring.
And let there be no question about the value of true diversity–diversity of perspectives, of styles, of strengths–to the quality of problem-solving, decision-making and ultimately the product provided.
The real diversity challenge becomes accepting that excellence can be achieved in (and should be expected of) a truly diverse workforce–not only diverse in terms of gender and race, but also diverse in attitudes and expectations about their practice and lifestyle. In other words, excellence doesn’t just come in the "driven" package–that package looks dedicated and workaholic and even macho–but that’s not what is necessary to get the job done…well, very well.
Our diversity challenge may be to offer our firms as a home to all lawyers, regardless of any attribute other than excellence.
And this might be the ideal time to start experimenting with different approaches to law practice. Larissa Glubb made these observations in my "Women In Law–For Us and By Us" blog on LegalOnRamp:
"Most women are prevented from reaching partnership or management positions because the organisations they work for value time, not results. Female lawyers, especially those with family responsibilities, desire and require control over their work and their work choices, which is very difficult to achieve if ‘time’ is the main measure of success… Lawyer’s bonuses and opportunities for promotion are more often than not linked to meeting or exceeding a set number of billable hours per year, rather than the quality of the work performed or the results achieved for the clients."
In his book Drive: The Surprising Truth about What Motivates Us, Daniel H. Pink challenges traditional assumptions about what motivates us to achieve at work. In a chapter on the benefits of self-direction in the work place, Mr. Pink has this to say about lawyers and the traditional legal workplace:
“…at the heart of private legal practice is perhaps the most autonomy-crushing mechanism imaginable: the billable hour. Most lawyers – and nearly all lawyers in large, prestigious firms – must keep scrupulous track, often in six-minute increments, of their time…As a result, their focus inevitably veers from the output of their work (solving a client’s problem) to its input (piling up as many hours as possible). If the rewards come from time, then time is what firms will get. These sorts of high-stakes, measurable goals can drain intrinsic motivation, sap individual initiative, and even encourage unethical behavior”.
According to Ms. Glubb, "If legal organisations were to trust that the professionals they have hired can get the work done to the satisfaction of the client, it should not matter whether this work is done at home or in the office, in the morning, before the school run or in the evening once kids are in bed. These legal professionals have years of experience and are being trusted to complete transactions worth millions, yet are not trusted to balance their commitments."
And this attitude would also make for a more hospitable workplace not only for women and lawyers but also for all the male flexibility seekers, called lawyers and willing workers as well.
A Results-Only Work Environment (ROWE), advocated by Cali Ressler and Jody Thompson in their book Why Work Sucks and How to Fix It, is how Best Buy successfully changed from an hours to outcomes based work environment. The message Best Buy promoted is: “It doesn’t matter where you work, or when you work, as long as the work gets done.”
“There’s a misperception out there that just because a manager lets an employee go to a dentist appointment, that’s flexible working. That’s not flexible working at all. ROWE is really putting the freedom and the power back in the employee’s hands to determine what and how and when they work best. A Results-Only Work Environment is about recognizing and acting on people’s need to have more control over their lives to meet all the demands in their lives.”
Glubb says that Latitude-South, a legal outsourcing company she works for, has built a business model around this concept. "Many detractors will say that client demands preclude such a significant organisational change. We disagree. Our experience has been that our clients value expertise and experience and recognise that it is these inputs that produce the results they require. The work must still be done, yes, but it does not always need to be performed between the industrial age hours of 9am – 5pm, in the traditional setting and in a traditional way."
Whether it is more legal outsourcing or more women in high places that you are after, an attitude less fixated on comparing accrued billable hours might be the place to start, and now might be the time, given the hue and cry from clients about the conflict the billable hours approach creates between client and lawyer. Here is a chance to align with client goals and also align with the goals of a major portion of your potential workforce.
In the end, making the "how long you worked at it" no longer the critical yardstick may be very good for women. A new emphasis on creative thinking, efficiency and good client management draws on what women often have a great knack for.
So what women want may well be what over 75% of the legal workforce wants: control over how they get the results that are expected of them.