In anticipation of a white paper on the persistent question of why there isn’t greater gender diversity in the practice of law, here’s a look at a few of the salient points:

  • Women have comprised roughly half of law graduates for a number of decades, and have been consistently over-represented at the top of their classes.
  • While many firms have hired women at comparable rates as men for years, women have left the legal field entirely–not just their current job–at over twice the rate of male lawyers, with their flight increasing at each level of seniority.
  • Thus, the diminished pipeline and arguably other factors have not produced the numbers of women in senior partner and leadership roles that their representation and performance in law schools over the last decades would seem to promise. At the current rate of making female BigLaw equity partners, in fact, it would take another 165 years for women to catch up.
  • Where women have stayed in law, their likelihood of promotion and their compensation at every level is significantly lower than their male counterparts’.

Why are we facing this dilemma?

It’s easy to point to imbedded unconscious (sometimes conscious) bias in a largely white, male profession as the culprit. Easy, but from my perspective, not at all sufficient. The leadership in most firms I work with are genuinely baffled by why they are not able to hold onto some of their brightest attorneys, on whom they have spent significant time and money to hire, employ and train.

Law firms have tried a number of approaches to entice and keep women lawyers.  Some make a larger financial investment in women’s networks and affinity groups than employers in many other industries do.  Other have adopted flex-time programs of various stripes, and some even have attempted to eliminate wage disparity by creating lockstep compensation at certain levels.

On the women’s side, both from clients and friends, I hear another aspect of the situation: they value efficiency, flexibility, respect for their personal commitments, and harmony in the workplace.  They are not finding that in our legal organizations.  In a survey of more than 17,000 law firm associates, women rated their firms’ culture, their job satisfaction and their compensation (among others) much lower than their male counterparts did. One study shows women graduating from law school with high confidence and optimism, yet very few feeling that way a few years later. An attorney at a big firm wrote after her first year on the job: “the only way to be successful is to go into the role expecting to be treated poorly.”

According to Harvard research, women want high-paying careers but also expect work and family balance at the same time. A J.D. provides a significantly greater life-time earnings premium for women over other alternatives–even more than men enjoy.  But, as More‘s list of top ten careers for women “who want a life” makes clear, law (not surprisingly) isn’t one of them. Interestingly enough, Millennials of both genders share many of the same objectives as women.  So even if women continue to disappear from the legal workforce, the tension around these issues is not going to abate for a long time.

Admittedly, law is not a happy place for anyone these days.  In a 2012 survey of 65,000 employees, male and female respondents declared “associate attorney” the unhappiest job in America.  So women who are voting with their feet may well be sizing up the situation quite adroitly, leaving their colleagues to suffer well-documented out-sized levels of stress, heart disease, depression, substance abuse, divorce and mental illness.

Add that women are still shouldering more domestic and child-rearing tasks than most men, and a typically challenging law firm job becomes even more formidable.  Women lawyers are asking how to take the time to give birth and bond with their children without losing out on the increasingly fewer partnership slots to colleagues who don’t take maternity leave or vacations away from clients. One lawyer mom wrote in a clearly defeated departure memo to her employer, “I have not been able to simultaneously meet the demands of career and family, so have chosen to leave private practice, and the practice of law…”

The realities of modern-day legal practice make fashioning a workable solution for women difficult.  In a cutthroat environment where clients are leaving law firms at the drop of the hat, responsiveness is one of the things seen as keeping clients loyal without firms having to resort to bargain basement pricing.  So lawyers must be available 24/7/365—often viewed as not consistent with having a life.

Yet most of the firm leaders I work with are trying hard to treat their lawyers fairly. They just want a rule, they say.  A rule that will achieve more diversity and that can be applied to everyone equally. They will willingly enforce it. What’s the rule, they ask?

Ahh.  And there is at least part of the rub.

The long answer is that most lawyers fit within a narrow personality profile—which includes introversion, low empathy, high tolerance of disharmony, low appetite for risk, low resilience, high skepticism, low sociability, limited conflict resolution skills and high pessimism. Some of these attributes assist them in aspects of their careers, but they make effective innovation around talent management particularly challenging. These personalities are most comfortable with fairness that broaches no exceptions, with bright clear lines that are easily explained and demonstrated to have been adhered to, and with emotional detachment. After all, this is the profession of justice.

Women lawyers are most likely to differ from male lawyers in a few crucial personality attributes.  Even if they are just as smart or smarter, just as responsible and just as hard working, or more so, just as tough or tougher, the odds are high that the women are significantly more empathic, better at reading emotional cues and more driven to achieve harmony in the workplace. Yes, it matters to them that others are happy and that they are viewed as nice. Particularly given the alternatives.

This profile results in a different vision of fairness– one that takes into consideration individual circumstances and goals and crafts custom treatments that try to address as many of the parties’ objectives as possible. Its success is monitored by checking in with the participants’ emotions and making adjustments as necessary. That sort of fairness rarely can be captured in across-the-board rules, other than in the rule that each person’s needs will be considered and hopefully addressed.

What’s someone driven by harmony doing in law, you might ask?  Female attributes are useful to law firms in many respects. Women are the ones who serve successfully on the recruiting, diversity, associate development and pro bono committees, committees where “people skills” are highly valued but which aren’t accorded much credit in firms’ compensation structures.  Their skills also are likely to produce superior resolutions of conflict, both within the firm and with third parties. Perhaps most importantly, what adds to the bottom line is lawyers who can build and keep solid relationships with their clients so successfully that those clients would hesitate long and hard before heading to another firm. In my experience, women are often the ones who have those talents.

Because of my work, I am occasionally asked by my friends and colleagues to advise their daughters who are interested in a career in law. The daughters want to know whether they can reliably make a lot of money and still have a life, and the parents want to know whether their daughters can have a life and still make money. After reviewing their personality profile, I look to see whether these women are likely to find a home in law practice that doesn’t offend their values.

I admit that I rarely recommend that the daughters pursue a legal career.

Of course there are many highly competent female lawyers whom the profession is lucky to have.  And some number of them are very happy in their work.  They are our courageous canaries in the mines of law labor, without whom other women would have even less of a chance. But they often stand against odds that are greatly against many women’s natural inclinations.

What’s to be done? What’s needed is a paradigm shift in culture that is hard to accomplish in one fell swoop.  Hiring, training, work assignments, client teams, promotion and compensation will have to be consciously retooled with this recalcitrant problem in mind. All of us—both men and women–are going to have to change our mindset to something that is infinitely more uncomfortable than what we come to intuitively.  And it will be at the risk of feeling like we are being pushed to defect to the other side:  men will resist becoming too sentimental and women will recoil from feeling too hard-nosed.

We will, in short, have to entertain, respect and even embrace “the other” viewpoint, the true mark of achieving diversity.