Diversity & The Bar
Lesbian Lawyers: Survival in the Workplace
By D'Arcy Kemnitz
Recently, Linda, a lesbian lawyer with excellent academic credentials, joined a medium sized corporate law firm. Linda believed her personal life should remain private, and, therefore, she did not come out during the interviewing or orientation process, even though she is happily "out" in her personal life. Soon after joining the firm, Linda observed that several key individuals in positions of power made derogatory comments against lesbians and gays. It soon became clear that—although she was becoming friendly with her colleagues and support staff—it was best not to come out to anyone at work. Linda began to plan possible exit strategies.
As one of the few women associates, Linda was assigned to the equal employment committee. During one meeting, the committee was tasked with developing a sexual orientation clause to add to the firm's nondiscrimination policy. This change had to take effect immediately because one of the rainmakers was courting a new corporation that demanded its inclusion. It was generally understood that senior management expected the change in policy to be "in name only" and management did not intend to execute any other action, or any training, once the change was made. Seeing no future at the firm, Linda pursued her exit strategies, and accepted a position in house with an international corporation with headquarters in the E.U. As she become more comfortable with her new colleagues at her new workplace, she began to bring her domestic partner, a young "out" associate, to large formal work sponsored social events. Now, her partner is even invited to impromptu get togethers after work. Linda can't imagine working anywhere else.
Lesbians in the legal workplace today continue to deal with issues of isolation and a lack of support. In some instances, even where sexual orientation is included "on paper," there is a lack of sincere managerial commitment to diversity. However, many corporations, and especially the larger firms, are becoming genuinely welcoming to lesbians—for those women lucky enough and marketable enough to get those positions.
Despite the advances represented by Lawrence v. Texas,1 lesbians and gay men2 still face unequal treatment, and recent events have had a chilling effect throughout the profession: The Department of Justice refused to sponsor the 2003 gay pride awards after years of support. Law students at The Catholic University of America have been unsuccessful for years in their attempt to develop a gay straight alliance. The U.S. Supreme Court declined to hear a case challenging Florida's ban against gay parents adopting. The President has advocated a Constitutional amendment that would deny lesbian and gay Americans the right to marry, while voters in 11 states passed the amendment at the state level.
On the bright side, however, the movement for cultural and legal recognition of the rights of Lesbian, Gay, Bisexual, and Transgender (LGBT) people is part of the national debate, and changes are occurring at a pace hereto unknown. Recruiting departments in the nation's best corporations and law firms are recruiting gay men and lesbians at increasing rates. For example, the career fair annually sponsored by the National Lesbian and Gay Law Association attracts more employers every year. A 2005 report by the New York County Lawyers' Association's Committee on Lesbian, Gay, Bisexual and Transgender Issues titled, "Making Progress: How New York's Top Twenty Five Law Firms Address Issues of Concern to the LGBT Community," stated that the biggest and best New York firms have embraced lesbian and gay lawyers.
This good news/bad news scenario means that lesbian lawyers face a host of competing issues when deciding where to work, whether to come out in the workplace, and how to handle discrimination. For some, these issues only come into play once a job decision has been made. Geography plays an important role—lesbian lawyers practicing in "red state" America may be understandably more wary about being out at work than a woman practicing in a more progressive area. But even Washington, DC isn't necessarily a safe haven, as a 1995 study by the D.C. Bar proved. Although the data is 10 years old and has not been updated, anecdotal evidence suggests that many of its findings are still relevant. The bar's Task Force on Sexual Orientation and the Legal Workplace found that negative bias continues in the legal workplace, and such problems affect lesbian lawyers to a greater degree than gay men. This bias often takes shape against lesbians and gays in the form of derogatory remarks.
While progress is being made in the workplace, particularly in the top firms, many lesbians are still feeling the effects of discrimination.
Staying In and Coming Out as a Lesbian Lawyer
Sexual orientation is not easy to understand, and even harder to discuss in the best of circumstances. Moreover, it is difficult to isolate issues about sexual orientation from similar issues dealing with gender conformity. Women and men who do not comport with gender norms in our society may have an especially difficult time, whether they are homosexual or not. Indeed, in the D.C. Bar survey, one female lawyer was told by her partners that she was not feminine enough, and that she should grow her hair long and wear makeup and more jewelry. These biases are encountered by all women, but for lesbian women the effects may be particularly pronounced. Our culture, even within the workplace, has a well-established series of expectations, and it is difficult to conform to multiple expectations, including clothing, hairstyle, and mannerisms, at all times.
Facing the Risks of Coming Out at Work
When a lawyer indicates she is a lesbian, is she referring to her identity or her sexual activity? While it is inappropriate to discuss sexual activity, some would conclude it is likewise inappropriate to mention one's sexual orientation, even though sexual orientation is a key part to one's self identity. Some heterosexuals incorrectly presume that everyone else is also heterosexual, and may be oblivious to the possibility that there are lesbian and gay lawyers in their office. This presumption renders lesbians and their lives invisible. Moreover, it places a burden on lesbian lawyers to affirmatively inform others of their sexual orientation. But this openness can be a double-edged sword—coming out comments might be viewed as inappropriate or worse, which can result in greater isolation. While there is a difference between being forthright and flamboyant, the ill-informed will continue to confuse "sexual orientation" with "sexual activity" until they have more experience discussing such subjects.
Coming out at work brings attention to oneself on personal grounds. Of course, personal subjects are often discussed among colleagues and staff. Yet whereas a straight lawyer can discuss with pride their different sex partner's accomplishment and enjoy the commendation of their colleagues, a gay lawyer who discusses the accomplishments of her same-sex partner may actually lose respect in the eyes of colleagues.
Some lesbians err on the side of caution and refrain from any discussion of their personal lives in a workplace setting. However, this has a chilling effect on coworkers and subsequently will affect project assignments and advancement opportunities. Those who refrain from discussion of key aspects of their personal lives appear less than whole people, not wel- rounded, strange, or isolated. One standard of behavior exists for one group and another standard exists for others in similar circumstances. It's challenging for lesbian lawyers to navigate these rocky career waters.
Using Advanced Tactics and Strategies Against Negative Bias
Generally speaking, lesbian lawyers want to receive the same benefits from their work environment—both tangible and intangible—as any other lawyer. Compensation is easy to quantify, but respect is not. Ultimately, lesbians want to be in an accepting and comfortable environment. Part of being accepted is that others in the workplace show an interest in the lawyer as an individual person as well as her work product.
Balancing the Risks: For many lesbians, coming out is a treacherous and long process. Every day in the workplace presents myriad opportunities—both in actions and in words—for lesbians to distinguish themselves from straight women. Yet, revealing their identity at work presents serious risks. For instance, whereas a wedding photo in the office of a straight woman is commonplace, a wedding photo of a lesbian may be perceived by other members of the firm in a very negative light, especially if that wedding photo depicts a religious ceremony. Lesbians in the workplace must determine for themselves how far "out" is comfortable for them in light of the risks—essentially, lesbian lawyers must "choose their battles." Of course, if a lesbian's career is well established, fewer consequences exist. Many lesbians report that they did not have a difficult time coming out at work—once they have "made partner."
Doing the Homework: Quantitatively, almost all lesbians look to see whether a corporation or firm's written nondiscrimination policies include sexual orientation before even considering applying for a position. Next, lesbian lawyers report they note whether or not benefits include domestic partners and nontraditional definitions of family regarding parental leave, sick leave, bereavement, and pension and survivor benefits. Several lawyers mention that they track corporations on the Human Rights Campaign website and use those ratings as a barometer when comparing relatively similar companies within a given field, such as technology or finance.
Defining Intangibles and Fostering Loyalty: Many top-ranking lesbian lawyers who love their workplace discuss their firm or corporation's gay-friendly reputation with heartfelt reverence. Happily "out at work" lesbians cannot imagine leaving their culture of acceptance and facing the risk of moving to another office culture, even if the move is a step up. Some lesbian lawyers point to opportunities to do pro bono work on behalf of the LGBT community as the perk that keeps them happiest in their positions. Others feel it is most important to simply be part of a meritocracy rather than being tagged "the lesbian." Lesbians with families view it as crucial to list their partners and children in firm or corporate listings. Each lesbian lawyer has a subjective way of assessing intangibles, yet each intangible has a practical application in how they self-identify at work.
Finding Mentors: Mentors that matter may not come from inside a lesbian lawyer's own work environment. Many lesbian lawyers are very active in their law association and find support there. Having the opportunity to discuss awkward exchanges with others who have had similar experiences is the best way to sail through uncomfortable workplace interactions. As employers strive to retain lesbian lawyers, they can encourage involvement in organizations that already exist to provide moral support, such as the American Bar Association's Committee on Sexual Orientation and Gender Identity, and the National Lesbian and Gay Law Association, which boasts of over one dozen affiliates in regional, state, and local bars—from Utah, to Houston, Texas to San Francisco.
Lesbian lawyers are going to be a more and more visible part of the workforce throughout the legal profession. Progress is being made and the LGBT legal community looks to fair minded corporations and law firms to lead the way. However, there is always room for advancement as discrimination still makes lesbians uncomfortable in the workplace, affecting their job performance, the quality of their lives, and ultimately employers' recruiting and retention rates.
D'Arcy Kemnitz is the executive director of the National Lesbian and Gay Law Association. The views expressed herein are the author's own and do not necessarily reflect the views of the author's organization or the Minority Corporate Counsel Association.
From the March/April 2005 issue of Diversity & The Bar®