Search
START TYPING AND PRESS ENTER TO SEARCH

A Diversity Program Without a Work/Life Component Just Won’t Work

By Joan C. Williams  |  Joan C. Williams

This article is the first in a two-part series about work/life balance and diversity programs. The second part, coming in the next issue of Diversity & the Bar, will focus on why most law firms' part-time programs are not effective at retaining women, namely because of schedule creep and stigma, and what firms can do about it.

Are the diversity programs of law firms effective in retaining women? Apparently not: Only 17.9 percent of partners are women, and only 1.48 percent are women of color.1 The problem is not so much recruitment as it is attrition. This article explains why a diversity program that lacks an effective work/life component will fail to control attrition, and thus fail to achieve its goals. It also provides in-house counsel with concrete guidance on how to measure whether a law firm's diversity efforts are serious and effective.

The "All-or-Nothing" Schedule Pushes Mothers Out—and Most Women Are Mothers

In the United States, 81 percent of all women have children, including 79 percent of African American women, 82 percent of Asian women, and 86 percent of Latinas.2 Because 95 percent of American mothers work fewer than 50 hours per week year-round,3 defining "full-time" employment as 50 or more hours per week—as is common in the legal profession—carries with it the danger of wiping mothers out of the labor pool.

In the San Francisco Bay area, a major market in the legal profession, associates average 2,200 billable hours annually. A recent article in San Francisco magazine points out that, to bill at that annual rate, "a person has to be on the job from 8:00 a.m. to 8:00 p.m. every weekday and seven hours on Saturday twice a month, with three weeks of total time off a year."4 A lawyer with children who bills 2,200 or more hours per year would seem to require either two shifts of nannies or a spouse who functions largely as a single parent. Most women have neither. With this in mind, it is not surprising that 75 percent of women lawyers from top-ten law schools identified commitment to family and personal life as a key barrier to women's advancement.5

Women lawyers are very open about the fact that the all-or-nothing "full-time" schedule places them at a disadvantage whether or not they have children. In a recent comprehensive study by the American Bar Association Commission on Women in the Profession ("ABA Commission") about the experiences of women of color in private law firms, one Latina attorney reported:

The male associates all had stay-at-home wives who took care of all the everyday things. So even if they didn't have children, their dry cleaning was picked up, their dinner was cooked, their house was cleaned. And women have to do all that stuff on top of their work.6

An African American woman attorney involved in the same study commented:

The women that I know who have made partner and who are at the top echelons of the corporate environment are either not married, or they're married with no children, or their husbands stay home and take care of the kids. So that's not a great story for women, by and large.7

Both participants concluded that women of color face virtually insurmountable obstacles to reaching the top rungs of the legal profession, obstacles that do not seem to apply to their fellow associates. Few women, regardless of race or ethnicity, have spouses or partners willing to take care of all domestic matters, and most women are unwilling to raise children without playing a role in their day-to-day lives. For these reasons, legal employers will not be able to retain proportionate numbers of women unless and until they offer nonstigmatized options other than the "all-or-nothing" schedule required to meet current billable-hours requirements.

Flawed Part-Time Programs

Don't most firms already offer part-time schedules? Although 96 percent of large law firms do so, only 4.7 percent of associates and 2.8 percent of partners work part time; of the part-time workers, 89 percent of associates and 72 percent of partners are women.8 The Project for Attorney Retention (PAR) and other researchers have documented two major reasons for this. First, part-time lawyers often find their schedules creeping back up toward full time (a phenomenon known as "schedule creep"). Many attorneys report that when they tried to reduce their hours, they "took a cut in pay but still put in the same hours."9

Second, many part-time lawyers find themselves marginalized and stigmatized at work.10 This stigma takes many forms, from being formally barred from the partnership track, to being barred from partnership de facto, to failing to get assignments upon return from maternity leave, to getting a steady diet of "dog" cases or document reviews. When female attorneys find themselves working close to full-time hours at part-time pay and without realistic opportunities for advancement, many quit.

More than 81 percent of minority female associates leave law-firm jobs within five years.11 Extremely high attrition rates among women of color may reflect, in part, that many women of color feel less able than white women to reduce their hours. The author of this article (a law professor) once asked a class of law students about their experiences interviewing for jobs. A white woman in the class said that everyone assumed she was interested in part-time options, but an African American woman had a different experience: "I was treated like I didn't have a uterus," she said. The African American student thought that firms assumed either that she wouldn't have children or that she wouldn't bother them with work/family balance issues if she did. In this context, the path of least resistance seems to lead out the door.

Maternal Wall Bias—in Technicolor

The stigma associated with part-time programs tracks documented patterns of gender bias. In fact, working a flexible schedule is one of the major triggers for maternal wall bias—that is, the bias women encounter when they become pregnant or mothers. Social psychologists have documented that motherhood triggers negative stereotypes about women's commitment and competence. A recent Cornell University study found that, when evaluators compared similarly qualified applicants, women without children were more than six times more likely than mothers to be recommended for hire, and more than eight times more likely than mothers to be recommended for management.12 Mothers were also offered an average of $11,000 less in starting salary for the same job, and were held to higher standards regarding performance and punctuality.13

More research is needed on the impact of maternal wall bias on women of color; nevertheless, current studies show that this bias affects both women of color and white women. One report found that nearly three-fourths of female attorneys of color and three-fourths of white female attorneys found their career commitment questioned once they had children—as compared to less than one-sixth (15 percent of men of color, 9 percent of white men) of male attorneys.14 Moreover, maternal wall bias may have a greater negative impact on women of color because of the effects of race. Women of color are more likely than male attorneys of color or white women to report a lack of desirable work assignments, blocked access to opportunities for networking or advancement, limited client development opportunities, unfair performance evaluations, and demeaning comments or harassment.15 They are more marginalized than other attorneys from the outset. Because attorneys of color already face "an uphill battle" to establish and maintain credibility, maternal wall bias may well tip the scales away from workplace success. Said one African American woman interviewed during the ABA Commission study, "[W]hite associates are not expected to be perfect. Black associates…have one chance and if you mess up that chance, look out. There is no room for error."16 From this perspective, motherhood may just be that "error."

Not Just Mothers: All-or-Nothing Schedules Also Affect Other Underrepresented Groups

Even without children, women attorneys of color can encounter maternal wall bias if all women are assumed to be potential mothers. Said one Latina partner in the ABA Commission study:

We hired a woman, she was terrific and she had great credentials. We spent about two years training her and she had a baby and then she left. We're not a big firm[,] so that was a big expense. Another woman came around, we spent two and a half years training her, then she got married, had a baby, and then she left. My partner said, "You know, it's illegal, you're not allowed to say it, but the next time a woman comes through here, don't even bring her into my office. I'm not going to interview her."17

Another attorney of color reported not being able to get intellectual property work because she was a woman: "[T]he partner who brings in that kind of work and distributes it prefers not to work with women—he thinks they get married and/or pregnant and leave, so why invest in them[?] That is why I am leaving this employer."18

Women of color are more likely to be single than any other group of attorneys—35 percent are single, as compared to 6 to 8 percent of white men and women.19 Said one woman of color attorney participating in the ABA Commission survey:

I am single and I have to do everything for myself. I work primarily with white men who are married. They view my marital status as a benefit: it allows me to work without feeling bad about neglecting anyone. What they don't understand is that I don't have the opportunity to form close relationships, and that's hard.20

These sentiments, too, can lead to attrition.

Attorneys of color who need to care for family members other than children—such as ill spouses or elderly parents—also are negatively affected by long workweeks. A 2001 survey by AARP found that Asians were most likely to be caring for an elder relative (42 percent), whites were least likely (19 percent), and other groups fell somewhere in between (Latinos at 34 percent and African Americans at 28 percent).21 Cultural and socioeconomic differences also have an impact on the extent to which families and friends provide care for the elderly. Lower rates of nursing-home use among Asians, Latinos, and Native Americans than among whites and African Americans signal cultural and economic pressures that lead to higher rates of family caregiving in some communities of color than in white communities.22

These biases and pressures push women and other minorities out the door. When combined with racial and other barriers, a workplace designed around the ideal of a worker who is available 50 to 60 hours a week for 40 years without a break leads to higher attrition among women than men, as well as among attorneys of color than whites.

Recommendations

Counsel for many corporations have begun to insist that the law firms they hire have effective diversity programs. The signatories of A Call to Action: Diversity in the Legal Profession have committed to "end or limit our relationships with firms whose performance consistently evidences a lack of meaningful interest in being diverse."23 Some observers believe that some high-profile law firms have lost clients as a result. Given the impact of excessive billable-hour requirements on attrition, in-house counsel have robust business reasons for refusing to work with law firms that fail to address work/life issues effectively. Said one general counsel interviewed by the Project for Attorney Retention (PAR), "We have tried to look at how our outside counsel treat their young lawyers…including demands in terms of billing. These are all issues that we think ultimately have an impact on the services we receive."24

PAR is known for developing objective measures to help assess whether the reduced-hours programs of law firms are old-fashioned, stigmatized "part-time" policies, or instead are truly usable, nonstigmatized "balanced hours" policies that allow attorneys to balance their hours while remaining on track for career-enhancing assignments and promotions. Although many general counsel already require firms to report data about firm attorneys, the following additional statistics may be helpful in assessing whether law firms are actually delivering on their promises:

  1. Comparative promotion rates of men vs. women and of part-time vs. full-time lawyers (broken down by race);
  2. Comparative attrition rates of men vs. women and of part-time vs. full-time lawyers (broken down by race);
  3. Median hours worked by all attorneys and by those who made partner in the previous three years (broken down by race);
  4. A measure of schedule creep that compares the number of hours that reduced-hours attorneys work with the number of hours they were promised; and
  5. The percentage of lawyers, both male and female, who take the full amount of paid parental leave the firm offers, along with information on how much leave the firm offers to men and to women (broken down by race).

General counsel also need two other kinds of information: first, whether a firm's reduced-hours program observes the principle of proportionality by offering proportional pay, benefits, bonuses, and advancement for part-time work; and second, the types and frequency of trainings offered to attorneys to address implicit bias.

Last, general counsel need to follow through if a law firm's diversity efforts are not up to snuff. A strong perception exists in many law firms that diversity efforts (or the lack of them) won't matter if a firm's work is truly outstanding. Until that perception ends, change in law firms will be spotty and limited at best. DB

Joan C. Williams is Distinguished Professor of Law at the University of California Hastings College of the Law, founding director of the Center for WorkLife Law (www.worklifelaw.org), and co-director of the Project for Attorney Retention (www.pardc.org).

NOTES

  1. NALP, "Partnership at Law Firms Elusive for Minority Women—Overall, Women and Minorities Continue to Make Small Gains" Press Release, Washington, DC (Nov. 8, 2006), at http://www.nalp.org/press/details.php?id=64.
  2. Jane Lawler Dye, Fertility of American Women: June 2004, Population Characteristics, P20-555 (U.S. Census Bureau, Dec. 2005), at 2, at http://www.census.gov/prod/2005pubs/p20-555.pdf.
  3. Mary C. Still, Original tabulations for the Center for WorkLife Law based on U.S. Census Bureau, Current Population Survey: 2006 March Supplement (generated Apr. 25, 2006).
  4. Natasha Sarkisian, "Who says being a lawyer has to suck?" San Francisco (January 2007), at http://www.sanfran.com/home/view_story/1517.
  5. See Catalyst, Women in Law: Making the Case (2001), at 29, although this study did not include a representative sampling of non-white women or any women who attended law schools ranked outside the top ten nationally.
  6. Janet E. Gans Epner, Visible Invisibility: Women of Color in Law Firms (ABA Commission on Women in the Profession, 2006), at 33.
  7. Id.
  8. NALP, "Few Lawyers Work Part-Time, Most Who Do Are Women" Press Release, Washington, DC (Dec. 7, 2006), at http://www.nalp.org/press/details.php?id=65.
  9. See Joan Williams & Cynthia Thomas Calvert, Balanced Hours: Effective Part-Time Policies for Washington Law Firms, 2nd ed. (Project for Attorney Retention, August 2001), at 15, at http://www.pardc.org/Publications/BalancedHours2nd.pdf (original citation omitted).
  10. See generally Joan C. Williams & Cynthia Thomas Calvert, Solving the Part-Time Puzzle: The Law Firm's Guide to Balanced Hours (NALP, 2004).
  11. Melanie Lasoff Levs, "Resignation Revelations: Why Minorities Quit," MCCA Diversity & the Bar (March/April 2006), at 42 (citing NALP Foundation, Toward Effective Management of Associate Mobility: A Status Report on Attrition (Nov. 2005)).
  12. Shelley J. Correll et al., "Getting a Job: Is There a Motherhood Penalty?" American Journal of Sociology, Vol. 112(5), pp. 1297–1338 (March 2007), at 1320, 1321.
  13. Id. at 1316.
  14. See Epner, Visible Invisibility, supra note 7, at 33–34.
  15. See id. at 36.
  16. Id. at 25.
  17. Id. at 16.
  18. Id. at 24.
  19. See id. at 72.
  20. Id. at 33.
  21. See Sheel Pandya, "Long-Term Care Trends; Racial and Ethnic Differences Among Older Adults in Long-Term Care Service Use," at http://www.aarp.org/research/longtermcare/trends/fs119_ltc.html (AARP Public Policy Institute, June 2005).
  22. See id.
  23. Call to Action: Diversity in the Legal Profession, "Commitment Statement," at http://www.clocalltoaction.com (Mar. 30, 2007).
  24. Williams & Calvert, Balanced Hours, supra note 10, at 11 (original citation omitted).

From the July/August 2007 issue of  Diversity & The Bar®

Pin It on Pinterest