By now, almost everyone knows at least one lesbian or gay lawyer—if only on TV's Will and Grace. In the real world as well, highly visible examples now abound of successful openly lesbian or gay attorneys, such as Tammy Baldwin, Congresswoman from Wisconsin; Todd Dickinson, partner at Howrey Simon Arnold & White, co-chair of its intellectual property practice, and former undersecretary of commerce for Intellectual Property and director of the United States Patent and Trademark Office; or Anthony D. Romero, the openly gay Latino man recently appointed to the American Civil Liberties Union as executive director. As the country has warmed toward its gay and lesbian citizens, so have legal workplaces. In cities as various as Atlanta, Boston, Minneapolis, San Francisco, and Washington, D.C., firm after firm includes openly gay and lesbian attorneys at levels ranging from junior associate to managing partner.
"There's clearly been great progress," says John L. Sullivan, senior vice president, general counsel, and corporate secretary at the high-tech firm Imation, and a board member at the Human Rights Campaign, a civil rights organization that advocates for gay, lesbian, bisexual, and transgendered people. "In the larger law firms in the larger cities, it is starting to be okay to put up your partner's picture or to say: 'Over the weekend we visited his family.'"
At Dallas' Gardere Wynne Sewell LLP, being gay is "a complete and utter non-issue," says attorney Randy Ray. "It wasn't an issue when I was up for partner; it wasn't an issue when I was up for equity partner; and it wasn't an issue when the firm decided who would be the new hiring partner, which will be me."
For this two-part series of articles, Diversity & the Bar interviewed 18 openly gay or lesbian attorneys who work as officers in national bar associations, partners in law firms, and general counsel in major corporations and nonprofits. Not one of these attorneys could think of a recent situation when he or she had been the target of another person's open hostility based on sexual orientation. These "out" attorneys feel perfectly comfortable and supported by their firms in doing pro bono work for gay and lesbian organizations and issues.
Nevertheless, they all agreed that anti-gay discrimination still lingers in some small and mid-sized firms, and at the edges of larger firms, with room for significant improvement in more nebulous areas such as hiring, client contacts, the kind of socializing that leads to advancement, and the occasional conversational chill. These attorneys, found by word-of-mouth and through personal networks, had often moved from less friendly firms to positions where openly gay and lesbian attorneys were welcomed. Asked to characterize the general climate for lesbian and gay attorneys today, a partner at a major Boston firm who asked not to be identified said, "Generally there remains a cloud. It's not a thunderstorm, and sometimes it's partly sunny, but there's still plenty of rain."
The Tyranny of Silence
The first barrier for lesbian and gay attorneys is the ongoing decision about whether to be open or silent about their family lives. Non-gay people announce their sexual orientation whenever they mention a date, a spouse, or a child. But these normal conversational topics can be fraught with tension for lesbians and gay men. If they decide to remain silent about their personal lives, the word "we" is banished from their vocabularies, along with talk about weekends, homes, Thanksgiving plans, theater subscriptions and in-laws. It's a silence that can often be interpreted by colleagues or clients as distant and cold.
Fearing that openness may have too high a cost, many gay and lesbian attorneys are still doing exactly that: suppressing any mention of their lives. "A lot of people have had bad experiences on a personal or family level, and don't want to take the risk on the professional level," explains Patrick McGlone, co-chair of the Committee on Sexual Orientation and Gender Identity in the American Bar Association's section on Individual Rights and Responsibilities. "You go into a workplace not knowing the religious or moral outlook of your co-workers. There's a real fear of not being measured on your merits." That's especially true within a law firm structure, where associates must be concerned not only about their immediate supervisors but also about every partner in the firm. As explained by Imation's John Sullivan, "Each partner has a vote. And many people have a sense of not wanting to alienate anyone who might ultimately have a vote on your future success."
But screening conversation to suppress all clues to a personal life requires sustained, even strenuous, effort. "You always have to be on guard about what you're saying to people, what they know about you, what you're revealing," Patrick McGlone says. "That can be enervating and debilitating. And in a lot of workplaces, particularly at the senior levels, socializing is expected, whether that's at the holiday party or having people over to your house for drinks or going to the golf course." Someone trying to remain 'in the closet' may avoid such gatherings, since small talk is hard without spilling a revealing pronoun. But staying apart can alienate the very people you are trying to impress. John Shope, a partner at Boston's Foley Hoag & Eliot says, "To remain closeted, one has to become somewhat aloof. And successful lawyers tend to be gregarious and friendly and open."
That's why an employer's open support is essential. Explains Doug Coblens, deputy general counsel and senior vice president at Discovery Communications, Inc., "If you start out feeling confident and secure that you are welcomed there and the firm is behind you, that has a tremendous effect on your ability to focus on nothing but doing excellent work and building relationships with clients. If you don't have that healthy and supportive start, you're at a disadvantage."
When They Were Bad
The overall trend in law firms is good. Nevertheless, a 1999 report from the District of Columbia Bar's Task Force on Sexual Orientation and the Legal Workplace concluded that some D.C. firms were distinctly antagonistic. For instance, one attorney wrote on the task force's survey, "The partners of our firm unanimously hold homosexual conduct to be wrong. We do not employ and would not knowingly employ a homosexual attorney or a homosexual support staff member. Sodomy not only is abhorrent, but is a crime in Virginia." Wrote another attorney, "The existence of this questionnaire and its content are a graphic example of the sorry state to which this country has descended."
What kind of firm voices such sentiments? The same kind that still discriminates based on race, ethnicity, or sex. The Boston attorney, who asked not to be identified, explains that she moved to her current firm in no small part because at her old employer, "there wasn't a prayer that I would come out, because I would not have had a career there. It was all white people; nobody had a vowel at the end of their name." In hiring decisions, when discussing someone Jewish or Catholic, "They'd say, 'I think she was kind of 'quirky'.' 'Quirky' captured people who were clearly ethnic, or clearly gay or lesbian."
Tony Varona, general counsel and legal director of the Human Rights Campaign and formerly an attorney with both Mintz Levin and Skadden, Arps, agrees wholeheartedly that various kinds of discrimination are often linked. "As a Latino and an openly gay lawyer, I can tell you that there is tremendous overlap between how one feels as a person-of-color and how one feels as an openly gay lawyer. It's the old adage: no one can be free if anyone is held back. My non- gay, friends-of-color at certain firms have the same sorts of experiences as the gay lawyers have in those firms." Or as one anonymous heterosexual respondent in the D.C. survey wrote, "The law firm experience I had in Washington, D.C. can be summed up in a single sentence: You are joining a firm led by aging white males; if you can leave your differences at the door and blend in with us, you are welcome."
Straightening the Resume: Anti-gay Bias in Hiring and Promotion
Even firms that aren't so hostile can react with excessive caution to openly lesbian or gay job applicants. Mary Jo Hudson, an attorney at Arter & Hadden LLP's Columbus, Ohio office, recounts that her firm felt it had scored a coup this year when it hired Ohio State University Law School's top-ranked graduate. But once he came on, the new associate reported that he'd had gotten very few interviews—presumably because his resume listed his leadership in OSU's gay and lesbian law students' association.
In fact, several people interviewed for this article reported that they receive better responses when they "straighten" their resumes, deleting any mention of gay and lesbian community activities. Why? For prospective employers, such involvement should be taken as a clue that an applicant is comfortable with him or herself, socializes and works well with others, and will get involved with local community organizations in ways that will develop strong political and business connections. But too often, employers misinterpret this data. Amy Johnson, co-chair of the National Lesbian and Gay Lawyers Association, says that at an in-service presentation on sexual orientation she gave to a Minneapolis law firm recently, she suggested that it would put gay and lesbian applicants at ease to ask, for instance, what it was like to lead their gay and lesbian law students group. "But wouldn't that be opening myself to litigation?" asked one attorney. Johnson was astonished at the discomfort and bias peeping out from under that question. "If I put on my resume that I was the president of the Jewish law students association, which I was, wouldn't you ask questions about my experiences as a leader?"
Even if a firm's policies are good, a particular work group may not be. "About 50 percent of a gay lawyer's experience is that of the overall firm culture," says HRC's Tony Varona. "At least half or more is the micro-firm: the individual attitudes of your supervising partners are absolutely key. I have heard diametrically opposed experiences of gay lawyers in the same firm." Sometimes discrimination can be invisible to those in charge. Varona gives the example of a firm that rewarded its summer associates by hosting an event at a private club that excludes same-sex couples. Would the firm have sent associates to a club that banned Jewish or African-American members? Perhaps the firm didn't know about the policy, but the gay and lesbian associates did—and didn't go.
Be a Man: Sexism and Anti-gay Bias
Anti-gay attitudes come down hardest on men who aren't "butch" and women who are. And while it's difficult to suppress any mention of a personal life, it can be nearly impossible (as many ethnic groups know) to alter natural mannerisms and inflections. Nevertheless, women are still told to wear more jewelry and makeup; men are still advised to strengthen their stance and firm up their voices. "Gay male lawyers who are very masculine and lesbian women who are more feminine are the ones who get the good clients and good assignments; the others don't get the cream. As a result, they don't get a chance to shine, they don't have enough work to do, they can't make target," says HRC's Tony Varona.
Perhaps the biggest clue to lingering anti-gay bias is how common anti-gay slurs and jokes remain. In an as-yet-unreleased bar association report conducted last year in a Midwestern city, eight percent of bar association members said they knew of a co-worker who had been treated differently because he or she was thought to be gay or lesbian—and fully 27 percent said that they regularly heard antigay comments at work. Mary Jo Hudson recalls an incident that happened when she was representing one of two gay men who were splitting up their business. During a break, the other attorney sneered at "the two fairies." Says Hudson, "I let him know with both barrels that that was not okay."
That word "fairy," like many slurs against gay men, reveals how anti-gay bias intersects with sexism. Many lawyers report hearing colleagues say someone is too "sissy" to do litigation, or call an opposing counsel a "pansy"— comments that are humiliating and intimidating both to lesbians and gay men, and to women generally. "Just as you wouldn't make derogatory comments or jokes about Jews or Blacks or any other ethnic group in the workplace," says Gigi Sohn, co-chair of the Sexual Orientation and Gender Identity Committee of the Individual Rights and Responsibilities section of the American Bar Association, "you shouldn't call people faggots or tell women to wear more makeup or dress differently because you think they are lesbian."
Will the Clients Mind?
But while such problems remain around the edges of the legal profession, they are no longer overwhelmingly endemic. According to these lawyers, however, there does remain one very real concern. "For lawyers, the tough part isn't the other lawyers in the office or the opposing counsel; it's the clients," says John A. Shope, partner at Boston's Foley, Hoag & Eliot. "I'm a litigator. Will a client think that a gay male lawyer is going to be tough enough?"
This concern puts gay and lesbian lawyers in a catch-22 situation. Suppressing any mention of their lives prevents them from building trust and friendship with their clients. But coming out to the clients can be unnerving, says HRC's Tony Varona. "You don't say, 'By the way, I'm gay, here's your closing documents,' but when you're small-talking at the beginning of a teleconference and a client asks what you'll do over the weekend," you have to decide instantly whether to deflect or answer. "And sometimes the truth-telling causes silence on the other end."
And while socializing is usually an excellent way to develop business, lesbian or gay attorneys may find themselves excluded for fear of a client's reaction. The Boston attorney says that fellow attorneys have invited her to bring her husband to a client's house for dinner—and then cautiously disinvite her when she reminds them that for the past 30 years she has lived with a woman. "Law firms follow their clients," she says. "The feeling is, we don't want to do anything that would make the client feel uncomfortable. So just as 30 years ago, white clients might be apt not to bring an African-American lawyer on the assumption that the white client would be uncomfortable, we now have the next iteration. People aren't willing to test whether it's the client or themselves who's uncomfortable."
That worry about clients' reactions has driven more than one gay or lesbian attorney into private practice, government agencies or public policy work, or corporate employment. As Discovery's Doug Coblens explains, "When you are the client, it's very much the other way. If the law firm doesn't like the fact that you're openly gay, well, too bad— don't work for us."
Other attorneys counter this concern by doing pro bono work and business development in the gay and lesbian communities, which can redound to their benefit. "I've done a lot locally with political issues," says Mary Jo Hudson, "so I'm better connected than many of the firm's other attorneys." In fact, she had to reschedule an interview with this publication when she was unexpectedly called into the mayor's office to discuss the possibility that the city of Columbus will offer domestic partnership benefits. How many young attorneys get that opportunity?
Today's Status: Getting Better all the Time
Despite such reports of lingering bias and excessive caution, the legal profession is, like the rest of society, becoming progressively more open. And both talent and business rewards have been flowing to law firms and corporations that welcome lesbians and gay men. For instance, after Mintz Levin was awarded a Human Rights Campaign National Community Service Award in 1995, it heard only kudos; law students, both gay and straight, said that they were applying to the firm because of that award. And longtime clients called to congratulate the firm, often explaining that either they themselves or a family member—a daughter, a brother, an uncle—was lesbian or gay.
At mid- and senior career levels, talented and accomplished lawyers are making lateral moves to the many firms that are known to be gay-friendly—which means there's a brain drain from those that are not. "You don't want to kick these extraordinarily talented folks out of the pool because they perceive your environment as hostile; that's just stupid from a competitive standpoint," comments Gigi Sohn.
Nor is that brain drain confined to gay and lesbian lawyers. "Whether it be in a law firm or in corporate America," says Imation's John Sullivan, "the next generation of new entrants into the workforce is looking for a company that values differences. These days straight kids are saying, 'I just don't want to work someplace that wouldn't welcome all my friends.'"
Part two of this series: "What makes a Gay-Friendly Workplace?" will appear in the September 2002 issue of Diversity & the Bar.
See also:
The Gay-Friendly Workplace (Part Two)
Recommendations for a Gay-Friendly Workplace
Gay and Lesbian Associations and Organizations
Gay and Lesbian Books
Gay and Lesbian Magazines
E.J. Graff is the author of What Is Marriage For? The Strange Social History of Our Most Intimate Institution and a contributing editor to The American Prospect and Out magazine.
From the June 2002 issue of Diversity & The Bar®