Blog Post 49: Earning Inequalities: Why Women Still Trail Behind Men in the Legal Profession

By: Sekoia Rogers

Over several decades, more women have entered the legal profession in the United States causing a substantial modification in the field’s gender composition. Scholars have described women’s rising representation in the field as one of the most remarkable and revolutionary changes in the profession over the past 150 years.[1] Despite women’s efforts to eliminate barriers that limited access to the legal profession, and the influx of female students that enroll in law schools since the 1970s, men continue to dominate the legal profession. More men are enrolled in law schools. Additionally, more men typically hold the highest and most prestigious legal positions – from the bench of the Supreme Court to partners at law firms, which result in significant earnings inequality among the genders.[2]

Women have overcome several barriers in the legal profession, from the first female to practice law in 1638[3] and the Court’s decision in Bradwell v. Illinois, which allowed states to exclude women from practicing law.[4] Moreover, law firms in states that did accept women’s membership to practice law normally designated minimal tasks to female lawyers.[5] The breakthrough that allowed more women to enter the profession was due partly to the 1972 passage of Title IX of the Higher Education Act that outlawed “discrimination based on sex in the enrollment of students and hiring of faculty.”[6] Women also gained access to bar associations and other prestigious legal organizations.

Gaining entry to the legal profession was the first step; yet, a greater obstacle was securing employment of higher rank and high paying specialties compared to those held by male attorneys. [7] The 2014 American Bar Association Report states that 34% of women are lawyers. Women also represent 27.1% of federal and state judgeships, 20.2% are law firm partners, 20.6% are law school deans, and 21% work in general counsel positions at Fortune 500 companies.[8] The American Bar Association noted that in 2013, the average weekly salary for female lawyers was $1,566, while males’ average salary was $1, 986.[9] The significance is best demonstrated at law firms. According to Deborah Rhode, Ernest W. McFarland Professor at Standford University, the few women who attain partnerships in law firms have also experienced challenges such as appearing either too soft or too strident, too aggressive or not aggressive enough.[10] Women are also held to higher standards, their competence is rated lower, and they are less likely to be viewed as leaders.[11]

Other segments of human capital are also considered in gender wage gaps. For example, experience, which is at times forgone for women who spend time out of the legal profession to tend to their children. Justification for wage gaps suggest that women invest less in human capital prior to having children in anticipation of future child related interruptions, and that women’s access to high paying positions is limited by statistical discrimination on the part of employers who have imperfect information.[12] Employers may even hesitate to hire or promote women to jobs that require a long period of training or acquisition of firm-specific human capital because women have more interruptions than men on average.[13] Additionally, women in firms discuss the difficulties completing billable hours because they must work to complete their targeted billable hours. Some women find that they cannot often participate in the extra activities that help define an attorney, such as publishing articles, making presentations at meetings, and participating in professional associations for networking purposes without sacrificing time for their children.[14]

A common explanation regarding salary inequality is that it is a product of “cultural law” and that it is just a matter of time until “girls catch up.”[15] However, these arguments do not explain the extent of underrepresentation, particularly because women make up one-third of people entering the field. Another argument is that “segregation of jobs within occupations and industries according to sex category and the devaluing of women’s work explain much of the wage differentials between men and women.”[16] Research on the changing gender distributions of occupations, however, suggests that gender integration at the occupational level does not typically translate into internal integration. For example, an occupation may be integrated but the sectors, specialties, and jobs within the occupation can remain segregated, causing women to cluster into sectors, specialties, or jobs defined as women’s work.

In confronting the remaining obstacles, it is implied that “workers and researchers seeking to document the continuing barriers to working women have described what they refer to as ‘second generation discrimination,’ a form that is more covert and embedded in interactions and organization.”[17] Thus, some suggested improvements the Women’s Commission of the American Bar Association put forth involve special programs at law firms providing senior female associates more access to clients, placing women on firm committees, and offering bar-sponsored training programs that include topics such as career paths.[18]

[1] Fiona Kay & Elizabeth Gorman, Women in the Legal Profession, 4 Ann. Rev. L & Soc. Sci. 299, 299 (2008).

[2] Susan E. Martin & Nancy C. Jurik, Doing Justice, Doing Gender: Women in Legal and Criminal Justice Occupations 24 (2d ed. 2007).

[3] See id. at 108 (stating that Margaret Brent was the first woman to practice law, and she became the executor of Lord Calvert’s Estate, the former governor of the Maryland colony).

[4] Bradwell v. Illinois, 83 U.S. 130, 138(1873).

[5] Martin & Jurik at 109

[6] See id. at 110 (explaining that prior to Title IX, law schools’ enrollment remained less than five percent at numerous American Bar Association approved law schools).

[7] Harriet Chiang, Women lawyers still hit the glass ceiling …but that ceiling’s a lot higher now, San Francisco Chronicle, Aug. 16, 2001, at 1.

[8] American Bar Association, A Current Glance at Women in the Law 3-6 (2014).

[9] Id. at 6

[10] Women lawyers still face equity obstacles, USA Today. Aug. 2002, at 8.

[11] Id.

[12] Robert G. Wood, et. al., Pay Differences Among the Highly Paid: The Male-Female Earnings Gap in Lawyers’ Salaries, J Lab. & Econ. 417, 418 (2009).

[13] Id. at 419.

[14] American Bar Association, Charting our Progress: The Status of Women in Profession Today. 7 (2009).

[15] Women lawyers still face equity obstacles, USA Today. Aug. 2002, at 3.

[16] Martin & Jurik at 23.

[17] Id.at 24.

[18] American Bar Association, Charting our Progress: The Status of Women in Profession Today. 9 (2009).