Few Women Law Partners Comes As No Suprise

Posted on March 5, 2009 by Ellen Simon

It's very well known and often bragged about that over 50% of law school graduates are women. So what's the problem with women in the legal profession?

The problem reported last week is that while women represent over 50% of those graduating from law school, they made up only 28% of those granted partnership at the 85 major law U.S. law firms according to a  new study published by the Project for Attorney Retention at the Hastings College of Law.

The disparity between the number of female law school graduates and female partners is quite remarkable. And it's not because the women are less intelligent or capable than their male counterparts. As cynical as I may be, I don't think anyone would even argue that.

While few want to come out and accuse the legal profession of  gender discrimination,  I have no problem doing so. (Of course, not every firm, not every lawyer)  It's all over the legal profession -- wage discrimination, lack of promotional opportunity, sexual harassment, pregnancy discrimination, stereotyping, including a particularly horrible record  for women of color. It's all there, and it occurs for many reasons.

We all know that many law firms have a hard time accommodating the needs of working wives and mothers.  While firms are certainly much better than they were twenty-five or thirty years ago about flexible schedules and part-time work, they still have a long way to go.

The Amercian Bar Association's (ABA) Commission on Women in the Profession studies this subject and published it's findings in 1988, 1995, and 2003. The contents are neither encouraging nor surprising. The last report notes:

Current data indicates that more and more firms are allowing part-time schedules, but women testifying at the the 2003 hearings still reported that choosing the part-time option posed professional risks.  A partner at a large national law firm reported a consensus at her firm that the part-time policy is simply 'words on a piece of paper''. . .[Y]our commitment to the firm is still questioned once you have decided to go on a reduced hours schedule.

In addition, women who have obligations to their families are eliminated from mentoring and networking opportunities with clients.  Often times even single women are eliminated from these events -- the golf game, the baseball game, the hunting trip -- simply because they are women.  If you don't  meet and interact with the clients, you don't get the business.  If you don't get the business, you don't produce the revenue and you don't make partner. It's really pretty straightforward.

There's also the plain old fashioned gender bias that is rampant in law firms. Many men believe that women should be home with their children and not working at all or don't have the appropriate composition to practice law. The fact that these views are held by lawyers, and that this attitude is illegal when acted upon in the workplace, does not seem to prevent many partners from discriminating against the women in their firms in a variety of ways.

The latest  ABA report on this subject included the following:

The 1995 report noted that '[b]oth men and women report that women lawyers are viewed as insufficiently aggressive, uncomfortably forthright, too emotional, or not as serious as men about their careers.  When women opt for family leave or report sexual harassment, these stereotypes are reinforced.'

In 2003, there was evidence that those stereotypes have not dissipated .....

One can hardly go a week without reading an article about a law firm being sued for or settling, or  losing  some kind of discrimination lawsuit.   It's not just because law firms are easy targets.  They really do discriminate against their lawyers at an extraordinary rate.

The fact is that many women simply leave the profession and won't sue.  I have had dozens of calls through the years from women who were discriminated against and sexually harassed at their firms.  Without exception, each decided not to sue for fear that they would never find another job.

So while it's better than it was, we are not nearly where we should be in our profession in terms of providing equal opportunity in the workplace. Wouldn't it be nice if we were at the forefront, instead of the rear, on this issue?

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Federal Bench is Biased Against Discrimination Cases

Posted on February 19, 2009 by Ellen Simon

The Wall Street Journal  Law Blog  today discussed a Wall Street Journal article about the disproportionate rate at which plaintiffs' employment  discrimination cases are lost in federal court and asked: Is the federal bench biased against discrimination cases?  As reported:

From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy. 

This is no coincidence. To those of us who have been representing employees in discrimination cases for many years the data comes as no surprise.  We know this because we have lived it. 

Our experience is that many federal judges are hostile to our cases and so are their law clerks.  All you have to do is read the comments to the WSJ Law Blog  today where the former federal law clerk refers to these cases as "dogs" to get a flavor of the attitude.

It is indisputable that far too many federal judges decide to disregard the Federal Rules of Civil Procedure and Evidence when it comes ruling on discrimination cases:

  • Rather than let the juries decide when material facts are in dispute as the rules require, judges routinely decide to parse through the evidence, weigh each piece separately, and decide why each is not enough to support a claim.  
  • They routinely and improperly assess the credibility of the testimony, a task specifically assigned to juries not judges.
  • They routinely disregard the employee's evidence, and that of their co-workers, while giving credence to the self serving evidence of the employer. 
  • Even when there is direct evidence of discrimination -- like "you're too old to do this job" -- or "women just be at home with their kids"-- it will often be dismissed as a "stray remark" too remote in time to be considered, or not made by someone influential enough in the decision.
  • In sexual harassment cases, the judges often decide that the harassment may indeed have occurred but that it wasn't severe enough for a jury to consider.

These are just a few of the improprieties that are regularly faced in representing victims of discrimination I can think of off the top of my head   I'm sure I could be here all day adding to this list if there was a reason to do so.

Every lawyer knows, and the federal rules specifically state, that  judges are supposed to grant summary judgment only when there is no genuine issue as to any material fact. Inferences are supposed to be made in favor of the employee, not the employer when the employer requests that the case be thrown out.  All relevant evidence is supposed to considered by the jury. The rules are supposed to be interpreted liberally, not conservatively which means in favor of the employee in these circumstances, not the employer.

The Supreme Court of the United States made all of this abundantly clear in the Reeves v. Sanderson Plumbing case almost ten years ago,  a case in which the Court of Appeals ignored the evidence presented by the plaintiff. (including the remark that he "looked so old he must have come over on the Mayflower" ) In reversing, the Reeves Court plainly set forth the appropriate standards for review:

    • The court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence.

    • Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.

    •  Although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe.

    • The court should give credence to the evidence favoring the nonmovant as well as that “evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.

In spite of this very clear language, it  seems like there are a whole lot of federal judges who can't seem to break  their old patterns. They need to get rid of those pre-Reeves canned opinions used to dump these cases, and do their duty to follow precedent set forth by the United States Supreme Court.  That's really not too much to expect.

Discrimination is hard to prove, but even with the proof of disparate treatment,  stereotyping, or racially and sexually charged remarks, many federal judges simply  decide that these particular parties are not entitled to their day in court.

Is it because there are not enough women and minorities on the federal bench?  Is it because they are insensitive to discrimination?  Is it because they care more about reducing the size of their dockets than the administration of justice? Is it because they are simply pro-business and anti-little guy? All we know is that  whatever the reason, the result is quite often arbitrary , erroneous,  and unfair, and it's about time that the discrimination is exposed.

 image: http://images.google.com/imgres?imgurl=http://www.fotosearch.com/comp/BDX/BDX341/judge-handing-down_~bxp64659.jpg&im
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Public Supports Gay Rights and Congress Should Too

Posted on February 17, 2009 by Ellen Simon

In his address at the Democratic convention, Barack Obama said:

Surely we can agree that our gay and lesbian brothers and sisters deserve to visit the person they love in the hospital and to live lives free of discrimination.

Do most Americans agree?  Recent studies show that the answer appears to be yes.Surveys show that 72% of Americans support laws which prohibit employment discrimination on the basis of sexual orientation. Recent data reported by The Salt Lake Tribune indicates that even in Utah, one of the most conservative states in the country, a majority supports expanded legal protections for gay and trans gender coupes and individuals.  A poll commissioned by the Tribune of 500 registered voters found that :

56 percent of respondents favor legal protections for same-sex couples such as hospital visitation and inheritance rights and employment protections

The Equality Utah poll of 600 Utahns, also reported in the Tribune at the end of January,  found:

  • 62% supported making it illegal to fire workers because of sexual orientation
  • 56.5 supported making it illegal to deny housing because of sexual orientation
  • 63% favored providing gay and lesbian couples with hospital visitation, health insurance, and inheritance rights

Unfortunately, even though anti-discrimination laws have broad support, only 20 states have such laws in effect. That leaves most gay individuals vulnerable to lawful discrimination.  In other words, just to be clear, this means that an individual can be fired because an employer finds out he is gay and chooses to fire him for that reason.  It also means than an employer can lawfully maintain a policy of not hiring gays or lesbians.

It’s about time that the Congress get in line with the majority view of this country and pass legislation prohibiting discrimination against the gay, lesbian, and transgender community who are certainly entitled to equal opportunity just like other Americans. The Employment Non-Discrimination Act should be passed.

Image: http://www.abc.net.au/reslib/200703/r129060_424471.jpg

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