By Molly Bishop Shadel
A couple of weeks ago, I went to the movies with some friends to see I Don’t Know How She Does It. I found myself nodding in recognition at the heroine, Kate Reddy—I, too, have driven myself crazy trying to be both a perfect mother and a perfect professional. Then I breathed a sigh of relief, thinking, wow, I am so glad I don’t have her type of job anymore; I’m so grateful for my job, instead. And then I grew angry at the notion of gratitude for a job that doesn’t require me to live the crazed life of Kate Reddy—because no one should have to live like that. If we want a happy workforce, and especially if we want to keep women from exiting it, then we must shift the norm so that workers can be both professionals and human beings being at the same time. Law, in particular, should care deeply about this problem.
I used to be a practicing attorney; now I am a law professor. I want to tell you about how I got here, including mistakes that I made along the way, because many of the choices I have confronted are typical for women in my profession. But the point of this story is not that everyone should quit practicing law and go teach. Instead, I would like to suggest that there are challenges endemic to both legal practice and the legal academy that (despite everyone’s best intentions) will disproportionately affect women who have (or want) children, or on whose shoulders care for other family members (such as aging parents) will fall. I have two audiences in mind: my students, who are aware of some of those challenges and are puzzling over how to confront them; and lawyers and law professors, who are in a position to change things.
When I first started out as a young lawyer in my 20s, it was just me on my own, focusing on racking up as many awards as I could. I went to Harvard College and Columbia Law School. I was on Law Review. I clerked for a judge. I took a high-paying job at a top-tier law firm after graduation, in part because I wanted to pay off my loans, in part because it seemed like an interesting place to work, but primarily because it was a hard job to get—a prize. My classmates, both male and female, were making similar decisions, and our salaries were roughly the same.
First Life Lesson: Don’t Just Work…Network
The law firm that I joined after law school was a great one, full of smart people who cared about me and wanted me to succeed. Some of the professional connections I forged there continue to be the most significant professional relationships of my life, and I have called on that network time and again, even though I left the firm a long time ago. So I pause here for my First Life Lesson. Women coming out of law school: if you don’t know what kind of law you want to practice, it can be wise to join a firm with a broad diversity of work and a high caliber of colleagues. While you are there, invest in relationships with your co-workers. It will make the job more satisfying, and can help you find another job down the line. I thought as a young attorney that the most important thing was to slog away at my desk, and that if I kept my nose to the grindstone, then my hard work would be noticed and rewarded. But I now firmly believe that creating personal connections with your colleagues—so that people care about you and are motivated to actually notice the work that you do—is one key to career success. The American Bar Association’s Commission on Women in the Profession, the Project for Attorney Retention, and the Minority Corporate Counsel Association agree, noting in a July 2010 report that networking opportunities directly affect compensation, and arguing that firms that care about compensating women fairly should ensure that these opportunities are available to their female workers. If you are a young attorney, find those opportunities and take advantage of them. My work only got me so far; it was my mentor who took me the rest of the way.
But even though I liked my colleagues, I began over time to feel uneasy. Every Sunday night was filled with dread, because Monday morning was coming. Something wasn’t right.
I constantly fretted that the work I was doing wasn’t enough. This is not a new story; many of you at law firms know what I am talking about. It is a product of the billable hour system that many law firms use, which rewards quantity of hours billed over the quality of the work product. I felt like I could never get ahead, that becoming more efficient at my work did not result in a reward—it just netted me more assignments. Work, and worries about work, crept into every corner of my life. I felt pressure to stay late, to work longer hours, because that was what everyone else around me was doing. It is the sort of competitive thing that you see happening when you gather enough type-A people in a workplace and tell them that some—not all—will get a big bonus at the end of the year. Joan C. Williams, a law professor at the University of California-Hastings and the founder of the Project for Attorney Retention, has described this traditional law firm environment as designed with an “ideal-worker” in mind—one who is available to work at all hours, who will not object to having work swallow up his personal life, who presumably has someone at home to manage the unpaid work of going to the grocery store and keeping the bathrooms clean. The guilt/gratitude pressure that I have observed in myself in relation to my job began at this point in my life—I felt guilt anytime I fell short of the “ideal employee” model. It did not occur to me at that time to question whether that model was valid.
At the same time, I was keenly aware of the price I paid when I put in those long hours. Some of my friends were married and had children, and I could see that they were missing the most pleasurable years of their kids’ lives. As for me, I started to worry that if I spent my young adulthood working, I would never get married or have kids at all. Of those of us who wanted children, my female colleagues and I felt this pressure much more acutely than our male counterparts, many of whom already had wives at home to carry the load, or were not worried that they had a finite amount of time in which to start a family.
I sometimes hear my female students talk about how things for men and women are much more equal in today’s society, or about how they will always put their careers first and will insist that their partners carry an equal load, and I think to myself, just wait. Attrition rates tell a different story. For the past two decades, about half of the law school graduates out there have been women. That is a long time, and you would think that would mean that you would therefore see a similar proportion of women at the top of the law firm structure. Not so. Today, women account for more than 45% of associates at law firms, but only 19% of law firm partners are female. Even with all our medical advances, women at law firms who want kids have to deal with the fact that the years that they are supposed to be logging the most hours are their childbearing years. It is also hard to anticipate how much you will long for your children, once they are in the picture—you may think that you will be able to outsource a lot of the childcare, or feel okay about your partner doing it while you are at work, but sometimes, on some days, that will become unbearable. Any new mom crying at her desk as she is hooked to her breast pump knows exactly what I am talking about.
Today, I have only one female friend from law school who actually stayed to make partner. The rest left. And the one who stayed does not have children. (Interestingly, my colleague, John Monahan, did a study of the Class of 1990 of the University of Virginia School of Lawboth when they graduated and at mid-career, and found that the percentage of women working full-time was highly correlated with the number of children they had—those who had more than two were unlikely to be working full-time. Not so for men.)
When I quit my job at the law firm, it was because of September 11. I had already experienced numerous nights in which I would wake up at 4 a.m., panicked, and think, this isn’t where I want to be and I have no idea how to change that. I would come home from long business trips and drop my suitcases inside the door of my Manhattan apartment and feel palpable loneliness because no one cared that I was home—nobody was there. I dated men with whom I had no future for longer than I should have simply because I didn’t see how I would possibly meet anyone else. I didn’t have the time. Then on Sept. 11, 2001, when all those people died and some of my friends from work and I walked home together amidst the crowds of bewildered New Yorkers, I thought, if that had been me, if I had died today, I would feel cheated because I haven’t yet had most of the experiences that I want in life. And I won’t if I don’t make something change.
Second Life Lesson: Listen to Your Own Unease
On September 12, I started sending out resumes, and soon took a job at the U.S. Department of Justice. It paid about half of what I made in private practice, and it meant that I had to leave my beloved New York for Washington, D.C., but it was a good decision. I loved the job because I knew that what I was doing was making the world a better place. I also loved it because it did not have a billable hours requirement. I was surrounded by people who had no problem leaving in order to be home for dinner, and that gave me permission to follow suit. So I will pause here for the Second Life Lesson (or perhaps it is more a life suggestion). If you are feeling that sick-Sunday-night feeling, make a change. In today’s economy, it is probably wise to get another job before you flee the one that is making you ill, but do not ignore the signs you are giving yourself. What you are looking for is a job that is a prize to you, not just a prize in someone else’s eyes. For me, that prize was a mission I felt good about and the absence of the billable hours, face-time pressure.
But also pay attention to something else that I just said. I took a 50% pay cut when I changed jobs.
I started to think about the significance of salary discrepancies during my time at the Justice Department. I became aware of the fact that my newly-lowered salary was still higher than the mid-level lawyer who supervised some of my cases. The lawyers in my office who had joined the Justice Department straight out of law school started at one of the lower salaries on the GS scale, and their raises were calculated as a percentage of what they had earned the year before. I came in at a higher salary because of what I had earned in private practice. It would take years before my supervisor would ever catch up with me. My supervisor had made her commitment to public service clear from the beginning; she had gone straight into it from law school and had many more years of government service under her belt than I. But if salary was any metric, that was not something the government cared to reward.
The way to make money in the government is to be willing to leave your job—to switch back to private practice for a time, and then to come back into government in a more senior appointed position, for example. The ability to change jobs requires a fair amount of support from home, particularly if the switch involves relocating. This can be tricky if your spouse has a job of his own, as the majority of spouses of female attorneys have. As in private practice, the legal world in the public sector rewards a model of employee that is likely to adversely impact female attorneys, albeit unintentionally.
Somehow, leaving the safety of my law firm job jolted my personal life into action, maybe because I had more free time. I met the person who would become my husband when I started my job at the Justice Department, and two years later we decided to get married and settle in Charlottesville, Virginia, where he owns a business. Thus began yet another job search.
Going into academia turned out to be the best career switch I have made thus far. I love my job. I teach classes that are extremely interesting to me, and I write about things that I care about. I have a huge amount of flexibility in my job—I design my classes the way that I want, I write about what I want, and so long as what I am doing helps students, it will be fine. And I work in the most family-friendly place you can possibly imagine: I only have to be on campus during the hours in which I teach class or have meetings, and other than that I am free to work from home, pick up my kids from school, and the like. I am a much better mother in this job than I would be without it. Work lets me have a place where I can have my own identity, independent of motherhood, but the kind of work I do does not drain me, so I can be present for my kids.
Third Life Lesson: Make Time to Write
Law schools usually have two tiers of faculty members: tenured/tenure-track professors (who are expected to teach classes and publish scholarly work), and non-tenure-track faculty, who typically are not expected to publish, and usually carry heavier teaching loads, or other responsibilities (like running a legal clinic), in exchange. Since I did not plan to enter academia and consequently had no writing portfolio, I could only compete for a non-tenure-track faculty professorship, which pays a lot less than tenure-track positions. And so we reach the Third Life Lesson: if you have any inkling that you might want to be a tenure-track professor one day, then carve out some time to write. Having a written (preferably published) piece tells people so much more about what you are like and how your mind works than a resume ever could. You might consider spending some time writing even if you never intend to teach one day. Writing is work that keeps working for you—you log in hours to create the piece of writing, but once it exists, you can keep pulling it out again and again to reap the rewards of having created it. Writing, like networking, is another excellent use of your time.
And now, a word of warning. If you think that you want to be a professor, you should realize that taking a job as an adjunct, or going into law school administration, or even joining the faculty as a non-tenure-track professor, is not a route into a tenure-track teaching job. Once you take one of those routes, you cannot switch. There is no obvious on-ramp into the higher status tier of academia available to you.
This choice has consequences in terms of your salary, and it is likely to be women who will feel that consequence. Just as there is a notable gender divide in the law firm world between partners and non-partners, there is also a pronounced gender divide in legal academia between tenure-track and non-tenure-track faculty professors. According to the2008-2009 AALS Statistical Report on Law Faculty, 62% of all law faculty (both tenure and non-tenure track) are male, while 37% are female (the rest not identified). Of the non-tenure-track faculty teaching at law schools, over 50% are female. These non-tenure-track jobs carry less prestige, fewer privileges (like faculty voting rights), and less job protection. As the Society of American Law Teachers has observed, “an increasing number of women are entering law teaching as clinical and legal research and writing teachers. Their entry into teaching increases the overall number of law teachers who are women, but women are less likely to have the security of position and the status that is afforded to their male colleagues.” These jobs also offer much lower pay. Often, the top salaries for these jobs are capped at tens of thousands of dollars less than the starting salary of a tenure-track professor only a few years out of school. There is a similar divide in the ranks of law school administrations—according to an American Bar Association report from January 2011, 66% of those working at the assistant dean level at law schools (such as the people who staff the career services and admissions offices) are female, while only 20% of Deans (the heads of law schools) are female. Those at the assistant dean level may find that their compensation level hits a glass ceiling pretty quickly as well. Life Lesson Number Four is to go into these arrangements with your eyes open, and to realize that if you agree to a low salary, you may never catch up.
This salary effect is similar to what happens to women in law firms who decide to go part-time or accept non-partner positions (like “of counsel”), or leave and then re-enter the workforce after some period of time. These choices have consequences. In a 2010 report of the 200 largest firms by the National Association of Women Lawyers, 6% of the attorneys are part-time. Of these, 75% are female, and 25% are male. Typically, women working part-time do so during the formative years of their practice, whereas men working part-time are usually at the end of their careers. The result? These women make a lot less money than their male classmates from law school, and that gap widens over time. Sometimes the women opt back into a full-time track (if the firm permits it), or (even more rarely) are able to be considered for partnership even as a part-time employee. Those who are able to make equity partner earned 85% of what their male counterparts make; those who do not have that job protection will make significantly less money per hour than the partners will. These women are paid less, often are given less interesting work, and have positions that are less secure than those of the other lawyers around them. Reports NAWL Foundation President Stephanie Scharf, “Women make up the majority of staff and part-time attorneys at large law firms. Staff attorney positions offer little possibility of career advancement, and part-time attorneys are often the first to be let go.”
What does all this mean for law firms and the legal academy? Certainly there are already some women who have risen to the top at law firms and law schools, but the statistics show that they are the anomalies. Some may be childless or have an incredible (nontraditional) support system at home; others may just be superstars. But should that really be the requirement?
It is worth examining our model of what is required to make partner or tenure. It is a model that was designed for a different era, when the workplace was designed for a worker with a stay-at-home spouse, and it puts a burden on the workers who are not able to rely on someone else to do the work at home. Questioning this model does not mean that we are giving women special favors; instead, it means noticing that we have constructed a model that gives a leg up to people who have no family demands. These women—the same ones who were at the top of their law school classes, the same ones that we cared about and mentored when they first entered the profession—are likely to suffer as a result. We must change the model to take the realities of the lives of the majority of women (and some men, it turns out) into account. If we do not change the inputs, then we cannot expect the outputs to change. If we want more women to stay in the law, then we will have to make changes to the legal workplace to make that happen.
This is not a question of people wanting to keep women down, or intentionally discriminating (most of the time)—but the practical result is the high levels of attrition that we have experienced among female attorneys, and we should care about that practical result, even if the steps that got us there were not meant to be nefarious at all. On a purely economic level, we can consider the amount of money required to train a new associate when that valuable female attorney quits, or the amount of faculty time required to add a new professor to the ranks when one leaves. Think of how the advice to clients will be better if there are women on the team to offer their perspective. Think of the female students who want female professors to mentor them. It is bad business to lose the women.
But law firms and legal academia are more than just businesses. Lawyers in America play an influential part in our government, our politics, our businesses, and our society, asAlexis de Tocqueville noticed long ago. We recognize that this power brings with it responsibility, which we have codified in the professional responsibility rules and pro bono requirements of bar associations across the nation. Many of us came to law school in the first place in order to make the world a better place. We know that the law is an instrument of change, and we care about aspirational goals like social justice.
Law is important in America, and America is important to the rest of the world. Consequently, we who are attorneys—and particularly those of us who teach attorneys-to-be—should do more than simply adhere to the minimum of what is required in the workplace. We should make that workplace better, and better suited to the realities of our current lives.
Lawyers are uniquely positioned to take actions that will have far-reaching consequences throughout our society. If women are leaving the practice of law, we will not have women in leadership position at law firms. (Right now, only 6% of managing partners at the 200 largest law firms are female.) We will not have as many women serving as judges. (Right now, only 26% of federal and state judges are female. Thirty-three percent of the Justices on the U.S. Supreme Court are female—that means three, and two of those three do not have children.) We will not see enough women serving in Congress. (Right now, only 17% of those serving in Congress are female.) And we will not see enough of them in front of the class in law schools, either. This hurts all of us, especially our daughters, who surely are noticing the message that this sends them. As Marie Wilson, the Founding President of the White House Project has said, “You can’t be what you can’t see.”
Law firms who want women to stay aboard might begin by questioning the billable hour model, creating an environment that truly does not require face time (not one that just claims that it does not). This requires partners to support the idea in employee evaluations, assignment decisions, and bonuses, and to mentor associates so that the climate changes. The ideal firm would offer a track that would let people work humane hours and still make partner, with the same kind of plum assignments and salaries that would be equivalent (prorated for the number of hours actually worked) to others in the firm. It would also create an on-ramp to help women who have taken time off to raise children re-enter the profession.
Law schools who want more women on the faculty might think about the fact that any writing an entry-level candidate has done was likely performed on top of another demanding, full-time job, possibly with kids at home. It is wise, of course, to search for talent, but a fatter portfolio is not a perfect proxy for that, and it can lead to skewed gender results. Demanding a large corpus of written work in order to get the job places a particular hardship on women, and might explain why so many more entry-level teaching candidates are men rather than women. If a Ph.D. is required in addition to a substantial body of written work, then the results may well be even more skewed away from women. Think also about the burden that a female lateral candidate with children faces if the only way to obtain a new faculty position is to teach as a visiting professor at the school for a semester or a year (which requires either uprooting your family, with new schools and disruption to the spouse’s employment, or leaving your family behind for the year). Many male candidates in this position can meet the requirement because their spouses do not work or can stay behind with the children while the husband visits; few women are similarly positioned.
Law schools might also consider exploring ways to enable non-tenure-track faculty—significantly more likely to be women—to become fully integrated with tenured faculty. This could include making sure to invite them to faculty meetings and workshops, so that they have access to valuable networking opportunities and the intellectual exchange of ideas that will make them better professors. Include them in social occasions, such as dinners for entry-level candidates or visiting scholars, so that they can make networking connections that will help them develop, and more fully participate in the life of the law school. Develop a mentoring program for them, just as you would for tenure-track faculty, to encourage their progress. Question the pay differential between tenured and non-tenure-track faculty, especially the glass ceiling that limits non-tenure-track compensation; consider the message that it sends about the value of the employee and the work. Offer job protection, like a non-tenure-track version of tenure, such as the university where I work offers, or consider making all law school teaching positions tenure-track, as other law schools have done.
One could say that the difficulties of which I write are a problem of privilege—the contract attorney or non-tenure-track faculty jobs are still jobs that pay quite well, compared to the average worker, with more prestige than the typical employee enjoys. One could also say that it is a good system that we have, in which we have these alternative jobs that may pay less but also offer more flexibility, because there are people out there who want them.
But while I can see that I am closer to “having it all” than my mother’s generation was, and certainly closer than the heroine of I Don’t Know How She Does It, I remain concerned by the fact that 71% of tenured faculty in law schools are men, while 51% of non-tenure-track faculty are women. 81% of partners at law firms are men, while 75% of attorneys who work part-time are women. That means that many of those female professors or attorneys that may have taught you or mentored you may be making a significantly lower salary per hour than their male colleagues. It helps explain why you are less likely to see women in those leadership positions at the tops of their law schools or law firms. Women are much more likely than men to take “mommy track,” family-friendly jobs, and I can tell you that, on balance, I am glad that I did. But it is startling to realize that once you have jumped onto this track, you will not find it easy to climb off of it. I do not have all the answers to the questions that I have raised about how the legal profession is designed, and how that design affects the women in it, but I do know that I want to keep talking about the skewed results. Especially because my four-year-old daughter tells me that when she grows up, she hopes to be a mommy. And a lawyer.
Photos provided by Molly Bishop Shadel.