Join SBWL to #BreaktheBias
The 2022 International Women’s Day theme, #BreaktheBias, focuses on inclusivity. It builds on growing developmental pushes to fix organizational structures, including women in the boardroom, an increase in women’s conferences and networks, and recognition of women is positions of power and women led organizations. There is widespread consensus that gender equality in the community promotes economic growth.[i] The greatest challenge preventing the economic gender gap from closing is women’s under-representation in emerging roles.[ii]
The first step towards breaking biases, is understanding that they exist, and occur in different ways. Implicit bias is defined as “A preference (positive or negative) for a group based on a stereotype or attitude we hold that operates outside of human awareness and can be understood as a lens through which a person views the world that automatically filters how a person takes in and acts in regard to information.”[iii]
Overt discrimination has been described as “differential and unfair treatment that [is] clearly exercised, with visible structural outcomes.” Overt discrimination may be evidenced in individual attitudes and behaviors, verbally or nonverbally. It also may be evidenced in structural aspects of organizations, such as workplace policies, procedures, and practices, as well as in aspects of organizational culture and norms.[iv]
The “You Can’t Change What You Can’t See” study prepared in conjunction with the ABA Commission on Women in the Profession and the Minority Corporate Counsel Association[v] reports that women and people of color often face specific biases or stigmas:
“Prove-It-Again” Bias: Women and people of color reported having to go “above and beyond” to get the same recognition and respect as their colleagues.
“Tightrope” Bias: Women reported pressure to behave in [stereotypical] feminine ways, including higher loads of non-career-enhancing admin work.
“Maternal Wall”: Women of all races reported that they were treated worse after having children.
Women lawyers face biases, but they are not the same. An important step toward breaking the bias is understanding the intersectionality of experiences and challenges. Questions also remain about how the pandemic has changed that landscape and where we go from here. With burnout at an all-time high, if we do not address the issues facing women lawyers, we risk higher attrition rates.
McKinsey & Company’s recent “Lean In” report identifies key areas companies should focus on to address some of the core challenges women are facing. This includes taking steps to minimize gender bias:
The pandemic may be amplifying biases women have faced for years: higher performance standards, harsher judgment for mistakes, and penalties for being mothers and for taking advantage of flexible work options. These biases could show up in new ways during Covid-19: For example, when judgmental comments are made about young children playing in the background on video calls; when co-workers assume, consciously or unconsciously, that women are less committed to their jobs; or when managers are evaluating women in performance reviews. Given that managers and team members have less visibility into their colleagues’ day-to-day work, they may be more likely to make assumptions about their performance, and this increases the chance of bias creeping in.
To mitigate the biases that women are up against, companies need to make sure that employees are aware of them. Leaders and employees should publicly speak to the potentially outsized impact of bias during Covid-19. Bias training can also help. In the past year, just 1 in 4 employees has participated in unconscious bias training, and even employees who have participated in the past would benefit from a refresher. And finally, it’s important to track outcomes for promotions and raises by gender—as well as the breakdown of layoffs and furloughs by gender—to make sure women and men are being treated fairly.
We must also support our sisters of color. “Black women were already having a worse experience in the workplace than most other employees. Now they’re facing all the same challenges other women are—plus heightened challenges rooted in racism.”[vi]
A study by the ABA, reported that “Lawyers who either identify as having disabilities or who identify as LGBTQ+ report experiencing both subtle and overt forms of discrimination at their workplaces, with common reports of subtle but unintentional biases.”[vii] Similarly, a study by Cambridge University found “[L]awyers with disabilities who are women evidence high relative rates of discrimination reports, and that they tend to self-accommodate to avoid drawing attention to their disabilities and the associated threats of stigma, despite their ADA accommodation rights.” According to McKinsey & Company, the pandemic has been “especially difficult for women with disabilities” because they are more likely to feel uncomfortable sharing their challenges in fear of being perceived as weak.[viii]
While there are many complex components to addressing the challenges women face, inclusivity and representation in leadership roles is key to fostering cultural competence[ix] and beginning to break the bias. The advancement of women to places where decisions are made is a crucial pathway forward because inclusion and diversity at those levels will help create the framework for better policies and practices.
On the Bench
Historic nominations serve to break barriers and inspire a pathway to the bench. Justice Patricia Guerrero, was recently nominated to, and will serve as the first Latina Justice of the California Supreme Court. At a national level, President Biden recently nominated Ketanji Brown Jackson to the Supreme Court of the United States. If confirmed, she will be the first Black woman to serve in this role, and only the sixth-ever woman (after Sandra Day O’Connor, Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Amy Coney Barrett).
2022 Representation of United States State Court Women Judges – California[x]
All Judges in CA: 756 women / 1941 total (39%)
State Final Appellate Jurisdiction Courts California Supreme Court: 3 women / 7 total (43%)
State Intermediate Appellate Courts California Courts of Appeal: 41 women / 96 total (43%)
State General Jurisdiction Courts Superior Courts of California: 645 women / 1664 total (39%)
As of 2022, women make up less than half of the California judiciary. With eleven appellate and 93 superior court vacancies in counties throughout California, there is opportunity to increase representation.
In the Legislature
As of 2022, women make up well under half of the legislature at the California level.[xi] For certain demographics, those numbers are even worse. Evidence supports that structural barriers and other limitations such as contacts and resources serve as barriers that have deterred an equal playing field in running for and being successful in office.[xii]
Congress (2 Senate, 53 House): 20 seats of 55 seats (36.4%)
Statewide Elective Executive 4 seats of 8 seats (50%)
State Legislature: 38 of 120 seats (31.7%)
It is important to have representation in the legislature to draft and advocate for legislation that affect diverse groups. Without diverse views, implicit biases will continue to guide the laws in place. Growing evidence worldwide supports that women’s leadership in political decision making has improved society at large.[xiii] Women demonstrate an ability to work across party lines by championing gender-equality laws.
An example of this important work is highlighted through SBWL’s founding mother, former California State Senator, Hannah Beth Jackson’s legislation — SB 826. SB 826 is a statute signed into law in 2018 that requires all publicly held corporations headquartered in California to have a minimum number of women on their boards of directors. It is under attack in the courts in the case, Meland v. Weber, U.S. District Court, Eastern District of California Case No. 2:19-cv-02288. In an amicus brief in support of the opposition for a preliminary injunction against SB 826, SBWL affiliate, California Women Lawyers (CWL) reported that the legislation is working, and “the early progress has been measurable, significant, and has increased at a much faster pace since SB 826 was passed.”[xiv]
Judge Mendez denied the preliminary injunction stating “enjoining this law at this early stage may deny highly qualified women who are eager and seeking to join corporate boards the opportunities provided by SB 826… The legislature determined that the law was necessary because the glass ceiling had been bolted shut with metal, shutting out thousands of qualified women.”[xv] The decision is currently under appeal, but the work of one of SBWL’s founders is a strong step forward to ensuring that women are not forced out of opportunities through implicit or overt biases. It illustrates the need for women in the legislature to advocate for the interests of women and the unique issues that they face.
If you are interested in running for elected office, consider participating in programs such as CWL’s Elect to Run or other local programs. Other ways you can take an active role is to support legislation, participate in advocacy days at the California State Capitol in Sacramento, write letters to your representatives, and join organizations like SBWL that advocate for legislation. SBWL is strengthening its advocacy work and has supported various proposed legislation that impact women and align with SBWL’s mission.
Firms and Workplace Advancement
Pre-pandemic, reports were already finding that although more women were entering the legal profession, those numbers were not translating to advancement in the profession. Instead, women often made lateral moves. Attrition was predominantly due to traditional caregiving roles that fall on women. Once a woman has left the workforce for any amount of time, it is extremely difficult for her to return at the same level.[xvi] According to McKinsey & Company, one in three mothers may be forced to opt out or scale back due to the challenges they are facing at home and at work.
As the broken record plays, the seemingly never-ending pandemic threatens the progress that women have made in closing the gap. Studies show that 1 in 4 women are considering leaving the workforce because of COVID. The majority of those cite to burnout as the main reason.[xvii] Even as we begin to see the light at the end of the tunnel, it is not without aftermath. We know that the pandemic has had widespread and disparate impacts on women that will have lasting consequences.
While there is a level of convenience with working from home and virtual proceedings that may be here to stay, they may create additional biases against women. Women are more likely to be ignored or overlooked during video calls, and 45% of women business leaders say it is difficult to speak up in virtual meetings.[xviii] This is not necessarily a new trend. Women have always been more likely to experience being interrupted or talked over by their male counterparts. “Even at the highest court in the land, female justices are interrupted disproportionately by male justices.”[xix]
It is a great time for those in leadership positions to review and update firm policies. The “You Can’t Change What You Can’t See” report includes specific tools for law firms to interrupt, and break the bias.[xx] These tools include hiring, assigning work, and performance evaluations. The McKinsey & Company report provides workplace solutions to make employees feel more supported that will reset norms and alleviate burnout.
In Bar Organizations
A less obvious area that needs to be discussed are bar organizations. Most local bar and interest-based organizations are all-volunteer run and likely have antiquated bylaws and policies. It is too familiar to receive avoidance suggestions to “not engage” when faced with biases. That is a problematic response because, although bar organizations are often considered extracurricular, they are opportunities to network and build your resume.
It is time for bar organizations to adopt reporting policies that are supportive and set forth a mechanism to address issues raised. If you are a member or board member of a local organization, consider increasing the diversity on your board, restructuring membership requirements to be more inclusive, update your bylaws and policies, and offer programs on breaking the bias and inclusion.
Join SBWL in support of Women’s History Month and commit to #BreaktheBias.
Christine Monroe is a partner at Greben | Monroe, APC. She serves as a director and webmaster for SBWL. She also serves as the SBWL Affiliate Governor on the California Women Lawyers Board of Governors, is the chair of the communications committee, and sits on the executive and diversity, equity, and inclusion committees.
Article References and Resources
[i] Metcalf, Michael (2021). Fingerprint for Success, 18 women in the workplace statistics you need to know (in 2021): https://www.fingerprintforsuccess.com/blog/women-in-the-workplace-statistics#
[ii] Ibid.
[iii]ABA – Implicit Bias Initiative Glossary: https://www.americanbar.org/groups/litigation/initiatives/task-force-implicit-bias/implicit-bias-toolbox/glossary/
[iv]Black, P., Hyseni, F., & Wise, F. (2021). Diversity and Inclusion in the American Legal Profession: Discrimination and Bias Reported by Lawyers with Disabilities and Lawyers Who Identify as LGBTQ. American Journal of Law & Medicine, 47(1), 9-61. doi:10.1017/amj.2021.1: https://www.cambridge.org/core/journals/american-journal-of-law-and-medicine/article/diversity-and-inclusion-in-the-american-legal-profession-discrimination-and-bias-reported-by-lawyers-with-disabilities-and-lawyers-who-identify-as-lgbtq/F2376BB7A12F3D43ED8EBE5AA88621E7
[v] Williams, C., Multhaup, M., Li, S., & Korn, R. (2018). You Can’t Change What You Can’t See- Interrupting Racial & Gender Bias in the Legal Profession: https://www.americanbar.org/content/dam/aba/administrative/women/you-cant-change-what-you-cant-see-print.pdf
[vi] McKinsey & Company; Thomas, R., et. al. (2020). Women in the Work Place.
[vii] ABA (2020). ABA Study Finds Prevalent Reports of Discrimination Faced By Diabled, LGBTQ+ Lawyers: https://www.americanbar.org/news/abanews/aba-news-archives/2020/07/aba-study-finds-prevalent-reports-of-discrimination-faced-by-dis/
[viii] Id., McKinsey & Company; Women in the Work Place.
[ix] Id. ABA — Implicit Bias Initiative Glossary. Cultural competence: When individuals use awareness, knowledge, and understanding in order to value cultural diversity, and promote fairness, justice, and community confidence. In an organizational or systemic context, cultural competency can be understood as “managing diversity in ways that create a climate in which the potential advantages of diversity for organizational or group performance are maximized while the potential disadvantages are minimized.
[x] NAWJ, Republished, Source: Forster-Long, Inc. 2022 US State Court Women Judges: https://www.nawj.org/statistics/2022-us-state-court-women-judges
[xi] Center for American Women and Politics (CAWP). 2022 US State Legislature Information: https://cawp.rutgers.edu/facts/state-state-information/california
[xii] United Nations Women. In Brief – Women’s Leadership and Political Participation: https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/Library/Publications/2013/12/UN%20WomenLGThemBriefUSwebrev2%20pdf.pdf
[xiii] United Nations Women (2021). Facts and Figures: Women’s Leadership and Political Participation: https://www.unwomen.org/en/what-we-do/leadership-and-political-participation/facts-and-figures#_edn17
[xiv] CWL Brief of Amicus Curiae in opposition to Plaintiff’s Motion for a Preliminary Injunction (Oct. 8, 2021). https://cwl.memberclicks.net/assets/docs/Amicus/Meland%20%5B43%5D%20CWL%20Amicus%20Brief-Final%20filed%2010-8-21.pdf
[xv] Order Denying Plaintiff’s Motion for Preliminary Injunction (Dec. 27, 2021). https://cwl.memberclicks.net/assets/docs/Amicus/Doc.%2067–Order%20Denying%20Prelim%20Injctn.pdf
[xvi] Epstein, Phyllis Horn. Attrition of Senior Women Lawyers: The Leaky Pipeline: https://www.abajournal.com/files/BarReporterNewsAnnouncement1_(2).pdf
[xvii] Id. Fingerprint for Success.
[xviii] Ibid.
[xix] Spencer, Christian (2021). Major Supreme Court Changes Caused by Female Justices Getting Interrupted So Often: https://thehill.com/changing-america/respect/equality/576847-major-supreme-court-changes-caused-by-female-justices#:~:text=Major%20Supreme%20Court%20changes%20caused%20by%20female%20justices%20getting%20interrupted%20so%20often,-By&text=%E2%80%9CWe%20find%20that%20judicial%20interactions,the%20authors%20wrote%20in%202017.
[xx] Id. You Can’t Change What You Can’t See.
