Sunday, October 2, 2011

Diversity Digest: Cracks in the Glass Ceiling

Women haven't advanced as far in the legal profession as some had hoped, but many individuals have success stories to tell

Michele Coleman Mayes has been a member of a select group—women general counsel in the Fortune 500—for almost a decade now. But when she first got serious about becoming a GC, she thought she'd been rebuffed.

It was around 1990, and Mayes was then working in-house at Unisys Corporation. She put a question to Andrew Hendry, the head of the company's law department: Would he help her become a GC like himself? "He stared at me like I was from Mars, and proceeded to tell me all of the things I was lacking," Mayes recalls. She specialized in litigation, and Hendry—who was a deal lawyer—"didn't see litigators as real good talent for the GC job."

Shortly afterward, Hendry left Unisys to take the general counsel post at Colgate-Palmolive Company. "I said to myself, 'Well, check that box, that's never going to come to pass,' " says Mayes. But then she got a call from Hendry, who had a question of his own: Did she want to join him at Colgate? "I had a long debate with myself—did it make sense to follow him?" Mayes recalls. After all, Hendry had just become Colgate's GC, so it was unlikely that the position would open up anytime soon. (Indeed, Hendry still helms the company's law department.)

But Mayes says that Hendry told her: " 'If you don't get to be general counsel here, I'll get you ready to be general counsel someplace else.' And that's what he did." Hendry helped Mayes expand her skill set—she did a stint heading Colgate's human resources department, for example. And then, in 2002, Mayes was hired by Pitney Bowes Inc. to be its general counsel. Five years later, Mayes was tapped for the GC post at The Allstate Corporation, where she remains.

Today, Mayes is one of 100-plus women GCs in the Fortune 500. That may sound like a lot, but as she notes, "We're still 20 percent—so let's not start having a party." Still, female GCs are faring better than women at elite law firms. According to one study, only 6 percent of the country's 200 highest-grossing firms have a female managing partner.

The low numbers are a source of frustration for many observers, especially since women have received more than 40 percent of all law school degrees awarded each year since 1986. Through the nineties, they continued to advance steadily in the profession. But over the past decade, their progress seemed to stall. Even the percentage of female law school graduates, which peaked at almost 50 percent in 2004, dropped for several years afterward.

One lawyer who expected more progress is Stasia Kelly, who has been extremely successful in her own right—she held the GC post at four different companies before becoming a partner at DLA Piper. "I would have thought by now that there would have been a critical mass of women at the top of law firms and the legal profession," says Kelly. "But the past ten years have not seen as much robust growth as the previous ten years."

Why not? For years, the conventional wisdom was that women lawyers were leaving the profession to have children. But recent studies have challenged that idea. Many women, it turns out, have tried to keep practicing law while raising a family. Rather, the problem seems to be that women are less likely than men to have a stay-at-home spouse to help take care of the kids. That can put female attorneys at a disadvantage, particularly in law firms where the best rewards go to the lawyers who work the most hours.

Another popular assumption is that women have more success in law departments than at law firms. While there's little data comparing the two environments, the perception that women do better in-house will be reinforced by Courageous Counsel, a new book that Mayes cowrote with Kara Baysinger, a partner at SNR Denton. They interviewed 42 current and former female GCs in the Fortune 500 for the book, making it the most detailed history of women in-house lawyers yet.

Mayes does think that companies provide more options to women. "There's a lot in the way that companies have evolved that has made them a more welcoming environment," she says.

Whether female lawyers do better at firms or in departments, Baysinger believes that they have more confidence in pursuing their careers now. "There's more of an assumption among women that 'Well, why shouldn't we be considered for these jobs,' as opposed to feeling like it's an exception to the rule that they be considered for these jobs," she says. "The GC job is one that many of these women feel that they have the skills to accomplish, full stop."

Susan Hackett is familiar with the challenges that women face in law firms. She graduated from the University of Michigan Law School in 1986 (the same year that female graduates crossed the 40 percent threshold). "It was a brave new world," she says. "We were almost half the class, we had the grades that the men had, we were getting offers to the same extent that the men were." She herself took a job as an associate with Patton Boggs in Washington, D.C.

But, Hackett continues, "what became pretty quickly apparent was that even if you worked as hard as we all did in the eighties on dressing like a man and sounding like a man and trying to be like a man, it didn't work." After only a couple of years at Patton Boggs, "I ran screaming from the building," she jokes. Hackett joined the Association of Corporate Counsel, where she later became general counsel. (She resigned from the ACC this past spring to cofound Legal Executive Leadership, LLC, a Washington, D.C.–based consulting firm.)

According to Hackett, "Huge numbers of women peeled off" from law firms. She believes that one reason that women were "disproportionately" pushed away from firms was that "they couldn't choose to do both firm and a family as easily as they could have."

However, cultural issues also played a role. "We just never quite fit in the club the same way," Hackett says. "I can remember working all day at the firm and realizing that at 6:30 all the guys were sitting down in one of the partners' offices downstairs drinking Jack Daniels. It wasn't that I didn't get along with those people, and it wasn't that I wanted to drink Jack Daniels with them that much, but I thought to myself as I watched this, 'There's something happening here that I'm not part of.' "

Of course, many women have succeeded at law firms. Stephanie Scharf, a former president of the National Association of Women Lawyers (NAWL) was a partner at two large firms, Jenner & Block and Kirkland & Ellis. Scharf says that she "greatly enjoyed" her time at each: "I worked with excellent colleagues with whom I developed many warm friendships, all while being handsomely paid and advancing into leadership positions." But Scharf, who is now a partner with the women-owned firm of Schoeman Updike & Kaufman, adds, "My experience was more fortunate than most, as I did see many women struggle to advance and leave big-firm practice for various reasons."

Since 2006, Scharf has conducted a NAWL study that quantifies how women lag behind men at large firms. Each year the association sends a questionnaire to the Am Law 200 firms, the highest-grossing firms in the country as ranked by The American Lawyer , a sibling publication of Corporate Counsel . The survey has had an average response rate of around 60 percent.

According to NAWL's 2010 report, 46 percent of associates are women—closely matching their representation among recent law school graduates. But the percentage of women drops as they move up the promotion ladder. They constitute 36 percent of of counsel, 27 percent of nonequity partners, and about 15 percent of equity partners. Likewise, their compensation steadily declines in comparison to men. According to NAWL's 2008 report, women earned 97 percent of what men did in the associate position; 93 percent in the of counsel position; 91 percent in the nonequity partner position; and 87 percent in the equity partner position.

"Women are not advancing in firms as well as they should," says Scharf. In particular, she highlights the low percentage of equity partners who are female, which she says has not appreciably changed since NAWL conducted its first survey. "It's always been flat—around 15 percent, never much more than that."

Why aren't women doing better? Scharf says that the pressure at elite firms to bill as many hours as possible is one reason. "When you have a promotion model that insists on a high number of hours, that's going to have a negative impact on women, and firms will consistently lose many more women than men," she explains.

A report coauthored by Joan Williams of the Project for Attorney Retention and Veta Richardson of the Minority Corporate Counsel Association reached a similar conclusion. Williams is a cofounder of PAR; Richardson was executive director of MCCA until this summer, when she became CEO of the ACC.

In their report, which was published last fall, they wrote, "A most-hours-wins system tends to disadvantage women because it favors law firm partners who have a specific family form that most male law firm partners, but few women law firm partners, have: the 'two-person career.' " Williams and Richardson went on to explain, "A lawyer with a two-person career has the advantage of a spouse who takes care of most, or all, of the lawyer's nonwork responsibilities, from waiting for the cable repairman to picking up the dry cleaning to caring for children and elders."

The PAR/MCCA report was based on a survey of nearly 700 women law firm partners. Only 13 percent of the respondents had a spouse who was at home full-time, while just 10 percent had a spouse at home part-time. According to the report, previous research has shown that around half of male attorneys have wives at home full-time.

The report also discussed how women are affected by the fact that at most firms, the leaders who make the decisions about promotions and compensation are overwhelmingly men. Williams and Richardson wrote that the issue isn't that these leaders discriminate against women, but rather that they show favoritism toward those who are like themselves—i.e., other men.

NAWL's surveys show just how underrepresented women are in leadership positions at Am Law 200 firms. According to the association, the proportion of firms with a female managing partner has stayed at around 6 percent over the years of its study. And women are also a rarity on their firm's highest governing committee. Around 80 percent have two, one, or no women on this committee, which averages about ten members.

Though the perception is that women are doing better in law departments than in law firms, it's hard to make an exact statistical comparison of the two environments. NALP (formerly the National Association for Law Placement, Inc.) conducts an annual diversity survey among a wider range of law firms than NAWL does. According to NALP's 2010 study, almost 33 percent of all lawyers at its responding firms were women. A rough comparison can be made by looking at the membership of the ACC. The in-house bar group reports that as of this year, 42 percent of its members are women.

As in law firms, it appears that the percentage of women declines as they climb up the ladder in law departments. There's not a full set of in-house numbers equivalent to NAWL's statistics on the percentage of women in each law firm position. However, MCCA conducts an annual survey looking at the top in-house position—general counsel. According to Lori Garrett, an MCCA vice president, there are now "just over 100" female legal chiefs in the Fortune 500—more than 20 percent. (MCCA will publish a full list of these GCs in the September/October issue of Diversity & The Bar .)

The percentage of female general counsel will be significantly higher in another report that MCCA will issue at its annual diversity conference in late September. The association sent a demographics survey to all members of both MCCA and the ACC. Garrett says that a total of 765 law departments responded, ranging in size from one attorney to more than 500. And the survey showed that women are general counsel at one-third of these departments.

Hackett, the ACC's former general counsel, believes that women have tended to do better in law departments than in law firms for a number of reasons. "First of all, a lot of really high-quality women have left firms—more so than similar high-quality men," she says. As a result, the pool of people looking for in-house jobs is very strong with regard to women. Also, Hackett believes that "companies are on the diversity streak, with a lot more focus and a lot more success than firms." In her view, "firms are focusing on it, but it's more because 'we have to.' " By contrast, "companies found out some way back that they really did have strategic advantages from being diverse."

And women are benefiting from being, well, women. As Hackett puts it: "Companies have tended to reward the kinds of skills that women in general are known for bringing—the ability to accommodate and collaborate, the ability to lead teams, the ability to look for different kinds of solutions."

The suggestion that women are better at certain things than men can be a tricky one to raise in discussions about female advancement. Mayes says that she and Baysinger "had big debates" about gender differences while they were writing Courageous Counsel . But, Mayes continues, "what I came to say is that women have been socialized as a gender to be a certain way." And, she believes, "the bottom line is that certain of the things that we do well have played very strongly to the model of the GC as it has evolved."

Still, Mayes stresses that their book "is not about saying one gender trumps the other—we're very definitive about that. All I'm suggesting is that we have a slight advantage, because some of the things that we've been doing are things that are now being rewarded."

Mayes, one of the 42 general counsel who relate their experiences in Courageous Counsel , says that she knew many of the others already: "The circle is relatively small, so once you're in it, it doesn't take long to meet somebody." Mayes adds that she'd heard a number of these GCs tell their "extremely powerful" stories before. But once she and her coauthor started to work on the book, she says that the question became, "What would make it interesting beyond these stories?"

Baysinger says that's when the the project "got more exciting." An insurance regulatory lawyer at SNR Denton who counts Allstate as one of her clients, she explains, "We started to think of it as a mentoring tool, as an opportunity to have these amazing women share kernels of wisdom with potential readers."

One of the biggest pieces of advice that the book has to offer is that it's important to take risks. "Each one of the women took what I call a flying leap at at least one point in her career," says Baysinger. "It's important to focus on the opportunities. And in every situation, there's an opportunity."

But the book also stresses the importance of creating opportunities. Mayes cites an anecdote from Louise Parent, who was a law firm attorney before embarking on a path that eventually led to her current position as general counsel of American Express Company. "Louise tells a wonderful story about how she's sitting in a room looking at documents," Mayes says. "She looks out the window at the Empire State Building and says to herself, 'Wait a minute, this is my birthday.' And she decides, 'I'm not doing this anymore,' and walks out."

Another lesson from the book is that "there's no one path for career success," Baysinger says. "We talked to 42 women GCs. There are 42 completely different distinct routes to get there. Not one of them mirrored another." She continues, "That's actually a really powerful message for women—and men—who are thinking about how to get ahead. Just because you don't look like or act like or have the same CV as the person who did a job before you, that doesn't mean you aren't precluded from doing it too."

The book is unapologetically inspirational, starting with its title. Mayes says, "It was so apparent, when you read the text of the interviews, that that was a common thread—that you encountered these risks, they're windows of opportunity, but you need courage to tackle them."

However, readers will find another message too. "It wasn't all pretty," Mayes says. "No one got there without some bumps in the road. There are some stories in there where people say, 'That didn't go so well.' But so what? Failure is only fatal if you let it be." That's advice that all women lawyers can use as they continue to work toward full equality in the profession.

By Brian Zabcik

Source: Corporate Counsel

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