Challenge the Calls: Gender Inequity

gender inequityMuch has been written about gender inequity over the thirty years I have been a lawyer. During that time, women have made strides, graduating from professional schools in approximately the same proportion as men over the past decade or more. However, study after study shows that women do not earn the same salaries or rise to the same powerful positions as men. Although we may not all agree on the causes, I am convinced that gender inequities may be broken down by concerted individual and systemic action and that the time is now.

As individuals, both men and women must challenge assumptions. As managers and supervisors, we must embrace and harness diversity of thought and experience. This includes, for us women, getting out of our comfort zones and–dare I use the buzzword of the hour?—“leaning in” to grasp leadership roles.

Institutional Biases

In her book Lean In, Sheryl Sandburg asserts that in addition to institutional biases, an impediment to gender equality is an “ambition gap” that keeps many women playing it safe in comfortable roles rather than putting themselves forward and negotiating for a higher rung on the jungle gym. She calls on women to advocate for ourselves and to be more assertive on behalf of each other.

Supporting Sandburg’s view that there may be something in the DNA—or socialization—of females causing them to be less confrontational or assertive than our male counterparts is a recent Sports Illustrated article by L. Jon Wertheim analyzing the use of the replay challenge system in place for tennis at the elite levels. The rules for men and women players are the same: players may challenge officials’ line calls for review three times per set. In this year’s Wimbledon competition, adjusting for the facts that men’s’ matches are longer and more frequently played on the “show courts” with replay technology (deserving discussion as well), the challenge statistics were startling. “Women challenged 2.6% of their points; men challenged 3.3% of the points—more than 25% more often… Yet males and females come astonishingly close in their success rate on their appeals.” Similar statistics were reported from last year’s U.S. Open and Australian Open. At this highest level of play, with major economic incentives on the line, women are 25% less likely to challenge a call than their male counterparts. Players of both genders were interviewed for the article; none was aware of the disparity. Martina Navratilova concluded that women need to be more comfortable challenging.

Or maybe we should recognize our discomfort and challenge anyway. Without someone challenging assumptions about the way things are, have been, or should be, there will not be meaningful change on a systemic level.

Challenge the Media

For starters, someone needs to challenge the current tendency in the media to frame gender inequities as “work-life balance” issues. As in, “she has a lot of potential, but wants a different work-life balance than we offer here at the firm.” As long as the inequity is framed as a personal choice, there is no need for leaders of an organization to change policy or practice that may as a consequence result in inequities. As we lawyers know, re-framing is a powerful tool.

In every change movement, the framing of issues in the media is foundational. A study by Harvard and Simmons business professors, “An Outside-Inside Evolution in Gender and Professional Work,” considers differences in the ways media framed issues related to gender and work and the related response within an organization. Analyzing business-related articles from 1991 through 2009, the authors note that the presentations changed from a logic of bias (women presented as victims of unequal treatment) to a logic of under-representation (women presented as stuck at lower levels of the organization) to a logic of work-family conflict (women’s career advancement stymied by child-bearing and home responsibilities). The victim and underrepresentation presentations invited action from organizations, e.g., solutions about education or leadership training. Framing the issue as an individual choice, however, allows those in power in organizations to take a “pass” on having to take action because the “cause” of such inequity is out of their control.

Institutional bias persists, however. How else to account for the recent American Lawyer 2013 Mid-Level Associate Satisfaction survey results that show men are happier with their legal jobs and strive to make partner more than women do? The survey this year for the first time distinguished between the responses of male and female third-, fourth- and fifth-year associates at the biggest law firms. Men’s scores ticked up from last year and were higher than their female counterparts in every one of the twelve areas of job satisfaction. Men also expressed a greater desire to become partner whereas women expressed uncertainty about staying at their firms.

Gender Inequity and Legal Field

In my experience and opinion, individual choice alone does not account for the higher numbers of women who are dissatisfied and end up leaving the practice of law. The desire for work and family, coupled with the other themes of gender inequity, bias and under-representation, are at play in the legal field. Now is the time for both individual and institutional change on gender equity.

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