Gender Influences Law Firm Hiring, Promotion, Sociology Professor Says
Professor Elizabeth Gorman
found that men more frequently
hired men when professional
judgment was important to the
Law firms that have greater proportions of male partners and that value stereotypically male characteristics may be less likely to hire and promote female candidates, according to U.Va. sociology professor Elizabeth Gorman, who spoke at a talk sponsored by Virginia Law Women Feb. 15.
Gorman received her J.D. from the University of Chicago and practiced law for five years in New York and Washington, D.C., before obtaining her doctorate in sociology from Harvard. Her lecture outlined the basic sociological and psychological principles that underpin her research on law firm hiring practices.
According to November 2005 data provided by the National Association for Law Placement, women comprise approximately 48 percent of law students, almost 48 percent of summer associates, and about 44 percent of associates, but only 17 percent of partners are women. In analyzing this discrepancy, Gorman said she wanted to evaluate the allocation of opportunities, including getting hired, receiving work assignments as an associate, and making partner.
Gorman identified three processes “that can tend to produce an advantage for men in obtaining opportunities.” The first process is based on individual lawyers’ decisions and self-selection, rather than firm-based choices.
“In other words, one reason that women might not be hired as often as men, might not get the same assignments or as good assignments as men, might not be promoted to partner at the same rate as men is that they themselves are opting not to seek those opportunities,” Gorman said. “And we do know that female associates leave law firms at a higher rate than male associates do.”
Women may opt not to pursue certain career paths because of “innate gender differences,” biological differences, or “strong cultural socialization.” Also, because women tend to marry men who are more educated and older than themselves, a woman’s decision to remain at home rather than in a firm simply may be a rational financial choice, according to Gorman.
“All of those factors are undeniably there—I just think that the attention paid to this in the last few years has tended to distract attention away from other processes that are going on on the employer side I think that are just as real,” she said.
For this reason Gorman chose to focus on the two processes firms control. One possibility is that men may actually be better lawyers. Because skills and abilities in legal practice extend beyond raw cognitive ability and what is learned in law school, men may excel in certain valued skills such as leadership and taking initiative.
“If this is the case, then maybe law firms are just being meritocratic,” Gorman said.
There is little evidence, however, that men have stronger skills or abilities out of school.
“In fact if anything, it looks the other way—in recent years women have had higher law school grades on average than men,” she said, acknowledging that men’s and women’s abilities may diverge by the time of the partnership decision.
The third process involves partners’ cognitive biases in perceiving and evaluating associates. According to Gorman, psychologists have identified two relevant types of biases: in-group preference and schema-based thinking. In-group thinking is an us-versus-them mentality based on characteristics including gender, race, nationality, and more. Laboratory work has found that people tend to feel more comfortable with members of their in-group, finding them more trustworthy and cooperative.
“If we apply that then to the law-firm context, all that suggests that partners who are men may tend to show some favoritism towards male associates,” Gorman said. “It may not be conscious, it may not be deliberate at all, it may be just at automatic feeling of being more comfortable with them, and this might be especially true if whatever opportunity is being allocated involves working together.”
All else being equal, in-group preference should work the same way for women, Gorman added.
Unlike with in-group thinking, the gender of the decision-maker probably does not matter with the second type of bias: gender schemas, which “may be negative or positive or neutral,” she said.
Gorman explained that people categorize the objects, people, and events around them into a template or schema “which involves abstracting from the category the core features that define that category or make it recognizable.” Schemas influence people’s perceptions of each other strongly and automatically so that observers tend to remember an individual’s characteristics that are compatible with his or her gender schema and to ignore differences.
“We just assimilate the individual to the schema,” she said. “It’s a nice cognitive shortcut—it’s an easy, low-energy demanding thing to do.… Law firm partners are human; they’re not immune from these cognitive biases.”
The schemas for men and women are widely divergent. Studies have shown people generally list men’s traits as being aggressive, decisive, logical, responsible, and good leaders. In contrast, people characterize women as submissive, indecisive, good at caring for others, passive, illogical, and emotional. According to Gorman, the perceived differences are not automatically disadvantageous to women.
“It depends on what the job in question is; it depends on what the decision-maker is looking for,” she said.
Although some job schemas, such as truck drivers and used-car salesmen, are clearly sex-linked, the schema for lawyers is not. Nevertheless, partners are not immune from the impact of gender perceptions.
“Gender may still come into play because the image the employer has in mind may include certain characteristics which are also part of the male or female gender schema,” Gorman explained.
In a study published in the American Sociological Review, Gorman looked more deeply at law firm hiring within this context. She began by analyzing the hiring criteria listed by each firm in the NALP directory. Most firms preferred candidates with good grades and participation in law review, moot court and other activities, but often some of their other desired characteristics were stereotypically masculine. For example, one Los Angeles firm sought associates who take initiative, show a willingness to assume responsibility, are mature and have judgment, all of which are associated with the male gender schema. Very few feminine criteria were listed by firms, but friendliness, cooperativeness and verbal skill were among those sometimes included.
Gorman coded the criteria of 887 law firms nationwide as masculine, feminine or neutral and then looked for correlation between their gendered preferences and their hiring practices. She identified firms’ new hires by comparing their staffs listed in the Martindale-Hubbell legal directories in 1994 and 1995. By using the hires’ first names, she was able to identify how many were women and how many were men and then used regression analysis to look for correlations.
“I did indeed find that the greater the number of stereotypically masculine hiring criteria a firm had, the higher the proportion of men among their new hires,” Gorman said. “And conversely, the greater the number of stereotypically feminine hiring criteria they had, the greater the proportion of women among their new hires.”
Gorman said she suspects the same biases influence the allocation of opportunities after hiring as well, but she does not have access to adequate data to study that.
Gorman also compared the gender of the hiring partner, as identified using the NALP, to trends in hiring.
“Consistent with the idea of in-group preference, I did find that when the hiring partner was a woman, there was a higher proportion of women among new hires than when the hiring partner was a man,” she said. “Interestingly, this effect diminished as women’s representation among firm partners increased. So as there got to be more and more women partners in a firm, either the female hiring partners were favoring women less or male hiring partners were favoring women more.”
She was quick to note, however, that virtually no firms in her sample had more than 28 percent of partners who were women.
“It seems that perhaps as the partnership gender balance moves a little closer to equality that maybe the hiring partners, the male and female hiring partners, sort of converge in terms of their hiring practices,” she said.
One particularly significant component of gender schemas may be the perception of competence, because research has found that people generally consider men more competent than women and require stronger evidence of ability before they will conclude a woman is capable.
In a study that currently is under journal review, Gorman addresses how gendered perceptions of competence may play out in law firms. Employers generally must infer applicants’ abilities based on two types of observable evidence: past track records and social characteristics. The degree to which employers weigh past performance versus social characteristics is a function of how much uncertainty and discretion is involved in the job. For example, when a marathon runner finishes a race in three hours, it is reasonable to conclude the athlete can complete another race of the same distance in a similar time. But “there’s no cookbook formula for winning at litigation,” she said.
“My reasoning then is that when work involves more uncertainty, law firm partners who are trying to make inferences about ability are going to give less weight to performance and more weight to gender,” Gorman said.
Using a sample of law firms in 1995, she coded practice mixes according to three factors that tend to increase work uncertainty: variety of types of practice handled by an individual lawyer, extent to which practice calls for professional judgment and extent to which lawyers must interact with other parties.
“I did indeed find that when each of these forms of work uncertainty was greater, promotions were less likely to go to women,” Gorman said.
This was especially true of firms with higher percentages of male partners.
“So in other words, promotions went to women less often when a firm’s practice involved more professional judgment, but they especially went less often when there was a high level of professional judgment and a high proportion of male partners in the firm,” she said.
Gender schemas may further disadvantage women because women who try to show stereotypically male characteristics may be considered “bossy and unpleasant” by others, as many laboratory studies have suggested.
“It’s a bit [like] being between a rock and a hard place,” Gorman said.
Over time, the cumulative affects of gender biases may be substantial. When partners choose not to offer certain assignments to women associates, those associates in turn are deprived of opportunities to gain skills, knowledge, and contacts that their male peers acquire.
“If she’s repeatedly passed over for these sorts of types of assignments, then although she and her male colleagues may be starting out at the same place at the beginning, over time they’re going to be advancing ahead of her in terms of skills, and abilities and contacts… so that by the time they reach the partnership decision, the men very likely will be better qualified than the women, and at that point the partners can say with perfect justice that if they’re promoting the men, it’s because they’re better qualified,” she said.
Gorman added that many women who experience this may not stay around until the partnership decisions are made anyway.
“The pull of the home starts to look a lot better when you realize that you’re not advancing the way your male peers are, that you’re not developing the skills that they’re developing and that your chances ultimately aren’t going to be as good as theirs,” she said.
• Reported by Elizabeth Katz