One of the critical themes detailed throughout The Making of Lawyers’ Careers is the role of inequality in the legal profession. The book examines topics such as how certain lawyers are marginalized in elite law firm settings; how parenthood and masculine cultures intersect in the profession; and how student debt impacts the most marginalized populations. While the research reveals that individuals have developed strategies to overcome many of the limiting structures found in the U.S. legal profession, they also show how little progress has been made since the “golden age” of law firms in the 1980s. In this story, we highlight a selection of findings from part 5 of the book on inequality, as well as hear from one of the authors and a leading scholar on inequality in the legal profession, Ronit Dinovitzer, a professor of sociology at the University of Toronto and one of the principal researchers on the After the JD Project. This issue also includes discussion around the themes of “strategy” and “structure.”
Takeaways on inequality
In chapter 10 of The Making of Lawyers’ Careers, “White Spaces: Enduring Racialization of American Law Firms,” the authors—in collaboration with Vitor M. Dias—write that “racialization … is a design feature baked into law firms.” Despite an increased commitment to diversity in recruitment and training, law firms remain overwhelmingly “White spaces,” the authors write. “Even when they do recruit minority lawyers for entry-level associate positions, law firms systematically deny them the opportunities and resources to stay and succeed.” For example, entry-level data indicates that non-white and female lawyers are recruited in almost parity into the largest, most elite law firms. However, the options available to them to progress are consistently less than for their white male counterparts. The authors of The Making of Lawyers’ Careers write:
Study after study shows that African American lawyers in law firms are typically shunted to the “dead-end track” and assigned routine paperwork, whereas their White counterparts are more often put on the “training track” and assigned challenging work for important clients. As a result, African American lawyers lead the exodus out of law firms; their risk of exiting far exceeds that of any other racial or ethnic group.
After the JD (AJD) data supports this notion: while 75 percent of AJD respondents worked in a law firm at some point during the first 13 years of their career, a noticeable gap in equity partnership starts to form later. “Between 2000 and 2006, the gap in equity partnership between African Americans and Whites was consistently small (as were rates of making partner for all respondents),” they explain. Later, however, the situation becomes exacerbated. “[The gap] then doubled in 2007 and continued to widen from 3 percentage points in 2007 to 11 percentage points in 2012. An exodus of African Americans from law firms coincided with a rapid increase in Whites making equity partner.”
AJD measured this data by looking into exits and promotions, as well as asking respondents about their desire to leave the law firm and how factors like discrimination and mentorship factored into that decision-making. When interviewed at any point in time, African Americans were by far the group most likely to indicate a willingness to leave the law firm. The authors posit that discrimination and a lack of mentorship were important factors in their desire to stay or go. In an experiment, the authors controlled for mentoring and bias, “statistically (or artificially) leveling the playing field,” and identified that “in this alternative universe, narrowing the racial gap in mentoring and bias directly narrowed the racial gap with respect to our two outcome measures, namely, exiting the law firm sector and promotion to equity partner.”
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The Black-White Student Debt Gap Among Law School Graduates
In chapter 11, the authors dive into student debt, revealing the connection between debt, race, and satisfaction. Perhaps unsurprisingly, student debt disproportionately impacts African American lawyers, as we have previously reported in Meghan Dawe’s article, “The Black-White Student Debt Gap Among Law School Graduates.” But, despite the high levels of student debt that exist across the board, lawyers largely do not regret going to law school, and in fact, those with the highest levels of debt still report high levels of satisfaction with the decision to go to law school. Indeed, such debt is associated with upward mobility even as it further exacerbates inequality. Debt also does not steer lawyers away from lower-paying jobs, like public service.
In chapter 12, “Hegemonic Masculinity, Parenthood, and Gender Inequality,” the authors explore the disconnect between the seeming opportunities available to women when the AJD cohort began their careers and what came to fruition. “When the women in the AJD study entered law school, they had every reason to be optimistic,” the authors write. Instead, what they found was a pervasive culture of “hegemonic masculinity,” one where even childless women willing to work without constraint find barriers to advancement. Indeed, the book relates the story of one woman without children, Penelope, who called herself “the closest thing to a man that these people [the firm] have,” who still met discrimination at every turn and found herself not advancing, despite effort. At all three interview waves and in all practice settings, women earn less, AJD data shows. Having family or children seemingly has little impact on this phenomena. Indeed, women in large firms have, on average, more children than women in more family-friendly settings like government (more on this below). In a culture of hegemonic masculinity, “women’s careers are disadvantaged because they work within a gendered social order that is deeply embedded in organizational structures and legitimates unequal gender relations (Messerschmidt 2018),” the authors write.
In addition to the fact that women in large firms tend to experience a “motherhood premium” via children, chapter 12 contains several unexpected findings: for instance, “individuals who report an experience of discrimination (including sexual harassment) also report significantly higher earnings at all quantiles.” The authors suggest that this may have to do with the fact that women who have ascended the hierarchy into leadership ranks may be more likely to experience harassment. Men with children, unsurprisingly, experience benefits from having a partner at home as well as children. “Men with children outearn—by a large margin—childless men, childless women, and women with children, from 17% more at the 25th quantile up to 32% more at the 90th. Importantly, we also find that women with children earn significantly more than do women with no children at all quantiles but the 25th but that their premiums are more modest, ranging from 11% to 13%.” But, the authors write, women with children have to more delicately balance priorities at home, often shouldering more of the caretaking responsibilities.
Broadly, inequality across the profession reflects greater inequalities in American society. But as Ronit Dinovitzer points out, even if the legal profession cannot correct for inequality, they must act to address inequity—both in law firms, which often bore the brunt of attack, as well as in government, nonprofits, and companies.
A Discussion with Ronit Dinovitzer
The Making of Lawyers’ Careers highlights inequality throughout the book, but especially in part 5. One of the especially surprising findings in chapter 12, “Hegemonic Masculinity, Parenthood, and Gender Inequality,” is that women in “more elite” settings, like large law firms, actually have more children than those in public interest/government or alternative legal settings and perhaps earn what you call a “motherhood premium” in contrast to the “motherhood penalty” that one might expect. Could you talk more about that finding—and any other surprising revelations from your research on inequality—and why this example is emblematic of the complexities of looking at this topic in the legal profession?
There’s a very strong assumption that the biggest impediment to women’s advancement in the profession is motherhood. Even before we began the AJD study, we always had the assumption that women might start their careers in firms, but eventually leave the firms and go to government because it is family-friendlier. But when you look at the data around parenthood, the highest rates of parenthood are in the largest and midsize firms. And in fact, women in state government have some of the lowest rates of parenthood. What’s going on there?
Across the sample broadly, 35 percent of the women don’t have children—that’s higher than the latest Census data, which indicates that 19.1 percent of women with graduate or professional degrees are childless. Then you look at women in firms with children, and you want to understand what they’re earning. The analysis of the wage gap is that men—both men who are fathers and men without children—always earn more than women. That’s why we call it hegemonic masculinity. There are cultural factors that have nothing to do with motherhood that create this paradigm, but the fact is that men are always earning more.
When you look at women in firms specifically, women with children earn more than women without children. This is because these women are rewarded for complying with dominant norms and their adherence to practices of hegemonic masculinity (such as technical competence, authoritative leadership, work devotion, and breadwinner status). Some people hear us say “motherhood premium” and get distracted and think, “Oh, well, women are earning more for being mothers” and wonder how can that be. But this is only compared to women who don’t have children. That’s very important to get straight. It is also important to ask why it is that the popular narrative and endless policy recommendations focus on women and family “conflict” despite evidence to the contrary. We argue—as do other sociologists—that business leaders adhere to the narrative of work-family conflict because it does not disrupt the gendered (masculine) norms that define success and are embedded in organizational structures.
This tells us two things. First, over the past three decades, since women have been half of the law school population, firms have both recognized the value that women bring and hired them in great numbers. But they’ve also found a different way of including them—through nonequity partnerships. Women can have these long, fulfilling, well-paid careers in firms, but they don’t get to advance in the same way that men do nor do they get paid at the same rate that men do. I think what’s important is that we still carry with us the assumption that they’re not advancing because they’re mothers. That’s not true.
Yes, the women in nonequity tracks are well compensated, and when we talk to them, many say this works for them. But it doesn’t mean that they didn’t want to become equity partner and can feel trapped. What we also learn from the data and these conversations is that women who don’t have children might be seen by the firm as not fitting the box, and that, in turn, can hurt them.
How could it be that you’re experiencing discrimination and earning less but still satisfied?
Ronit Dinovitzer, professor of sociology, University of Toronto
There are a few other important conversations this opens up. One is, for example, experiences of discrimination, which exist across the profession rather than simply with firms. Women’s experiences with discrimination occur in both public and private sectors. Often, we assume the concern is with the law firm, but AJD shows we need to look across the profession.
And then the other important finding we looked at is satisfaction. It turns out that women and people of color, despite experiences of discrimination or unequal pay, still report that they’re happy with their choice to become a lawyer. What this says is, “Hey, listen, there are these obstacles, but people are finding fulfilling careers both across demographic categories who experienced discrimination and across practice settings.” We find that the people who report the lowest levels of satisfaction are individuals who have had trouble in building their careers, people who’ve had periods of unemployment and instability. It’s not surprising that they report lower levels of satisfaction but across the board—well over three-quarters of people across all the waves of the study—are pretty happy with their choice to become a lawyer and their career trajectory.
Sometimes people call this the “paradox of women’s satisfaction”: How could it be that you’re experiencing discrimination and earning less but still satisfied? For some women, it is finding multiple roles in their lives that give them satisfaction. It could be the work itself or the people.
Levels of satisfaction exist across the spectrum on elite status, too. Lawyers from across the spectrum of law schools found careers that worked for them, made lives that made sense, experienced upward mobility, had satisfying careers, and paid off their debt. There’s definitely an underside—it’s not all roses. But After the JD really made these big contributions in disrupting so many assumptions around what we assumed to be the case.
Looking more at the recent past—from 2020 when you began laying the book out to today and into the future—how are you thinking recent changes in technology, from remote working possibilities to generative AI, will impact inequality in the legal profession?
What is undergirding inequality? There are two parts to inequality. Let’s think about women, for example. With technology like Zoom, does it help women to work from home or have more flexible lives? Maybe. But we also know that one of the problems for both women and minorities in terms of getting ahead in their careers is having a champion who can help them integrate with their workplace. We often heard stories from people of color or people from lower socioeconomic backgrounds saying, “I didn’t fit in; I didn’t get adopted; I was ignored; or I was excluded.” Well, working from home can actually exacerbate that phenomenon. Robert Nelson, John Hagen, and Monique Payne-Pikus wrote a revealing article about how lawyers of color experience mentorship (or lack thereof) and report experiences of discrimination that, when combined, lead to feeling excluded in law firms, and ultimately to leaving their job.
Firms recognize that their value is in relationships.
Ronit Dinovitzer
The question is how the introduction of AI will lead to changes in the workplace, and I think first about associates, whose contributions might be most impacted. And of course, associates are where we are more likely to find minorities and women. There’s always the double-edged sword that even as technology might enable some good, it might cause harm. Advances in previous technologies are a pretty good indicator of what might happen. E-discovery is now a huge business, and the life of what an associate does today is probably completely dissimilar to what they did 20 years ago. Yet even with the introduction of those technologies, law firms adapted, and there remains a healthy market for associates.
Firms have certainly weathered disruption before. But the question of impact is also segmented, in terms of the changes for big firms versus what will happen in the people law sector. I think ultimately in both sectors, firms recognize that their value is in relationships. The people behind the product are what matters. And legal services will always be what Jillian Hadfield calls “credence goods.” The business of law is selling people their expertise and their promise of “I’m going to take care of you, and I’m going to give you the best advice.” It is going to be up to lawyers to really push what’s their value-add. And I think they see this coming. And so again, as I was saying, we just have to think about where has inequality emerged from and how will technology disrupt or enable it?
In the conclusion to The Making of Lawyers’ Careers, you write:
As this book goes to press, America may be emerging from a global pandemic and has recently experienced a year of protest over racial and social injustice in the wake of the murder of George Floyd by a police officer. Many are predicting that these events are creating a ‘new normal’ in which existing ways of working will be fundamentally upended by technology and generational change. Our analysis suggests that we should be cautious in making these predictions. While there will undoubtedly be many changes in the way in which lawyers live and work, our findings underscore that the social structure of the bar can adapt to these changes in ways that replicate existing hierarchies even as they create new strategies for individual lawyers to manipulate and challenge these structures.
Given this and the other types of conflict and technological innovation that has emerged since the book’s publication: What interventions would you make to cement change in the legal profession?
It’s really important to understand how inequality manifests across the legal profession. You’re probably not going to get rid of inequality entirely—we’re not upending the entire system of legal education and saying there are no elite schools anymore. So as long as you have elite schools and elite graduates, you’re going to have the reproduction of inequality. What you have to worry about are inequities—where we’re making judgments about two similarly situated, credentialed individuals and you’re making discriminatory judgments about them. That’s a problem.
So why does hierarchy keep replicating? It doesn’t mean that things don’t change. If you look at the past 50 years of the legal profession, because of the expansion of legal education and the legal profession, and because of the recognition that past practices were discriminatory, we now have 50 percent women and we have lots more people of color. And the entry-level ranks of firms are shifting. But the structure itself is not changing because at the end of the day, only a handful of people become equity partner. At the same time, while there are these structures of inequality, that doesn’t mean some individuals don’t succeed. Also, there are different forms and definitions of success. It is about getting people to recognize that there isn’t only one career that’s good. It’s not just the big law career or nothing. Data has shown that people have had varied and fulfilling careers across spectrums. People can be creative and be open, because I think that’s one of the lessons here: that people are creating these other ways of finding fulfillment and satisfaction.
I don’t know that there’s a particular intervention that could cement legal change because the whole point is that there’s a field that is structured to value specific things, and that has lasting power. There isn’t going to be a single fix and that this happens because there’s an entire field that is oriented to valuing corporate law and elite degrees and that is embedded in our system. Inequality is embedded, but we have to deal with inequity. When I teach people, I tell them there are these structures, but you have to learn to advocate for yourself. You have agency within the system. You have to learn that when you’re in a position of power, you should disrupt your assumptions and biases.
Firms have to think a little bit more carefully about inequity. For example, how are you promoting women’s careers? Why are women stuck in nonequity partnerships? How are their work assignments distributed? How are their relationships within firms? Who are they working with? Who are they valuing? I think our earlier discussion about women and parenthood highlighted some of the ways in which gender inequality is reproduced, and why progress is stalled.
I spoke to a woman here in Toronto who raised her kids. She’s a nonequity partner, but she thought, “I can do this. I can move up.” But the firm doesn’t see it. They don’t see that there’s a pathway out of that track. The problem is we do want different tracks. We understand that there’s prestige. We’re not going to go to all of a sudden a flat society. But we have to think about where does inequity enter into our practices and judgments? And then, how can we disrupt them?
Ronit Dinovitzer is a Professor of Sociology at the University of Toronto and Faculty Fellow at the American Bar Foundation, where she co-directs the Research Group on Legal Diversity.
