The Women Partner Problem

Frankly, I've written too infrequently about our industry's deplorable statistics on the ratio of women partners to male partners.   I have excuses, but they're not reasons.  Herewith a first attempt to remedy that.

This is prompted by a survey that opens with these vivid statistics:

"The search for reasons begins with the confounding fact that women and men have been graduating from law schools and entering the firms in virtually equal numbers for at least 15 years but, according to the MIT Survey #1 on Rates of Attrition women make up only 17% of firm partners. That number increases to only 21% if the period before women entered firms in large numbers is excluded, according to the 2006 National Association of Women Lawyers survey."

The report, “Women Lawyers and Obstacles to Leadership,” was produced by the MIT Workplace Center along with local bar associations. Of the 1,000 Massachusetts lawyers surveyed, 31 percent of female associates had left private practice entirely, compared with 18 percent of male associates. The gap widens among associates with children, to 35 percent and 15 percent, respectively.

The following quotes are, I think, striking (emphases supplied):

“I once heard someone describe their position as a junior associate at a large law firm as the best paying dead-end job they have ever had." [Female associate]

"Among associates, over 50% of women work more than 50 hours a week. Women with children, however, limit the number of hours they work. Among women with children, only 32% work more than 50 hours a week. On the other hand, male associates with children do not limit the number of hours they work in the same way women with children do. On average, over 75% of men work over 50 hours a week. Among men with children, 85% work more than 50 hours. Men with children, in fact, tend to work more hours."

"At the non-equity partner level, both men and women report working more hours than associates, but there is still a difference between the number of hours men and women work. Sixty-five percent of women non-equity partners work more than 50 hours a week, whereas only 55% of women with children do so.

"Again, the presence of children decreases the number of hours for women non-equity partners, but the same effect does not appear for men. At this level also, men with children tend to work more hours than women with children. 

"At the partner level, the same pattern persists with one striking difference. Both men and women tend to work more hours than non-equity partners. However, both men and women partners with children work fewer hours than those without children. This is the only point at which the impact of children on time spent at work is similar for men and women.

"Lauren Stiller Rikleen in Ending the Gauntlet: Removing Barriers to Women’s Success in the Law (Thompson/ Legalworks, 2006) argues that the essential condition for the success of flex-time systems is change in traditional firm management. At present, she says, management committees are usually made up of partners who are pre-eminent in their practice areas but not necessarily knowledgeable about management principles, economics, or finance. Their tendency is to follow traditional hiring and promotion practices without undertaking sophisticated analyses of their costs.

"She concludes that what is needed is a rational examination of sole reliance on billable hours as the basis for a firm’s profitability, and rational consideration of additional compensation structures.

"For this she strongly urges a turn to professional management for law firms."

I'm going to second her recommendation of "professional management for law firms" (I know: Regular readers will be shocked by this), in what may strike some as a radical way by the time I'm done with this piece, but first let's flesh out more of the survey's findings.

The survey also asked women taking advantage of "flex-time" options their reasons for doing so.  The responses were:

• Nearly 90%: More time with children
• Less than 10%: Everything else, such as:
  • elder care
  • more control of working hours
  • health
  • work not intellectually stimulating
  • wanted to pursue other interests
  • didn't need the money

What does all the foregoing demonstrate?  To me, one and only one thing. That one thing seems to have been lost in all the smoke and brimstone surrounding "gender equality," "sexism," and the endless, fought-to-an-exhausted-standstill debates between the societal and civic virtues of stay at home Mom's vs. the battle cry of those calling the sisterhood to the professional office ramparts.

That one thing is:  Having children is different.  It's different than taking a sabbatical or a detour into government or nonprofit service, and it's vastly different for men than for women.

The unspoken assumption—on both the part of the firm and the part of the individual lawyer—is that father/lawyers are more committed to their careers and more determined to succeed, but mother/lawyers have heard the siren call of the newborn and will never report back to the office feeling the same uncompromised commitment they did before. Isn't this what we all think but dare not say?

That's why "flex-time" has always struck me as such a weak, jury-rigged, and fundamentally ineffective half-measure. The dirty secret about flex-time is that it's 80% of pay for essentially the same amount of work. 

Just yesterday I was talking with a (male) former Skadden international deals lawyer who recounted, in sadness and not in anger, the story of a female colleague on maternal "flex-time" who was involved with a deal in Taipei, where it was the start of the business day around 9:00 pm in New York—and of course the investment bank client had bankers on the ground in Taipei on Taipei time.  You literally had to be there all night.

We've talked, at this point ad nauseum, about changing "attitudes," we've talked about cabining expectations, we've talked about the relative importance of child-raising and deal-brokering, we've talked about how no one on their death bed ever wished they'd spent more time at the office, etc., etc., etc. And we're stuck where we were 15 years ago. 

I don't know about you, but I have to conclude as at least a closet empiricist that these conversations, alternatively sanctimonious, defensive, patronizing, righteously indignant, and confused, have fundamentally failed to advance the ball downfield.

So I have a different and perhaps radical suggestion:  Can we not recognize that the fundamental problem is our insistence that a woman's prime child-bearing years coincide with the years of the tournament to partnership?  And if that is the ineluctable problem—the reason we've made pitifully little progress over two or three decades of massive investment in women's careers and endless exhortation—then, if we're serious, shouldn't we do something about that?

In other words, why can we not decouple those two ten-year time frames so that they're not coincident in time but at worst weakly and marginally overlapping? My proposal is this:

• On a voluntary basis, let women who want to take time off to start a family do so—firms could obviously set their own ground rules, but I would think a reasonable period of time might be as long as seven or eight years for the "family sabbatical."
• Why would women return to the workplace after that long away? Because many of them would want to: Remember, these are by hypothesis highly motivated, exceptionally well educated people not used to being "defeated" in any sense of the word. And after the kids are a little older, a high level of commitment to work is again feasible. There's an enormous difference between having a toddler or having an elementary school student.
• Women who aren't in a position, or who choose not, to start a family, as well as any brave hearts who want to plow ahead on the partnership track with kids at home, would do so. But: Motherhood/maternity would not be a permissible or recognized reason for requesting "flex time." In for a dime, in for a dollar. I think this one single change would do more to eliminate the ghettoization of motherhood as anything else we could do.
• When women who had taken years off returned, they would jump right back on the partnership track ladder, although some firms might choose to make them "repeat" the year they were in when they departed. (For example, if you left as a fifth year, you might come back as a fourth year.)
• The point of this optional "repeat year" is two-fold: To recognize that such an extended period of time away from the practice means your technical skills need a refresher (and the substantive law may have changed as well—imagine leaving the securities practice before SOX and coming back after it), but second to recognize that both men and women who followed the straight and continuous path would probably resent returnees' picking up precisely where they left off. Think of it as a form of requiring the returnees to "compensate" the firm for having received the favor of the family sabbatical.
• Some will object that after such an extended period of time away, no one can rejoin the partnership race. My answer to that is: What a patronizing and condescending suggestion. I don't believe anyone's in a position to say that, flatly, about all women (or men). Face it: Those who return will be highly motivated, and they will also have gained a level of maturity and picked up skills that will be of genuine value to the firm and its clients. (Think time management, prioritization, multi-tasking, and maintaining equilibrium in the face of unreasonable or inexplicable behavior.)

Does this mean women would work towards, be eligible for, and become partners a decade or so after men?  If I can do arithmetic, that may be its implication.  Would men, famously frailer than women in older age, want to retire earlier and would some rough justice in terms of overall career duration be maintained?  It's possible.

So I'm proposing that we confront head-on instituting a program that purposely "parks" women out of the workforce for five to ten years—with no stigma—so that there need not be a stark, dichotomous choice between spending a critical decade or so of your life either launching a family or pursuing partnership. You could actually get to take your stab at both, seriatim not simultaneously.

Would women under this hare-brained scheme have at last the "level playing field" everyone genuflects to? I think so.   Maybe women at last would have a fair shot, and that 50%/17% statistic could change.  On the merits.  No stigma; no Mommy Track.

Would one firm care to initiate their own little sandbox experiment testing this hypothesis?  In one department? With two or three class years of associates? On a tiny tiny scale?

The only thing you have to lose is the half of your starting associates who lack a Y chromosome.