Arabella Mansfield was the first woman to be admitted to practice law in the United States. The year was 1869. She was admitted without objection in Iowa. Two months later Myra Bradwell was denied admission to the Illinois bar solely on the basis of gender. In 1873, the United States Supreme Court upheld the denial on the basis that the criteria for admission was for each state to decide. However, the Illinois legislature recognized the need for laws protecting the right to equality and in 1872 passed the first anti-sex discrimination law in the country opening the doors for women to practice in many professions previously denied. In 1873, Alta Hulett was the first woman to be admitted to practice law in Illinois.
Are women a significant part of the legal profession now? The American Bar Association has published a document entitled, Facts About Women and the Law. Its purpose is to provide information to the media about women and the law and expects that those facts be disseminated. It contains interesting information concerning women in the justice system, women in the workplace, equal employment, equal pay, sexual harassment, pregnancy and health issues, women and education, women and family law, and women and criminal justice. It makes for very easy, interesting reading and can be obtained from the American Bar Association.
The American Bar Association report concludes that women are now a permanent and integral part of the legal profession. Women comprise 24% of the nations lawyers. This percentage has doubled since 1985 when it was 13%. In 1971 there were only 3% women who practiced law. 44% of all law students are women and it is expected that women will make up 40% of the legal profession by the year 2010. The projections are that the legal profession will never be 50% women even though women are more than 50% of the population. The Annual Report of the Attorney Registration and Disciplinary Commission of the Supreme Court of Illinois reports that for 1998 women comprise 30% of the total registered attorneys.
As of 1997 women comprised 14% of law firm partners, 19% of full professors at law schools, 8% of law school deans, 19% of federal judges, 20% of state civil judges, 22% of the American Bar Association House of Delegates Members and 32% of the members of the ABA Board of Governors. There is a 70% higher percentage of women federal judges today than in 1987 (19% versus 7%), 186% higher percentage of women judges in state courts of last resort (20% in 1997 versus 7% in 1986), 144% higher percentage of women in the ABA House of Delegates (22% in 1997-1998 versus 9% in 1987-1988), and the percentage of the women on the ABA Board of Governors went from 3% in 1987 to 32% in 1997-1998. Growing at a slower rate, one closer to the overall rate of increase of women in the profession, is the 75% growth in the percentage of women partners at law firms (14% in 1997, up from 8% in 1987) and the 46% growth in the percentage of women law professors (19% in 1997, up from 13% in 1990).
In Illinois, in 1985, 4.3% of the judges were women. Five years later, in 1990, this figure grew to 7% and in 1995 it rose to 15.8% due mainly to the creation of Cook County subcircuits. In 1999 in the Eighteenth Judicial Circuit, 14.6% of the judges are women. There are 3 women out of 15 full Circuit Court judges elected by the people (20%) and 3 women out of 26 Associate judges appointed by the Circuit judges (11.5%).
From the early 1970’s the percentage of law students who were women has more than quadrupled, from a 9.4% in 1972-1973 to 44% in 1996-1997. In light of such a low percentage of women in the law profession in the 1970’s and 1980’s, it is not at all surprising that there was a perceived gender bias in law schools and in the law profession. The ABA Commission on Women in the Profession conducted a series of hearings in 1994 and 1995 to explore the subject. The ABA states that the results were disquieting. Testimony showed that in a large Midwestern law school, a faculty member routinely referred to women students as "little girl" or "sweetie" and that students at another school called women faculty inadequate or bitchy and tested them with frequent interruptions. The Commission heard from Deans, faculty and students from 58 law schools, whose testimony showed repetitive concerns about bias in the form of gender stereotyping, sexual harassment, hostile and disrespectful behavior toward female students, a relative silence of women in the classroom, a lack of female role models and mentors, a low percentage of female tenured faculty, a disproportionately high number of women faculty on non-tenured track positions, and pay disparities between male and female professors with the same credentials.
At the same time, students perceived law school as gender neutral. Witnesses reported that most professors treated women and minority students with respect, and many students acknowledged that some law school environments were changing for the better. Witnesses reported that women students who were reluctant to speak in classroom were pleased with clinical programs that gave opportunities for learning and success, and students praised some schools for making considered efforts to hire more women faculty and address gender related issues in a proactive manner.
Once women lawyers get out of law school, where do they work? Most women lawyers work in private practice, as do most men. In 1991, 70% of women and 74% of men were private practitioners. 12% of women worked for the government, 9% worked in private industry or associations, and a smaller percentage worked in legal aid or as public defenders, judges or educators. The greatest advances for women have come in the more prestigious sectors of the work force, such as private practice. In 1980 only 56% of women had been in a private practice setting, compared to 70% of men. Most women in the class of 1997 who have full-time jobs, but fewer than men, entered private practice. More women than men took judicial clerkships, entered government and went into public interest work. More men than women went into business.
Interestingly, in 1991 48% of women in private practice were sole practitioners compared to 44% of men. The ABA states that being a sole practitioner typically pays the lawyer less money than working in a law firm, although it may also bring more autonomy. In 1991, women practiced at 40% of the law firms in the country, more than 2-1/2 times the number in 1980.
About 40% of associates, staff or senior attorneys at law firms were women and about 1 of 7 law firm partners is a woman. Women’s representation at partnership levels varies greatly depending on where the law firm is located. 19% of partners are women in Austin, 22% in Denver, 20% in San Diego, while only 11% of the partners are women in Cleveland, 12% in Hartford, and 12% in New York.
Overall, women lawyers earn less than men. This is partly because women work in less prestigious jobs and partly because they sometimes are paid less for comparable work. A survey of the Massachusetts Bar Association showed that in 1997 half of the men surveyed, but only one-fifth of the women earned more than $75,999. 35% of the men and 58% of the women earned less than $50,000 and nearly one-quarter of the female respondents earned less than $25,000. The survey also showed that on average, women lawyers billed more hours per week than men did.
Do lawyer’s work places have family friendly policies? According to a 1997 survey by the National Association for Law Placement, about 92% of law offices allow part-time schedules, and more than half have a parental family leave, prompted in part by enactment of the Family and Medical Leave Act of 1993. While the policies exist on paper, few lawyers, men or women, are actually using them. Only 2.7% of lawyers say that they work on a part-time basis. Lawyers are much less likely to work part-time than people in the work force as a whole, or in more narrowly defined segments of the work force. 11% of all workers age 25 or older who worked in non-agricultural industries during 1997 usually worked part-time and 13% of the workers in professional specialties usually worked part-time. The ABA could not discern what discourages lawyers from taking advantage of part-time policies, whether it is a concern that the part-time lawyer will not be seen as being seriously committed to the law, a concern that a part-time job will grow into near full-time work with part-time pay, or the belief that at least certain kinds of legal work can be done only on a full-time basis.
The major question is whether there is bias against women litigants and lawyers in the court room. The ABA reports that respected academic studies showed that women were being treated differently from men in court proceedings. In light of this, a reform effort known as the Gender Bias Task Force Movement was initiated in 1980. In this nationwide movement, federal and state court systems asked litigants, lawyers, judges and court staff the questions, "Do we discriminate? How do we discriminate? Against whom? In general? In pervasive and diffused ways?"
The effort officially began in 1982 with the establishment of the New Jersey Supreme Court Task Force on Women in the Court whose mandate was to examine the nature and extent of the gender bias within that court system. In the ensuing 15 years, similar task force activities were undertaken in more than 40 states. Although some people questioned the need for these task forces, each of the more than 35 final state reports documented that bias on the basis of gender permeated the judicial system. The reports include well-supported examples of discrimination against women litigants, lawyers and court personnel, both in terms of the way that the women were treated and in substantive decision making concerning them. More than 20 reports showed that women witnesses faced special hurdles. Several reports tell that women seeking redress for domestic violence are often either blamed, accused of provoking their attacks, treated as if their experiences were trivial, or disbelieved. Questions of credibility also arise in the context of sexual assault and rights sought by women litigants under employment and federal benefits law. The conclusions of the New York Task Force on Women in the Courts showed the recurring theme. The report says, "Gender bias against women is a pervasive problem with grave consequences. . . Cultural stereotypes of women’s role in marriage and society daily distort courts... application of substantive law. Women uniquely, disproportionally and with unacceptable frequency must endure a climate of condescension, indifference and hostility."
The reports are ground breaking, for they substantiated systemic gender bias in the courts. One shortcoming was that they focused on women in a generic way, and did not capture the distinct experiences of women of different races, ethnic groups, classes, ages and sexual orientation. Also, although many reports included definitive recommendations for addressing the problems identified, only a few states have a rigorously pursued remedies. Therefore, in 1997, 5 national organizations — The National Association of Women Judges, The National Judicial College, The National Center for State Courts, The ABA Commission on Women in the Profession, and The National Judicial Education Program — began a project to revitalize the national gender bias task force movement. The project will survey past and present task forces and implementation efforts, develop a directory of resources for implementing task force recommendations, determine which implementation strategies are the most successful, and help states help implement them.
This is a very serious concern for women lawyers who deal on a day-to-day basis in the court room. If the women lawyers themselves are not getting fair treatment from judges, court personnel, and juries, this limits their ability to obtain and maintain clients. What client would want a lawyer who would not be treated fairly in court or who would have to overcome a gender bias in order to be able to present his or her case appropriately and on a fair basis.
Just reviewing these statistics provided by the ABA is astonishing because significant changes have occurred in the last 20 years. For those of us who have been in practice for the last 20 years, these are major events through which we have lived and may not have realized were occurring. Gender bias is sometimes a hard thing to discern while you are actually living through it. The best way for women to fight gender bias is to just to get out there and do it. That means that one has to recognize that it may be there and attempt to counteract it by presenting the best case for the client. The legal profession and justice system should be a leader in eliminating gender bias. The hallmark of law is equality and justice. As a profession, we should encourage women in leadership roles in the ABA, ISBA and DCBA, in educational settings, the political road and the judiciary. The only way to eliminate gender bias is to have women so common in the profession, not only in everyday practice, but also in positions of power and authority, that the concept of women in the law is no longer anything to study, write about or discuss. Gender bias should become an archaic, but interesting piece of history, like the dinosaur. Hopefully, this will not take a cataclysmic event to accomplish.
For more information about the history of women in the practice of law see "Bar None: 125 Years of Women Lawyers in Illinois", CBA Alliance for Women, www.chicagobar.org Facts cited and reprinted by permission from Facts About Women and the Law. Copywrite © 1998 American Bar Association. All Rights Reserved.
Dorothy F. French is a trial attorney and the Partner in charge of the Lisle office of the law firm of Hinshaw& Culbertson. She is an elected member of the Society of Trial Lawyers and American Board of Trial Lawyers. Her practice is concentrated in the defense of personal injury cases. She received her law degree from Chicago Kent College of Law in 1978. She can be reached at Hinshaw & Culbertson, 4343 Commerce Court, Suite 415, Lisle, Illinois 60532, 630-505-0010, firstname.lastname@example.org.