Companies Can’t Discriminate, But Their Managers Can: The Supreme Court Gives Wal-Mart the Win in Dukes Gender Discrimination Class Action Case

Today the Supreme Court sounded the death knell for Dukes v. Wal-Mart, the class action lawsuit accusing Wal-Mart of paying and promoting women less than similarly- or less-qualified men. To protect corporations from having to do more to prevent gender discrimination than pop a few politically correct paragraphs into the employee handbook, the Supreme Court resorted to a belabored procedural argument that incentivizes corporations to do as little as possible to prevent discrimination. The five-Justice majority did not rule on whether or not Wal-Mart actually discriminates against women – they didn’t let the case get that far. Instead they shut it down by changing the rules of engagement.

One of the plaintiffs’ central arguments was that Wal-Mart has a policy of leaving promotion and pay decisions to the discretion of individual managers, and that these managers have made discriminatory decisions. If the women suing Wal-Mart had prevailed, every American employer would have been on notice that it is not enough to sit on their corporate hands and allow gender discrimination to take its natural course in this way. Instead they would have had to make it their business to ensure that their managers treated women fairly. But the Court didn’t want that, as the majority feels that “allowing discretion by local supervisors” is “a very common and presumptively reasonable way of doing business.” (In his opinion for the majority Justice Scalia also announces, without citing any evidence, that most managers work carefully to avoid discrimination in their pay and promotion decisions when left to their own devices. That makes it all the more puzzling why the higher one gets in the corporate hierarchy in the U.S., the fewer women there are.)

Who Do You Expect Will Discriminate Against You?

Above the Law's David Lat recently posted the news of a discrimination suit brought by an associate against Ropes & Gray. Before sharing the details of the suit, Lat introduces the firm:

Of course, many top firms have excellent lawyers. The Ropes attorneys were also… nice. They were polite, and genteel, and not difficult to deal with (in contrast to some of their co-counsel). They met my expectations of what lawyers from an old white-shoe firm should be like.

In light of this overall Ropes & Gray “niceness,” it’s a bit surprising to see discrimination claims lodged against the firm.

Nice people don't discriminate. This is a commonly held view, but one with which I fervently disagree. Perhaps, nice people don't intentionally discriminate, but everyone discriminates. Implicit bias is pervasive. Maybe nice people are more attuned to it and quicker to catching themselves in the act. Maybe nice people are more likely to take corrective action when bias comes to light. But maybe not - you can be perfectly polite while assuming that a young mom with small children probably doesn't have time for a high-pressure deposition out of town.

Stop Discounting Women: Equal Pay Day 2011

Today is Equal Pay Day - the day when your 2011 earnings finally fill the gap between you and your male counterparts' 2010 earnings.  Every time I talk to women lawyers about their wage gap I am met with skepticism. "I'm in a lockstep firm," they say. "I'm paid the same as anyone else." Well wake up and smell the numbers ladies, because no you are not.

Study after study confirms that controlling for everything (hours worked, years worked, leave taken, office, market) women are paid less in every professional setting (non-profit, private, lock-step (they get you with the bonus), you name it).  At this point you should be operating under this assumption: wherever there is ambiguity or a lack of transparency in a compensation decision, bias will creep in and screw you out of your fair pay.

I know you still don't believe me. So here today's study: ALM collected data on billing rates from attorneys at 176 small and mid-sized firms. The result: male lawyers on average had a billing rate of $312, while the rate for women was just $259.  That means that if you're a woman, the time it took you to read this post is worth about $5 bucks less than if you were a guy. When you spend and hour reading cases on WestLaw it's worth $53 bucks less than the hour the guy next door spent doing the exact same work.

Small wonder NAWL keeps reporting that half the large lockstep firms they survey don't have a single female rainmaker. Maybe if they hadn't been under-billing every single hour of her work for the last 30 years she'd have a shot.

Death by Diction: Don't Dumb Yourself Down

The current record for the incorrect use of the word “like” is held by a law student at a leading school who did so 132 times during a 30 minute counseling session. Her description of an interview might have gone as follows -

"Like dude they were , like, bizarre.. They were full of like, freaks. I like wanted to get the hell out. I was, like, wow. But, like, the second firm rocks – like totally cool. Gonna pay me like bookoo bucks.  The 411 was right.   That first place was full of like wing nuts. I was like well you know. The hiring partner was like baked."

This habit is reinforced by our peers and colleagues and it slowly creeps into normal conversation.  That doesn’t make it right. It just makes it more challenging to stop. Thankfully, when reminded of this habit, she stopped it like a smoker who goes cold turkey.

The current generation of law students and lawyers is not the first to butcher the English language. Those of us who graduated in the 1970's were trapped in an era of disco-driven drivel made famous in Airplane.  What follows is a translation of modern slang to the same remarks as they might have been made back in the day

"You know dude it was heavy. Got to get down. It was whacked –a spaz factory full of  zipper heads – they gotta get real. Just a major bummer –. But that second firm was funky they know how to freak out. Bad. Solid. Funkadelic. Tubular. Can You Dig it? Check you later. Gotta keep bookin’ and keep on truckin’."

The two quoted paragraphs are obviously extremes. But the lesson to be learned is simple and unmistakable.  Youthful jargon should be moderated in the professional workplace.  All of us are guilty of mis-steps. The errant use of “like” even finds its way into extemporaneous remarks of Barack Obama, George W. Bush, and Bill Clinton. For my generation it was “you know, far out, cool, man, badd (with two d’s).”  All of these could be verbs, nouns, gerunds, punctuation, or a weather forecast.  Our elders accused of us speaking like “hippies.”

In an ideal world mangling the English language would be a gender neutral issue.  However, I believe it poses more risks to women lawyers and law students because it validates stereotypical assumptions that O.C. mall-speak is indicative of a lack of brain power.

Highlights from the ABA-Mid Year Program on Women & Power

Last week, at the ABA mid-year meetings in Atlanta the Commission on Women in the Profession hosted a program entitled Women & Power: Getting Ambitious About Ambition.  Dr. Anna Fels introduced the topic and then turned the discussion over to Leslie Turner, General Counsel for Coca-Cola; Hilarie Bass, Global Operating Shareholder, Greenberg Traurig (and a Ms. JD Fellowship Mentor); and Cathy Hampton, Atlanta City Attorney.

For me the highlights included:

• Anna Fels definition of ambition as the desire for the combination of mastery and recognition and her explanation that a person's motivation to achieve their ambition will be determined by the value placed on that goal and the likeyhood of achieving it.  This is significant because men are more likely to receive recognition for their work, increasing the value to them of their own success.  They are also more likely to benefit from role models who help to increase the perceived likelyhood of success.
• Hilarie Bass mentioned that she has experienced increased resistence to her ambitions as she has succeeded.  So while it was generally accepted that she strive to become a partner, now that she has sought to become a head of her firm's litigation department and global operations she has experienced much more pointed opposition. She shared this fantastic advice by way of anecdote: When she first sought to become the head of litigation she was not taken seriously.  So she pursued a leadership position on the board of a non-profit and used her success there as leverage with her firm leadership. We'll be discussing similar strategies at one of our panels on April 1st.
  

This is What Equality Looks Like: The World We Want for Women and Girls!

This Friday, while I'm down in Atlanta attending the ABA Commission on Women in the Profession's program on Women and Ambition the ladies at Harvard Law School Women's Law Association will be hosting their 5th Annual Conference titled This is What Equality Looks Like: The World We Want for Women and Girls!

The schedule of events and panels looks great - with a balance of professional issues and a global perspective. I would encourage anyone in the Boston area to check it out! Registeration available here.

Deadline Approaching for Atlanta Program Registration

At this year's ABA mid-year meeting the Commission on Women in the Profession is hosting a really interesting panel on women  and their relationship to and perception of power and ambition.

This is a topic I hit upon early on in my tenure here at Ms. JD as one of the issues at the heart of BigLaw attrition. My view is that women are discouraged from seeking power within institutions and in theworld more generally and that being a person of influence (big cases, big judgements, big companies at stake) is an important part of what make BigLaw practice satisfying to the attorneys who thrive there.

The panel will be at 10am at the Hyatt in Atlanta on February 11th. The lineup is pretty awesome, including Ana Fels, Ms. JD Fellowship mentor Hilarie Bass, Leslie Turner (GC of Coca-Cola - not too shabby), and Atlanta's City Attorney Cathy Hampton.

Registration closes on Tuesday! (more info after the jump)

Are Family Obligations More Compelling Excuses For Men?

Kathleen O'Brien wrote an interesting piece "Christie's Family-First Defense for Blizzard Absence: No Woman Could Say That," which notes a double standard among professional men and women in regard to using family as an excuse for failing to meet a professional obligation.  At a press conference, New Jersey's Governor Christie stated that his obligation as a husband and father came before his obligations as governor, which accounted for his decision not to cut a family trip short to return to New Jersey to deal with the blizzard in a more timely manner.  Christie was seen as a charming family man--joking about his need to defer to his wife as a reason he couldn't be in New Jersey to deal with the aftermath of the storm (clean-up efforts were severely criticized, and hundreds of residents couldn't even get out of their houses for days).

True, the piece focuses mostly on political women, but their comments seem applicable to all professional women.  Christie Todd Whitman, former governor of New Jersey, noted that if a woman copied Christie's approach of blaming the spouse for not cancelling the vacation, "she’d get beaten up. They’d say, 'It must be her husband pulling the strings.'" Madeleine Kunin, former governor of Vermont, commented that "when a man professes his devotion to family, it’s considered a plus" but "it’s still questionable for a woman. You’d hear, 'See? Told you so. She can’t do this job.'"  Women also tread a finer line in terms of how their authority is viewed by others.  Kunin stated: "With a woman, people always feel there’s someone behind the scenes calling the shots," which makes attributing shortcomings to pleasing your spouse especially problematic. 

All judgment aside as to whether Christie was right or wrong not to cut short his vacation, I think his comments are interesting because of what they illuminate about the current state of gender stereotypes.  If a woman said she couldn't cancel a vacation because her husband wouldn't let her, we might seriously worry about her leadership abilities (I admit that I would be in that camp).  When Governor Christie says his wife wouldn't let him even think about canceling the vacation, he seems like a likeable family man, but you don't really think for even a second that his wife is actually calling the shots. 

Sheryl Sandberg at TED Women

Earlier this month Facebook COO Sheryl Sandberg talked to TEDWomen's audience about the attrition of women from the workplace and offered three pieces of advice:

• Sit at the Table
• Make Your Partner a Real Partner
• Don't Leave Before You Leave

The video is fantastic. The advice is concrete. The anecdotes are often hilarious and always right on point. Enjoy.

Giving Away Your Authority When You Smile

Once before on this site I asked, "Do I have to be serious to be taken seriously?"  The answer is a definitive yes. Last month, the Clayman Institute and the OpEd Project began the eight-week long Silicon Valley Thought Leadership Greenhouse with a lecture from Professor Deborah Gruenfeld of Stanford's business school. 

Among other things, Gruenfeld talked about the ways gender norms about body language put women in a double-bind.  On the one hand there is demonstration after demonstration of unintentional bias adversely impacting women's opportunities to assume authority.

Gruenfeld noted a recent study in which business school students were given two versions of a case study about a venture capitalist.  The case studies were identical in every way, except in one version the venture capitalist was a woman, and in the other, a man.  The students were then asked to evaluate the VC.  Students found the male and female versions  to be equally competent and effective. However, when the students thought the venture capitalist was a woman they found her to be less genuine, humble, and kind and more power-hungry, self-promoting, and disingenuous.  And the more assertive a student found the female venture capitalist to be, the more they rejected her.

In addition, feminine body language further undermines the perception of women's authority.

Gruenfeld noted that research consistently shows differences in the non-verbal behaviors between those at the top and bottom of social hierarchies.  Those with higher status take up more space through expansive postures like sitting with legs and arms spread apart, smile less and stare directly into another person’s eyes.  Those with lower status take up less space through constrictive postures like crossing one’s legs, smile more, and glance away.

“Women give away power all the time,” Gruenfeld said, “by smiling or looking away when they are saying something authoritative.”

So what's a girl to do? Literally spread her legs? I don't think so. But smile less. I guess that's something to try.