What's Missing from the ABA's Report on Why Women Leave Law Firms?

Where exactly are we with gender equality in the workplace these days? Men and women are graduating in equal numbers from college and grad school. They’re starting entry-level positions in equal numbers. Yet by the time careers evolve even to middle management—let alone the C-Suite—the ranks of women grow slimmer and slimmer.

That data doesn’t surprise me, because I see these numbers every day. But what did surprise me? Last month, in an amazing keynote address by Michelle Silverthorn, I learned that we’ve made startlingly little progress with respect to gender and racial diversity in the past decade. That’s right. An entire decade.

In her talk, Silverthorn discussed the legal profession, which is what I’m also going to focus on here. But it’s representative of something larger. Ten years (and millions of dollars spent on inclusion efforts) later, how far have we moved the needle? A whopping two percentage points. That’s right. Ten years ago, 67 percent of lawyers were men. And today, 65 percent of lawyers are men. (Also, in case you’re curious, ten years ago, 87 percent of lawyers were white ... and today, 85 percent of lawyers are white. Ugh again.)

The ABA’s New Report: “Walking Out the Door”

In November, the American Bar Association (ABA) published a new report entitled “Walking Out the Door: The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice.” The report was based on data from 1,200 big firm lawyers who have been in practice for at least 15 years.

Here are a few key stats from the study:

• Though entering associate classes have comprised approximately 45 percent women for decades, in the typical large firm, women constitute only 30 percent of non-equity partners and 20 percent of equity partners.
• Women constitute less than 25 percent of management committee members, practice group leaders, and office heads.
• In 2017, only 28 percent of the lateral partners hired were women.
• 80 percent of any given firm’s relationship partners for its top 20 clients are men.
• 91 percent of men—but only 62 percent of women—believe firm leaders are advocates of gender diversity.
• 78 percent of men—but only 48 percent of women—believe their firms actively promote women into leadership roles.
• 74 percent of men—but only 47 percent of women—believe firms work to retain experienced women lawyers.

Striking differences in perception, to be sure.

Why Do Women Say They Leave?

The research also dug into reasons women say they leave. And here’s where the working mom/Mindful Return piece comes in.

The top reasons women cite as either “a very important” or “a somewhat important” reason for leaving are:

• Caretaking Commitments (58%)
• Level of Stress at Work (54%)
• Emphasis on Marketing or Originating Business (51%)
• Number of Billable Hours (50%)
• No Longer Wishes to Practice Law (49%)
• Work/Life Balance (46%)
• Personal or Family Health Concerns (42%)

As the report says, “these top reasons why experienced women leave private practice boil down to the stress and time needed to ‘do it all,’ especially around non-substantive responsibilities at the office that do not reflect the quality of an individual’s legal work.”

The report goes on to state that “As the data make clear, experienced women lawyers bear a disproportionate brunt of responsibility for arranging for care, leaving work when needed by the child, children’s extracurricular activities, and evening and daytime childcare. Any one of these factors affects the time and effort expected for a successful law practice, and the combination competes all the more for a lawyer’s time.”

But What’s Missing from the ABA’s Report?

I commend the ABA for undertaking this important study. It certainly shines light on real differences in perception between men and women at firms and offers key insights into what the true problems are.

But what left me dissatisfied was the recommendation section. If the No. 1 reason women are leaving law firms is “caretaking responsibilities,” why is that issue strikingly minimized in the discussion of how to solve the problem?

If you had studied a conundrum in depth and identified a key reason for that problem, wouldn’t you try to problem solve with gusto around that key reason?

The “recommended best practices” at the end of the report are commendable. But they truly seem to dodge the care-taking question, relegating any reference to it (and a fairly obscured reference at that) to the last of their nine recommendations.  Here’s how that final recommendation reads:

"9. Provide resources to relieve pressures from family obligations that women more often face than their male colleagues. Incentivize partners to avail themselves of part-time and flex-time policies. This can be done by removing the stigma and ensuring that lawyers are not impeded in their career advancement on account of using such policies. Promoting those who have used such policies to partner status is one meaningful way to remove the stigma that prevents so many lawyers, male and female, from using such policies. In addition, provide assistance and support to lawyers with family obligations, such as childcare programs, concierge services and other measures to make work-life balance more achievable.”

But where is the recommendation that firms adopt gender-neutral parental leave polices without a primary caregiver distinction, so dads can take parental leave for the same amount of time as moms? Or a recommendation that firms work on the cultural issues that shun and stigmatize male lawyers who take “long” parental leaves? Parental leave is, after all, all about caregiving.

Here’s the deal: Studies show that the more engaged dads are early on in caregiving for their babies, the more engaged they stay throughout their children’s lives … and the more moms’ careers thrive.

And common sense tells us that one key way of “relieving pressures from family obligations that women more often face” is by encouraging men to take on more of these caregiving responsibilities. So many dads today truly desire to be more involved in the care of their babies but don’t, out of fear of judgment, criticism, ridicule, and job stability when they get more involved and take “extended” parental leaves.

While the report offers up ideas around taking advantage of flexible schedules or in-office childcare, those recommendations don’t seem to be at the heart of the problem. Instead, let’s encourage—rather than discourage—men from taking an active role in childcare from day one of their babies’ lives. Let’s stop forcing men and women to decide who is the “primary” caregiver in a couple. Let’s stop making fun of men for taking more than a week off when their child is born. And let’s encourage men to use part-time and flex-time policies as much as we encourage it for women.

Let’s make it possible for men and women to equally share the mental and physical loads that lead to the burnout and attrition we’re talking about here.

Thank you, ABA, for digging in on this important topic. But let’s please have a conversation around an important missing piece of the discussion on how to make change.

Lori Mihalich-Levin is the founder of Mindful Return, author of Back to Work After Baby: How to Plan and Navigate a Mindful Return from Maternity Leave, and creator of the Mindful Return Maternity Leave E-Course. She is also a partner in the health care practice at Dentons US LLP. Lori holds a law degree from the Georgetown University Law Center and completed her undergraduate studies at Princeton University’s Woodrow Wilson School of Public and International Affairs.