Women in the Legal Profession: We’ve Made Progress but We’re Not There Yet

The Bencher—January/February 2020

By Judge Amy C. Yerkey

On the 20-year anniversary of my graduation from law school, I was intrigued to review how women are faring in the practice of law. While the number of women in private and public sector jobs has increased, there is still much room for improvement, especially in positions of power. Women continue to face barriers that may be overcome with honest dialogue and courage. Changes such as recognition of implicit bias, strong connections with mentors, and cultural shifts regarding perceptions about mothers can help women achieve equality at top positions.

When I first started law school, the statistics for women looked good on paper: Approximately half of the students enrolled were women. The number of women thinned as I joined law review and even more so when I became an editor on law review. I was even more discouraged when I began working at a large New York City law firm immediately after graduation. There were only two female partners at a firm of more than 1,000 attorneys. What happened to all of the women? In 1999, women were not adequately represented throughout the legal profession, especially in positions of power.

Today, I am fortunate to be surrounded by many terrific female colleagues and role models as a judge on the Superior Court of California. Thanks to a recent push for diversity on the bench, the number of women is increasing in the California courts, according to 2019 data from the state’s Judicial Council. This was in part due to removing a barrier that likely prevented many women from seeking and receiving judicial appointments. Then-Gov. Jerry Brown specifically shifted the focus away from trial experience, which had previously been a major criterion for judicial candidates. A national study published in 2015 demonstrated that women were consistently underrepresented in lead counsel roles, making the shift understandable. For judges, criteria such as keen intellect and appropriate demeanor are arguably more relevant than trial experience and do not carry the same bias. Allowing strengths other than trial experience to be highlighted resulted in a significantly more diverse bench. California’s trial courts are now comprised of approximately one-third women. Its appellate and Supreme Court fare even better at approximately 40 percent women, according to the Judicial Council.

This trend holds true for women throughout the legal profession. Recent data from the American Bar Association (ABA) Commission on Women show that the workforce comprises between 30 and 40 percent in both public and private sector jobs. While this may sound like good news, when juxtaposed against the fact that female students now outnumber male students in law schools, according to ABA data, the bottom line is that women are still underrepresented. For women of color, the differentials are even more dramatically pronounced. This remains true especially in top positions across all areas of the legal profession.

For example, in the Superior Court of Los Angeles, where I currently sit, only two women have ever held the prestigious position of presiding judge. The first trailblazer was Justice Lee Smalley Edmon, who currently sits on the California Court of Appeal. Edmon recently spoke at the Ball-Hunt-Schooley American Inn of Court and shared that she was inspired to become presiding judge in part because no woman had ever held that role and that it was time for a change. I am inspired by her courage and determination for change.

How can we, as a profession, provide more opportunities for women in top positions? A starting point is recognizing that implicit biases, or stereotypical attitudes, may affect whether women are offered high-level positions. Implicit bias can take many forms, such as leadership definitions, management criteria, and performance evaluation criteria that reflect stereotypically masculine biases. For example, a 2007 McKinsey & Company gender diversity study found a company that measured performance based on “unfailing availability” and “total geographic mobility.” As stated in the report “Breaking Barriers: Unconscious Gender Bias in the Workplace,” which was published by the International Labour Organization, “In general, the reduced domestic obligations of men make it easier for them to be available and geographically mobile. Thus, this criterion has a pro-male, pro-childless bias, and thus penalizes women, particularly working mothers.” Recognition of these consequences is vital to effecting change.

Training tailored to address these issues is one way to combat implicit biases. The California courts provide education to all new judicial officers to help them expose and understand the impact of their implicit biases. The Superior Court of California, County of Los Angeles (LA Superior Court), is taking this idea one step further and requiring all judges who are on a hiring committee to undergo implicit bias training before beginning the selection process. Perhaps the state bars could require annual implicit bias training as a component of mandatory continuing education.

Another approach includes encouraging or even requiring that employers pair women with mentors. My own experience of having both male and female mentors significantly shaped my career path and gave me confidence to pursue positions that I thought were beyond reach. I am fortunate to have a powerful example of mentoring in my current organization. LA Superior Court’s current presiding judge, Kevin Brazile, sought to promote many female judges to supervisory positions. To assist with this transition, he paired less experienced judges with senior judge mentors. This not only helps the individual judge mentee learn the new responsibilities, it also gives women the opportunity to demonstrate that they possess the necessary skills. In the courthouse where I work, experienced Supervising Judge James Otto works closely with newly appointed Assistant Supervising Judge Nicole Heeseman. Heeseman’s demonstrated competence earned her a lot of responsibility and input into areas that were traditionally beyond the scope of an assistant supervising judge.

Equal opportunities for all women can be achieved by challenging cultural norms like face time and perceptions about mothers. In a brilliant article for The Atlantic in 2012, Anne-Marie Slaughter, former top aide to Hillary Clinton, put forth numerous innovative ideas on how to change the landscape for women to reach positions of power. These are especially applicable to the legal profession. Slaughter receives full credit for the ideas shared here.

Changing the expectation about when, where, and how work will be done can profoundly affect a woman’s ability to balance career and family obligations. These considerations also apply to parents in general, keeping in mind single dads and same-sex couples. They also benefit employers. It is noteworthy that a two-year Stanford University study found that telecommuting increased productivity and decreased employee attrition, sick leave, and time off. Policies that permit telecommuting and calling in to meetings are a good start, but legal employers must go further and ensure that they are not penalizing those who take advantage of such opportunities. Another simple change that would help the vast majority of parents with work and family balance issues would be if school hours matched work hours. While this change would ideally occur at a national level, in the meantime, individuals in the legal profession can take small steps toward this goal. In addition, legal employers must challenge perceptions that women, particularly mothers, are less dedicated or disciplined simply because they have chosen to have children.

The journey to achieve equality for women in the legal profession remains as pressing today as it did 20 years ago. Although some positive change has occurred, until women have equal access to positions of power, we must continue to search for avenues to bring about these opportunities. As Ruth Bader Ginsburg aptly stated, “Women belong in all places that decisions are being made.…It shouldn’t be that women are the exception.”

Amy C. Yerkey is a judge for the Superior Court of California, County of Los Angeles.

© 2020 Judge Amy C. Yerkey. This article was originally published in the January/February 2020 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.