Last week Bloomberg published a thoughtful opinion piece [paywall] about common barriers that limit women’s rise in Corporate America. It discussed two recent examples of how women can’t win. The article first mentioned the departure of Beth Hammack—a 30-year veteran and likely future Chief Financial Officer contender—from Goldman Sachs Group, Inc. The article then discussed Boeing Co.’s promotion of Katie Ringgold to head its troubled 737 Max program and Elizabeth Lund to oversee quality of the company’s commercial planes.

Although Hammack has not spoken publicly about her reasons for leaving Goldman, the Bloomberg article points out that several older profiles of Hammack pointed to her lack of “swagger.” A 2020 profile of her talks about her “quiet” chart up the Goldman ranks. And then there were comments from Goldman insiders that they couldn’t imagine promoting her and thus having to spare one of its few female executives. (The Bloomberg article points out that Goldman has never had a female chair, CEO, president, or CFO, and that, when Goldman created two committees of emerging leaders in January of this year, only three of the 25 were women.)

In the case of Boeing’s Ringgold and Lund, both have been asked to take over parts of the company that are known to be in turmoil. While men typically refuse such assignments because of the career damage that can befall them, women will accept them simply for the opportunity to get promotions that might not otherwise be available to them. Studies show that women are often promoted under similar circumstances—where they’re expected to clean up messes made by others (often men). Of course, those same women are then blamed when they don’t succeed.

The article thus describes continuing examples of the glass ceiling (where even the most talented woman can’t be promoted because she doesn’t act like a stereotypical man) and the glass cliff (where women are promoted under circumstances destined to fail). These phenomena apply to people of color and other under-represented groups as well.

There’s little question that these situations limit the advancement of women in the legal profession just as they do in Corporate America.

The Legal Profession’s Glass Ceiling

There is unquestionably a glass ceiling in the law. As this newsletter has discussed before, the number of women at all senior levels of the legal profession is abysmal. According to a 2022 article, while 44.4% of the U.S. Supreme Court justices are women, the 2019 Report Examining the Demographic Compositions of U.S. Circuit and District Courts found that as of November 2019, women comprised only about 34.5% of the active judges sitting on the federal courts of appeals. Similarly, according to the National Association of Women Judges, only 124 of 347 judges (36%) sitting on the nation’s highest state courts are women; and only 377 of the 968 judges (39%) serving state intermediate appellate courts are women.

Even worse, women hold only 26% of law firm Board seats, and 25% of management committee or managing partner positions. Law360’s Glass Ceiling Report [paywall] published similar numbers:

The corporate side of things is only marginally better: approximately 38.5% of all general counsels are women.

Academia is a slight bit better than that: according to the American Law School Dean Study by the Association of American Law Schools compiled by the National Opinion Research Center at the University of Chicago, women headed 41% of law schools in 2020.

Women often aren’t promoted or given these positions because qualities that would be perceived as positive in lawyers who are men are perceived as negative in women. As this Stanford study found, particularly where the criteria used for performance evaluations is vague, women in male-dominated professions are penalized for being perceived as being like men, and are rewarded for likeability.

In addition, as with Goldman’s Beth Hammack, women are often held back because there are so few of them in their workplaces and they are therefore deemed “essential” to other, lower-level positions. (“Since you’re a mentor to all the young attorneys on your team, we can’t possibly give you a spot on the management committee.”) Women are penalized for their own scarcity.

The Legal Profession’s Glass Cliff

The legal profession also has a glass cliff problem similar to other male-dominated fields. For example, data from STEM fields contained in a June 2008 Harvard Business Review report showed that when female executives are placed into difficult situations and fail to right the ship, women leaders are isolated without mentors or sponsors, and then blamed for their failures.

Although there doesn’t appear to be a ton of research on how precisely this happens in the law, one experimental study from 2006 found that women are more often selected to lead “problematic” cases. In the study, 114 undergraduate law students from a British university were given information about a legal case that was described as being either high-risk or low-risk. The students were then given two candidates—one male and one female—to lead each case described. The results showed that the female candidate was deemed significantly more appointable to a position as lead counsel on a high-risk case (one associated with negative publicity and criticism) than an equally qualified male candidate. Gender was not a determining factor on a low-risk case.

This study echoes my personal experience. Case assignments were typically made by men. And those men assigned women cases that were significantly more high-risk than the ones assigned to men. I saw men assigned to the firm’s “darling” cases that received all the press attention, while women toiled away on cases that did not receive that attention. In matters where similar cases were pending in more difficult jurisdictions or in front of more hostile judges, women were assigned the hard jurisdictions, while men racked up trial victories in the easier ones. Although I don’t know this from personal experience, I assume that similar things must happen in transactional deal assignments.

This practice is not insignificant. In private law firms, assigning women high-risk cases has profound reputational and financial ramifications. Women come to be perceived as lawyers who can’t deliver on big results, and therefore receive smaller bonuses. This strains their relationships with clients, which slows their ascension up the ladder. Even in government offices, this phenomenon can have political consequences: women who assume leadership of less popular cases don’t rise as quickly as those that get the attention of the political animal at the top. Being dangled off a glass cliff is a self-fulfilling prophecy: once a woman doesn’t “deliver” on a high-risk case, her “failure” to do so defines the rest of her career.

What Changes the Glass Ceiling and the Glass Cliff

There are things that can change the glass ceiling and the glass cliff in legal environments. The first and the most foundational is getting women into leadership positions. It probably won’t surprise you that one Harvard Business Review study found that neither circumstance tended to exist in work environments where there were women in leadership.

The researchers conducted two experiments. In the first, they asked 119 college students to read two newspaper articles about an organic food company. The first article described the upcoming retirement of the CEO. In one version, the company was currently and historically headed by men, but in the other it was headed by women. A second article dealt with the financial status of the company. In one version, the company was growing, while in the other the company was closing stores and laying people off. The researchers then asked the students to pick between two equally qualified candidates, one male and one female. When the company had been led by men and was doing well, 62% of the students chose the male candidate, but when the male-led company was in crisis, 69% chose the female candidate. When the company had been led by women, there was no difference.

The researchers then conducted a second experiment. They asked 122 students to read an article about a supermarket chain that was either very successful or badly struggling. In both cases the CEO was about to be replaced. The students read descriptions of a male and female candidate and rated each one’s strengths in 10 areas, some having to do with stereotypically female attributes (such as communication skills and the ability to encourage others), and others having to do with stereotypically male ones (such as competitiveness and decisiveness). When the researchers asked the students which candidate they would choose for CEO, they found that when a company is doing well, people prefer leaders with stereotypically male strengths but, when a company is in crisis, they want a leader with stereotypically female skills. Thus, 67% of the participants chose the man to head the successful company, while 63% thought the woman should take over the company in crisis.

Aside from increasing representation, we can shatter the glass ceiling and get rid of glass cliffs simply by using more data. Legal employers need to use objective evaluation criteria and become more deliberate about who gets case assignments and why. For example, if, at the time we tracked origination, we also included an assessment of the nature of the case or matter and likelihood of success or perceived difficulty, legal employers would begin to see their own biases. They couldn’t penalize a woman for working on a case the employer acknowledged to be high-risk at the outset. Transparency about pay—including bonuses—also ensures that women are not quietly penalized by the nature of work assigned to them.

Of course, to begin to do any of these things, employers have to care about wanting to shatter glass ceilings and cliffs and be willing to engage in transparency. . . Stay tuned on that one!

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