Tackling Gender Bias

So, I know this seems way off topic from Intellectual Property, but I was asked in August to write an article for the Florida Association of Women Lawyers' Fall and Winter Edition Journal. If you don't know already, I am very active in volunteer bar associations and with the young lawyers' division. In 2016, the Florida Bar YLD released a survey that highlighted gender discrimination that many people did not realize existed in our profession. This year, the Florida Bar has done many things to try to bring awareness to this issue and help move forward with solving this problem. I played a small part by looking at how gender bias is prevalent and dealt with across other professions and drew comparisons to what women lawyers are faced with everyday. 

I'd like to thank the many, many ladies who agreed to be interviewed for this article. Your continued help and support means we move forward and succeed together. 

Please read take the time to read the article below: 


By: Megan Hurchalla & Ingrid Osborn

2016 is quickly coming to a close, and yet, gender bias, one of the biggest issues we as lawyers have tried to tackle, is still rearing its ugly head.  The Fair Labor Standards Act, which was enacted in 1938, was amended in 1963 to extend to gender – prohibiting unequal pay based on gender.  So why, 53 years later, are we still debating this issue?  Lawyers created the law, but not all seem to be abiding by it.  That begs the question, if we don’t respect our own law, how can other professions?  This article takes a look at how gender bias affects not only the legal profession, but other professions as well.

Megan Hurchalla, one of the co-authors of this article, is a patent and intellectual property attorney, with a previous career in pharmaceutical research and development.  Ingrid Osborn, the other co-author, is a transactional attorney with the U.S. Department of Housing and Urban Development.  Megan was interested in seeing how gender bias was perceived and addressed across different professions. For this article, Megan reached out to several women of varying ages and professions – from teachers and engineers to entertainers at one of the world’s largest amusement parks.  What she found was shocking, to say the least.  The common, underlying thread between all of these women was fear. Many women wished to remain anonymous for the article because of the fear of repercussions from their employers and coworkers.  Fear to stand up and demand that employers follow the law- a law which is supposed to provide protection to women in the workplace.  The results clearly show that as far as we think we have come, we still have so much farther to go.

What exactly is gender bias?

When you mention gender bias, many people think the discussion begins and ends with unequal pay.  However, gender bias extends to so much more than unequal pay.  Before we can understand gender bias, we need to know what bias is.  Merriam-Webster defines bias as “a tendency to believe that some people or ideas are better than others that usually results in treating some people unfairly.”  The free legal dictionary defines gender bias as, “unequal treatment in employment opportunity (such as promotion, pay, benefits and privileges), and expectations due to attitudes based on the sex of an employee or group of employees.” The McMillan Dictionary defines it as “unfair difference in the treatment of men or women because of their sex.”  As you can see, gender bias focuses on the unequal treatment of an individual as well as attitudes and behavior.

The Florida Bar’s Young Lawyer’s Division (YLD) recently covered gender bias in a survey that sparked outrage and shock in many in the legal community, and thrust this issue into the national spotlight.  It is common knowledge that in most professions, women are paid on average 79 cents on the dollar compared to men.  But as noted above, there is so much more to gender bias than just pay.  Indeed, the YLD survey included almost 90 pages of examples of women lawyers describing discrimination they had experienced. Some of these examples included: discrimination based on being a mother, not being given the same advancement opportunities as men, being drunk dialed or propositioned by male associates and partners, assumptions by clients or opposing counsel that the female in the room is the secretary or court reporter – not an associate or partner on the case. And the list goes on, and on… and on.


Does gender bias play a role in non-legal professions?

An example of bias in non-legal professions can be seen in a recent decision by the United States Court of Appeals for the Seventh Circuit.   In Ernst v. Chicago, Nos. 14-3783, 15-2030, 2016 WL 4978377, *1 (7th Cir. Sept. 19, 2016), Stacy Ernst and four other women applied unsuccessfully to work as Chicago paramedics.  Each of the women was an experienced paramedic from public and private providers of emergency medical services.  All five women were denied jobs because they failed Chicago’s physical-skills entrance exam, after which they commenced a Title VII gender-discrimination lawsuit against the City of Chicago.  See Ernst,  2016 WL 4978377 at *1.  After losing a bench trial on their disparate impact claims, and a jury trial on their disparate treatment claims, they appealed. See id. at *2.  On appeal, the court considered statistics relating to the physical skills test used by the Chicago Fire Department which showed that 98% of men passed the test, while only 60% of women passed.  After a thorough discussion of the validity of the tests, the court ultimately determined that the various skills tested were not related to any actual skills needed to perform paramedic duties.  See id. at *5-*13.  As a result, the court held that the plaintiffs should have prevailed on their disparate impact claims, and that the district court erred in its jury instructions on the disparate treatment claims.  The court remanded the disparate treatment claims for a new trial, and reversed the disparate impact trial verdict with instructions to enter judgment in the plaintiffs’ favor.  See id. at *13-14.

Some less obvious examples are also evident in the teaching profession as well as the entertainment industry.  Although most parents respect their children’s teachers, some view them as a step above a babysitter in the earlier grades.  Teaching is a high skilled profession dominated by women.  However, teaching is not compensated as a high skill job.  Teachers’ salaries are at least 40% lower than other professions requiring college degrees.[1]  Is this because IT IS dominated by women?  Research seems to say yes.  Studies show that pre-school teachers earn less than elementary school teachers; while elementary school teachers earn less than high school teachers.[2]  The percentage of male teachers increases at the high school level.[3]

Additionally, an interview with several teachers for this article revealed several disturbing facts about gender bias.  All of the teachers interviewed for this article commented, separately, that the male teachers’ opinions were given greater weight even if the male teacher had less experience or was in a lower level position.  At the supervisory level, a female administrator with purchasing power has stated that she often runs into issues when she attends sales presentations.  If she brings along a few of the male teachers that she oversees, the salesperson pitches to the men and ignores her altogether.  This should be unacceptable.  With the vast majority of the teaching profession dominated by females, it should not be a surprise that many supervisors are female.  They should be acknowledged and treated with the respect owed to that position, regardless of gender.

Similar to female teachers, female teacher-coaches are often not recognized for their effort with their teams the same way male coaches are. One surveyed female teacher-coach indicated the male teachers and administrators in her school did not even acknowledge her, or the players on her team after going undefeated for an entire season.  This behavior reinforces to the young female generation that no matter how well they excel in a certain area, they should not be surprised or disappointed that their contributions are not going to be recognized. 

Just as with the legal, paramedic and teaching professions, men also dominate the media.  According to a San Diego State University study, men hold 85% of film director positions, 80% of writer positions, and 33% of producer positions.[4]These numbers do not even include female speaking roles and female screen presence.  In 2014, out of the top 100 films, only 21 had a female lead or co-lead. This trend is not due to a lack of women interested in the TV industry. Indeed, research shows that men and women graduate from the top U.S. film schools at nearly equal rates. However, there appears to be a lack of people willing to give female directors a chance. According to a University of California 2015 study, the top executives at major Hollywood film studios are 94 % white, and 100% male.[5]

Are women worth more in non-legal professions?

The most widely recognized gender bias issue is pay parity. This year, Equal Pay Day was recognized on April 12, 2016. This date symbolizes how far into the year women must work to earn what men earned in the previous year.  In 2009, the Lilly Ledbetter Fair Pay Act was signed, amending the Civil Rights Act of 1964, which allows unfair pay complaints to be filed within 180 days of a discriminatory paycheck.  It is unfortunate that we still need laws like this. However, not only are women paid less for the same positions, but they are also less likely to be promoted.  A recent study by Cass Business school found that when men and women ask for pay raises, 25% more men than women actually get them.[6]  Another study by the Cass Business school found that 40% more men are likely to be promoted than women eligible for the same promotion.  This study concluded by saying that it will take us 118 years to close the wage gap between men and women.[7]  That is simply too long.

Some companies are trying to pave the way and set an example by making sure they provide equal pay.  A Wall Street Journal article indicated that tech companies such as Apple (99.6%), Microsoft (99.8%), Amazon (99.9%), Intel (100%), and Facebook (100%) pay their male and female employees equally, or very close to the same.[8]  Salesforce.com Inc., spent about $3 million in 2015 raising salaries of female employees to reach pay equality.[9]  These companies recognize that women possess as much potential and talent as men, and, in order to attract and retain these talented individuals, the company needs to provide equal pay.  

Apple, however, has worked on closing the gender gap not only by assessing pay, but they have also looked at the number of women and other minorities so that new hires help to close the gender and diversity gaps.  Additionally, last year, Apple analyzed the salaries of their U.S. employees and made a point to close any gaps in pay that they found. This included looking at salary, bonuses, and other forms of compensation.  Apple has released a statement that they will be looking to close the same gaps in their company worldwide this upcoming year.

Women are not necessarily worth more in non-legal professions.  Some professions have simply started to close the gap faster and sooner than the legal profession.  This is a great start, and Apple and all the other companies should be commended for their work in trying to close the gender gap and maintaining pay equity.  Unfortunately, that is just the start of what we need. We can’t just stop at equal pay; we need to demand equal treatment.  We need to address issues of how women are actually treated in the work place, and other issues such as maternity and family leave.  We don’t want to celebrate Equal Pay Day.  We don’t want to have to enforce our rights under the Lilly Ledbetter Act.  We don’t want to need the services of the National Equal Pay Task Force.  Women deserve equal treatment. Together, we must rid our society of injustice…one step at a time.

What can you do when faced with gender bias?

A study conducted by LeanIn.org indicates that the workforce has nearly equal number of men and women at the entry level, but the gap widens as workers are promoted.[10] The study uncovered some of the reasons why women aren't advancing as quickly as men:

·         They are more likely to be ignored at meetings, with 74% of men "able to participate meaningfully" compared to 67% of women.

·         They are less likely to get challenging assignments. While 68% of men have taken on the toughest tasks, only 62% of women get that opportunity.

·         They are less likely to be consulted for input on important decisions.  While 63% of men are asked to share their thoughts, only 56% of women are.

The LeanIn study also showed that inequality at home is another subtle factor at play.  For women who share housework equally with a partner, 43% aspire to become a senior executive at their job.  But only 34% of women who do a majority of the housework aspire to be a senior executive.

There is also an ambition gap.  According to the LeanIn study, while 80% of men desire a promotion, only 74% of women do.  Overall, 56% of men say they aspire to become a top executive, while only 40% of women desire the same goal.

Unfortunately, it is not a matter of if, but of when you will be faced with gender bias.  In fact, we shouldn’t wait to address the issue until it happens (or after you realize it has been happening to you!), as it is clear that women face an uneven playing field.  Although progress has been made in the past couple of years, there’s still a lot more to do. We need to take action now.

Whether in a legal or non-legal profession, education is important.  It is important too that supervisors are educated on this issue. Examples should be set from the top down. Supervisors need to encourage change in their own firms, practices, and schools.  Additionally, women need to be able to set their fears aside and be able to address gender bias when they are faced with it.

As Florida Bar’s immediate past President Ramon Abadin indicated in a presentation last fall, we should elevate, promote and encourage each other.  We need to close our own ambition gap.  But how? According to Laura Rosenbury, the Dean of the University of Florida’s Law School, there are at least three things you can do to overcome and still succeed with sometimes subtle implicit bias.

First, understand the role of a sponsor.  Get one and/or be one when the opportunity presents. A sponsor is more than just a mentor.  It is someone that puts their reputation on the line to advocate for you and to support you in your endeavors to get ahead.  This can be in the form of a client referral, a suggestion that the next big work assignment is given to you, a great employment reference, or simply letting someone else know of your accomplishments.

Second, increase your ability to think creativelyabout gender and the role it plays in negotiations, self-promotion, and gaining influence in your organization.  When negotiating a promotion or a salary in your new job, show the organization why they should pay you more. Not just because you are worth it and you are a woman, but because it is beneficial to the organization if they want to stay at the top of the list, i.e. in order to compete with the top 10 firms they should pay you what those firms pay.

Finally, understand the unwritten rules of your organization and learn to navigate them and ultimately lead them.  Don’t sit back and think you are not ready or well prepared to move up the ranks.  Believe in yourself.  Sit at the head of the table in the boardroom.

Although the days of overt sexism are largely over, gender bias is still alive and well, and it exists in every profession.  Although we’ve made great strides, the studies discussed in this article show we still have a ways to go.  Until we’ve closed the gender gap, we will have to keep forging ahead, and, as Dory would say “just keep swimming, just keep swimming…”

To obtain copies of the studies discussed in this article, please reach out to Megan Hurchalla  at megan@hurchallalaw.com, and Ingrid Osborn at ingrid.osborn@hud.gov.




[1] Carnevale, Anthony, Cheah, Ban & Hanson, Andrew (2015). Value of College Majors.  https://cew.georgetown.edu/cew-reports/valueofcollegemajors/#full-report

[2] Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2016-17 Edition, Kindergarten and Elementary School Teachers, at http://www.bls.gov/ooh/education-training-and-library/kindergarten-and-elementary-school-teachers.htm

[3] How Gender Bias Affects Teachers’ Salaries. http://www.theestablishment.co/2016/08/16/how-gender-bias-affects-teachers-salaries/

[4] Lauzen, Martha M. (2016). Boxed In 201516: Women On Screen and Behind the Scenes in Television. http://womenintvfilm.sdsu.edu/files/2015-16-Boxed-In-Report.pdf

[5] 2015 Hollywood Diversity Report: Flipping the Script. http://www.bunchecenter.ucla.edu/wp-content/uploads/2015/02/2015-Hollywood-Diversity-Report-2-25-15.pdf

[6] Artz, Benjamin, Goodall, Amanda & Oswald. Andrew J. (2016). Do Women Ask? http://www.cassknowledge.com/sites/default/files/article-attachments/gender-women-ask2016.pdf

[7] The World Economic Forum, The Global Gender Gap Report 2015, http://reports.weforum.org/global-gender-gap-report-2015/

[8] Wells, Georgia (2016). Facebook, Microsoft Say They Offer Equal Pay to Women, Men http://www.wsj.com/articles/facebook-microsoft-say-they-offer-equal-pay-to-women-men-1460466005

[9] Fortune Global Forum, http://fortune.com/2016/03/08/salesforce-equal-pay/

[10] LeanIn.org, (2015). Women in the Workplace 2015, http://leanin.org/news-inspiration/women-in-the-workplace-2015/