I. INTRODUCTION
Women and minorities have been entering law schools and the legal profession in growing numbers in the last few decades. By the end of 2016, women made up the majority of U.S. law students at just over 50 percent (Olson, 2016). Racial and ethnic minorities constitute about 32 percent of U.S. law students, among whom a sizable majority are women (19 percent) (American Bar Association, 2017). In U.S. law firms, 45 percent of associates in 2016 are women; almost 23 percent are minorities, and about 12 percent are minority women (National Association for Law Placement, 2017). At higher-level positions, however, representation of women, minorities, and minority women in particular continues to be low. The National Association for Law Placement (NALP)’s 2017 Report on Diversity in U.S. Law Firms comments that minority women remain “the most dramatically underrepresented group at the partner level” at only 2.76 percent, and the pattern “holds across all firm sizes and most jurisdictions” (p. 5). Although law schools and law firms have made progress in recruiting women and minorities, getting them in the door does not seem to be enough.
At the center of the enquiries are signals for early departure from the workplace, and why different groups in the legal profession tend to leave jobs at different rates. Determinants of such differences remain contested among scholars. Explanations vary from discrimination and institutional constraints (e.g., Wilkins & Gulati, 1996; Johnson, 1997; Payne-Pikus et al., 2010) to individual choices (Kornhauser & Revesz, 1995), and differential merits (Sander, 2006).
Utilizing data from the first wave of the After the JD (AJD) study commissioned by the American Bar Foundation (ABF) and the NALP Foundation for Law Career Research and Education (NALP Foundation) and inspired by studies by Richard Sander (2006), and by Monique Payne-Pikus, John Hagan, and Robert Nelson (2010), this paper sets out to test the effects of prior academic performance, access to mentorship, and discrimination in explaining racial disparities in job satisfaction and predicted job mobility in lawyers’ early legal career across practice settings. It also explores patterns of inequalities in these aspects with a special attention toward minority women. Understanding these patterns and their contributing factors also has practical implications, especially for law schools and employers who are invested in invigorating their efforts in recruiting women and minorities as well as steering them to success in the profession.
II. LITERATURE REVIEW
There is a rich literature on determinants of gender and racial inequalities in the labor market in general and the legal profession particularly. While women and minorities are in most cases studied independently, theoretical approaches to explaining gender and racial differences in legal careers can be roughly categorized into four perspectives: cohort effects, differential choices, differential abilities, and discrimination and institutional constraints.
Some scholars predict that career paths and outcomes on women and minorities will eventually converge with white men and current gender and racial gaps in labor market outcomes can be largely explained by cohort effects (Alba & Nee etc. as cited in Hull & Nelson, 2000; Sander 2006), while others explain divergent career paths with different choices made by women and minorities (Becker, 1985; see also discussion in Hull & Nelson 2000; Kornhauser and Revesz, 1995). This paper is particularly interested in examining the latter two perspectives.
In his highly publicized 2006 study on minority retention rates in large U.S. law firms, Richard Sander argues that the high attrition rate of African American associates in big law firms can be attributed to the fact that they enter law firms with lower law school grades than white lawyers as a result of aggressive affirmative action measures firms have taken in their hiring process. For Sander, disparity in early stock of human capital (measured by law school Grade Point Average) between black and white lawyers is an important predictor of later differences in retention rates among them in large law firms. He claims that minorities in large firms, and black lawyers in particular, are either less able or are perceived by partners as less able, thus resulting in them getting fewer and less important work assignments, mentoring opportunities, and training (p. 1820)—what Sander calls “stereotype discrimination.” Drawing on this “merit”- based theory that lawyers with higher GPAs are better suited to survive the competition for partnerships in large law firms, Sander concludes that affirmative action policies with aggressive racial preferences would actually facilitate a stereotyping processing that poses a “substantial handicap” for minorities lawyers entering large firms (p. 1795), leading them to drop out of competition for partnership disproportionately.
While some attribute group differences to differential stock of human capital, others emphasize structural constraints such as institutional discrimination. There is no doubt that historically, like many other professions, the legal field as a whole and elite law firms in particular were exclusive of women and racial and ethnic minorities during the most part of the twentieth century. While overt, intentional discrimination against women and racial and ethnic minorities in the workplace has been a major obstacle to women and minorities’ career access and advancement, it is more likely to take on more nuanced, subtler forms nowadays (Wilkins & Gulati, 1995; Pierce, 2012). Some have documented workspace cultural hostility and the creation of cultural schemas that carry the perceptions that women are “not as committed” and minorities are “affirmative action hires” who lack competence (Epstein et al. 1995; Pierce, 1995; 2012).These perceptions may systemically disadvantage women and minorities in gaining important
work projects and social contacts that help them ultimately advance in the workplace (Wilkins & Gulati, 1995; Roos & Reskin 1984). Perhaps the most relevant to this study, Payne-Pikus et al. (2010) used the first wave of After the JD (AJD1) data, applying propensity-score matching and multi-variate regression models to investigate the job satisfaction, on-the-job performance, and partner contacts and mentorship of minority lawyers. Questioning Sander’s (2006) conclusion on the effect of human capital theory of merit and performance using the same data set, Payne-Pikus et al. (2010) found that institutional experiences in large law firms for African American associates are far from “benign,” and partner contact and mentoring are better predictors than racial difference in human capital and merit in explaining the high attrition rate of African American associates in large U.S. law firms. Their study suggests more support for the institutional discrimination theory.
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