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Excerpted From: Robert L. Nelson, Ioana Sendroiu, Ronit Dinovitzer and Meghan Dawe, Perceiving Discrimination: Race, Gender, and Sexual Orientation in the Legal Workplace, 44 Law and Social Inquiry 1051 (November, 2019) (9 Footnotes/Reference List) (Full Document)

LawPhotoDespite widespread expressions of support for diversity and inclusion by leading law firms and corporate law departments and new rules of professional conduct defining sexual harassment and discrimination as ethical violations, we possess little systematic data on the prevalence and character of workplace discrimination in the U.S. legal profession. While this is surprising given the considerable body of research on race and gender inequality among lawyers, it reflects the general tendency in research on inequality to analyze unequal outcomes rather than the mechanisms that produce and maintain workplace hierarchies of race, gender, and sexual orientation.

In this Article we analyze self-reports of discrimination from a large national sample of lawyers and qualitative comments about the type and source of bias they have encountered. Using these data, we map the contours of perceived discrimination by race, gender, and sexual orientation in the contemporary legal profession and analyze the social correlates of these patterns. Our analysis draws from and advances theories of workplace discrimination. Quantitative results demonstrate the resilience of ascriptive hierarchies across practice contexts and career stages. The qualitative data complement and qualify the quantitative findings as they reveal that perceptions of discrimination are connected to the identities of disadvantaged groups and the particular types of bias they experience in the workplace and other professional contexts. Contrary to the common assertion that most discrimination today entails implicit bias and subtle forms of unequal treatment, respondents' accounts show that workplace bias is often explicit. Both overt workplace interactions and implicit bias appear to reinforce the very hierarchies of race, gender, and sexual orientation decried by leaders of the legal profession. These findings extend our theoretical understanding of discrimination and have important implications for equal opportunity within the legal profession and the prospects for equal justice under the law.

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In all three waves, women of color and white women were significantly more likely than white men to report that a client had requested a different attorney. It is notable that in wave 3 women of color have odds of perceiving discrimination that are 2.8 times greater than are white men and white women's odds are 2.3 times greater than white men. Men of color are only statistically significantly different from white men in wave 2, suggesting that gender may be more of an impediment to client representation than race.

Working in the private sector is a statistically significant predictor of this type of perceived discrimination across all waves, supporting our expectation about sectoral differences in perceived discrimination. Yet, somewhat contrary to that expectation, working in the public sector is a significant predictor in waves 1 and 2. We also find some support for our expectation that larger organizations would contain fewer self-reports of discrimination. In wave 1 only, we find that organization size has a statistically significant negative effect on having had a client request a different attorney. This may in part reflect the relative absence of client contact in large organizations at early career stages. Reports of client requests for other attorneys also are significantly associated with being a practicing lawyer in waves 2 and 3 and working longer hours (in all three waves). Attorneys who no longer practice may not have clients in a conventional sense, and so may be less exposed to this possibility. The effect of hours worked is more difficult to explain, but may reflect greater deference to clients' preferences in more intense work environments as indicated by hours worked. In sum, the models for clients requesting other attorneys show the effects of race and gender, but also reflect more contextual effects than for the composite measure.

The quantitative data demonstrate striking differences in perceptions of discrimination across race, gender, and sexual orientation that are not explained away by other factors. But to understand the experiences that underlie these numbers, it is necessary to examine our qualitative data

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In this Article we have begun to develop a more comprehensive understanding of perceived discrimination by race, gender, and sexuality in the American legal profession. Further systematic work is needed to examine the effects of perceived discrimination on the career trajectories of lawyers. Do those lawyers who perceive that they are the targets of bias leave their employer or even leave the legal profession all together? Do they express lower levels of satisfaction with their decision to become a lawyer? Does the health and workplace performance of these lawyers suffer as a result of discrimination? These are questions best addressed with longitudinal data. The answers to these questions are of concern not just for the legal profession but for society more broadly. To the extent that lawyers of different races, genders, and sexual orientations are exposed to discrimination that limits their career development, it will erode the capacity of the legal profession to provide equal representation to all groups in society. Research suggests that communities served by a more racially and ethnically diverse legal profession experience smaller racial disparities in sentencing outcomes . The fate of equal justice may be tied to the fate of equal opportunity in lawyer careers.

Robert L. Nelson is the MacCrate Research Chair in the Legal Profession at the American Bar Foundation and Professor of Sociology and Law at Northwestern University.

Ioana Sendroiu is a Ph.D. Candidate in Sociology at the University of Toronto.

Ronit Dinovitzer is Professor of Sociology at the University of Toronto and Faculty Fellow at the American Bar Foundation.

Meghan Dawe is a post-doctoral Research Social Scientist at the American Bar Foundation.

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