Managing My Expectations (And Reflecting On The Passing Of Herma Hill Kay)
The work of the late Herma Hill Kay, a crusader for gender equality in the legal profession, is far from done.
Dean Herma Hill Kay (via YouTube)
Here’s a pop quiz for you: what is the male word for “shrill? “Shrill” seems to be an adjective to describe certain behaviors, exclusively female. So, what would be the male counterpart for “shrill?” Can’t think of any? Not surprising, but if you think of any, please email me.
What’s also not surprising, although dismaying, is that not all that much has changed in the forty years since I was admitted to the bar. Yes, there are women equity partners in Biglaw, yes, there are women general counsel at Fortune 500 companies, but still the drumbeat of sex discrimination continues. Exhibit A is Christine Rodriguez’s post last week. I’ve been tagged as the court reporter, the social worker, the client, anything and everything but the attorney. It gets so old after a while.
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What brought this even more clearly into focus was the death of Herma Hill Kay last week. Dean Kay was not necessarily a household word in the public world, but she was a trailblazer in the legal world, including in the fight against sex discrimination and serving as the first female Dean of Berkeley Law (then Boalt Hall) in the 1990s.
Dean Kay graduated from the University of Chicago Law School in 1959, long before most readers here ever took a breath. She clerked for Justice Roger Traynor, one of the luminaries in California jurisprudence and subsequently Chief Justice of California Supreme Court. She joined the Boalt faculty in 1960.
I remember way back in 1974, while I was in law school, Dean Kay co-authored, along with then attorney and law professor Ruth Bader Ginsburg and Kenneth Davidson, a very early casebook on sex-based discrimination (affiliate link). It might be fun (my word, not necessarily anyone else’s) to read the 1974 edition to see what has changed and what hasn’t.
Sex-based discrimination: what a novel concept then (and I think in some places, it still is, but far be it from me to name names). In 1974, the feminist movement was in full swing. (Billie Jean King faced Bobby Riggs in the Battle of the Sexes tennis match in 1973, in which King thrashed Riggs to the delight of women everywhere.) In 1975, as soon as Jerry Brown (then in his first tour as California governor) was sworn in, women lawyers and law students were pushing him to make good on his promise to appoint women to what was an all-male (with a very few exceptions) state judiciary.
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What comes through loud and clear in an appreciation of Dean Kay is her teaching, but even more her encouragement, her mentoring and her “paying it forward” to succeeding generations of women law students and lawyers. We continue that tradition, but that’s not to say that we can’t do more and should do more.
Yet the lessons that Dean Kay taught apparently have to be taught over and over and over again. Exhibit A: What was David Bonderman thinking? Obviously he wasn’t, especially given that the Uber board of directors had just received a comprehensive report from Covington & Burling outlining many behaviors at that company that needed reform. Bonderman’s comment played right into the sexist stereotypes that still populate boardrooms and workplaces. Is “more talking” code for “shrill”? You tell me.
The Uber report reads like an outline of what any good, smart and compliant human resources company manual should contain. Since 2005, California law has mandated sexual harassment training; the law and regulations detail what needs to be in the training, who needs to be trained and how often. (Subsequent legislation has added workplace bullying to the required training topics.) One wonders if Uber has trained pursuant to the AB 1825 requirements. I didn’t see anything in the Uber report about that specifically.
One of the recommendations in the Uber report suggests adoption of a version of the “Rooney Rule,” used by the National Football League, which requires franchisees to include as applicants for head coach and general manager positions at least one minority candidate. The Uber report recommends that for each identified key position, the company include at least one woman and one member of an underrepresented minority as applicants.
Some Biglaw firms have signed on to a version of the Rooney Rule, dubbed the “Mansfield Rule,” named after Arabella Mansfield, the first women to practice in this country. This version of the Rooney Rule asks firms to consider two or more candidates who are women or attorneys of color when hiring for leadership and governance roles, promotions to equity partner, and hiring lateral attorneys. Just because candidates are “considered,” however, doesn’t mean they’ll get the gigs. How many times have you been “considered” and passed over? I thought so.
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While I think it’s a great idea, it’s only the latest in a series of initiatives trumpeting diversity that have fallen short over the years. We wouldn’t need the “Mansfield Rule” if previous diversity attempts had succeeded. They haven’t. If they had, then the Mansfield Rule would be superfluous. To use an old saw (not the tool, but an adage, my age is showing), “the proof is in the pudding.” We’ll just have to wait and see, but patience wears thin after so many years of lip service.
Dean Kay’s work is not done — far from it. As Christine Rodriguez so aptly put it, however, we persist, and we must. While sex-based discrimination may be more subtle (although in her post, it doesn’t look like it is), it’s still out there and, in this age of “you eat what you kill,” I wonder how successful this latest attempt will be.
I always tell lawyers in mediation that they need to manage their clients’ expectations if the case has any chance of settling. Taking my own advice here, I need to manage my expectations about success of the “Mansfield Rule.”
Iconic Professor and Former Berkeley Law Dean Herma Hill Kay Dies at 82 [Berkeley Law]
Earlier:
- Nevertheless, We Persist
- Sometimes Being A Woman, At Work, Is Hard Work. Persist.
- Bullying At Work: Are You Vulnerable?
Jill Switzer has been an active member of the State Bar of California for 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.
