Getting a Piece of the Power

Women barred from partnerships can now go to court

In 1873, after she was prevented from practicing law in Illinois because she was a woman, Myra Bradwell went to the U.S. Supreme Court. That tribunal turned her away, with Justice Joseph P. Bradley harrumphing, "The paramount mission and destiny of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator." The law of the land has changed some in the 111 years since, and last week a Supreme Court that includes the first female Justice endorsed the use of a new weapon by women seeking full equality in the legal profession. Writing for a unanimous court, Chief Justice Warren Burger held that female attorneys may sue if they are denied a chance to become partners in law firms because of their gender.

The much publicized case pitted Atlanta's most influential law firm, King & Spalding, against Elizabeth Anderson Hishon, who worked for the firm from 1972 to 1979 as an associate. She was forced to leave under the so-called "up or out" rule, after she was twice considered and rejected for a partnership in the firm. Hishon sued, invoking Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment by firms with more than 15 employees. Atlanta Federal District Judge Newell Edenfield threw out Hishon's suit in 1980, saying that "to coerce a mismatched or unwanted partnership too closely resembles . . . the enforcement of shotgun weddings." But no one on the Supreme Court was impressed by King & Spalding's arguments, including its claim that its partnership practices were protected by the constitutional right to free association. To the extent that the opportunity to become a partner is a "benefit" of employment, it is covered by Title VII, wrote Burger, and "partnership consideration must be without regard to sex."

The decision, which also applies to minorities, could affect the procedures not just of legal but also of architectural, engineering, accounting and other professional firms that are organized as partnerships. Carol Dinkins, who was sworn in the day after the ruling as Deputy Attorney General, the highest Justice Department rank ever held by a woman, called the action "gratifying"; the department had in fact supported Hishon before the Supreme Court. But, warns Harriette Dorsen, a partner in a New York City firm: "I'm not sure what practical progress will be made. Partnerships can be awarded in ways so that prejudice is disguised."

The right to bring suit does not guarantee a trial victory, but Hishon will now be able to extract evidence from King & Spalding on how and why it decided against her. The firm, whose most prominent partner is former Attorney General Griffin Bell and whose client list is topped by Coca Cola, appears to be an almost retrograde archetype of the white, male-dominated, large urban law office. It is described by anonymous former associates as a "Southern gentleman's club," and last year it reportedly suggested that its female summer associates enter an office wet-T-shirt contest (bathing suits were eventually substituted). The firm has no black partners and did not name its first Jewish partner until 1976 or its first female partner until 1980, after the Hishon suit.

Other law firms have also been slow to allow women into the lucrative and powerful partnerships that dominate the practice of law in the U.S. A survey by the National Law Journal found that while 30% of the associates in the largest law firms are female, they make up only 5% of the partners. But the mere pressure of numbers should guarantee some progress; there are now 93,000 women among the nation's 612,000 lawyers. After that, say the most successful women lawyers, it is a matter of will power. Observes Jane Barrett, a partner in a Los Angeles firm: "You have to square your shoulders and really shove if you want to make it." That kind of determination finally moved Elizabeth Hishon, now a partner with another Atlanta firm. "I'm not typically one to march in a parade," she says. "But there comes a point, and I reached that point, where you have to take a stand." qed