Second-String Citizen—What Implicit Bias and Symphonies Mean for Lawyers and Gender Equity

In a C-SPAN interview last September, Justice Ruth Bader Ginsburg addressed a topic that most might not expect: implicit bias in a symphony orchestra.

Justice Ginsburg related the story of a famous male music critic who bragged that he could tell the difference between male and female musicians—but when the musicians played behind a curtain, wasn’t able to tell the difference. The critic later admitted that he had lower expectations when he saw a woman musician playing, but when he couldn’t see her, he had a higher opinion of her musical talent.

“Now we can’t duplicate the dropped curtain in every business and profession,” Justice Ginsburg said.

As a matter of fact, the same biases are shown to influence much more than one critic’s opinions. A study published in the American Economic Review showed that blind auditions of musicians “significantly reduced gender-biased hiring and the gender gap in symphony orchestra compositions.” The study found that a transition to blind auditions between 1970 and the 1990s could be responsible for one-quarter of the increased percentage of female orchestra musicians during that time.

But we shouldn’t get ahead of ourselves and start celebrating gender equality in symphonies. Last July, the female principal flutist of the Boston Symphony Orchestra sued for gender discrimination, claiming that the principal oboist—a man who literally sat next to her—was paid 25 percent more. The flutist, Elizabeth Rowe, sued in Suffolk County Superior Court under the new Massachusetts Equal Pay Law (MEPA) that had gone into effect one day earlier.

Don’t Miss this Special CLE As part of Women’s History Month, the Washington State Bar Association, the Women’s Commission, the Gender and Justice Commission, and Washington Women Lawyers will host a CLE, Women and the Law: Past, Present, and Future, on March 13. Learn more and register for the CLE.

MEPA provides, “No employer shall… pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work….” Mass. Gen. Laws ch. 149, § 105A. The symphony asserted in its answer that the flute and the oboe are not comparable instruments. In fact, the oboe player, John Ferrillo, told the Boston Globe, “I consider Elizabeth to be my peer and equal, at least as worthy of the compensation that I receive as I am.”

And why should lawyers care about blind symphony auditions and the salary of a flute player? Because we face the same gender equity concerns in our own profession. According to the American Bar Association’s Task Force on Gender Equity, “Bold action is necessary for women lawyers to achieve parity with their male colleagues, as efforts to date have been insufficient.”

The New York Times recently reported that, at the prestigious law firm of Paul, Weiss, only 40 percent of incoming associates are white and male, but nearly 70 percent of new partners are white and male. Overall, only 23 percent of the firm’s partners are women. In December, the firm published a photo of new partners to LinkedIn, which showed 12 smiling faces: 11 men and only one woman.

Why the gender disparity? At least one possible reason—according to the Times, citing a 1996 law review paper—is that white male partners tend to select mentees who remind them of themselves and mentorship is critical to making partner: “But there are far fewer opportunities to be trained than there are junior lawyers at most firms, and they are doled out largely at the discretion of existing partners, who, in the authors’ words, are drawn to ‘protégés who remind them of themselves.’’’

In 2018, Washington amended its Equal Pay Act (which had not been modified since 1943) to address modern gender pay inequity issues. SSHB 1506 to be codified at RCW 49.12.175. The new law prohibits discrimination in compensation on the basis of gender to “similarly employed” employees of the same employer. Similarly, “employed” means that “performance of the job requires similar skill, effort, and responsibility, and the jobs are performed under similar working conditions.” The law also prohibits gender discrimination in providing career-advancement opportunities.

One of the challenges is that, in most workplaces, women have no way to know that they’re being paid less than their male peers. In the case Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), Lilly Ledbetter, a female supervisor at an Alabama tire plant, learned that she was being paid thousands less than her male peers, but only because some anonymous person put pay information in her mailbox at work.

SSHB 1506 allows employees to disclose their own wages and to inquire about the wages of others. (The law does allow an employer to place limitations on disclosure by those working in jobs with access to the pay data of others.) When he signed the new law, Gov. Jay Inslee correctly observed, “There is still a lot of work remaining to achieve true pay and opportunity equity for women in the workforce.”