Let’s start with the obvious–it pains me to realize that negotiation can’t fix everything.  As someone who loves to teach negotiation–and has long believed in the power of positive asking–I also need to recognize when individual action will not–and cannot–fix the ingrained biases and structural sexism that exists in the workplace.  A slew of recent studies back up this point in variety of ways that also point to a more nuanced understanding of what does need to be fixed.

To give a little history–many read Lean In and/or Women Don’t Ask and took these books as a call to focus on women’s deficiencies in negotiation.   This was despite that the fact that I and others had found no differences in perceived assertiveness among lawyers or other leaders.  (More from me in TEDx talk version here and research article here.)

Caveat– this is not to deny that differences in levels of assertiveness are found among young women in competitive, one shot negotiations with limited knowledge nor to discount the fact that failure to negotiate a higher starting salary leads to less money down the road.  It IS to say that these younger, less confident women should not be the template for advice to mature women in the workplace.  Numerous workplace studies have since confirmed that women and men ask for raises and promotions at the same rate–the problem is who receives them.

Moreover, study after study in Harvard Business Review have now shown that women are perceived as better leaders by their peers in 360 degree reviews–scoring higher than men on 17 of 19 measures before the pandemic and–in the face of a crisis–outperforming men even more.

So–it is not that women don’t ask and it is not that women can’t lead–it is that the men (and women) who evaluate them do not promote them and underestimate their potential.  A study from Yale shows the disconnect between performance (in which women were rated highly) and potential (where moderately performing men were still given higher potential ratings than highly performing women )   This video interview with Prof. Kelly Shue talks through the study beautifully and the impact, over time, of this underassessment of women.  She and her researchers found that women were 14% less likely to be promoted each year–which resulted in a drop off from 56% women at the entry level to 14% women district managers.

Similarly, in an op-ed last week in the Wall Street Journal, renowned gender researcher Laura Kray and postdoc scholar Margaret Lee take on the “women don’t negotiate myth” and demonstrate that the pay gap results from women being given less responsibility over time–women lead smaller teams (despite the HBR results showing that women lead better) and this smaller leadership responsibility leads to less salary.

How might these minor perceptions of potential or capacity to lead influence the workplace over time?  This past weekend, the New York Times published an article showing an interactive graph demonstrating how even a tiny bit of sexism (3%) can lead to devastating results over time.  Fewer women end up leading; if they slog through the daily injustices, their path to leadership takes longer; or women depart the workplace.  (The book on which this article is based–The End of Bias–now sits on my bookshelf and I’ll no doubt write again once I read it!)

For those of us studying lawyers and law firms, this can also help explain the significant drop off between starting lawyers (where women are close to 50% in many firms) to equity partner (averaging about 20% nationwide.)  (My study of Milwaukee firms is here.)

The good news–at least we are all talking about this in a far more transparent way and starting to understand how those “objective” standards–of leadership potential ratings or number of people on the team–are also subjective and can be biased.  We need to recognize that this is happening systematically and how–systematically–companies and law firms need to change.  As RBG once said, “all I ask of our brethren is that they take their feet off our necks.”  Maybe this is shining a light more clearly on those feet and recognizing that, when women do negotiate, we should be rewarded.