Sexism is not a term often encountered in polite company. In conventional usage, it conveys discrimination based on sex and seems to require some conscious action. Yet there is also a subtle side of sexism: a cluster of social expectations and practices that reinforce sex-based inequality. They are the focus of discussion here, particularly as they affect the everyday lives of even well educated and economically privileged women, including those in the legal profession. (1) This focus is important, neither because sexism has no effect on men nor because these women bear the greatest costs of gender inequality. Rather, this emphasis is important because privileged women often have the greatest resources and incentives to challenge such inequality. Making those who occupy positions of influence more aware of unintentional biases and subtle sexism is a necessary step in the creation of a just society.
We are still a considerable distance from that goal. We see women so frequently in positions of power and in non-traditional occupations that we lose track of where they are absent as well as the dynamics that might explain why. The statistics are sobering. In the United States, women are a majority of the electorate but hold only a quarter of upper-level state governmental positions and sixteen percent of congressional seats. (2) More than half of college graduates but less than a quarter of full professors and a fifth of college presidents are female. (3) In management, women account for about a third of M.B.A. classes, but only two percent of Fortune 500 CEOs, six percent of top earners, eight percent of top leadership positions, and sixteen percent of board directors and corporate officers. (4) In law, women constitute about half of new entrants to the profession, but less than a fifth of law firm partners and Fortune 500 general counsels, and less than a third of federal judges and law school deans. (5) The gap widens for women of color, who account for only about four percent of congressional legislators, three percent of full professors, and one to two percent of corporate officers, top earners, law firm partners, and general counsels. (6) The leadership pipeline plainly leaks; women are lost at every stage.
There are also significant disparities in how women and men structure much of their non-working lives. As subsequent discussion notes, women spend significantly more time than men on caring for their families and on their personal appearance. These disparities are generally attributed not to sexism but to personal preference. However, discussions of women's "different choices" too frequently miss or marginalize the costs that those choices carry and the extent to which they are socially constructed and constrained.
Accordingly, this Article begins with an overview of gender differences in employment decisions. A wide variety of research finds that women are more likely than men to leave the paid labor force or to reduce their participation. Subsequent discussion explores some of the factors that explain women's choices to opt out and limit the opportunities for those who remain. First, gender stereotypes and unconscious bias concerning female competence and appropriately feminine behavior constitute significant barriers, particularly to leadership positions. Gender bias in mentoring and support networks and gender disparities in family responsibilities also perpetuate employment inequalities. Analysis then turns to sex-based differences in standards of appearance, the burden that they impose in everyday life, and the complex interrelationship between societal pressure and individual choice. Subsequent discussion explores the limits of law in challenging gender bias. The Article concludes by suggesting strategies for addressing the subtle side of sexism at individual, institutional, and societal levels.
I. INDIVIDUAL CHOICE IN WORKPLACE CONTEXTS
The most common and, perhaps, most convenient explanation for women's under-representation in positions of the greatest power, status, and financial rewards has nothing to do with prejudice and everything to do with preference. …