I graduated in one of the first cohorts in law at the University of Queensland to comprise 50% women. Despite experiencing overt sexism in some of my job interviews and tacit sexism during my working life, it still did not occur to me for a long time that I would be treated any differently from my male counterparts. I thought sexism to be exceptional. As a young woman, I believed all in the profession would be treated on merit.
The intervening 26 years in the workforce has shown that the idea of merit excludes many people of merit. Hard work and talent are not enough – if it were, the upper ranks of the legal profession in particular, would look a lot more diverse.
We know this – study after study has confirmed it. We even know why there is a lack of diversity – that the culture of the legal profession operates in a deeply exclusionary way. What we don’t seem to know is how to dismantle this culture. This post forms the basis of some ideas I will be sharing at the 2016 conference of the Australian Women Lawyers (‘AWL’). In it, I offer some ideas on cultural change in the legal profession, focusing on changing entrenched gender bias.
In public discourse there is high profile resistance to ‘blaming’ gender for ‘advantages or disadvantages’. Senator Fierravanti-Wells for example, has said that feminism is about equality of opportunity rather than equality of outcomes. This approach is a fairly classic type of liberal feminism. On this view, once rights were created for women to participate in the world outside the home, equality was realised. The merit argument kicks in here. If we work hard, if we are good at our jobs, then success will follow. Those who complain about inequality in terms of, say, ministerial representation or women CEOs, are ‘blaming’ their lack of success on their gender when the opportunity is there for all.
Not cool, we are told.
Yet we have had 30 years of the Sex Discrimination Act and in the legal profession nearly as many years of having at least equal graduate numbers, and more recently more women graduate than men. Despite the numbers of women taking this opportunity, this is not translating into an equal or representative gender distribution in terms of pay, or of seniority. We women have all these rights, and all these opportunities, but as a demographic we remain a long long way from equality.
Despite such views retaining some currency, there is ample evidence of the lack of traction in the equality discourse. Part of the problem we have with ushering in change, is recognising the remaining structural issues that continue to hold women back. Part of the challenge, ironically, is that women do succeed in the existing environment. And, on the merit argument, if she can do it, so can you. Just lean in. You need to step up and take responsibility for your own success.
It’s not actually about you
The stories of successful women tell us that it is possible for women to succeed on merit. Stories of success tend to emphasise hard work and talent, indicating that it is all about individual aptitude. This fits well with the narrative of merit.
The problem we face however is that the culture of the profession is so deeply embedded with gendered assumptions and practices, that we – men and women – are blind to the way it plays out. This is quite different from the rights-based argument of first wave or liberal feminism, from equality of opportunity. This argument goes to the very structures of society and the culture of the legal profession itself. These gendered assumptions and practices are the barrier that women experience beyond equal rights. They too are a barrier to equality of opportunity. They do not stop all women from succeeding. But we do know that many will leave the profession because of this culture.
We also know that this culture is not only detrimental to women, but also to men. The profession has a serious problem on its hands. The problem is its toxic culture.
Claiming our power
Despite the problems with the individualist tenor of lean in and the reality of discrimination faced by many women lawyers, it is difficult to argue that women lawyers are oppressed. We are amongst the most privileged people in Australian society. For most of us, we are well paid and enjoy interesting work. We are highly educated, articulate, critical thinkers and problem solvers. What’s more, we are across our rights. As lawyers, we deal in rights every day.
We have tried rights, we have tried awards, we have tried professional ethics…and still the profession remains mired in its culture. The time has come for women lawyers to take their own power. To change the culture of our profession though we need to stop acting as individuals and we need to take collective action.
The AWL and myriad of state women lawyers associations have laid the groundwork for this. They have consistently and rationally provided the data and argued the case for equality and diversity, and they continue to advocate and provide constructive suggestions for women’s advancement. But like us all, the recommendations for change continue largely to operate within an individualistic paradigm. This is not surprising as individualism is a feature of the law itself. The inability of the profession to change is an example of how we are trapped within unhelpful frameworks of thought.
I propose invigorated, more radical, and importantly, collective action. Only if we work together can we call out the structures that are holding us back, and promote alternatives that will support a more diverse workforce.We will also need our professional associations to show leadership – no more than is called for in the existing, but not implemented, recommendations for change, but leadership that empowers women collectively.
Institutions must call law firms to account
- Firms must account for gender equity in pay, in promotions, and in briefing. ‘Employer of choice’ awards are not enough. Law firms must obey anti-discrimination law in pay and promotion. Public accountability and enforcement is required because so far it is not happening behind closed doors.
- To attract government work, law firms must demonstrate genuine equality of opportunity through evidence of gender equality in salaries, promotions, and briefing.
- The practice management course that qualifies a solicitor for unrestricted practice must incorporate awareness and management of unconscious bias, and teach lawyers how to integrate gender equity into firm processes and procedures. Importantly also, the training must cover transparency and accountability to the profession and to staff in terms of gender equity in practice.
- Compulsory, audited, biennial CPD points in accredited courses on unconscious bias and gender equity.
Access to information
- Firms must provide employees with information about salary levels. Some think that women need to be better negotiators of salary and that women’s poor negotiation skills in this regard is a cause of women’s lower salaries. However if in the first place women do not know that they are being paid less than their male counterparts, they are in a poor position to negotiate to equity with men.
- Firms must provide employees with detailed career pathways that include flexible options. An inflexible work environment is known to limit promotion prospects for women. Those with caring responsibilities – principally women – are perceived to be less productive where they are present less than others. Models of flexible pathways are already available. Firms need to develop these diverse pathways in advance and women need to know what their options are, in advance. They need to know when they take the job, what their career pathway will look like. We must call on firms to put some effort into how these flexible pathways will look in their practice.
- Women lawyers can develop a framework for interviews and performance reviews that model how we can call on law firms to account to us for salary, promotion opportunities, and flexible career pathways. But this will only work if we use this collectively. Only through collective action will becomes feasible for individuals to be sufficiently empowered to hold firms to account. We will need the support of the leading associations such as AWL and the Law Societies to inform firms of these frameworks of accountability and how staff will be using them. We can attend law student career fairs to support graduates in using these tools.
- Reverse mentoring. Mentoring is frequently identified as a means of supporting women and many report its benefits. But mentoring assumes that we, personally, need development to fit in with the culture of the profession. I propose instead that we appoint mentors to firms, to assist them in culture change. Women lawyers, with the support of law societies, might collectively develop such a program.
- Women lawyers must support each other so that our voices are heard. We do that through forums such as this, through collegiate support in the workplace and through our interactions in our work. We must call out the processes that hold us back and assert the alternatives – alternatives that will promote a healthier workplace for all lawyers.
- We must stand together to enforce the boundaries of professionalism in the law. Not a hairy-chested variety of ‘professionalism’ that might be found in a footy locker room, but a considerate and considered professionalism with an eye to justice. This involves us calling out harassment – collectively if need be. We must look to ourselves to see how we personally contribute to the law’s unhealthy culture.
There is nothing remarkable about this list. All I am suggesting is implementation of what has already been recommended. The soft approach is not working. Suggestions recently that law firms could pledge to pay equally in the next year are well-meaning but unacceptable. If firms will not take the plunge themselves, we must push.