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Women & the Legal Profession

05 November 2015 - By Sasha Borissenko

Every year over 60% of new lawyers are female. At the same time, 98% of lawyers who have been in practice for 41 years or more are male. Women comprise almost 60% of employees in law firms yet only 26% are directors or partners. Among the 282 ever appointed King’s and Queen’s Counsel, 255 are men while 27 are women. What’s more, only 29% of women make up the Judiciary. Supreme Court Judge Justice Susan Glazebrook said of the figures in her paper It is just a matter of time and other myths: “Whichever way you look at them, these figures are woeful”. New Zealand may have made great strides in terms of gender equality with the first all-woman bench at the Court of Appeal this year and three women Justice Ministers dating back to 2007 but the statistics, using the legal profession as a case example, suggest otherwise. 

The nuts and bolts: gender theory 101

With Kate Sheppard leading the “first wave” of feminism along with a quarter of New Zealand’s female population, women got the vote in 1893.

Who could then anticipate what would happen with the freedoms associated with the pill and compulsory secondary education for girls, in conjunction with the civil rights movement during the 1960s and 1970s? Prosperous times they were, with women regulating their own fertility, which allowed them to participate in the workforce on their own terms.

Few people expected that the fight for equality would come to a standstill in the 1990s and 2000s, says Victoria University teaching fellow Dr Ana Gilling, who explored gender in public life in her PhD thesis.

“We lost sight of the bigger fight,” Dr Gilling says.

“A lot of upper middle class white women did well out of second wave feminism, but we failed to attack the cultural side and underlying inequality of caring work – who does paid work and who does unpaid work.”

The fights of the 1960s and 1970s were relatively easy to gauge by comparison, she says.

“The gender pay gap seems grossly unfair on the face of it, but how do you legislate against unconscious bias, against gender norms, that men should do more housework, more parenting, for example? It’s simple, if you are responsible for children or elderly people it’s physically impossible to have the time to devote to your career – especially the legal profession. I don’t think we’ve really nutted that out.”

What’s more, the move to neoliberalism in the 1980s and 1990s meant analysis moved away from big structures to individual claims.

“People stopped thinking this is a problem for all of us. Now it’s an issue I have to face alone. Women now have to negotiate for their pay and navigate their own path to freedom.”

Dr Gilling points to Hillary Clinton and the United States politician’s stance around lack of transparency around starting salary, for example.

“How can you negotiate for more money if you don’t know how much more men are getting? It’s an impossible fight to have. [Furthermore], New Zealanders are generally reluctant to talk about money.

“An individual focus is good in theory, but it might only benefit a small portion of the female population. I couldn’t stand up in a lecture and suggest women want freedoms and equality without a portion of women saying they don’t identify and they don’t want to be represented in that way.

“We can no longer talk about all women as a group. If you can’t talk about women as a collective, how can you possibly approach legislators and call for changes?”

“[Feminism] is about having power, choice and no barriers ... It’s about making decisions, and having the ability to make decisions based on what works for you and your family.”

There is a divide and conquer aspect that comes with having an individual focus. You get any group of people that are fighting among themselves – of course they’re not going to be as strong, she says.

Myths such as females sabotaging females, cat fights etc – they simply feed gender norms that are ultimately unhelpful.

“It doesn’t help that there’s a natural tension, between second-wave feminists and fourth-wave feminists, for example. But we mustn’t forget that you don’t have to agree with every woman’s decision.

“[Feminism] is about having power, choice and no barriers. There’s the ‘ideal’ superwomen caricature but it’s not about that. It’s about making decisions, and having the ability to make decisions based on what works for you and your family.”

Argument myth: ‘just wait’

Dating back to the second wave of feminism, it was appropriate at the time to think things would improve in the future. But suggesting there’s an unstoppable trajectory and equality is on the horizon is incorrect, Dr Gilling says.

“The argument of virtuous cycle is a very powerful argument and it’s usually made by people who do well by the status quo. United Kingdom figures relating to the number of women in Britain’s Parliament suggest it will take 400 years for gender equality to come to fruition.

“So instead it’s assumed I should be happy with 30%.

“You walk into a workplace or a boardroom and there are seven men, three women and you don’t think about it. Say it’s the other way around, you’re naturally inclined to pick it up. I think women and men have settled for the model minority, 30%. It’s a big enough group that whatever company can’t be accused of sexism but it’s not big enough to challenge the status quo.”

Arguments that women are surpassing men and that they should be worried about reverse sexism don’t stand up under examination, she says.

When it’s a male claiming an ex-wife has taken everything in the Family Court, for example, it doesn’t take away the fact that there’s now a main caregiver who will lose a significant amount of potential income as a result.

The tide of sexism is strongly rooted in history. To suppose sexism between men and women is equal is ridiculous, Dr Gilling says.

Gender norms

“People have to be wary of gender norms – patterns of behaviour that people ascribe to particular genders. Women are very compassionate and caring, men are ambitious and meant to be leaders, women should do family law, men are more suited for the ‘hard stuff’ such as civil litigation, for example.”

2012 Human Rights Commission Women’s Participation figures suggest 70% of family lawyers and 63% of those in health law are women. By contrast, almost 70% of those who specialise in banking and finance law are men and men make up 65% of civil litigation, company and commercial law, for example.

“The perfect public figure is a male, white, middle class, middle-aged man of good pedigree. Everyone else is an alternative"

“Imagine a woman going through law school. Said girl will be surrounded by rhetoric that suggests females are better suited to family law. Say said girl gets a good grade in family law, she might be told ‘you’re really suited, you should do this’. The same could be said for men doing commercial property papers or contract, for example. Subtle policing of gender norms starts early. It’s a perpetual cycle.”

Juxtapose gender norms against propaganda that suggests “everyone is free and there’s freedom of choice” and there’s a serious conflict, Dr Gilling says.

The model is true if you look at the norm of a perfect politician, which just so happens to be the perfect lawyer, she says.

“The perfect public figure is a male, white, middle class, middle-aged man of good pedigree. Everyone else is an alternative to that. Women don’t fare well, nor do young people, disabled people, non-white people, working class people or underprivileged people.”

It must be recognised that the archetypal lawyer doesn’t exist in a vacuum.

“The only way to work a successful 80-hour week as a high profile lawyer is if you have other people taking care of the remaining aspects of your life. They often happen to be female – whether that’s the wife looking after the kids and the housework, a secretary who runs your diary, an elder care worker who looks after your parents in a rest home.”

Equal opportunities exist for both sexes in their twenties, namely due to the fact there are fewer responsibilities – whether that be housework, caring for parents or children, or that they’re on starting salaries. It’s when people hit 30 and life paths start to diverge that the inequality comes to light, Dr Gilling says.

Suppose a child comes into the picture. Some may suggest men increasingly stay at home but the reality suggests otherwise.

“Say both parents are working full time. Imagine the child gets sick and needs to come home from school. A subtle gender norm would see that the woman is called to pick up the said child, for example.”

Household survey figures suggest male/female housework disparity occurs, irrespective of whether both parents work full time, where women going back to work have the same amount of housework, whereas if men return, housework is said to drop by 20-50%, Dr Gilling says.

Quotas and ‘merit’

Quotas can be very beneficial but, like the term “feminism”, quotas have controversial connotations, Dr Gilling says.

“People have an idea that to employ quotas it means, ‘we need a woman right now to do the job, okay you’ll do.’ You are just there because you have breasts, not because of merit.”

Merit is not a neutral term, it requires that a person has certain characteristics that are considered meritorious. Therefore people who have characteristics that fit the “ideal lawyer” model are more likely to be considered “meritorious”, Dr Gilling says.

“How do you be the perfect High Court judge, for example? Well it helps if you’re a man, you have a deep voice, you’ve done the hard yards in your career (preferably in the commercial/property field), for example. It’s pretty hard to fulfil the ‘merit’ definition if you have caring responsibilities.”

Argument myth: one success = all success

Winners of feminism are used to suggest no barriers nor gender bias still exists, she says.

“The rhetoric is nice in theory. The minority of women who take up influential positions are used to suggesting all of their success was because of their hard work alone. However, a lot of these people in high-ranking positions benefitted from the second wave of feminism and they had advantages such as free tertiary education. These don’t exist today, which is not to say that I’m trying to discount what was incredibly hard work. But the barriers and the discrimination is very much alive and the situations are incomparable.”

As to the future

Dr Gilling says society needs to take the lessons from the second wave of feminism forward.

“It’s about sisterhood and collectivity, because it’s overwhelmingly difficult to try and win battles on your own, especially if there’s the misconception that ‘you can be successful if you simply work harder’. What if that same person is exhausted.

“I think we need to rebuild a collective feminist movement. How we do this is starting by challenging what we’ve come to accept as normal. More women in New Zealand are more likely to die at the hands of a partner or ex-partner than a car accident. This shouldn’t be normal and we can’t accept that.”

There is compelling international evidence that gender balance in governance and leadership roles correlates with better decision-making, organisational resilience and performance

Minister for Women Louise Upston says in this day and age feminism means different things to different people.

“I’m less interested in the labels and more interested in the issues that matter. This means working to ensure women have equal rights, equal choice, equal opportunities, equal expectations, and are valued equally.”

In her capacity as Minister for Women, Ms Upston hopes to support more women in education and training; to utilise women’s skills and to grow the economy; to encourage and develop women leaders; and to ensure women are free from violence.

“Women are gaining qualifications at a greater rate than men and women’s employment is at a record high rate. However, women’s skills are not always being translated into greater career opportunities and development in the workplace. The Ministry for Women will encourage more women and girls to train and work in occupations where high growth is projected and where women are under-represented (‘the leaking-talent pipeline’).

“I do not believe in quotas.

“For lasting and sustainable change, we require a change of culture, where women are promoted and paid based on merit, not gender. This means opening pathways, providing opportunities through education and training, and fostering an environment that does not view people based on their gender, but their ability.”

There is compelling international evidence that gender balance in governance and leadership roles correlates with better decision-making, organisational resilience and performance, she says.

More companies are making the most of women’s leadership talent by focusing on:

  • making flexible work normal for everyone – many men want a better work-life balance too, and want to be more hands-on parents;
  • addressing unconscious bias – if we want the best people we need to select on skills not assumptions about gender; and
  • supporting parents returning to work after breaks.

On 20 October, employers and unions, through the Council of Trade Unions, agreed to a government proposal to set up a Joint Working Group to develop principles for dealing with claims of pay equity under the Equal Pay Act.

With Ms Upston, as well as Minister of State Services Paula Bennett and Minister for Workplace Relations and Safety Michael Woodhouse behind the initiative, the group will recommend agreed principles on pay equity that could be applied in all sectors of the economy.

Green Party women spokesperson Jan Logie says part of progressing rights for women is about holding the government to account for actions that undermine human rights.

“As a lawmaker it’s about making sure you have a gender lens on all your decision-making. There’s supposed to be gender impact analysis, which is currently ineffective and often meaningless. We need to be taking on board relevant international law standards around discrimination – be it addressing stereotypes, the media, politics, pay and violence. The whole system needs to be looked at.

“I do recognise that for a lot of marginalised women, their experience of feminism may have been alienating and that needs improving. But so often we confuse what feminism really stands for – that being equality and fewer barriers.

“If women have significant power and they disassociate with feminism I think it’s really sad. It’s our primary vehicle to improve the status of human rights for women. I’m proud to be a feminist.

“The reality is women are of course going to disagree and I think that’s to be encouraged but we do need to guard against or at least recognise we are all swimming in a system that’s toxic and it’s easy to be influenced by that and to attack other women rather than the issue.”

The Green Party employs a quota system whereby their list can’t be split less than 60/40.

“You won’t hear anyone here complaining that the quota impacts the quality of the team.

“I get really annoyed when I hear people saying people get ahead by way of ‘merit’. It’s a hugely socially constructed term. If you look at our current National government for example, where 27% of the caucus are women and 73% are men but they’re there because of ‘merit’ – what does that say about their views about women?

“New Zealand celebrates that we have one of the lowest gender pay gaps in the world at 33%. It doesn’t sit well with me. It’s not something we should be celebrating. There is no country that has reached equality yet. It’s complex, multi-faceted and ongoing.”

Human Rights Commission chief legal advisor Janet Anderson-Bidois says the Commission can offer mediation services to help resolve complaints of discrimination. If complaints are not resolved at mediation then an individual can take their claim to the Human Rights Review Tribunal.

Free legal assistance can be requested at this stage from the Director of Human Rights Proceedings. The Director is required to operate independently from the Commission when pursuing claims before the Tribunal.

The Commission also has a specific statutory function under the Human Rights Act that permits it to apply to intervene in legal proceedings that have human rights implications. Recent examples of this include the Lecretia Seales case and the Commission’s ongoing involvement in the equal pay claim taken by Kristine Bartlett and the Service and Food Workers Union against TerraNova Homes.

“Pay equity is an important principle. It is not just about men and women being remunerated at the same level for doing the same job. It is about women receiving the same pay for roles that require similar levels of skill and have similar levels of responsibility to equivalent jobs that have predominantly male workforces.

“Our position is that there must be equal pay for work of equal value.

“The TerraNova case is still proceeding through the courts but the principles established so far are important. They support the view that the Equal Pay Act requires that equal pay for women in predominantly female occupations can be determined by reference to what men would be paid for doing work which requires comparable levels of skill, responsibility and qualifications.

“Any systemic undervaluation because of current, historical or structural gender discrimination can also be taken into account. Women are overly represented in poorly paid occupations and this issue needs to be addressed. Cases like TerraNova raise important human rights principles that can have wide application, far beyond the parties concerned.”

Equal Employment Opportunity commissioner Dr Jackie Blue says New Zealand’s gender pay gap is at a six-year high at 11.8% in 2015.

The Commission’s Tracking Equality at Work tool showed that in 2014 two-thirds of adult minimum wage earners, which is typically regarded as a starting wage for youth, were women. The hourly pay gap between a European male and a Pacific woman is $7 per hour or a gap of almost 30%.

“Gender equality needs to be normalised so it becomes a reality for everyday New Zealanders. Unless women are intentionally included the system will unintentionally exclude them and special measures to promote women into leadership positions are needed. Special measures might be unconscious bias training, having targets or ensuring that recruitment panels are balanced.

“With all the emphasis of gender equality and diverse teams in business some men may fear that as women do better, they will do worse. The truth is that equality is good for men, too. If men want to make their work teams successful, one of the best steps they can take is to bring on more women.”

In the last five years the Commission has received 188 complaints which allege discrimination in the workplace about parental leave (male and female), and 23 complaints which allege pregnancy discrimination in the workplace over the same period, Dr Blue says.

The corporate law business model

Ministry of Justice civil law and human rights policy advisor Lucy Revill says it never occurred to her that law was a male dominated area because her father was a lawyer who knew many female lawyers.

It was while studying at both Auckland University and later Victoria University that Ms Revill noticed that the class was female-dominated.

“For example, when students were accepted into honours, there were something like 35 female honours students and 5 male. I thought this was quite strange. Generally there was about a 40/60 split of male to female in our classes.”

Before her time at the Ministry, Ms Revill worked at a prominent corporate law firm for four years.

“I thought the firm had a positive culture in relation to gender. Many of the partners at the firm were female, and they were often the ones making headlines (for the right reasons) on the news or asked to comment on an employment scandal in the paper.

“Sometimes I couldn’t participate when people discussed the football, but that was more about my general lack of knowledge about sport than gender!

“I learnt a great deal from this time in my life and it gave me an appreciation for the high standards lawyers are held to, no matter what their gender.”

Bell Gully marketing and communications manager Nikki Langford says the firm views gender equality as an important part of its diversity and inclusion programme.

“We value diversity regardless of age, culture, race, gender, sexual orientation, religion, political views or physical ability, and we are committed to providing an environment free from discrimination.

Their commitment is formalised in their policies – including generous parental leave and child care that is accessible for both men and women.

“With merit being the basis for recruitment, development and promotion in the firm, we provide ongoing education and awareness-raising programmes (such as inclusive leadership and unconscious bias training) to ensure that everyone has an opportunity to realise their full potential.

“We are pleased to be recognised for our initiatives with a White Camellia award in 2014 and again this year and, together with our recent YWCA Equal Pay award, this provides us with some encouragement that we’re on the right track.”

Meanwhile, Simpson Grierson human resources director Jo Copeland says gender equality is their core platform for their three-year diversity plan.

In addition to combating inequality through mentoring, running unconscious bias training, and presenting female candidates for roles, Simpson Grierson ensures men and women are paid the same, they support women into partnership roles, they support networking and they have male champions of change.

“We went for, and won the Equal Pay Award last year because we wanted our women to be assured that although there may not yet be enough of them at the top of the organisation, they are not being disadvantaged on their way up the ladder. It is something I personally manage as I care deeply about it.

“In terms of a glass ceiling, I think the opportunities are there for the women to absolutely smash through them.

“The real question, do they want to make the trade-offs required to be a partner when they get there? It isn’t easy being on-call 24 hours a day, working until 8 each night and attending three events a week with another hosting opportunity on the weekend. Partnership asks a lot of anyone, male or female.

“I am encouraged by the progress overseas with regard to gender equality. I’ve spoken to lots of Australian firms where they seem to have moved much more easily towards appointing part-time partners and making women up whilst on parental leave or pregnant.

“We still have some way to go in New Zealand. There is the odd exception and when one is appointed, there is a lot of publicity around it. I’ll know we’ve succeeded when we can appoint people to roles without having to describe them as a ‘female partner’ or a ‘part-time partner’.”

Last updated on the 5th November 2015