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Law Society releases Gender Equality Charter to legal profession

02 March 2018

Next month (April) the New Zealand Law Society will release the Gender Equality Charter to the legal profession.

It’s the Law Society’s response to concern about a lack of progression of women lawyers into senior positions such as partnership and Queen's Counsel. The Law Society will also provide guidance on how to ensure legal workplaces are safe environments for all employees.

Ahead of the launch, LawTalk put 10 questions to Law Society President Kathryn Beck, who was admitted in 1991, and immediate past President Chris Moore, who was admitted in 1978, about their respective career progression.

Their answers are a candid and frank observation on the state of the legal sector and how the Gender Equality Charter can offer solutions to many of the challenges facing the profession.

Take yourself back to the early days of when you started out as a junior lawyer in a law firm. Did you get the sense that both men and women of equal experience as graduates were treated equally in respect of opportunities being afforded to both?

Kathryn Beck:

“My experience was a little unusual for the time. I was hired to work in the litigation department of a medium-sized law firm. I was interviewed by two very senior male partners who were at the latter end of their careers. They knew they shouldn’t ask some questions but did anyway including whether I intended to have children. They said words to the effect of “We probably shouldn’t ask you this but we assume you will have children?”

Kathryn Beck
Law Society President Kathryn Beck

I’d only just got my law degree and said I don’t know what my plans are and no, you can’t ask me those questions. In a way I sort of made a joke of it. I got the job but was told that they nearly didn’t hire me because my hair was very short and I’d imagine they would never have said that to a man. The implication was that, I was a woman and shouldn’t have short hair.

But as an employee I did get good quality work. One of them really mentored me. He had me involved in work that was far more senior than that which some of the men who had been hired a year or more ahead of me were doing. There was one other woman lawyer who worked there. We were both quite strong minded women and they seemed to quite like that. She got good work too. But that didn’t stop them asking inappropriate questions and making inappropriate comments. Unfortunately, it was the type of old fashioned behaviour that was not uncommon at that time and which was often brushed off as ‘that’s just so and so’ [one of the male partners].

On one occasion, one of the partners, who has passed on now, had too much to drink on a Friday night and made a sexually explicit suggestion.

I quite aggressively refused him. None of the other partners said or did anything yet at least some of them must have heard what was said. He – the partner – was oddly polite, for example, still addressing me as “Miss Beck”, even when he was being grossly disrespectful. He seemed to have more respect for me when I stuck up for myself than if I hadn’t. Not all women would have reacted as I did or got away with that reaction. No one should be put in that position. He was drunk and he was a bully. If you didn’t stand up to him, you would be treated like something that was on the bottom of his shoe. I was even told when I left, to work at another firm, where I ultimately became a partner, that I would have had a future, at that first law firm, so I wasn’t held back but some of the behaviour was not okay.”

Chris Moore:

“In the first firm that I joined, there was absolutely no difference in the way male and female lawyers were treated. This is because all the partners were male as were all the solicitors. There was not one female lawyer in the firm. Admittedly there were considerably fewer female graduates at that time but the fact that there were no female partners or solicitors tends to answer the question.”

More than half of practising lawyers in New Zealand are now women. Do you think this will have an impact on the opportunities for women to progress to senior positions in law firms?

Kathryn Beck:

“It will have to. When numbers get in behind a momentum like we are seeing now, people have to start responding to it out of sheer practicality whether they want to or not. This is why I was so pleased when we hit the over 50% mark. This is not because I think the lack of a majority has held us back, but because I think it will increase the push behind the change.

It probably won’t happen quickly, but combined with a lot of other things, such as the introduction of the Gender Equality Charter, I’m confident this will result in women lawyers reaching senior positions more rapidly.”

Chris Moore:

“With more than half of the practising lawyers now being women, this must have a positive impact on the opportunities for women to progress to senior positions in law firms. Even if there were no attitudinal change, one might be tempted to think that the sheer weight of numbers would increase the pressure for advancement.

But we’ve been saying this for years and it hasn’t happened. Without significant change – particularly attitudinal and cultural change – progression is likely to continue to be frustratingly slow.”

What impact do you think the Gender Equality Charter will have on men and women practising law? Some critics suggest the charter discriminates against men.

Kathryn Beck:

“How can equality be discriminatory? The charter doesn’t weigh more towards women than men. It’s about making commitments to bringing equity to your workplace. It’s about ensuring that there is no discrimination, that both men and women are given equal opportunities in work, equal opportunities for flexible work practises. The charter makes this really clear.

Equal opportunities in relation to remuneration and for improvement, development and progression. I think men in a lot of organisations have had an advantage, and probably still do, not in everything but enough for us to be looking at our statistics and seeing the imbalance.

The charter is asking that you look at the current state of your workplace, commit to making a change and then do something about it by putting a plan into action and monitoring it to ensure the changes are working and then report on it to the Law Society.

There are 10% more women than men graduating from law schools and they’re achieving grades as good or better. Great marks doesn’t necessarily mean you’ll be a great lawyer but women shouldn’t be lagging behind men the way they currently are in senior positions. For the first couple of years, women in law are getting paid the same as men and then things change mostly to the advantage of men. There isn’t a valid reason for that, and that is what is discriminatory and it needs to change.”

Chris Moore:

“Rather obviously I expect that the Gender Equality Charter will, instead, have a positive impact on both men and women practising law by creating a substantive and recognised benchmark. The charter is about being fair in creating a level playing field for all genders, and addressing an existing identified issue within the profession.

For example, take three key principles from the charter.

Chris Moore
Immediate past President Chris Moore 

Unconscious bias training is all about educating, recognising where biases may exist and ensuring to the fullest extent possible that recognition of these biases may help us to make better and more informed decisions. Similarly, gender pay audits are simply a good check to address imbalances and implement steps to ensure those imbalances don’t reoccur. There may, of course, be very good reasons for differences in pay based on individual performances and this is not about making sure everybody is paid the same amount but rather to examine our own evaluation processes and make sure that we are acting fairly.

Similarly, mainstreaming flexible working hours is not just promoted as a benefit for women or the principal carer, it is something which should be available to all practitioners so that they have an opportunity to work remotely or access flexible working arrangements in such a way that they are on an equal footing and are not disadvantaged in their careers. Historically, law firms have been rigid and inflexible in their approach to how we work. Pre-conceived notions on time spent sitting in the office need to change. The charter is about trying to take measurable steps towards becoming a legal profession which focuses on equal opportunities and transparency.”

Are you a parent? If yes, has this had an impact in your career progression?

Kathryn Beck:

“Yes, I have two children, but my experience is probably not the normal as such. It was effective for me and I had the privilege of being able to do it the way I did but I’m conscious that a lot of people won’t have those same choices.

I didn’t have my first child until I was 37 which meant that I had achieved a lot in my career before having a family. I was a law firm partner at 28. I had just left that firm to set up a boutique firm with Penny Swarbrick, so the timing was a bit Jacinda-ish. Doing it that way meant that my career was pretty well established. I only took 11 weeks off work and remained available during some of this period. When I returned to work, I was able to afford a nanny and I know that not many can do that. My nanny would bring my daughter in to work. I’d feed her, even during court adjournments or meetings in barristers chambers. I still remember a chief judge playing ‘peekaboo’ with her. I was fortunate as I had a lot of autonomy and flexibility because I was a business owner, but not everyone does. I was able to do the same with my second child. Regardless of whether a woman is a law firm partner or not, deciding to have children should not harm their careers.”

Chris Moore:

“Yes, I have three adult children. My wife’s role as a parent was critical to my own career progression. If I were starting my career again now, it would be possible for both of us to have progressed our careers through the use of IT and flexible working arrangements without it being detrimental to one of us. Neither of those options really existed when I started, or to be honest, were accepted, at the key times in my career.”

Unconscious bias is prominent in many workplaces. Can you describe any personal experiences with unconscious bias? What have you done in your practice to identify and address unconscious bias?

Kathryn Beck:

“Unconscious bias is everywhere. I’ve seen it occur even in recent times with choosing which counsel to instruct. It’s about keeping on doing what you know and what you’re comfortable with. I don’t believe people even consciously think, ‘I need a man’. I think it is often more a case of, ‘we know him and he’s just like us. Let’s brief someone who looks and feels just like us’.

You have to retrain your brain, in almost every area, for example using words such as legal fraternity and brethren. They’re phrases you’ve heard for years. They are part of our culture but it should be ‘legal community’ nowadays as that’s the term that sounds like equality to me. I’ve become more and more conscious of unconscious bias and I react to it. But I also know I have it myself and it is important that I not forget that.”

Chris Moore:

“Unfortunately, as aware as I am of my own failings around unconscious bias, I still make mistakes. An early example of unconscious bias on my behalf was arranging a function with a key client after work, on short notice when it simply was not possible for senior female members in my team to attend as there was insufficient time for them to make or extend childcare arrangements.

In our firm we have taken advantage of the Law Society’s free unconscious bias seminar and on a personal level it is just something on which I need to improve continually and keep front of mind. It is really just about trying to recognise my own biases and making good objective decisions in advance.”

One of the commitments in the Gender Equality Charter is to conduct annual gender pay audits and to close any gender pay gap. How do you see this working in practice? What effect do you think this will have on charter signatories?

Kathryn Beck:

“This is about having a look and seeing if there is a problem. I’m in a small firm so it’s not a difficult thing to do, but there are plenty of tools available for any size practice or organisation to do this task. The reality is, there is a 10% pay gap in the legal community between a lot of men and women who have the same experience. Some firms will have a bigger problem than others.

The question to ask is how will you address the pay gap?

This is something that isn’t unique to law and is being looked at internationally across many professions. We can draw from that experience. There has been recent publicity about people who are opting to take pay cuts so that salaries are more in line with their female colleagues but what I’d like to see is salaries for women increasing where there is an identifiable and unjustified gap. Importantly, the Gender Equality Charter addresses many issues. It’s not just about the pay. That’s just one part of the solution when it comes to answering the equality question.”

Chris Moore:

“In practice, I don’t see this as being difficult. Comparisons of pay levels against similarly experienced staff are very simple comparisons to make and, of course, firms and partners need to take a pro-active role in addition to the charter.

There will, naturally, be examples where there are genuine performance-based reasons for one person being paid more than another and some female staff will be paid more than their male equivalent, just as it is the other way round.

However, checking where there is a disparity to ensure that there is a genuine reason to accompany it should, and needs to be, undertaken to ensure accountability processes are in place. Charter signatories identifying these discrepancies will, we hope, correct unwarranted discrepancies.”

What impact could the Gender Equality Charter have on the job search process? Do you think fourth year law students, and recent law graduates will look favourably on, for example, firms and in-house teams that have signed up to the Gender Equality Charter? Do you believe this type of initiative is important to law students and graduates?

Kathryn Beck:

“If I was a young talented graduate with a choice, I’d go somewhere that presents as a current, modern, fresh thinking and diverse workplace because that is what the next generation of lawyers want.

If I had a choice I’d go somewhere that is inclusive and welcoming, in that if you are a woman you will get the same opportunities; a place where if you’re a part of the LGBTI community you’ll get the same opportunities; where it doesn’t matter what ethnicity you are. I’d be going somewhere that truly reflects that sort of inclusive culture and, importantly, as a woman, is safe.

If I had a choice between that style of organisation and an old fashioned organisation that is doing everything as they have done for the past 20 years, I’d choose the new style. Why wouldn’t I? Perhaps, on the surface, a traditional firm might look good when I walk in the door because it’s well-known but that isn’t enough. I suspect younger lawyers, even if they start in a place like that, if it’s stuck in the past they won’t want to stay. This applies to young men as well as women.

Remember we have 10% more women than men coming out of law schools into the job market. Women are some of our top graduates and you don’t want to lose the opportunity to attract them to your workplace. If firms don’t catch up they will lose talent to an organisation that is committed to gender equality.”

Chris Moore:

“If I were a graduate I certainly would be drawn to a firm or organisation which had a commitment to diversity and inclusion, including gender equality.

I think it is important for graduates to understand the values of the firms they are considering as future employers and I anticipate that the charter will be one of a number of initiatives that will be of great interest to students and graduates.

I expect that question will be asked during recruitment processes. I appreciate that simply signing up to the charter, in itself, proves very little. It is, of course, the behaviour which makes the difference.

The ideal will be a time when we don’t even look to see whether one is a signatory; its objectives are satisfied naturally.”

The statistics show that over 60% of law graduates are women, but this is not reflected in senior leadership positions in the profession. Do you think the Gender Equality Charter can improve these figures? How?

Kathryn Beck:

“The figures won’t change straight away, but what we need to ensure is that we are not losing talented women from the profession. So getting them into these senior positions requires all of this change in culture I’ve been talking about for a while.

A lot of women leave law after about five years. If we can retain more women past the five-year mark, it will begin to flow through to the senior positions, partnerships and the Independent Bar. Visible pathways and role models for women in law are essential to this. I know that the progression I’ve been able to make was only because there were women ahead of me who had it much harder than I ever did. But it can’t just be women making the difference for women, men in senior positions in law also need to be stepping up too.

All of these changes we’ve been talking about take time to happen, but it’s been taking far too long and that’s what the Gender Equality Charter seeks to speed up.”

Chris Moore:

“As mentioned earlier, simply signing up to the Gender Equality Charter, on its own, does very little. However, those with a genuine commitment to the charter should have a focus on meeting their commitments and deciding how best to implement them. This focus, which is really a progress check, should assist. However, the biggest improvement will come from the actions evolving from the check where firms discover issues and implement correcting actions reflecting aspirational and achievable benchmarks.”

During your career have you witnessed the exit of promising female lawyers who quit the profession largely because they felt the law sector portrayed itself as a man’s world? Statistics show that we have the pipeline of talented female lawyers, but that the pipeline is leaking. Why do you think women lawyers leave the law at a higher rate than men?

Kathryn Beck:

“We need to look at what we value and how we value it. Women that I know haven’t necessarily left just because they couldn’t progress, but that would often be one of the reasons. A lot of them leave because of the lack of flexibility in the work environment – not just from a family perspective but also a professional perspective. Some of them felt that they could use their skills and energy better elsewhere. It gets sapped out of them.

The legal community has been running things a certain way for a really long time and they’re no longer best practice. We need to change not just because women will leave, it’s because we are going to lose really good talent across the board – that includes men too.”

Chris Moore:

“Unfortunately, I have witnessed women leaving the profession for a number of reasons including lack of appropriate advancement and lack of mainstreaming of flexible work practices. Unless we can change the profession’s attitude and culture towards advancing women appropriately, we run the risk of losing talented women to other disciplines.

Put simply, why would you join a profession which will not necessarily recognise your talents and ambitions nor respond to them appropriately?

So, it is critical, for the quality and longevity of the profession, that this issue is addressed now and in the future.

As a profession, matters of fairness and equity should be intuitive to lawyers and at the forefront of equal and efficient businesses that recognise and encourage their ‘people’ rather than distinguishing between men and women. These values should be fiercely guarded but the lack of advancement of women in the profession indicates that our defence of these principles is not as robust as it could be.”

Will your firms be signing up to the Gender Equality Charter?

Kathryn Beck:

“Yes, and while most of our lawyers at our firm, including the partners, are women, we still have to consider all of the effects the Gender Equality Charter will have on our business going forward.”

Chris Moore:

“Why wouldn’t you? This is about testing your own behaviour and making sure you are taking steps to ensure you are being fair. But merely signing up to the charter in the absence of genuine, aspirational behaviour will achieve little. So, for those signing up, it is not about simply signing and congratulating yourself for that but about what you do from here.”

Last updated on the 2nd March 2018