Gender and Equality: an alternative view of the new policy on equitable engagement
On 5 December 2017, the Gender Equitable Engagement and Instruction Policy (Policy), promoted and managed by the New Zealand Bar Association and the New Zealand Law Society, was launched. Its key objective is that Policy adopters “will use reasonable endeavours to have women lawyers with relevant expertise take a lead on at least 30% of court proceedings, arbitral proceedings, and major regulatory investigations” by 1 December 2018. Policy adopters will be required to submit a report on steps taken and results achieved to the Law Society biennially. The Policy follows the implementation of comparable policies in other countries.
The February issue of LawTalk included an article which canvassed some of the arguments in favour of the Policy: “Policy will result in more women taking the lead”, by Nick Butcher (page 61), and other coverage has celebrated the development as an unequivocal success for our profession. My own feelings are mixed. This article addresses some of my misgivings.
It is true, of course, that women have historically been disadvantaged in our profession because of gender. Whether directly by conscious bias, involuntarily by unconscious bias, or indirectly, as the result of choices that women may be more likely to make. For example, women may be more likely to request flexible working arrangements to accommodate family commitments, and many firms have been slow to accept that such an arrangement need not reduce an employee’s value to the business.
However, many other groups are also disadvantaged by factors unconnected with merit. Those from lower socio-economic groups, Māori and other racial or cultural minorities, those who didn’t attend the “right” schools, those from the LGBTIQ community, and those with disabilities. Each of these are also under-represented in the senior ranks of our profession. If quota systems are to be employed as a means of ensuring fair consideration of those who may not otherwise receive it, why the focus on women? Is it truly equitable to rank disadvantage and find one category more deserving of assistance than another?
Some may say it is because there are so many of us that women are, and should be, this first focus. Figures from the Law Society state that on 1 February, of the 13,087 lawyers currently practising in New Zealand, 6,546 are women, and 6,541 men. That’s just over 50% of practitioners potentially being unfairly disadvantaged because of gender. However, my view is that, eventually, and without interference, the gender percentages in the senior ranks will equalise just as those of the profession overall have equalised. Is it necessary (or equitable) to attempt to artificially accelerate this progression?
I appreciate that – in my opinion – the inevitable gender equalisation in the senior ranks will take time, and that people don’t want to have to wait. Individual women now may be disadvantaged, and may continue to be disadvantaged for the entirety of their careers. That isn’t fair. But nor is it fair for the other groups who are also being disadvantaged and for whom no such action is being taken. And nor, for that matter, is it fair for the male practitioners who may now be passed over for opportunities purely for being a man.
If, in the future, I am given responsibility for a key task, a central role on a high profile case or investigation, neither I nor anyone else will ever know whether the opportunity was given to me because I was regarded as the most capable person for the job, or because it was necessary to meet a quota. I acknowledge that, to some extent, this has been the case for some time. But requiring firms to make a public commitment to a specific target feels different (which is, of course, the point).
Does it matter?
Some will ask, does it matter? If the opportunity I am given is one for which I am qualified and of which I am capable, does it matter if it was ultimately only given to me because I am a woman? It matters to me. Perhaps the adoption of initiatives such as the Policy mean that something important has been gained in our profession, but perhaps something important has been lost as well.
Many of the obligations under the Policy are modest. Women in a lead role in 30% of court and arbitral proceedings and regulatory investigations by 1 December 2018 is hardly an outrageous goal, and Policy adopters need only show that they have used “reasonable endeavours” to reach it. Many of the details are phrased as encouraging nudges in a certain direction rather than precise requirements: Policy adopters should “use reasonable endeavours to identify women lawyers in the practice area relevant to the matter at issue” and “genuinely consider engaging or instructing (or, where relevant, recommending) women lawyers…”
However, the justification for the Policy is similarly muted. It states that the under-representation of women at the top end of the profession “shows barriers” to the advancement of women in the law, “risks sending the message” that women have less opportunity for advancement, and that those possibilities “may result” in a loss of talent. These are imprecise rationalisations for an initiative which may result in the unfair treatment and alienation of specific members of our profession, and risks sending the message that it is acceptable to make a promotional or work allocation decision based on gender (provided that the gender of the person being advantaged is female).
The above are my opinions only, and may be atypical. However, as lawyers we are trained to recognise and acknowledge complexity. It is rare for a decision to result in nothing but upside. I suggest that this is just as true for the decision to implement the Policy as it is for any other.
Joanna Trezise is a solicitor based in Auckland.
Last updated on the 2nd March 2018