Law’s gender problem: levelling the playing field for women

Deep-rooted male dominance and power across the legal profession holds women back, but is change for the better on the horizon? This article discusses the evidence and looks at how male dominance of senior positions and promotion pathways is related to the cultural problems that have enabled those who behave inappropriately, or worse, to operate for so long. More importantly, we explore the practical steps that could help to create an equal and safe profession where success is based solely on merit, not gender.

Society has a problem with women, especially those who don’t conform to the old, patriarchal gender roles policed by powerful, conservative men for centuries. In this country, two women are murdered by a current or former male partner every week. Victims of rape routinely face their testimonies not being believed by our police forces, all of which are male dominated, while the reactionary elements of our society often blame victims rather than perpetrators. Newspaper columns and TV debates in which victims of abuse are blamed for the clothes they wore or for being intoxicated remain commonplace.

The legal profession also has serious problems related to toxic masculinity and the male dominance of senior positions that allows inappropriate behaviour to thrive. Two thirds of women respondents to a survey conducted by Legal Week in late 2017 reported experiencing sexual harassment at work, with 51% reporting that they have experienced such behaviour on more than one occasion, while a survey of women barristers revealed that many women still experience harassment and discrimination at the Bar. And behind the harassment lies a structural problem that disadvantages women in other long-term, significant ways, as male-governed and male-centric workplaces and career paths ensure that women earn less on average than men, access fewer opportunities for advancement and are expected to shoulder disproportionate levels of parenting responsibilities compared to male parents, often at the cost of career progression.

But in 2017, something started to happen that had never happened before. In large numbers, women began to come forward about their experiences of harassment and assault, particularly in the workplace, many as part of the ‘#MeToo’ and ‘Time’s Up’ movements. For feminist barrister and women’s rights advocate Dr Charlotte Proudman, the movement may mark a “watershed moment”: “When victims of Harvey Weinstein began coming forward, with high-profile women in Hollywood putting a spotlight on the serious abuse going on within the echelons of power in the movie industry, it caused a ripple effect into other workplace sectors and we have seen more women in the legal profession speaking out publicly, albeit often anonymously, for the first time about their own experiences of harassment and discrimination by those senior to them and holding power over them. Nothing of this nature has happened before – in the past when the odd case became public, a woman was demonised, such as myself, or it was either swept under the carpet or did not gain such a level of media traction that other women felt compelled to come forward to report other instances. Now there is a movement and wide discussion about the prevalence of this behaviour, how wrong it is and how something needs to change.”

Structural inequality: the root of the problem?

The legal profession, for all its excellent qualities, has been a long-established bastion of small-C conservativism and gender inequality, so for London-based solicitor Nicola Lucas, who blogs as The Female Millennial Lawyer and can be found on Instagram, structural reform is overdue. She explains: “It is 100 years since women gained the right to vote, but gender inequality continues, often as an unspoken given in society, and it is right that that the issue is now getting the attention it needs. Women were not able to become lawyers until just under 100 years ago – relatively recently, given the long history of the legal profession. The way the profession is structured is skewed toward men. For example, the Partnership Act 1890 sets out how unincorporated partnerships should operate, and this structure was for decades the structure of choice. Even though we have moved on with different models, the foundations, and therefore the developed structures around it, remain mostly the same and as such mean that law firms are historically structured in a way that promotes male dominance and excludes modern day living. It takes as given a number of cultural assumptions of the time that have since been shown to be out of date and not fit for purpose.”

The evidence of the profession’s structural slowness to embrace gender equality is undeniable. City firms’ partnerships remain heavily male-dominated to the extent that a firm aiming for 30% of its partners to be women by 2020 is good PR, and the case is similar at top barristers’ chambers and with QC appointments. In an international survey of over 7,500 women lawyers conducted by the Law Society, the top three barriers to women’s career progression were reported to be unconscious bias on the part of senior colleagues (52% of respondents), an unacceptable work/life balance (48%), and a belief that the traditional networks and routes to promotion in law are male orientated (46%).

“A majority of law firms are slow to innovate or change with the times, meaning in general, the legal profession lags behind other industries in terms of senior women reaching the top,” Lucas observes. “The emphasis on tradition is fantastic in some ways, but it also means that we are slow to adopt modern practices and embrace change. There is a lot of evidence to suggest that a lot of women are leaving private practice around five years’ PQE. The reasons for this are obvious – the demanding, long-hours nature of working in a law firm impacts on family life and it is still overwhelmingly women who are expected to sacrifice their careers to bring up children. Undoubtedly if women don’t see other women at the top acting as role models, it’s almost an unconscious message that they can’t reach senior positions themselves.”

This structural inequality also creates the perfect conditions for a culture to thrive in which it is possible to perpetrate and get away with harassment; a male-dominated managerial class rarely questioning a shared set of assumptions, beliefs and behaviours, that polices itself as it sees fit. As journalist and former politico Eduardo Reyes observes, workplaces in the legal profession, particularly the City, share similarities with those of Westminster and the corridors of power, where harassment and misogyny have been revealed to be rife. In the cases of both Parliament and City law firms, positions of power are predominantly occupied by older men, working long hours with younger colleagues who need to impress to progress, and feel that reporting incidents of inappropriate behaviour would be damaging to their careers. There is also a marked preference for addressing any issues behind closed doors to guard against reputational damage.

Covering up and holding back

A common way for a wealthy organisation or individual to protect its reputation in cases of harassment or assault is to make a payment to the victim in return for signing a non-disclosure agreement (NDA). However, while a firm’s eagerness to protect its reputation is understandable, attempting to gag a victim is not only unethical, but potentially damaging to its reputation in the long-run – as one firm recently found out. “NDAs are a significant problem because they silence women from speaking out and effecting change,” Proudman explains. “The covering up of sexual assault and harassment often in the context of elite firms enables patterns of harassment and abuse to continue unchallenged. This is also just one example of the law itself being used to reinforce male power and privilege and to provide the perfect climate for male abuse and exploitation to flourish unchecked, which is particularly worrying for the legal profession which is supposed to be the upholders of the rule of law - you know, equality and freedom”. It is also important to note that a NDA is not legally binding in all cases – a court can override a NDA in cases where the agreement is being used to cover up unlawful conduct or where the NDA is judged to be unreasonable.

The controversial decision taken by many City firms to exempt partners from compulsory gender pay gap reporting is also part of the PR game where the calculations of those in charge can be questioned – does withholding or covering up information do more reputational harm than good in the long run?

Positive actions to increase equality

There are various positive steps either being implemented or under consideration which could improve equality between women and men in the legal profession, which in turn would counteract some of the conditions that make it possible to harass with impunity. As part of a wider ‘Women at the Bar’ initiative, the Bar Standards Board is considering the mandatory appointment of ‘work allocation’ officers to reform the lack of transparency and apparent favouritism regarding work allocation at some chambers. Meanwhile, speaking at a Westminster Legal Policy Forum in March 2018, Law Society vice-president Christina Blacklaws set out a number of best practice measures to support women:

• making access to flexible working for women and men mainstream in all workplaces;
• providing women with access to mentoring and sponsorship from senior staff and peers;
• networking opportunities;
• engaging men in the equality debate; and
• ensuring that there are women role models in senior positions.

Some law firms are also taking steps individually. “A good example would be Travers Smith’s trialling of a safe word to call out inappropriate language or behaviour that makes staff feel uncomfortable,” comments Lucas. “It is yet to be seen how that will work in practice, but the more the issues are spoken about and kept at the forefront of the debate, the more cultural change will be effected. In order to create an open and positive environment, law firms themselves have to call out inappropriate behaviour, not just leave that to women and victims.”  

However, as admirable as the ideas and principles may be, almost no one in a position of power is able or willing to set out how real changes can be guaranteed and implemented. Are regulators spending too much time looking at their own processes when they should be addressing cases of harassment and serious sexual assault far more strenuously?

Quotas – the elephant in the room?

Quotas – where a certain number of appointments/promotions must compulsorily go to women – would be guaranteed to change the gender makeup of the senior levels of the profession if they were implemented, but they remain highly controversial and unpopular, even among some who would benefit from their introduction. Many opponents of quotas argue that they are patronising to women who don’t need help to reach the top, but this runs the risk of blaming women who don’t reach senior positions for not being good enough, when the evidence overwhelmingly points to an uneven playing field where well qualified and talented woman are overlooked because of their gender, not their lack of ability.

Proudman, a staunch supporter of quotas, puts the case: “Quotas are certainly one way of achieving more equal representation of men and women. They are also not unheard of in law – Belgium’s constitutional court uses them, for example. I don’t agree with the argument that quotas would make women feel undermined by men believing that they are only there because they are women – there are plenty of examples of women who are better qualified for such roles and have more experience, but aren’t being promoted to top positions because of their gender. I think appointing women to senior positions would create greater confidence among other women.”

She continues: “Shami Chakrabarti is one of the only high-profile women lawyers who champions quotas, and she does so compellingly in her new book, Of Women in the 21st Century. If there is a change of government at the next election and Chakrabarti is appointed attorney general, we might then start to see a real change for the better. We have tried mentoring, which is very slow and often results in men mentoring women because there aren’t enough women in senior positions to mentor the women more junior to them. We also unfortunately see structural inequality manifest itself whereby a small number of women who have attained senior positions feeling threatened if other women are brought on board, because they believe that there only a small piece of the pie is allocated to women and therefore do not create a supportive environment for others. A famous example however dated it might be is of course Margaret Thatcher, who ensured she was the only senior woman in her government rather than using her power as prime minister to  level the playing field for women.” 

What quotas are unable to guarantee, however, is that the attitudes of the wealthy and powerful group of men at the top, supporting each other through a powerful network comprised of shared ties to certain fee-paying schools and elite universities, would change. “What really needs to happen is the addressing of the culture of the legal profession and the unconscious bias against women,” says Lucas. “Quotas would provide a short-term solution, but perhaps not, I think, the satisfaction of achievement for women in the long term.”

For Lucas, a solicitor on the frontline, the most important step to take to benefit women is for law firms to embrace flexible working for all genders: “There is a persistent, often unconscious perception that women want to take a back seat professionally after they have children. Law firms should take note and adopt different, realistic working options for parents and actively encourage this flexibility, particularly as remote working these days is so easily available. There are good examples to draw inspiration from outside the legal profession, for example, Aviva’s brilliant shared parenting policy. For law firms, traditional structures should be challenged – the question to be asked is how can the traditional structures be adapted to meet modern day needs? For example, is there a way to have part-time partners becoming equity partners? Just because it has been done in a particular way for many years, doesn’t mean it’s the right way to do things and law firms can do better at introducing new, innovative ways of doing things to support women and especially to allow them to rise to senior levels – flexibility is key to this debate. This should, however, also be extended to men – I would love to see less stigma attached to men who want to work fewer hours in order to take time out to raise a family.”

However, while Proudman agrees that flexible working is imperative, she comes back to the attitudes of some of the men entrenched at the very top of the profession and of society: “I think we are never going to see gender equality unless there is equality of power. That means a redistribution of power where men give up their positions to allow women to have a seat at the table. Many men will not be willing to give up that level of power – are some of the current sitting Supreme Court justices willing to relinquish their positions for women so Lady Hale and Lady Black are not the only two women flying the flag for 50% of the population? I don’t think that men will – and nor are senior partners earning phenomenal salaries at magic circle law firms. Where there is male dominance – unaccountable power held by one social demographic in society – we know that this means that others, such as women, ethnic minorities and disabled people, are vulnerable to exploitation. Conversely where power is balanced between, for example, women and men, the vulnerability to to exploitation is reduced. And of course, other intersectional patterns of inequality are important – everyone needs to be represented. Nonetheless women are 50% of the population, so we should be equally represented at all levels of society, even more so in politics and the justice system, which are supposed to be the upholders of democracy.”

It may be the case that, for the legal profession to be an environment that is safe for women, where opportunities for progression to senior roles are based on merit and where diverse experiences and backgrounds are valued, that a small, homogenous group of men who control the pathways to progression need to have some of their power and plum positions distributed to others, whether or not they approve. It will be interesting to see whether the quotas debated is seriously revisited in the next few years. 

Josh Richman is the senior editor of LawCareers.Net.