The unfair biases that female lawyers face

by Rod Vaughan / 12 April, 2016
Photo/Getty Images

They dominate the profession and are some of its best and brightest, yet research confirms female lawyers are often subject to unfair biases.

High-powered Wellington lawyer Stacey Shortall doesn’t pull her punches when asked to comment on a topic dear to her heart: gender bias in the New Zealand legal profession. There is no doubt in her mind that it is alive and well in this country and showing no signs of being remedied any time soon.

“Are we doing enough to actively advance gender diversity in our partnership ranks?” she asks. “I say, no. And I say our inaction strikes at the heart of women’s equality in our nation’s large law firms.”

Before becoming litigation partner at Minter Ellison Rudd Watts, she spent a decade working in Wall Street, and she has been fighting for the advancement of female lawyers for almost as long as she can remember.

“Ten years ago, I somewhat optimistically thought that a new day was on the horizon and that large-law-firm culture, not only in the US but here, would be forced to change because so many women were entering big firms. It is thus somewhat disturbing that I now find myself back home in New Zealand, 20 years into my career, and see that female lawyer attrition remains a key problem in large New Zealand law firms.

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“For over two decades, year-on-year, more women than men have graduated from New Zealand law schools. Assuming a roughly 10-year journey to partnership, on those numbers alone the partnership ranks of big law firms should surely be gender-diverse by now. Not so.”

Shortall – who juggles a demanding career with raising three children aged seven, six and three – has no bones to pick with Minter Ellison Rudd Watts, which has a long-standing commitment to gender diversity. She works in an office where 40% of the partnership is female, a ratio that would be hard to find in any other comparable law firm.

Stacey Shortall: “Female lawyer attrition remains a key problem.” Photo/Hagen Hopkins

Lingering stereotypes

Shortall says recent US studies confirm that unconscious biases that make promotion and retention of women in large law firms challenging. Although there is no comparable New Zealand research, a similar situation almost certainly exists here. “While many of us in this country may feel we do not need to compromise our gender to be successful, we should not ignore that some law-firm leaders may still consider us compromised because of our gender.”

She points to the lingering gender stereo­types about men being “better with numbers” and more financially literate than women. Or the ongoing view that certain client work lends itself to male lawyers who are prepared to socialise for hours at the pub or rugby events.

“Or the traditional notion that because female lawyers are better at running teams, handling the administrative and logistical details on file, mentoring younger staff and keeping up morale, they should hover over their desks in ‘worker bee’ roles.

“Compare that stereotype,” she says, “with the one about male lawyers having stronger business networks and thus fitting the ‘rainmaker’ role, which creates positive perceptions and improves partnership prospects.

“And let us not forget how the classic ‘double-bind’ persists – that an assertive, uncompromising female lawyer is too aggressive and masculine, yet a woman who is less confrontational is ineffective and weak.”

Shortall says the upshot of such implicit biases is that women may have to demonstrate greater competence and find themselves held to higher standards than men when seeking to be appointed as a partner.

“Even in those large firms that are successfully turning the corner on these biases and changing their cultures, many leaders still perceive the exodus of talented female lawyers who leave to have and raise children as inevitable.

“Because the timing of making someone a partner in most large law firms collides with child-bearing and - raising years, this theory – that women will leave because they believe successful mothers cannot be successful partners – provides a convenient excuse for female lawyer attrition, but it should not.”

According to Shortall, such negative assumptions about the commitment and career aspirations of female lawyers once they have a child have triggered what she calls the maternal wall. “It still exists in some large New Zealand firms, and with each additional child, I suspect the maternal wall grows higher.

“In such firms, women never get to the point of breaking through the glass ceiling of law-firm partnership because they slam into the maternal wall first.

“And because they do, it often becomes the women without children, who I do not judge at all as I was one of them for a long time, who progress, which in turn can ­reinforce the stereotype that partners in large law firms cannot also be good mothers.”

Shortall believes female lawyers who are intent on having children desperately need role models to mentor them about the maternal wall and how to cope with it. “Even for those mothers who scale the maternal wall and overcome any negative assumptions about their commitment, the brass ring of law firm partnership can remain elusive.

“Returns from maternity leave are often fraught, particularly when mothers receive less-significant and challenging work – often by supervisors with the best of motives in seeking not to demand too much too soon – which impairs their ability to advance in the firm. Or when client relationships that women had been handling before heading out on leave are not fairly transitioned back when they return. Those firms that fail to manage returns sensitively soon lose these women.”

Photo/Getty Images

Why women leave

Shortall does not accept that the often-punishing hours lawyers work are the reason so many women leave the profession. In her view, it’s the rigidity of the hours and the inability of many women to accommodate the competing demands of their personal and professional lives.

Quoting from a US report, she says by far the most important reason that women leave law firms is “the difficulty of combining law-firm work and caring for children in a system that requires long hours under high pressure with little or inconsistent support for flexible working arrangements”.

“I accept that some partners who built their careers at substantial personal cost find it hard not to expect the same price to be paid by our younger colleagues. But this expectation ignores that many younger women will refuse to pay that price because they have a belief that it’s not necessary to do so. Reports indicate that millennials are more likely than their predecessors to rank family obligations ahead of work.”

Shortall predicts the retention and promotion of female lawyers in New Zealand will get dramatically worse unless large law firms introduce more flexible working arrangements for them. And she believes such arrangements should also be available to men and “not just for family reasons”.

Failure to address this issue would be counterproductive for all concerned given the high cost of female attrition.

“At a commercial level it makes no sense to expend significant resources recruiting and training female lawyers only to then drive them away with a culture that is intolerable.

“According to US research, it can cost about 150% of a lawyer’s annual salary to recruit and train a replacement. US research also is largely consistent – that most lawyers do not begin to generate good profits until they have practised for three or four years, so plainly it makes no business sense to attract and hire talented women only to lose them by the time they become really profitable.”

Interestingly, an Australian study of ­diversity in the most senior legal roles found parity of gender was closing the gap in one important area – in-house legal roles.

Workforce diversity specialist Conrad ­Liveris, who did the research, told the Australian Financial Review that the roles of company secretary or general counsel were increasingly vital to boards.

“In-house roles can provide a better path to leadership in companies for women than in private practice,” Liveris said. “Despite an overly masculine presence of the legal profession across partnership and the judiciary, in-house legal roles are worth the risk for women aspiring for influence.”

While the number of in-house counsels is growing in Australia, Angela Stafford, president of the Auckland Women Lawyers’ Association, doesn’t believe the same positive trends are occurring here.

“Many of New Zealand’s most high-profile female lawyers have left large firms and practised as barristers, which can be a more flexible working environment but also provides a greater degree of control and recognition of individual success.

“In-house roles are popular for both women and men but my understanding is that most senior in-house legal positions are still held by men.”

What should be done?

Bottom line, Shortall says, is that it’s up to women themselves to lead the charge for change.

Quoting former US Secretary of State Madeleine Albright, she says, “There’s a special place in hell for women who don’t help each other.

“I believe it is incumbent on all senior women in our profession to actively create pathways for women. The notion that we struggled to reach partnership or other purportedly prestigious roles – and thus other women should earn their stripes by enduring a similarly arduous journey – is just wrong.

“We must simply advocate for other women in our firms – not at the expense of the men – but to ensure that no one is unfairly excluded from advancement because of gender. We need courage and we need to show it now.”

Gender agenda

Shortall believes the exodus of women from law could be stymied with a few straight­forward measures that include:

    • alternative working arrangements available for all lawyers
    • mandatory “unconscious bias” training for all lawyers
    • offering and encouraging paid maternity and paternity leave
    • having sponsors and mentors who respectively promote and guide young lawyers
    • recognising and rewarding ­commitment to gender diversity
    • having an active pro bono practice that will attract female lawyers
    • encouraging law firm leaders to set and monitor gender-diversity benchmarks

Read more:

Female lawyers are still feeling the chill that buffeted New Zealand's first one
New Zealand's first female CEO of a major law firm

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