The report indicates that the Commission "sought to understand how prevalent these problems were, why they were occurring, and how they impacted on the lives of women who had experienced them".
It comments that -
The reasons why women are attracted to the profession are varied. Some see it as an instrument for social change; others as an opening to a high-paying career with associated power and independence while some may value the intellectual rigour that the law provides. For a few, a law degree could be the launching pad to a political career. Presently the two most powerful posts in Australian politics are held by women – Prime Minister Julia Gillard and Governor- General Quentin Bryce – both with law degrees. Here in Victoria, Marilyn Warren is the first female Chief Justice.
Regardless of the reason for their attraction to the law, there is no doubt that women are graduating and participating in the legal profession at a high rate, however their career trajectories remain quite different to that for men. We know for example that:
• while more than half of all law graduates are female, a recent survey revealed that only 21% of partners in Australian law firms are women
• women are more likely than men to remain in roles where only an employee-practising certificate is required, while men were more likely to move to roles where a principal practising certificate is required
• women lawyers earn less than their male counterparts
• attrition rates remain a concern for both male and female lawyers, however more women than men leave the law within five years
• discrimination and harassment issues are reported as being present.
As the profession becomes more diverse, it could be assumed that women will eventually share the same career pathways and opportunities as men. However, even with more than 30 years of equal opportunity legislation, it appears that the ‘pipeline’ of increasing numbers of women in the law has not resulted in equality in the profession. This research has sought to understand and report on the experiences of women in the legal profession – focusing on sexual harassment, discrimination and accommodation of parent and carer responsibilities. The Commission wanted to know how common these problems were, and how they impacted on the women who experienced them. We also wanted to know what positive actions were being taken by legal practices and by the profession as a whole to improve equality for women in the law.
We collected quantitative and qualitative data through an online survey. More than 400 women lawyers participated in the survey. We supplemented this data with interviews with exemplars from the profession and conducted a focus group with women who had left the legal profession.
There is no doubt that in recent years a number of legal firms have worked hard to address some of the factors that have a disproportionate impact on women. The Commission wants to promote and build on this leading practice and this report includes examples of firms that have implemented a variety of positive measures.
Its main findings are
• Forty per cent of survey respondents had personally experienced discrimination while working as either a lawyer or a legal trainee.
• Discrimination took various forms and manifested in multiple ways. Of the 168 women who reported discrimination, 84 said discrimination took the form of a hostile work environment. Sixty-seven reported workplace bullying, 65 reported unfair work allocation while 64 said the discrimination manifested as unequal remuneration.
• While 56% of survey respondents were from private firms, 70% of those reporting discrimination in their current or former workplace worked in a private firm when the discrimination occurred.
• When asked about their relationship to the discriminator, over half (55.2%) responded that it was their employer or partner, while 40.2% indicated that the discriminator was their immediate supervisor or manager.
• Six out of 10 women who had experienced discrimination did not make a complaint. One in four did not tell or seek help from anyone, including family or friends.
• Respondents reported significant impacts that the discrimination had on their mental health, their physical health and on career opportunities.
Accommodating parental and carer responsibilities
• Thirty-five per cent of survey participants had made a request for their employer to accommodate responsibilities as a parent or carer.
• Of the 149 women who made requests, the majority asked for flexible hours of work (72.5%) while 45.6 per cent requested to work from home.
• Of those who reported the outcome of their request to accommodate parental and/or carer responsibilities, less than five per cent had their request refused.
• 79% had their request approved; another 16% stated that their request was partially approved.
• Despite the actual outcome of their request, respondents reported employer attitudes that ranged from outright hostility to lack of support, and pressure to increase work hours while others felt devalued by work allocation that did not meet their capacity and experience.
• 100 survey respondents (23.9%) stated that they had experienced sexual harassment whilst working as a lawyer or legal trainee in Victoria.• Another 48 (11.6%) were aware of instances of sexual harassment that had happened to other female lawyers in their workplace in the last 12 months.• Sexual harassment was likely to occur in the early stages of employment with 63% of incidents occurring within the first 12 months of being in the workplace.• The most common conduct reported included sexually suggestive comments or jokes, intrusive questions about their private life or physical appearance, unwelcome or inappropriate physical contact, and unwelcome staring or leering.• In 78% the harasser held more senior positions within the workplace as either the immediate supervisor, employer/partner or a more senior co-worker. In 52% of cases there was more than one harasser.• Two-thirds of those who had experienced sexual harassment did not make a complaint. 29% did not tell anyone at all.• The reasons for not reporting varied from fear of negative repercussions to their career, fear of not being believed or ostracised, lack of awareness about complaints processes, and ineffective responses and remedies.• Of the respondents who reported the outcome of making a complaint, positive results included: the harassment stopped, receiving an apology, and the complaint leading to changing workplace practices. One respondent received compensation.• The reported impacts of the sexual harassment included severe mental health and physical health issues as well as work/economic related consequences.
Challenges at a systemic level
Cultural factors in the profession are affecting the career pathways for women lawyers. Literature over the past decade has outlined the disproportionate impact that these cultural and structural factors have had on women.
While variation naturally occurs between firms and organisations, many reports have focused on the long, demanding and intractable nature of billable hours, the male-dominated culture of the profession, a lack of transparency in career progression and remuneration levels, and the importance of personal relationships and bonding to career progression. This study found:
• female law graduates can expect to earn 3.8% less than their male colleagues, while special counsel/consultant positions have a 7.8% pay differential
• issues that contribute to the gender pay gap include gender discrimination, the undervaluation of women’s work, paysetting methods, occupational and industrial segregation, lack of investment in women through training and development and career breaks (including returning to work from maternity leave)
• a lawyer’s commitment to the firm was in some cases measured by their visibility, that is how many hours they were seen to put in, creating a culture that valued ‘presenteeism’. This perception has adverse impacts for women who have primary parental and carer responsibilities, as it is not conducive to working flexible hours, or to working from home or remote locations
• billable hours was cited by some respondents as a barrier to progression within the profession and was used to justify gender discrimination. Billable hours may in some circumstances, operate as a barrier to women (and men) whose work hours and patterns may require flexibility based on their parental or carer responsibilities.
From our research, it was clear that individual legal practices and firms are working successfully to promote gender equality. Similarly, the Law Institute of Victoria, Victorian Women Lawyers and other professional bodies are working proactively on these issues. However, findings from this study and from other literature point to systemic barriers to the effective workforce participation of women. So while these problems extend beyond Victoria and appear to be issues in other jurisdictions, both in Australia and overseas, it is clear that there is more work to be done to achieve equity in the profession and that the Victorian profession has much to gain from being leaders in this regard.
The Commission is aware of the community perception that lawyers are in privileged positions, with practitioners being educated, empowered, and not necessarily a group that is considered disadvantaged. However, sex discrimination and sexual harassment cut across all demographics, so that even women who are well educated and aware of their legal rights may still be adversely impacted by systemic and cultural practices that entrench discrimination.
As with all professions, gender inequality in the law, and the power structures that continue to support it, need to be addressed proactively at a systemic and organisational level, rather than solely being left to women making individual complaints.The report offers a range of recommendations to stakeholders such as the Law Institute of Victoria (LIV).
1. Providing practice support to organisations in the form of information and resources
a. Publishing guidance to support individual law firms to develop a business case for change. This includes producing tools to assist law firms to measure the cost of staff attrition.
b. Developing an information exchange on best practice that could provide firms with an opportunity to share information, resources and to discuss challenges and successes.
c. Developing and promoting education programs including: i) ‘Return to Work’ planning – this may include education programs, workshops, seminars to assist employers and employees to manage prolonged absences from the workplace. ii) Sexual harassment and discrimination awareness training – as part of the continuing professional development program.
d. Developing a communications plan to promote issues of gender equality, flexible work practices and awareness of sexual harassment in the legal profession. This could include publishing articles in the Law Institute Journal, holding seminars, providing media releases and using social media.
2. Providing support to individuals in the form of information and resources
a. Developing and promoting education programs to individual practitioners including: i) ‘Return to Work’ planning – this may include education programs, workshops, seminars to assist employers and employees to manage prolonged absences from the workplace. ii) Sexual harassment and discrimination awareness training – as part of the continuing professional development program.
b. Promoting available peer mentoring programs to increase participation rates. This includes the: i) Law Institute of Victoria’s Mentoring Program. ii) Victorian Women’s Lawyers Mentoring Program.
3. Collaborating with key stakeholders on advocacy and policy
a. Progressing research on different business models of billing. Stimulate debate in the legal profession about appropriateness of the billable hours framework and the profession’s culture of equating long hours with productivity and profitability.
b. In consultation with law firms, considering the development of a voluntary code for the legal sector – this may include the profile of the firm, periodic reporting on percentage of women in partnership positions, number of employees working flexibly, number of complaints made based on gender, number of discrimination/ sexual harassment complaints lodged internally and externally, outcome of complaints. This could also include that firms opt in for complaints to be handled by a panel review that comprises external organisations.
c. Collecting data and publishing an annual report card on the state of Victoria’s legal sector in the Law Institute Journal. This is to include statistics on participation rates, attrition rates, leadership levels, gender pay gap. These reports could be supplemented by the diversity figures for individual practices, this would help to assist to identify problem areas and could also provide potential recruits and clients with access to diversity information.
d. This could later be enhanced by adding other diversity related factors such as age and ethnicity.
e. Consider developing sector-wide targets or quotas for women in leadership positions. Stakeholders to explore Australian Stock Exchange model for voluntary/compulsory quotas of the percentage of women at partnership levels.
4. Recognising best practice
a. Consider expanding the LIV Legal Awards to include a category for promoting diversity (in particular the promotion of gender equality). There is a possibility that the award could then be broken down into suburban, regional and large firms.
5. Additional recommendations
a. That the Commission work with Diversity Council Australia to consult on the development of a guideline aimed at promoting gender equality in the legal sector – the business case.
b. That Legal Professional Learning Training providers consider the inclusion of modules on sexual harassment and discrimination as part of their curriculum to build sector capacity around these issues.