The Legal UpdateWomen in Law

The Law360 Satisfaction Survey always makes intriguing reading – providing, in U.S. lawyer’s own words, a far reaching analysis of level of happiness in the industry, the best firms to work for, and of course key insights into diversity and gender representation. This year, in light of the #MeToo movement that began in Hollywood, the subject of sexual harassment is also a talking point.

Among the things we learned were that even with the prospect of high earnings, law graduates are bogged down and stressed by student debts as other graduates, with nearly a third grappling with six-figure debts, leading to many putting off major life events such as starting a family.

We also saw some evidence of progress being made in terms of more women lawyers in firms led by women from the Glass Ceiling Report, though that progress was deemed to be lagging in larger firms, and fairly static overall in the five years that the survey has been conducted, as explained by editor-in-chief Anne Urda. However, there was a particular finding in the Satisfaction Survey that put this picture into an uncomfortable context: Women lawyers were still reporting, in startling numbers, incidences of direct gender discrimination and sexual harassment. Shockingly, a third of female respondents report having experienced sexual harassment, and more than half said they had faced discrimination. Meaning we’re not just dealing with a lack of action or effective measures to encourage women in law – women are still actively being shut out, shut down and even harassed and assaulted because of their gender.

Lawyers are Saying #MeToo – Are They Being Heard?

The Attic recently published some of the derogatory things that are said to women in law. With credit to those on the receiving end, those women recounted their experiences with clarity and, in some instances, wry humour. That doesn’t make it ok for any of them – and it’s impossible not to get angry on their behalf when faced with such stories and statistics that should have no place in any society, let alone in the year 2018.

Lawyers are widely perceived as being pragmatic and stoic in nature. Though passionate about the rule of law and justice for the people they deal with, they achieve these aims in a reserved and reasoned manner. They understand more than most the importance of process and the harm that a bad one can do for both accused and accuser. They exchange mostly in polite scrutiny of their industry, because they approach issues with a level head, but also perhaps out of fear that any sense of anger or outrage could hurt their reputation. And we all know the negative responses that follow when a woman publicly expresses a feeling about something… We are perhaps unlikely then to see some the type of attention drawing activism that has been part of the #MeToo movement and Time’s Up campaign in Hollywood, but that doesn’t mean there hasn’t been a concerted effort to use the momentum of the now international conversation to draw attention to the issue in the legal industry.

But many feel the industry needs to go further – beyond investigating individual instances of misconduct – and actually requires a culture overhaul, according to speakers on a panel at the American Bar Association‘s annual meeting Thursday in Chicago. How can those in the industry make this cultural shift happen? Will it need a pivotal #MeToo moment to create real change?

Power and Privilege

In a feature for Vice, a group of lawyers discussed the conduct of former United States Circuit Judge Alex Kozinski, and an interesting point was raised about the power structure of court life tenure federal judges and law student carrying the aforementioned burden of debt – losing out financially simply isn’t an option for many young lawyers, so they are more likely to put up with wrongdoing against them. These hierarchical arrangements in courts must be discussed as well as how people starting out in law can be safeguarded from abuses of power.

Before conversations were happening in public, many women put the responsibility on their own shoulders to prove themselves and perform better to convince people that they were not just sexual objects. Once conversations came out in the open more, the men on the panel recounted conversation with other men who began to question whether they could say wrong thing, and there was a backlash of fear of the movement. There was also the suggestion that some may choose to not hire women at all because of the ‘risk’, or exclude them from career development opportunities such as events and business dinner.

As the group lamented, if the response to #MeToo and reports of sexual inappropriateness in the industry is to limit women’s opportunities further, it hasn’t even begun to cause the culture shift that is needed. That excluding women altogether from job opportunities or events is even mooted as a solution is deeply concerning. All too often the burden is passed to victims to either tolerate the behaviour or accept a space is not for them because of the behaviour, rather than challenging the behaviour itself. This needs to be tackled as broader concern.

The Precipice of Change

However, the positive is that people now feel they can speak more freely about what has happened to them, and there is no going back from that.

Participants at the American Bar Association Annual Meeting event this month agreed, with co-founder of Time’s Up Legal Defence Fund Tina Tchen saying: “we are at an inflection point where we can shift what is going on in our workplaces.”

It is important to not view the issue of sexual harassment in isolation, the ABA president and chair of the panel Hilarie Bass  said: “What we are really talking about is building workplace cultures that are very diverse and very inclusive in every sense of the word. And that we are equipping managers and workers at law firms how to treat each other better in order to change the way workplaces operate.” And there have been moves in many organisation to make ‘say something do something’ a part of workplace policies and training, making everyone responsible for inclusivity and wellbeing. Secrecy and innuendo allowed Harvey Weinstein to get away with what he did for a long time, so a culture of openness needs to nurtured. We can’t simply rely on victims to tell their stories; those who are unaffected have to be vigilant and willing to challenge wrongdoing openly.

Panellist Nicole VanderDoes expands on the discussion in the Legal Network On The Road podcast. Her advice to people entering the profession or who have experienced troubling behaviour is to check what procedures and reporting mechanisms have been set up in their organisation for dealing with uncomfortable behaviour and misconduct. She also reminds us that those who might prefer to take the route of excluding women further to avoid the issue are also legally liable for this kind of discrimination too.

In others words, all in the industry must keep the conversation going, and leaders must continue to listen and to implement tangible measures against harassment and discrimination, to ensure we don’t see statistics like these again in 2019.

Women in Law

There were many witty signs at the global Women’s March on 21 January 2016 – many taking aim at recent political developments, in particular the US election of President Donald Trump – but one stood out for me through its sheer simplicity: “Yes to Equality!” It was refreshingly clear, and who could argue with it when the globe’s population is pretty much split down the middle along gender lines? Surely we all welcome equality and an open society in which we can all thrive – women and men together?

I find much of the language of equality sits at the very opposite end from the clarity of that #womensmarch placard. In the last decade in particular, it has become too nuanced and inefficient at amplifying the very essence of our call for change – in the case of gender equality, a desire to embed it in our workplace and reduce the sexism levels in our society. I have now followed the debate for much of the last 7 years and, through the prism of being a mother to a daughter, I think we need to unify and simplify the message around ‘equality’ if we are to see lasting change.

In the workplace in particular, the language of equality has been replaced with that of ‘diversity and inclusion’. Has this shift helped? Equality requires action to ensure individuals or groups of individuals are not treated differently or less favourably, on the basis of their specific protected characteristic – including areas of race, gender, disability, religion or belief, sexual orientation and age – and that avoids discrimination. Diversity and Inclusion, by contrast, introduced an element of choice around how a particular employer views individual differences so as to maximise their potential. This shift from action to choice is perhaps why, as a returning mum told me recently, we really need to shift the debate around gender equality and women in the workplace. There is a sense of being trapped in a straightjacket, which has managed to entangle us to the point of inaction.

We have witnessed the creation of a whole ‘diversity and inclusion’ professional class that has replaced much of the ‘equality’ speak that led to legislative changes in the past. We’ve now had equality legislation for decades, but still choose to pay women and men unequally. We choose to give women that have children a career ‘shelf life’ on the assumption that their ambition shouldn’t count once they choose to put their family first. We have an absence of women in leadership which we accept far too easily. Indeed, we still have a First Lady as opposed to a First Woman President in the US. Is this abundance of diversity initiatives working in effecting change or, to coin a phrase, is it #diversitywash? I think it is important that we ask why we are complicating the language of equality? We can no longer keep women riding on the inequality carrousel. Believing is doing, not words!

 

Making Work, Work

Without access to flexible working, a large pool of knowledge and talent is going to waste. This is costing us greatly, stifling growth and impacting workplace wellbeing.

For all the progress made in communication technology and digital working platforms, and for all the conversations on work life balance and the importance of workplace wellbeing, it seems society is still attached to a culture of long office hours and presenteeism. Women’s careers continue to stall due to a lack of options for flexible working, so say the findings of recent in depth studies into flexible working and the progression of women in the corporate workplace.

A report compiled by Digital Mums in association with Centre for Economics and Business Research (CEBR) found 60% of mothers with children under 18 do not have access to flexible working. 64% of returning mothers found that their skills were compromised in some way in order to find a flexible job. The findings indicate that women are still finding it hard to return to work, and feel unable to progress as a result of career breaks, maternity leave and family commitments.

The Women in the Workplace 2016 study looked even more in depth into women’s career development and presence in the workplace in corporate America, finding that women are still falling behind men on the corporate ladder, with companies struggling to put their commitment to gender equality into practice for a number of reasons, including concerns about positive discrimination. And where flexible working programmes are offered to parents, it was found that 61% of employees worry that working part-time will hurt their career, with 42% believing taking a leave of absence or sabbatical will do the same.

Why should so many women have to compromise their experience and skillset in order to find work that suits them? Why are employers and managers stretching every hour given, instead of calling on the expertise and skills they need when they need them? Why are there pools of latent talent still being left untapped? These are the questions we still find ourselves asking of the legal sector, and indeed many other industries beyond.

What happens when we increase the opportunities for people to work flexibly and remotely, when different life stages mean that they cannot be tied to the office and commute from dawn to dusk? It’s not a stretch to say that productivity is boosted and everyone’s work life balance stands to improve. The real, tangible benefits of flexible working and of changing traditional approaches to legal consultancy can be seen every day at Obelisk. From talent reactivated after a lengthy career break, to those changing to freelance remote work as life priorities change, the talent and expertise is there ready and waiting for the opportunity to take on new challenges, to find work that fits with their lives and fulfils their sense of purpose.

The CEBR also calculated that widespread access to flexible working could add 66 million hours more work per week, with an economic output boost to the UK of approximately £62.5 billion. But the benefits go even further than economic gain. It is not sustainable for business owners to be pulled on all directions when they need the time and headspace to create, shape and grow their business. Nor is it sustainable for employees who will not feel valued or incentivised by restrictive and lengthy hours expected of them, when there are people with the knowledge and talent available. Allowing people the time to concentrate their efforts on their core responsibilities and the bigger picture of their business, rather than fighting daily fires such as contract resolutions and other areas of time draining micro-management can change our overworking, long-office-hours culture for good, for the benefit of everyone’s wellbeing and personal growth, as well as the growth of the economy as a whole.

It’s time we all asked ourselves: What would we do with #MyMillionHours?