We have mostly read about the patriarchal nature of the legal system and not much about gender discrimination in delivering legal services or law practice. Through this article, we plan to shed some light on the latter.
Discrimination is like a double-bladed dagger, the affected employees often suffer from mental or physical health issues, and the employers bear financial losses, including talent acquisition and retention.
According to the U.S. Equal Employment Opportunity Commission, “To "discriminate" against someone means to treat that person differently, or less favourably, for some reason”. There are two types of discrimination, namely explicit or conscious and implicit or unconscious. In the former case, the discriminator is aware; in the latter, they are not an act with an unconscious mind.
A century ago, an act to remove sexual discrimination enabling women to join professions of their choice, received royal assent in the UK. The act is known as the "Sex Disqualification (Removal) Act". The act also enabled women to sit on juries and receive degrees.
Section 1 of the act states, "A person shall not be disqualified by sex or marriage from the exercise of any public function, or from being appointed to or holding any civil or judicial office or post, or from entering or assuming or carrying on any civil profession or vocation, or for admission to any incorporated society (whether incorporated by Royal Charter or otherwise), and a person shall not be exempted by sex or marriage from the liability to serve as a juror".
In a 2015 article titled Women in History: Lawyers and Judges, Kelly Buchanan introduced us to prominent women in the legal profession. The traces of women graduating from law school can be seen even before the introduction of the Sex Disqualification Act.
Glassdoor's Diversity & Inclusion Study 2019 found that almost half (49 per cent) of employed adults across four countries (United States, United Kingdom, France, Germany) have witnessed or experienced racism/ageism/gender or LGBTQ discrimination in the workplace.
Gender disparity within the legal industry
The 2017 diversity report from Solicitor Regulation Authority stated that the UK's ratio of men and women entering the legal profession is almost equal. The larger firms with 50 or more partners have 27 percent of female partners, whereas, smaller firms with 2 to 5 partners have 35 percent. Talking about the in-house legal teams, the report states that only 22 female GCs exist in FTSE 100 corporations.
According to a June 2022 article by Ann Olivarius, chair and founding partner of McAllister Olivarius for BloombergLaw, "In 2018, women comprised less than 20% of equity partners in the 200 largest US firms. Of the 20 "best" elite firms for gender equity, 18 have fewer than one-third female partners." "In 2019, women lawyers earned $324 less each week than their male colleagues or 85 cents to each manly dollar," she further adds.
Guardian's article titled 'We're all gentlemen here': Australia's legal profession can pretend no more states that "Only 25% of the senior positions in law in Australia are held by women."
The pattern continues across the globe.
The impact of discrimination
According to National Center for Cultural Competence at Georgetown University, in case of conscious bias, "the person is very clear about his or her feelings and attitudes, and related behaviours are conducted with intent." It further describes unconscious bias as, "Implicit or unconscious bias operates outside of the person's awareness and can be in direct contradiction to a person's espoused beliefs and values. What is so dangerous about implicit bias is that it automatically seeps into a person's affect or behaviour and is outside of the full awareness of that person."
Gallup's article "Understanding the Effects of Discrimination in the Workplace", based on their survey of U.S. workers, published in May 2021, pointed that:
- Workplace discrimination causes disengagement and undermines wellbeing.
- Discrimination has a more pervasive effect on Black and Hispanic workers.
- Greater inclusivity starts with awareness.
Start with awareness
The first step towards discrimination eradication is its recognition. If a person is aware that they have developed prejudice, one can start acting on it.
Ways to curb discrimination
Most forward-looking enterprises have realised the value of a discrimination-free workplace. According to a 2019 report from McKinsey, "Companies in the top quartile of gender diversity on executive teams were 25 percent more likely to experience above-average profitability than peer companies in the fourth quartile." "This is up from 21 percent in 2017 and 15 percent in 2014," the report adds.
Since the 1960s, we have been hearing and implementing the People, Process and Technology (PPT) methodology in our business framework. Each standalone component of the PPT methodology is necessary to drive efficiency.
By effectively utilising the PPT methodology, we can build policies to fight the menace of discrimination. "Plan, Do, Check, Act" (PDCA) can help get answers to most of the questions and ensure preparedness. PDCA is recognised across industries and by various regulatory and industry bodies for effectively reducing risk.
To curb discrimination in the workplace, organisations can utilise PDCA as:
- PLAN: Define organisational culture, hiring criteria and hierarchy, and ways to track metrics
- DO: Dedicate a team or resource for Diversity and Inclusion. Create a Reward and Recognition program to promote diversity and avoid discrimination. Train leaders and future leaders on non-discrimination, including the process of responsibility delegation.
- CHECK: Conduct employee satisfaction surveys (remember to keep them separate from performance reviews, as employees do not disclose their concerns directly to the manager).
- ACT: Review program effectiveness and make necessary amendments.
Major law firms are strategically tackling gender discrimination through the introduction of partner ratio objectives, as reflected in the ‘Delving into Legal Workplace Diversity and Inclusion’ article.
Furthermore, the ‘Gender Balance Owned by Boards Is Good Business’ by Jennifer Milford outlines practical steps for firms to take to successfully achieve the gender diversity ratio at the senior leadership level.
There are good indicators to suggest that law firms are implementing new ways to achieve gender diversity. It does however require a continual effort in raising awareness and educating personnel through training programs, incorporating diversity, equity and inclusion (DEI) into the business imperative and developing strategic plans to improve and support the DEI objectives.
Realistically, gender diversity cannot be achieved overnight. However, what we can say is that we have come a long way but there is still a long way to go.