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According to Merit?: It's complicated

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Cite as: August 2014 88 (08) LIJ, p.82

The culture of most law firms still reflects the unconscious bias of men at the top.

At a recent networking event, a partner of a commercial litigation group asked for advice about flexible work practices. He had a team of dynamic young women and he really wanted to look after them. When asked about their needs for flexible work practices, he disclosed that they currently didn’t need them but he wanted to be prepared. It seemed that although this partner wanted to be a champion for his female staff, he possessed an unconscious bias towards women in the workplace; that regardless of whether they have, or will ever have, the need or desire for alternative work practices, there is an assumption that eventually they will.

There seems to be a perception that female employees (especially if they are young and maybe recently married) are complicated and require compromise to be accommodated. Conversely, male employees are considered much less of a conundrum; they represent the ideal worker.

There are some considerable unconscious biases at work here. When an organisation is structured and creates its identity around the notion of the ideal worker, any interruptions to this will be seen as objectionable and counter-cultural. Also if the assumption is that all things are equal at work, if women aren’t making it up the ladder, there must be something they are not doing or doing wrong.

Psychologists tell us that our unconscious biases are simply natural people preference; we are biologically hard wired to prefer people who look like us, sound like us and share our interests.

Let’s put this into an employment situation.An employer is arguably looking to recruit or promote someone in his likeness – the uninhibited, perfect worker with no external commitments.

The fact exists that in the law there are many more men in positions of power who have discretion over who gets the job or the promotion (or the work/client that leads to promotion). Unfortunately their views about each candidate rest on a bedrock of human unconscious bias. Sadly these subjective opinions can make or break a woman’s career.

The culture of most law firms still reflects the model of a traditional male breadwinner that is domestically supported. That culture makes various assumptions about its lawyers:

  • the male lawyer is and will always be present and available 24/7 for the job;
  • the male lawyer is ambitious;
  • you can spot ambition by hours in the office and an unbroken employment record;
  • female lawyers will have babies and require special arrangements such as part time or remote work arrangements to care for them;
  • workers with flexible arrangements (even if they are full time) are not always “present” and lack ambition;
  • Workers with flexible arrangements never add the same value as full timers; and
  • Clients don’t want lawyers who work flexibly.

In the recently released LCA study on the attrition of women in the law (National Attrition and Re-engagement Study NARS report it was found that one in four women reported being discriminated against due to family or carer responsibilities. Family responsibilities and flexible work arrangements were raised by many interview participants as a key barrier to women’s progression. The NARS report exposed the biases (conscious or otherwise) that exist towards women in recruitment and promotion. Women felt they may not be hired or promoted due to the assumption that they may choose to start a family.

Study participants also reported the negative impacts of actually utilising flexible working arrangements such as being allocated unsatisfying or inferior work, being passed by for promotion, and dealing with colleagues’ assumptions that because they had accessed flexible working arrangements, their priorities lay outside work. These difficulties were also reported as key reasons for women leaving the profession and the main barriers to re-engagement with the workforce.

Most of the problems identified in the NARS study relating to career progression, retention and attrition were found to stem from systemic issues including suboptimal organisational culture, lack of leadership and strategy, unconscious bias, an entrenched business model, and limited transparency and accountability.

These barriers will not be overcome quickly or quietly. However, as a starting point it is imperative that the legal profession acknowledges the business case for sponsoring, promoting and retaining women leaders and take effective and measurable action. It is only through thought leadership, transparency and accountability that we will evolve into a truly developed and representative profession.

MICHELLE WHYTE and MARY LOUISE HATCH are members of the Victorian Women Lawyers (VWL) Work Practices Committee. The views expressed are their own and may not be shared by the VWL.


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