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According to Merit? More to life than work

Every Issue

Cite as: (2007) 81(3) LIJ, p. 84

Firms understand the concept of equal opportunity in the workplace for their clients; it is time they embraced the concept for themselves.

Just over a year ago I was sitting in the back of an ambulance that was taking my father to a hospice. Probably to distract me, the driver asked me what I do – the question I dread most.

So many of us define ourselves by our work, our careers. When our career takes a u-turn and our work no longer defines us as valuable but rather as piecemeal or treading water, it can be confronting.

I babbled. Explained that I teach a bit at a university in the law and medicine faculties, am trying to finish off my doctorate, and on a couple of voluntary boards, am raising funds for pain management for the children’s hospital. To me, he looked a bit unimpressed. Oh, and I’ve got three kids, I added, one of whom isn’t at kinder yet and two of whom have special needs. When they’re all at school I’ll do more.

I felt like a failure.

In an ageing society where the federal treasurer is exhorting families to have “one for mum, one for dad and one for the country”,[1] having children and raising them continues to be undervalued.

Women continue to be placed in a predicament of whether to have children, let alone when.

If they do choose to do so, the predicaments continue – how to keep their career alive, let alone fulfilling; how to keep their family together, let alone happy.

The balance of part-time work and family responsibilities is a constant juggling act.

Women who have children before they reach partnership in private practice are likely to hit the “maternal wall” – when women are discriminated against in the workplace because of past, present or future pregnancies.

In a submission to the Human Rights and Equal Opportunity Commission, Victorian Women Lawyers outlined empirical qualitative and quantitative data on the perceived inhibitors to the attainment of more senior positions by women in the law, noting that women lawyers’ maternal and domestic responsibilities appear predominantly to be the reason for failure to advance. [2] 

A study by the ACTU found that increasingly excessive hours of work have created a “mummy track” and embedded systemic disadvantage against women in two respects.

First, because women tend to shoulder greater responsibility for childcare and family, with their partners working longer hours, they are picking up an even greater share of that burden.

Second, they are left with less flexibility for their own careers as they are unable to combine their family responsibilities with the longer hours required and are increasingly opting for part-time work, different jobs with less responsibility or leaving the labour market altogether.[3] 

There have now been a number of cases testing the right of women with family responsibilities to work part-time.[4] While the Sex Discrimination Act 1984 (Cth) specifically proscribes discrimination on the grounds of family responsibility in the dismissal of an employee, courts have interpreted this to include constructive dismissals.[5] 

Equal opportunity is important to women in the legal profession in ensuring working conditions that meet their needs and enable them to combine work responsibilities with family responsibilities.

It is also one of the clearest and most readily supported arguments women have for promotion to senior levels in the legal profession, be it in private practice, the corporate arena, at the Bar or the judiciary.

It is a basic argument about individuals and their rights and applies equally to women and to ethnic minorities and other culturally diverse streams of the profession (traditionally anyone beyond the Old School Tie network).

Law firms increasingly recognise that some of the best university graduates are women[6] and in order to attract and keep the best candidates, firms need to deliver the opportunities and flexibility employees want and need at the various stages of their careers.

They also need to recognise that women are some of the best candidates in other professions, and are achieving seniority in the ranks of some of their most important clients, especially government.[7] 

The problem remains that law firms fight for equal opportunity in the workplace for their clients, but are not necessarily providing it for their own employees – particularly women.

LIZ BISHOP is completing her SJD at Monash University and is tutoring in administrative law and legal ethics for medical students.

[1] Peter Costello, ABC news, as at

[2] Victorian Women Lawyers submission to the Human Rights and Equal Opportunity Commission on its discussion paper “Striking the Balance: Women, men, work and family” (2005). See publications link at

[3] B Pocock, B van Wanrooy, S Strazzari and K Bridge, “Fifty families – what unreasonable hours are doing to Australians, their families and their communities”, ACTU, July 2001, p49.

[4] See, for example, Mayer v ANSTO [2003] FMCA
209; Escobar v Rainbow Printing Pty Ltd (No 2) [2002] FMCA 122.

[5] John von Doussa QC and Craig Lenehan, “Barbecued or burned? Flexibility in work arrangements and the Sex Discrimination Act” 27(3) UNSW Law Journal 892.

[6] Women comprise about 60 per cent of law graduates ( and 62 per cent of practitioners aged under 30 in Victoria, “Men still dominate higher ranks of legal profession”, LIV media release, 27 January 2003.

[7] See for example


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