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According to merit?: Why we need diversity quotas

Every Issue

Cite as: May 2013 87 (5) LIJ, p.78

The current initiatives to promote women in law firms are not translating into results.

Theoretically, power and advancement should be vested in individuals according to merit. The concept of merit is commendable – it ensures that leadership selection is fair, impartial and transparent. A selection on merit will have nothing to do with where you went to university, who you know or what your parents do, but rather will be based on intellectual talent and demonstrated competency and ability. Merit will ideally eliminate nepotism, bias and sexism.

The theory is sound, however the practice of merit-based promotion is questionable. Unfortunately, it appears many law firms claiming to make appointments based on merit end up using the concept – unconsciously or otherwise – to simply justify the status quo.

For many years now, women have comprised the majority of law graduates and currently make up 61.4 per cent of all law graduates (Australian Graduate Survey at www.Graduatecareers.com.au, 4/4/2012). They disproportionately represent the top graduates, yet are underrepresented in senior roles. No one wants to resort to quotas, but the supposed “merit-based approach” is either not working or is being implemented at a pace that is making little difference to outcomes. It is not just a matter of time.

Despite good intentions and progressive initiatives, most law firms have tended to maintain a culture that stifles female career progression. This has contributed to in a sustained rate of female attrition from private practice that the sector can’t afford, with 41 per cent of women leaving within the first seven years.1 The concept of merit in this culture generally results in the recognition and promotion of those prepared to work long hours and have an unbroken career trajectory. This approach sees leaders choose others who are similar to themselves for leadership positions, thereby excluding more women than men from career opportunities.2 The current initiatives are just not translating into results.

New research from Bain & Company states clearly that increasing female representation at the top is the one action that will have the greatest impact and improve female representation at all levels. “Women and men agree that appointing women into senior roles is the biggest differentiator in how women see their own progression opportunities. Women are five times more likely to be promoters of their organisation as a place where women can progress to senior levels when women are at critical mass in leadership, comprising more than 25 per cent of the leadership team.”3

Most law firms have policies to remove barriers for women (they can’t afford not to) and we know that the more women we have in senior roles the greater the pace of change. But current diversity policies have so far failed to be reflected in positive outcomes for women. Why is it that an industry so focused on achievable, time bound and measurable outcomes is so reticent to apply such targets to the issue of gender equality? To realise these outcomes, the concept of merit needs to be defined, nurtured, developed and measurable, with numerical quotas or targets implemented4 so that an objective concept of merit can be measured and applied. Clearly firms are missing out on some of the best and brightest talent – based on the objective standard of university performance.

So whether it is voluntary targets or enforced quotas, we need quantifiable objectives for recruiting, retaining and promoting women. The traditional law firm structure means the pathway to partnership needs to start early. Diversity quotas are essential all along the career pipeline to ensure talented lawyers are retained to fulfil partnership quotas.

With the introduction of ASX guidelines in 2010 change is being forced on the diversity culture of Australian companies. Following this lead, one of Australia’s major law firms King & Wood Mallesons has taken the bold and innovative step of implementing a voluntary target of 30 per cent (female partners) by 2015.

Isn’t it obvious that the makeup of a law firm partnership should reflect its customer base and the wider Australian community which it seeks to serve and profit from? Why would any organisation confine its selection criteria to male, white, Anglo Saxons and a group think approach? A more diverse partnership will lead to more diverse perspectives and opinions that can only add value when problem solving.

While we look forward to seeing some positive outcomes, as long as the approach to law firm promotion remains the same, it’s hard not to feel sceptical about such targets. Without a significant change in approach we can only expect more of the same.



MICHELLE WHYTE, JOANNE BOWERS and GEORGINA FROST 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.

1. Sara Charlesworth and Iain Campbell, Scoping Study for an Attrition Study of Victorian Lawyers: Report to Victoria Law Foundation (2010).

2. Diann Rodgers, “Gender is stymied by the persistent myth of merit”, www.theconversation.edu.au, 15/10/12.

3. Creating a positive cycle: Critical steps to achieving gender parity in Australia, Bain & Company Inc., CEW 2013.

4. www.humanrights.gov.au/about/media/speeches/sex_discrim/2009/20090902_merit.html.

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