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Tackling gender inequality in the law—the role of in-house lawyers, and quotas

Alice Southall

14 Aug 2019

It’s been shown repeatedly that diverse workplaces make business sense (McKinsey made the point in its ‘Women Matter’ report back in 2007; a World Economic Forum blog by Vijay Eswaran repeated it in April this year). Yet there is still a long way to go before big businesses will be in a position to challenge the ‘pale and male’ stereotype. The business of law is no stranger to that label. Regarding gender equality, the consultancy ‘20-first’ has produced research showing that of the top 10 UK law firms, only one has 30 percent female partners and therefore (just) makes it into 20-first’s ‘Progressing’ category (the other nine are either ‘Asleep’ or ‘Starting’ to make progress).

The Law Society’s International Symposium on ‘The power of gender equality to transform the business of law’, took place in June, and was the launch event for its ‘Women in Law Pledge’, which aims to tackle gender inequality in the legal profession. A message which surfaced loud and clear, throughout the two days of Symposium discussions, was the power held by law firms’ clients to ‘move the needle’ on this issue. I was also struck by how much support the usually divisive subject of quotas received from both panellists and attendees.

Moving the needle: a sliding scale of affirmative action

In-house legal teams’ power to require law firms to prioritise gender equality—and other forms of diversity—is not a new idea, but it is gaining momentum.

In January this year, around 170 General Counsels (GCs) and Chief Legal Officers, based largely in the US, published a letter calling for law firms to focus on diversity, or risk losing their companies’ legal spend; a further letter was signed by 65 GCs of major companies in the UK and Europe in March.

While law firms have been responding to the calls to take action in this area, with some success (at a panel last week, various initiatives were discussed), the overall view was that the pace of change is ‘glacial’ and that more radical steps need to be taken by those holding the purse-strings.

Two very well-known organisations have set ‘radical’ precedents, one opting for a financial carrot, the other for a financial stick:

  • In 2008, Microsoft introduced its Law Firm Diversity Programme, under which it gives participating firms a bonus at the end of the financial year if diversity targets are met.
  • In 2017, HP introduced a requirement for its panel firms to meet diversity targets in the teams doing its work, or else face a 10 percent invoice withholding provision.

For those businesses which would prefer to take a different route, one suggestion made last week was to make a point of championing a particular female associate whose work is valued, by asking specific questions about what provision has been made to set out her route to partnership.

Law firms might argue, perhaps justifiably, that their practices in this area are a function of their clients’ demands. They may find it difficult, for example, to accommodate a variety of flexible working practices that might allow more talented women to rise through the ranks because of a perception that their team needs always to be available to respond to their clients’ requests. And so, it was noted last week, clients also bear some responsibility for:

  • Agreeing to a working relationship that has some flex in it. For example, it might be agreed—and made known to the team—that in the early stages of a matter nobody is expected to work late or at weekends.
  • Being comfortable with the fact that an associate might not work full-time, and with the alternative arrangements that the law firm has put in place to cover the matter during those times—rather than seeing it as a red flag. (This, of course, requires the law firm to be up-front about those arrangements in the first place.)

“You can’t be what you can’t see”: time for (time-limited) quotas?

Another old idea that may be gaining new momentum is that of introducing quotas to make a swift change to the numbers of women in senior positions in the law, such as in the judiciary and at equity partner level. Quotas, and targets, have often been dismissed as a means of improving the representation of women: they can be seen as patronising and anti-meritocratic, and face opposition from women and men alike. However, it is possible that the tide is turning on this issue too.

At the end of last year, the audience at a debate held by Thomson Reuters on the motion ‘Quotas are the only solution to gender equality in the workplace’ was won over by those arguing for it, with 57 percent backing the motion at the final vote, compared to 46 percent in the pre-debate vote (a recording of the debate is here and a summary here).

Calls for quotas for women in leadership roles have recently been made in the realms of politics and the arts. They have already been introduced in business. In 2018 California passed a law requiring public companies headquartered there to have at least one woman on their boards. (Some European countries introduced quotas years ago.)

While no vote was taken during the Symposium, there were repeated references by panellists to quotas as a mechanism whose time may have come. Baroness Shami Chakrabarti spoke up for the introduction of time-limited quotas to kickstart change, referring to her own experience of introducing such a policy at Liberty. In the absence of a formal tally of attendees’ views, my (unscientific) impression was that many were receptive to the idea, rather than seeing it as offensive per se.

The original article appeared on the Practical Law In-house blog.

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