International Women's Day: Legally doomed


CBC News Viewpoint | March 8, 2004 | More from Georgie Binks

Georgie Binks About a year ago a lawyer friend of mine decided to leave private practice in a mid-sized Toronto law firm and work for a company that offered, for the most part, a 9-to-5 day instead of the long hours she was used to. The mother of three kids, she only took three months off when each of them was born, although Canadian women were entitled to six at the time.

She regularly worked nights and weekends, and I even remember finding her at her desk one Mother's Day. Big sacrifices. But not big enough for her boss. As she packed up her stuff to leave, he smiled at her, "You know, we were hoping that once your kids were older, you could make a real contribution here."

She had billed the third-highest number of hours in the company the previous year, but obviously it meant nothing. She, like many women, had discovered that having a "womb" means there's not much "room" in the legal profession.

The statistics are frightening. Take Ontario, where 53 per cent of those called to the bar in 2003 were women but there are only about 5,000 in private practice compared to almost 14,000 men. Women make up only 16 per cent of partners in private practice in the province.

Yes, there have been gains in the legal profession. University of Ottawa law professor Liz Sheehy says, on one hand, there were three female Supreme Court justices until Louise Arbour left for the UN in February one of them the chief justice, and more women are graduating from law school than ever before. But, she says, "What has not changed are access to maternity pay and some sort of redefinition in terms of what the profession demands in terms of work. We've made no progress on that issue, which means that the numbers of women leaving the profession have not changed. The turnover is extraordinary."

Fiona Kay, a Queen's University associate sociology professor, who has conducted numerous studies on women in the legal profession, wrote a paper in 1997 called "Flight from Law," which showed that women left predominantly from private practice and when they did, they completely left the profession. Of those who stayed and billed the long hours, and had a family to boot, 20 per cent of female lawyers who had kids took NO maternity leave. Kay says some women described being induced on a Friday and being back in court on Monday.

Many male (and some female) lawyers feel that taking a maternity leave means delivering a lower standard of service to a client. But Kay has two situations that indicate it's all in how the firm deals with it.

In one, the lawyer took maternity leave but stayed in touch by e-mail and phone. Other lawyers took over her cases temporarily, stayed in touch with her and made sure clients felt taken care of. When she returned to work, all of her clients were returned to her. Everyone was happy.

By contrast, another woman who went on maternity leave had all of her files stolen by other lawyers in her firm and arrived back to find her office had been given to someone else and her desk had been moved out with the secretaries.

While some male lawyers gripe that women just want special treatment, Kay found that, in fact, more is expected of female lawyers than of their male counterparts. She says women who returned to work after a maternity leave and were "superwomen" in terms of billing were rewarded. But those who took a longer maternity leave and performed the same as the average man didn't get recognition.

In other words, the super achiever can break the glass ceiling but the rest are penalized. Kay says, "For men there is some type of buffer that helps them get through when they are average but for women being average isn't good enough." Women are expected not only to bill more hours, but to bring in more clients and endorse the goals of the law-firm culture.

One female lawyer, who worked for a large Toronto firm for years and finally chucked law completely, says she got sick of the double standard. She says, "In the summer, it was alright for the men to leave to golf, but if I left because of a kid, or at 5:30 because I had a family it was frowned upon." She practised labour and employment law and was disgusted that, "We would be examining issues of unfairness in the workplace and I would think it applies here, but we don't even look at it."

When she showed up at her 15-year reunion of the women in her year at law school she was shocked to discover that out of about 75 female graduates, fewer than five were in private practice. A number had quit completely.

Fiona Kay says rather than the legal profession accommodating women, it is women who have accommodated the profession. But if two doctors can share a body, or two teachers a classroom, why can't two lawyers share a file? Kay says many law firms are set up in a traditional hierarchical model based on billable hours, which measures only quantity, not quality, of work.

As well, she says partnership ladders are based on a hierarchical, traditionally-designed model that isn't very flexible for things like part-time partnerships or innovations in workplace accommodations, job sharing or telecommuting. Oh, and yes, maternity leave.

On its website, the Law Society of Upper Canada, which represents Ontario lawyers, has a number of suggestions to law firms about how to make the workplace more equitable for women with families. There's just one big obstacle the attitude of men. It's not all men, because a number of men are big champions of women at their law firms, but enough are guarding their piece of the pie that it has women fleeing law.

As Liz Sheehy looks at the female faces in her courses, she doesn't know what she might tell any of her friends' daughters if they wanted to pursue a career in law. She says, "I do know women who have carved for themselves great careers, who do social justice work and survive financially at the same time, having kids in addition to that is very difficult."

Kay says it doesn't matter how many women you have in the practice of law, you need the support of men in a law firm to effect change. So how about it guys? Wouldn't it be nice to have your daughter follow in your footsteps, rather than trip just when she had got through the door.

Maybe you think it's the kind of the thing the next generation will take care of, or some other law firm will do, and get you off the hook. But remember, as every lawyer knows justice delayed, and in this case it's fair and equitable treatment of females in the legal profession, is justice denied.


The discrimination is there, for all women trying to enter the legal profession. The fact that women have the ability to have children poses a problem for many firms, and that means problems for most of us under 55.


The situation is so bad for women out there that I have heard of recent job interviews where a young, childless woman, looking for an articling position, was told by the interviewer that he didn't like hiring women because "all they do is go off and have children".


This interviewer had the audacity, knowing that what he was saying was outrageous (surely he knew!) but saying it anyway because what is one jobless young woman going to do about it, anyway? Report him? And then never get a job?


Another friend of mine, a mother, went to an interview and the interviewer asked her if she had children (which he is not allowed to ask); she replied in the affirmative and he wrote "MOM" and circled it on her application. That was the end of the interview; needless to say, she didn't hear from that firm again, regardless of her letter grades and job experience that would have made her an excellent candidate.


It's so bad that I remember reading a column about this years ago in which the woman lawyer criticised her female colleagues for choosing to have children and a career at the same time because the men in the firm painted the author with the same brush. She turned against other women instead of pointing the finger where it should be pointed. It is appalling. It is commonplace.


It's not just about having babies, either. Don't even ask about the woman who reported serious and constant sexual harassment to a managing partner who replied, "Boys will be boys, you know. He comes from a sports background, see." The firm did nothing to rectify the situation. She quit.


Anne Maloney | Vancouver

Although I agree with the bulk of Ms. Binks' article, I have to say that an underlying assumption bothered me.


The word "women" is used when what she really means to say is "mothers". Clearly, not all women are (or will be) mothers.


Would the discrimination argument still hold true if the comparison were between childless women and childless men?


With or without children, demanding professions would do well to encourage a work / life balance. And men and women alike would do well to realize that if they make the lifestyle choice to have children, that they may have to sacrifice their previous career trajectory.


The "having it all" mentality can be very harmful if it stretches people too thin.


Kim Struthers | Vancouver

Georgie Binks article on women and the legal profession draws attention to a problem that has been acknowledged for a long time, and yet no one I have heard of has found a way to fix it.


Yes, there are super-women who are able to do it all- to succeed at work and at home and not feel like they are missing out or neglecting either arena, but those women are the exception that prove the rule.


The real problem, as Georgie pointed out, is billable hours. Billable hours operate against women with families because of systemic discrimination.


On the face of it, billable hours is gender-neutral- it is just part of the profession and it is how financial success and status within their firm and the profession in general is ranked.


It means being willing to put in a lot of work and time, but of course the privileges of the profession come with that. But it is a fact that women with families, even with partners who contribute a lot, almost invariably end up doing more of the child care and housework on top of their professional careers.


And even though things have come a long way and many men pitch in to help, the truth is that the majority of male lawyers (and not female) have a partner who is willing to do most of the domestic work for them, allowing them to put in the kind of hours they need to get ahead.


This means that a system of billable hours discriminates against women- perhaps not intentionally or with malice- but it is an effects-based discrimination nonetheless and this has been recognized by our courts as just as unacceptable as intentional discrimination.


Of course, the real point is that most professional women who become mothers WANT to be very involved in their child's life and wouldn't want to give that up. Add to this the catch-22 that faces all working women- if you leave work, you risk not being able to come back, you lose status, you are criticized for betraying some archaic notion of feminism; but if you go back to work immediately, you're a bad mother and selfish for caring as much or more about your job as your child.


Many women love their jobs and don't want to lose them. But many women also love their children and want to be there for them.


Unfortunately, in spite of the promise and potential of the women's movement, it is really very difficult to have it all. The problem isn't that women aren't cut out for the workforce, or for the legal profession- it's that the workforce and the legal profession aren't cut out for us.


The whole system of billable hours needs to be seriously overhauled. Why should a man who never took a year off for paternity leave be made partner before a woman who did even though she has consistently produced better quality work and results, though less time? The emphasis on quantity over quality means that the legal profession is an uneven playing field for women.


The system of billable hours also means that the average man is NOT going to take any paternity leave and are NOT going to be as involved in their children's lives. I'm sure many of them wish they could be but the atmosphere in most of the corporate and legal world is not a family-oriented one.


This is a real problem for society in general- there are increasing levels of depression, violence, unsafe sex, substance-abuse, learning difficulties and any other number of problems with the younger generations of Canadians today.


These kids NEED their parents to be involved with their lives- their mothers and their fathers. It is cliche, but these children are our future and if the working world doesn't recognize the importance of the family, then things are only going to get worse and more women are going to leave their positions of respect and status and wealth (in our society, stay-at-home or part-time job parents are in general considered lacking in all of these, which is a tragedy) to be there for their children.


All of which means that the working world is really missing out. Women have so much to offer and their potential is not being tapped. Its time for a change- in our attitudes, in our practices, in our lives.


Deborah Jorgensen