Moyle, Sally; Sandler, Marissa --- "Effective Law Effecting Change: the Sex Discrimination Act and Women in the Legal Profession" [2003] ALRCRefJl 14; (2003) 83 Australian Law Reform Commission Reform Journal 10

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Reform Issue 83 Spring 2003

This article appeared on pages 10 – 13 & 75 of the original journal.

Effective law effecting change: The Sex Discrimination Act and women in the legal profession

By Sally Moyle and Marissa Sandler*

Since Ada Evans became the first Australian woman to graduate from law more than 100 years ago, women have increasingly pursued careers in the legal profession. The profession is often considered to be particularly cautious and conservative, but this perception is belied by the speed and degree to which women have established themselves in this formerly highly male-dominated profession.

Yet the question remains—have women changed the profession to accommodate their presence, or have women themselves been required to adapt to the strictures and culture of the profession? Examining the role of the Sex Discrimination Act 1984 (Cth) in facilitating women’s progress in the legal profession may shed some light on this issue. It seems appropriate to do so on the eve of the 20th anniversary of the Act.

Structural change arguably requires three elements: legislation, precedent and a critical mass of change agents. We have had the legislative framework for two decades, and are building up a body of precedent. We are also now seeing the legal profession focussing more closely on this issue as more and more women are willing to press for their rights. We will see an acceleration of the pressure on the legal profession in coming years to address issues of sex discrimination, sexual harassment and the disadvantage women suffer as a result of their family responsibilities.

Women in the law: Current experiences

The legal profession is committed to upholding concepts of justice and equality. It provides services aimed at ensuring everyone can equally access the law. It is expected that the legal profession itself operates on these principles and, as a result, the success of the profession in eliminating sex-based discrimination and sexual harassment can be considered the litmus test for the effectiveness of anti-discrimination legislation.

Unfortunately, gender inequality, sex-based discrimination and sexual harassment continue within the legal profession. For example, although the gender pay-equity gap in the legal profession is less than that experienced by other professional women, it still exists.¹ Pay inequity is one of the starkest indicators we have of sex inequality as well as being one of the major disadvantages that women suffer as a result of inequality.

True, the pay-equity gap may be partly explained by men holding the more senior ranking and, therefore, better remunerated positions in the legal profession. Certainly, women are largely absent from the senior ranks of the legal profession, despite accounting for approximately 29 per cent of the practising legal profession in Australia² and 57 per cent of the undergraduate law population.³ In NSW, for example, women account for only 7.2 per cent of partners in law firms.⁴ At the Bar, women make up only between 12 to 16 per cent of full-time barristers, although the number varies across the States.⁵ This gender imbalance at a senior level is reflected in the judiciary. There is now no female representation on the High Court bench and in 2001 women held only nine per cent of places in the Federal Court and an average of six per cent of places in State Supreme Courts.⁶

However, the ‘pipeline’ argument, that pay inequity will disappear as women move through to the senior ranks of the profession, only holds for a limited time. As we have passed the centenary of women’s first graduation in law and it is 25 years since women have been graduating from law school in significant numbers,⁷ that threshold should have long passed and the argument can no longer be sustained.

In any event, it is clear that pay inequity is embedded in the profession from the outset—when the incomes of solicitors with less than one year’s experience are compared, men still earn on average $8,200 more than their female counterparts.⁸ There must be other reasons to explain both the gender pay-equity gap and women’s significant under-representation in the senior ranks of the law.

The lack of women in senior ranks can partially be explained by women leaving the profession in large numbers in their middle career years. NSW Bar statistics show that the number of women in practice between five and nine years is almost half the number of women in practice for up to four years. The figure dropped from 108 to 57 women during these periods.⁹ Women are at the Bar younger¹⁰ and in more junior roles than men.¹¹ Barriers to women’s progress, including discrimination in these middle career years, as opposed to at entry level, suggests that the discrimination within the legal profession is structural and entrenched. The challenge to the Sex Discrimination Act is to be able to redress sex-based discrimination in this form.

The legislation

The objects of the Sex Discrimination Act include:

• to eliminate, so far as is possible, discrimination against persons on the ground of sex, marital status, pregnancy or potential pregnancy in the areas of work;

• to eliminate, so far as is possible, discrimination involving dismissal of employees on the ground of family responsibilities;

• to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace; and

• to promote recognition and acceptance within the community of the principle of the equality of men and women.¹²

Under the Sex Discrimination Act it is unlawful to discriminate on the grounds of sex, marital status, pregnancy or potential pregnancy. Sexual harassment and dismissal from employment on the basis of family responsibilities is also unlawful, as is victimisation associated with any of these grounds. This prohibition of discrimination applies to a number of areas including employment, partnerships, education, the delivery of goods, services and facilities, clubs and the administration of Commonwealth laws and programs.

The Sex Discrimination Act relies upon an individual complaints mechanism. It is a successful and well-tried model for dealing with individual incidents of discrimination. It also has the ability to effect structural change over time. However, one of the limitations of an individual complaints process is that it relies on the courage and commitment of individual complainants to pursue an application through the sometimes arduous complaint and litigation process. This is often difficult for individual complainants, particularly where, as with the legal profession, word of mouth and reputation are significant drivers in generating work and facilitating career advancement. In this culture, many female legal practitioners may put up with sex discrimination to preserve their jobs and reputation.¹³

In this culture, the normative effect of the Sex Discrimination Act is important as the very existence of the law is intended to affect behaviour. For barristers, this normative function is particularly useful as there is little jurisprudence about how the Sex Discrimination Act can be used specifically by barristers to address the discriminatory barriers and harassment that they may face. It would be useful to see in the future creative uses of the Sex Discrimination Act by members of the Bar. The protection offered by the Sex Discrimination Act to female solicitors and partners in law firms is much clearer as they are covered by areas of the Act relating to employment¹⁴ and partnerships.¹⁵

Developing a body of legal precedent

An individual complaints mechanism facilitates widespread reform through the development of a body of legal precedent.

An early, and one of the most well known cases, concerning the discrimination women experience as they attempt to balance work and family responsibilities was an indirect sex discrimination case brought under the Act by a female solicitor at a Sydney law firm.¹⁶ The solicitor, Ms Hickie, was a contract partner with Hunt and Hunt Solicitors. At the time of her appointment as a contract partner Ms Hickie was pregnant, a fact known to the firm. She took maternity leave and returned to work part-time to find her practice had been severely reduced. A ‘Partner Performance Appraisal’ was carried out and her contract was not renewed. Ms Hickie claimed to have been the victim of discrimination and victimisation in the failure to make proper provision to support her practice during her maternity leave and her later period of part-time work. She claimed the decision not to renew her contract was unlawful discrimination and she was less favourably treated on grounds of sex, marital status, pregnancy, potential pregnancy and family responsibilities.

The Human Rights and Equal Opportunity Commission, which at that stage still had a complaint-hearing function, found that the requirement to work full-time would inevitably disadvantage women practitioners who, like all women, have the major responsibility for caring for children. The Commission found that the requirement to work full-time imposed on the solicitor in order to maintain her position was not reasonable in the circumstances and amounted to indirect sex discrimination.

Although supporting legal precedent has followed, part-time work remains uncommon for female partners in law firms. In NSW, for example, only 14.7 per cent of female solicitors work part-time.¹⁷ Comparing this to the general part-time work rate for women of 45 per cent,¹⁸ women in the legal profession are three times less likely to work part-time then women in the general workforce.

This poor take up of part-time work arrangements by women in the legal profession can partially be explained by the long hours culture of the profession.¹⁹ In the legal profession long hours are not only the norm but rewarded. The dominant view remains that ‘part time work is the mummy track which is a different path to that leading to partnership’.²⁰ Working part-time can have a deleterious effect on a woman’s career advancement, even in those law firms that have adopted part-time work as the most popular flexible work arrangement.

Critical mass

Women in the future can rely upon this precedent when overcoming barriers and, as legal precedent emboldens more women to press for change, a critical mass is reached. In this environment, change can be demanded without fear of backlash. There is evidence that this is beginning to occur. In one law firm, female practitioners acknowledged their rights to employment free from sex discrimination by holding a ‘women only’ meeting within their firm planning day. The outcomes of their meeting were presented to the law firm and issues such as combining work and family responsibilities, workplace culture and flexible work practices were raised.

Other change agents

This intersection of legislation, legal precedent and critical mass in an area where change is really needed will generate reform. However, broader social and cultural changes can also impede or accelerate change towards equality.

Labour market trends are the most powerful change agent and currently present a strong business case for bringing about gender equality in the legal profession. Although entering in large numbers, women are increasingly leaving the legal profession or at least leaving the Australian legal profession. As global labour markets shrink, young skilled Australian workers are joining the lucrative, mobile and growing global economy. They go where there are good wages and social stability. Last year approximately 40,000 Australians left Australian shores permanently to seek a future elsewhere. In this increasingly competitive global market, where human resources are the most sought after commodity, Australia cannot afford to be one of only two OECD countries that fails to provide a national scheme of paid maternity leave.

Other women are leaving the legal profession to pursue more flexible work arrangements as they tire of juggling the demands of a legal career and family responsibilities in an ‘un-family-friendly’ profession. They may start their own business, move to the government sector and corporate areas or, if plausible, leave the paid workforce entirely.

These forces will ensure the continued progress towards equality. The Sex Discrimination Act will continue to play a pivotal role in this movement. It is increasingly creating legal precedent and being used by a growing mass of women within the legal profession to agitate for cultural change.

* Sally Moyle is the Director of the Sex Discrimination Unit, Human Rights and Equal Opportunity Commission. Marissa Sandler is a Research Assistant, Sex Discrimination Unit, Human Rights and Equal Opportunity Commission. Both are lawyers.

Endnotes

1. Female solicitors earn on average 82 per cent of male solicitors’ earnings: The Law Society of New South Wales, After Ada: A New Precedent for Women in the Law, 29 October 2002, 6. This compares with all female professionals who earn on average 80 per cent of their male counterparts: ABS 6310.0 Employee Earnings, Benefits and Trade Union Membership Australia August 2002, 13.

2. Australian Bureau of Statistics 8667.0 Legal Services Industry 1998-1999 Canberra 2000, 15 as discussed in The Law Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 7.

3. Centre for Legal Education The Australasian Legal Education Yearbook Law Foundation of New South Wales Sydney 1999, 16 as discussed in The Law Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 7.

4. The Law Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 35.

5. In Victoria the figure is 16 per cent; Queensland 13 per cent; South Australia 12.5 per cent; New South Wales 12 per cent and in Western Australia eight per cent: C Wall, ‘Women: Barristers v Barriers’, (2000) 22(9) SA Law Society Bulletin, 23.

6. Figures from address given by The Hon Justice Michael Kirby to the Victorian Women Lawyers Association Women in the Law—What next? Lesbia Harford Oration Melbourne 20 August 2001.

7. Sharon Roach Anleu Women in the Legal Profession: Theory and research paper presented at the Australian Institute of Criminology Women and the Law Conference 24-–26 September 1991. By 1983, women made up 40 per cent of all university students enrolled in law and legal studies: Department of Training and Youth Affairs Higher Education Students Time Series Tables 2000: Selected Higher Education Statistics Commonwealth of Australia 2001, Table 7.

8. The Law Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 6.

9. This cannot be explained by higher intake in the first category as intake was steady at 25 per cent across both categories: NSW Bar Association Statistics Booklet Volume 3 (August 2002), 6.

10. The mode age of women at the NSW Bar is 35–39 years of age: NSW Bar Association Statistics Booklet Volume 3 (August 2002), 6.

11. Women account for 14.8 per cent of juniors at the Bar and only 3.3 per cent of Seniors at the Bar: Membership of the NSW Bar Association as at 24 February 2003. Statistics supplied by the NSW Bar Association. The mode age of men at the NSW Bar is 45–49 years of age: Statistical Profile of the NSW Bar Volume 3 (August 2002), 4.

12. Sex Discrimination Act 1984 (Cth), s 3.

13. Geraldine Neal Madonnas, Seductresses, Pets and Iron Maidens—Women in the legal profession in Queensland Paper presented to International Sociology Congress Brisbane 2002, 24.

14. Sex Discrimination Act 1984 (Cth), s 14.

15. Sex Discrimination Act 1984 (Cth), s 17.

16. Hickie v Hunt and Hunt [1998] HREOCA 8; [1998] EOC 92-910.

17. The Law Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 32.

18. Australian Bureau of Statistics 6203.0 Labour Force Australia February 2003, 16.

19. The Law Society of New South Wales 1998 Family Responsibilities Study found that respondent solicitors worked longer hours than the average working hours identified by the Australian Bureau of Statistics. Female respondents worked an average of 49 hours while male respondents worked an average of 52 hours a week. Average working hours by all women employed full-time in 1996 was 36 hours and for men employed full-time, 44 hours. Source: The Law Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 9.

20. The Law Society of New South Wales After Ada: A New Precedent for Women in the Law 29 October 2002, 10.