Women’s Struggle for Representation in the Legal Profession: Challenges and Solutions

Introduction

As a minority group, women have traditionally remained underrepresented within the legal profession. Whilst careers in law may, theoretically, be open to all, the reality is that due to the physiological make-up, maternalistic nature and historical suppression of women in society they have struggled to break entry into the traditionally male-dominated and elitist profession. This essay will argue that although efforts have and are continuing to be made to make a career in the law accessible for women, one could argue that the profession cannot yet be deemed sufficiently diverse as challenges continue to face women who elect to work with this profession. This essay will begin by summarising the history of the position of women in society, move to look to the challenges that face women and employers and finally, summarise steps that can be taken in an effort to eliminate such restraints.

Women have fought a long battle against subordination. As late as the twentieth century, in England and Wales, women remained legally subordinate to men. In other cultures, this position remains in practice today. In England and Wales, coverture referred to the rights of women being subsumed by those of her husband through common law marriage. This legal doctrine left women without an identity and gave her husband control of her, her property and the custody of her children. Marital rape was not outlawed until R v R came before the House of Lords in 1992. Society saw women merely as objects of their husbands. It was not acceptable for women to study medicine or law or to engage in politics. Liberal ideals were quashed by the belief that women were irrational, temperamentally unfit to deal with such subjects and their place was in the home being a subservient wife and maternal parent. During the war effort, in particular, women proved that they were capable of holding down important roles within the workforce and society more generally, and were seen as rational and intelligent in their thinking as their male counterparts. Women were granted suffrage in 1928 through the Equal Franchise Act and have since broken down the barriers into almost all professions. Despite, in theory, women having the ability to do everything a man can do, challenges remain that make it difficult to suggest that men and women are truly equal.

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Both society and the legal profession now support women embarking on careers within the industry. By 2008-9, 60% of all new admissions to the Roll were women and 52% of those called to the Bar in the same year were women. The Bar society indicated that in 2009, 34% of barristers were women. These figures demonstrate that women now make up over a third of all barristers, however, barristers are usually well educated and often from high socioeconomic standing, so this figure does not fully represent whether the legal profession is diverse for the average woman. Statistical evidence also proves that women still struggle to be appointed to the highest positions within the legal profession. Few women are promoted to Queen’s Counsel and the first woman to sit within the House of Lords was only appointed to this position in 2003.

Women are traditionally paid lower than men. The Equal Pay Act 1970 has attempted to solve the disparity between the male and female pay gap, however, it is not uncommon for a case of this nature to arise. Recently, an employee sued her employer, Lewis Silkin, on the grounds that she was being paid lower than a male counterpart. Arguments suggest that due to the more emotional, sensitive and maternalistic nature of women in comparison to men, often women opt to specialise in different areas of law, such as family or personal injury law rather than male dominated specialisms, such as corporate or banking law. Family and personal injury law are also often less high-profile and do not hinge on lucrative deals so the specialisms are often not as well paid.

To dismiss a woman for falling pregnant and wanting maternity leave is unfair dismissal. Pregnancy does, however, play an important role in this debate. Most employers would assume that a young woman will take a break to have a baby in the future and the fact that having a child is traditionally less disruptive to the work life of a man, it makes the male counterpart a cheaper and safer option in the long-term. A break in work is seen as disruptive and employers need to fill that position during the maternity leave, effectively causing the employer to pay twice for the same job to be completed. In a time when employers are facing tough economic times, having reliable staff that do not have to be replaced for extended durations appears, on face value, to be commercially viable option. Furthermore, there is a concern for the employer that childcare issues may cause disruption and lost working hours when the employee does return. Legal professionals who are self-employed, such as barristers, can find the transition far more difficult in terms of covering their living costs and retaining clients during maternity leave and the stress of a new baby when they later return to work. In 2004, the Bar Council published policies that cover the issues of maternity, paternity and flexible working hours in an attempt to balance family life and legal practice. To actively reflect this aim, the policy has increased the time a barrister’s seat may be open rent free with Chamber’s expenses from three months to one year.

In Heard and another v Sinclair Roche and Temperley (a firm) and others, it was ruled that the firm had unlawfully discriminated on the grounds of family status and combined with unlawful sex discrimination, constituted unfair treatment. This claim arose when the firm failed to promote or progress the individual. The firm had a total of 36 partners and only 6 were women. This case suggested that women are also less likely to be appointed to managerial positions, particularly if the dominating power is male.

Other arguments suggest that women are more emotional than men and office politics are more present. Webley suggests that women struggle to progress in the profession for a variety of reasons including masculine office culture, the pressure of working long hours and high billing targets and dissatisfaction with commodification’s effect on work quality. In terms of the legal profession, lawyers represent the legal position of their client and to do so, must relate well and truly understand the situation of their client. If all lawyers were men, one could question whether women in society could ever be adequately represented by the legal profession. There is an argument to say that there is as much a place for women in the profession as men, as women solve problems in a different way, can be more compassionate and can balance an all-male work environment.

Parliament has made attempts to allow greater access to the legal profession to minority groups by enacting legislation such as the Courts and Legal Services Act 1990. The main purpose of this enactment was to reform the legal profession after the findings of the Benson Commission in the 1970s. To the judiciary, in particular, important changes were made to appointments and pensions and significant changes were implemented towards the organisation and regulation of the legal profession. The Constitutional Reform Act 2005 later recommended that an independent body should be created to deal with the appointment of judges, which came after criticism from the Law Society regarding the old system. Such legislative and societal support towards the accessibility and diversity of the legal profession should instil a hopefulness into affected women that the profession is moving in the right direction.
There have been several attempts by the profession itself to promote and encourage accessibility and diversity. The PRIME initiative saw 23 UK and Irish law firms come together to form a ground-breaking initiative to increase social mobility through a wide ranging work experience scheme. Whilst this initiative focused more on socioeconomic status rather than gender, the results suggest that real opportunities within the legal profession have been offered to those who are otherwise unlikely to have been given the opportunity.

In conclusion, the legal profession is not yet sufficiently diverse. Both historical and contemporary statistics prove a bias towards men due to the maternalistic nature of women. Statistics demonstrate a trend that the profession is moving in the right direction in terms of equality, diversity and accessibility for women, however, the battle for truly equal treatment, rights and pay for both genders is an ongoing issue within the legal profession, as it is in society generally. Historically, women were refrained from having an identity and practicing within the legal profession because they were considered irrational and incapable. Whilst that perception has clearly disappeared, which is a positive shift, women still face challenges due to the physiological differences between men and women. These differences will never change and unless there is a shift in the mentality of employers’, these are likely to be challenges that remain for the duration. One could argue that the battle between equality and diversity within the legal profession and commercial viability for business owners will never truly resolve.

Bibliography

Deborah, L. ‘Title of the article’ [2001] Women and the Legal Profession 156
Fredman, S. ‘Discrimination Law’ (New York, United States: Oxford University Press Inc, 2001)
Leighton, P. ‘Discrimination and the Law’ (Camp Road, London: Short Run Press, 2004)
Macdonald, L. ‘Equality, Diversity and Discrimination’ (Camp Road, London: Chartered Institute of Personnel and Development, 2004)
McColgan, A. ‘Discrimination Law’ (North, America: Hart Publishing Co, 2nd edn., 2005).
Roach Anleu, S. ‘Law and Social Change’ (City Road, London: Sage Publication Limited, 2000)
Sargeant, M. ‘Discrimination Law’ (Essex, England: Pearson Education Limited, 2004)
Sommerland, H., Webley, D., Duff, L., Muzio, D., Tomlinson, J. ‘Diversity in the Legal Profession in England and Wales: A Qualitative Study of Barriers and Individual Choices’
Suddards, H. ‘Sex and Race Discrimination’ (Camp Road, London: Chartered Institute of Personnel and Development, 2nd edn., 2002)
Webley, L., Duff, L. ‘Women Solicitors as a Barometer for Problems within the Legal Profession: Time to Put Values before Profits?’ (2007) 34 Journal of Law and Society 374
Wilkins, D. ‘Rollin’ on the River: Race, Elite Schools, and the Equality Paradox’ (2000) 25 Law and Social Inquiry 527

Cases

Heard and another v Sinclair Roche and Temperley (a firm) and others [2004] All ER (D) 432 (Jul)
R v R [1992] 1 A.C. 599
Legislation
Constitutional Reform Act 2005
Courts and Legal Services Act 1990
Equal Franchise Act 1928
Equal Pay Act 1970

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