Is there a glass ceiling for female lawyers in Australia? Could the system of billable hours be part of the problem? ALB's Cabral Douglas starts his investigation by asking sex discrimination commissioner Elizabeth Broderick.
Just 90 years after winning the right to practice law, woman currently make up 68% of all law graduates, which is a remarkable achievement. However, females account for only 16% of partners, and less than 3% of managing partners and/or CEO's which raises questions of gender equality at the senior management level within Australian law firms.
According commissioner Broderick, the system of billable hours employed by the majority of law firms in private practice could amount to sexual discrimination if it acts as an impediment to women seeking partnership.
Indeed, one of the traditional selection criteria for achieving partnership in most law firms is a calculation of the amount of 'billable hours' each partnership candidate has charged out. "The question [of sexual discrimination] would depend on the circumstances in any given case. The issue the court would be concerned with is: Is the system employed by the firm [of billable hours in this case] reasonable under the circumstances?" she said.
The Sex Discrimination Act 1984 imposes a 'reasonableness test' for the Commission to consider when deliberating on discrimination matters. However, the evidence to support the 'reasonableness' of this seemingly outdated system [of billable hours] appears to be waning. "The current system rewards inefficiency. How can the first five hours be charged out at the same rate as the last 10 [in any given day]? Surely the productivity level would have dropped off...so the current system is not good for lawyers or clients." lamented Broderick.
Undoubtedly the efficiency/lack of efficiency of the system of billable hours has been the subject of intense debate for many years. However the question still remains: Does this system discriminate against Australian women lawyers seeking partnership?
According to The Sex Discrimination Act 1984, in order for this to be the case, the system [of billable hours] must be determined to be condition, requirement or practice that has, or is likely to have the effect of disadvantaging women.
Senior partnership recruitment consultant Marianna Tuccia of Naiman Clarke is of the view that many women seeking partnership have long been disadvantaged by the system of billable hours. "One of the criteria for partnership is how much you bill. If you are working part-time you are not going to bill as much, and this has worked to the detriment of women seeking partnership." she said.
In 1998 the human rights and equal opportunity commission found that requiring partners or aspiring partners to work fulltime would inevitably disadvantage women. Therefore to regard this as a 'reasonable requirement' would perpetuate and institutionalize indirect discrimination against female practitioners. (Hickie v Hunt & Hunt)
In spite of this, many within the sector are not prepared to blame the system of billable hours for the low proportion of women being appointed to partnership level in Australia. According to Hays senior recruitment consultant Andrew Rees: "While billable hours form a component of the criteria for appointment as a partner, other criteria are considered."
He goes further to dismiss the low proportion of females in partnership roles a result of 'tradition' rather than discrimination on the grounds of sex. "Traditionally there were a larger percentage of male partners in law firms. As a result, whilst there remains a disproportionate number of female partners, the number of female partner appointment have increased in recent history. Law firms have acknowledged the disparity, and have acted and continue to act, to alleviate the gap. He said.
One example of a firm which has been proactive in addressing the disparity is Deacons. The international firm with over 900 lawyers set up a subcommittee chaired by partner Sally Mcindoe which resulted in a doubling of female partners from 9% in 2005 to 19% currently.
However, critics are growing frustrated with the pace at which progress is being made throughout the sector. Broderick is among them. "When I graduated from law school 20 years ago women made up over half of the graduating class back then, and it still has not been reflected at the partnership level, so nothing as changed." She concluded.
Henry Davis York Managing Partner Sharon Cook is of the view that women who aspire to achieve partnership roles need to be more selective about which firms they choose to work for. "It is possible to get the top job at a law firm even though you are female and have a large family but you need to be in an enlightened environment that supports and encourages you to do so." She said.
Cook credits Mallesons and her current firm Henry Davis York for providing her with the support necessary to raise a family whilst becoming one of only 2.6% of female managing partners in Australia.
Not only did Henry Davis York appoint her to partnership in 1997 but they made her one of Australia first part time partnership appointees allowing her to raise her two young children who were aged 4 and 7 at the time.
Swaab CEO Bronwyn Pott also credits her support network as being the key to her success. In spite of being on maternity leave 5 times, Potts has been able to secure the top job at Swaab.
"I couldn't do half the things I do without the people who support me - I have a great team of talented professionals at the office, and over the years have had another terrific team of people at home who kept the train on the rails." She said. "If you need a lot of sleep you probably wouldn't choose my path."
According to Talalla & Associates Director David Tallia, Australian law firms seeking to recruit and retain the best talent can not afford to get this issue wrong. "Too often lip service is paid to the promotion of women without any real change taking place. The law firms that get this right will have a competitive edge over other law firms in attracting and, more importantly, retaining high calibre female lawyers."
The Australian law firm with the highest percentage female partners (40%) is Gilbert and Tobin. Managing Partner Danny Gilbert would prefer to view this as a normal expectation rather than an exceptional achievement. "It is certainly not something we set out to do, it just happened organically. We have a merit based system at Gilbert and Tobin, so that is what we expect. If anything we would expect our female partnership to eventually match the female graduate intake numbers".
According to Gilbert the firm's longstanding embrace of modernity allows for gender equality at the partnership level to unfold naturally. "Putting processes in place is at the fringe. You don't need systems and processes...[to achieve gender equality at partnership level]. It's all about having a tolerant culture and embracing modernity. If you try to drag people along kicking and screaming it's not going to work. You simply ask people [women] what they want to do, and then you let them do it".
Gilbert and Tobin Partner Moya Dodd is one such woman. The part time partner and mother insist that juggling the demands of family life with the demands of partnership has made her a better problem solver. "Well, once you take on the responsibility of parenting your time becomes very precious. You become solutions oriented."
And how do these competing interests impact on the bottom line? It doesn't - claims Gilbert without hesitation. "We have appointed women partners while they were having babies... If we think the person has talent or a lot to offer...that is what we consider. Although their take home might be adjusted it does not affect the bottom line...but for us it's about talent not billable hours..."
This appears to be the kind of model that Broderick is advocating. The former Blake's partner argues that an equitable system should reward lawyers for their overall achievements as opposed to how many hours they have billed. "Smart firms are beginning to implement systems which measure outcomes rather than inputs. In my experience, I have found that some of the most effective partners are part-timers. They have a work/life balance and use their skills better - and they are more effective and efficient with their time," she added.
Nevertheless, one thing remains certain. That is, the path for women seeking partnership is clearly littered with obstacles which are simply not confronted by their male counterparts. Some are attitudinal whilst others systemic. Hence, it appears that choosing the right firm, with a supportive and flexible culture is the first step towards women achieving partnership and beyond. Equally importantly is the development of technical skills, hard work, and passion for the law. Finally, it would take a brave soul indeed to resist the collective rethink of the system of billable hours currently being advocated by commissioner Broderick.