2019 Reality Check after the LSO Bencher Election: Parenting While (Criminal) Lawyering - We Canno

Introduction:

“Your working ovaries are a major career liability.”

In September, 2015, an article by Rachel Thomas about a study published on LeanIn.org made the bold claim that “contrary to popular belief, corporate America is not on the path to gender equality.” (Thomas) The study, massive in its scope, found that women are not voluntarily leaving American workplaces, and are not being pushed out as much as they are being held down, by stress, by discrimination, bias and other systemic barriers. The study found that conditions are not actually improving for woman workers, and that the assumed slow progress towards gender equality in paid workplaces is simply not underway. Closer to home, in Canada, around the same time, the Criminal Lawyers’ Association issued a report, “The Retention of Women in the Private Practice of Criminal Law: Research Report,” which demonstrated grim findings about women’s career paths as criminal lawyers, particularly once they became mothers.

This week, while there were some new lawyer-regulators elected who were not part of it, a "slate' of new Benchers swept to power as legal regulators in Ontario. These newly minted leaders of the Law Society of Ontario unified around a single issue: they want to roll back recent diversity and inclusion initiatives undertaken by the LSO. The slate won a decisive victory, confirming to us, dismayingly, that the findings of the 2015 US study are applicable here: we cannot assume there is general momentum towards equality within the legal profession. To the contrary, it seems there is not.

Spurred on by this and our personal experiences, we wanted to get a clearer picture of what was happening in our own local Bar, and more recently, with reference to lawyer mothers. We met with and interviewed ten mothers who are lawyers in a diverse range of fields in the legal profession, including the criminal field, all based in the Ottawa, Ontario, Canada region. Interviews took place in person, in offices, over kitchen tables, and over the phone. What we learned from these interviews was that, while conditions for some Canadian woman lawyer mothers, are improving, the situation at least anecdotally described by others is actually worse than in the past. Our study confirms that, anecdotally, the numbers provided by prior quantitative studies about challenges faced by lawyer mothers continue to ring true. The lawyer mothers we spoke with are not experiencing overall better conditions within the legal profession than those in decades past. Progress that has been achieved is uneven, arbitrary and ad hoc, and really depends upon the whims and negotiations of individuals.

Despite the efforts of generations of feminists and activists, and support in those initiatives from mainstream elements within the legal profession such as the Bar Association and the Provincial and Territorial Law Societies, and men and women with roles in those organizations, it remains true that women who are mothers face high barriers when they seek to be included in the legal profession as colleagues who share power, pay, prestige, professional responsibility and are able to advance.

The statistical studies we reviewed in preparation for our study, as well as the qualitative participant interviews we carried out with Canadian lawyers who are also mothers, do not support the widely accepted cultural grand narrative that women are on a path towards equality in the profession overall, at least not where private practice is specifically considered and the women concerned are mothers. To address the situation, active systemic and cultural changes need to be intentionally effected. We cannot rest on the supposition that progress for some will inevitably lead to progress for all. It is abundantly clear from this study that this is not the case. Our study is set to be published in a Demeter Press book on the subject of intersections between mothers and law. The methods of our research will be set out there. This blog summarizes our findings.

Our Findings:

The overwhelming conclusion obvious from our study is that progress for mothers in the legal profession has been uneven. Clearly, there remain a number of barriers to progress. Written maternity and parental leave policies continue to be done on an ad hoc basis, leaving many women to negotiate the terms of their leave and return on an individual basis and from a position of vulnerability. (Knapton and Flaherty).

First, the good news. Mothers interviewed who were continuing in practice as lawyers while being mothers universally said they enjoyed their work, felt fulfilled by it, and even comments like “I love my work. I love my job” were statements made frequently. They were powerfully attached to their identities as lawyers. In a broader context where high levels of depression in the legal profession are notorious, it is quite striking that these mothers, in conversations where they were prepared in other respects to be vulnerable and talk about challenges, reported high levels of job satisfaction – for them, it is a job worth fighting for. And, perhaps that is some of the value they bring to the profession.

The more challenging news from our interviews is more complicated. What we heard about was a culture of secrecy where pregnant women are disempowered, motherhood is stigmatized and accommodation decisions are arbitrary and ad hoc, and race is interwoven with disempowerment in complex ways. Responses women interviewed received varied responses from their workplaces when they became pregnant but virtually all described responses that were arbitrary and ad hoc. While the public sector and some firms have clear policies in place, the range of responses from our interviewees demonstrates that equality has not floated all boats. There was a common theme of pregnancy being a sort of surprise, or even crisis. Some firms were not equipped or prepared to handle an impending parental leave, and scrambled to adjust. At the worst, the announcement was seen as a sort of betrayal of the investment into the associate. Further, despite the public service being viewed as a more accommodating place of work, the public sector lawyer we spoke to found that the culture very much discourages flexible work arrangements. Employees were discouraged from even asking to be able to work from home or access the income averaging that would allow unpaid time off.

Mothers interviewed reported feeling “vulnerable” in terms of their maternity leaves. Few workplaces had written policies surrounding leave and what happens to an individual’s files when they are gone. Meanwhile, women who are in solo practice reported having no recourse to income replacement and being faced with a stark choice of either trying to maintain a practice or taking a brief leave, with neither option palatable.

Competitiveness and a fetishization of “toughness” in workplace cultures were also reported to be problematic. In some instances, positive role models and mentors were present, but in many mothers, they were not. The presence of more senior woman lawyers in legal workplaces did not assure a supportive environment. Interviewees reported receiving advice to “look into boarding schools” for their kids and to simply “buck up”. We received the comment, “I was my own worst enemy.” The women interviewed were a bright, personable, composed and articulate bunch. It does appear that there is a risk for the resilience of high-achieving women to be exploited by legal profession employers who understand that it is not culturally condoned for workers to “whine”.

Interviewees reported losing access to career-advancing work once they became mothers. While many women in private practice look to the federal government as a safe reprieve from ad hoc or non-existent policies, the mere fact of having a robust maternity scheme does not preclude discrimination. One woman we spoke to who works as a lawyer in the public service spoke of larger, more complex files being re-distributed while she was pregnant, before they really needed to be. It seemed as if pregnant women are written-off despite their ability to work. Similarly, upon the return to work, she noted an attitudinal shift, as if she was somehow now less capable: “Women need to really prove themselves, and take on big files in order to show that they are back in the game. “

Some spoke of the availability of part-time contract-based work, which had as an advantage flexibility but a disadvantage, precarity and invisibility. Respondents also indicated that the delegation of work is often still informed by stereotypical assumptions as to what mothers can handle based on their families being the priority. One interviewee said “the good work would just drift away.” One woman commented on how she was not given a certain file that involved some travel, despite the fact that had relevant experience. Her manager asked if she could “guarantee “that her children would not be sick.

Quite frankly, our findings are not, on the whole, surprising. Motherhood transforms a person’s identity, their physicality (at least for a time) and changes their availability for paid work. We are always inside capitalism – certain forms of difference have proven, if not easier, at least more manageable, for business to accommodate than motherhood. A “business case” can be made for inclusion of racial and ethnic diversity quite readily, for example, and has been made. It is difficult for a mother, if she conforms to traditional role expectations consistent with the ideology of “intensive mothering” (O’Reilly) to simultaneously conform to role expectations of the “ideal worker”, who is always available.

Motherhood becomes a simultaneously valourized and stigmatized identity for women in the paid workplace, and the legal profession is a space where the double-bind position of women who are mothers is particularly pronounced.

Further, our findings serve to confirm our individual experiences because we are lawyers and mothers. Challenging work circumstances are a day to day reality we live. However, Rebecca, in particular, whose children are the oldest, was surprised by how challenging the more recent circumstances of newer mothers have been. The stories of our colleagues confirm the systemic dimensions of our individual experiences. And, they are nothing less than infuriating, Since neither the presence of mothers as lawyers in the profession nor study of it is new, it is thoroughly unacceptable that legal sector employers are in many cases still not ready for discussions about maternity and parental leaves and accommodating childcare responsibilities.

Suggestions for Change

Clearly, both policy and cultural change are needed in order for mothers to attain full equality within the legal profession. Action needs to take place from the top down and the bottom up. At the level of policy, we suggest that regulated leaves with transparent policies should be implemented across the legal profession. Accommodation of family responsibilities is already mandated by federal, provincial and territorial human rights legislation. However, lawyers are exempted from much of this as professional workers, and law firms are not regulated as entities. This leaves a gap which regulators should fill. Further, the culture of the legal profession, including its highly competitive work environments, militate against women stepping forward to ask for help when they become, or as they continue to be, mothers.

It is clear that, in some workplaces within the legal profession, progress has been made for mothers. Several of Canada’s largest firms (“Bay Street firms”) not only have maternity leave policies but have have more recently introduced parental leave policies aimed at new fathers.

Law firms need to develop a culture of normalizing it for fathers to take the leave. And, much like the Bay Street firms have done with their female lawyers, firms need to provide support fathers to transition in and out of a leave period.

As women lawyers advance in their careers, to become partners, so the support for taking maternity or parental leave becomes even more precarious. Unable to receive EI and with varying levels of support from fellow partners, these lawyer mothers also need to contend with maintaining a client base. The comment that it is one thing to support a year-long maternity leave by an associate, who can be “loaded up” with work again once she returns, but it is quite another to hand over your clients to other partners to manage and expect that they will be returned. Supports need to be put in place for partner-level mothers.

The solution of regulated leaves with transparent policies needs to be accompanied by larger cultural shifts in how we perceive and treat parental leaves. Women interviewed in our study expressed relief and gratitude to have an opportunity to talk about the challenges they have faced. Within the profession, we need to end the silence and stigma around mothers’ experiences.

Further, caregiving needs to be re-conceptualized as work that is not necessarily gendered.

As Rebecca once wrote in a CBA publication, directing the comment to male lawyers: “change a diaper and change the world.” (Bromwich, 2011) Diversification of modes of performance of domestic labour can go a long way towards helping women advance in the legal profession. It may be that the current regulatory movement towards entity regulation holds promise for potential increases in mothers’ level of equality within the legal profession, In his widely read 2012 paper, Adam Dodek suggests that regulators should not wonder whether firms should be regulated but, rather, why firms are generally not directly regulated, and contends that there is a need to check the power of firms. Dodek writes: “the absence of law firm regulation creates a problem of legitimacy for Law Societies mandated to regulate the practice of law in the public interest.” Dodek’s arguments in favour of entity regulation are grounded in his survey of the regulation of other types of professional service firms (accounting, architecture, engineering, banking, and medicine) and his findings that all of them are subject to regulation as entities. (Dodek)

In Ontario, the Law Society of Ontario is currently reviewing the option of pursuing compliance-based regulation and entity regulation (Call for Input Consultation Paper: “Promoting Better Legal Practices” by the Compliance-Based Entity Regulation Task Force).

While there is some disagreement as to whether entity regulation is a necessary part of the process, there is broad support for compliance-based regulation. The idea that lawyers and firms should proactively adopt best practices can be supportive of mothers in the law. If firms were required to self-evaluate and report to the Law Society as to how they were meeting equality, equity and diversity goals, it would be a step in the right direction to removing the otherwise ad hoc nature of addressing parental leaves.

In 2016, LSO Bencher Joanne St. Lewis made a call for a diversity report card. And, as the Canadian Centre for Diversity and Inclusion writes, in its report, What Gets Measured Gets Done: Measuring the Return on Investment of Diversity and Inclusion, “Every organization is on a diversity journey” and the goal is to demonstrate that a commitment to diversity and inclusion is more than just lip-service.

The LSO's disputed diversity initiatives have been introduced for good reason. They are necessary and important.

A great deal of public attention has been attracted by lawyer mother Anne-Marie Slaughter’s book Unfinished Business (2015). As Slaughter realizes, in giving up some credit for childrearing, women can share the burden as well.The notion that care work is not necessarily gendered, like much of what Slaughter’s book contains, is not a particularly new idea. It is foreshadowed by queer theory, for example, (Jagose) and mirrored in much greater depth by motherhood scholarship within feminism (O’Reilly). Joan Brockman, in her book Gender in the Legal Profession (2001) made substantially the same point for which Slaughter is now being credited: for women to attain equality in the legal profession, perceptions of the role of women in the family also need to change. While child care remains disproportionately shouldered by women, is incumbent on male lawyers to engage themselves in conversations and advocacy about, as well as the work of, child care.

One of the things we can do to advance the equality of lawyer mothers is share more equally in childrearing and domestic labour, between genders and between spouses of either gender.

Conclusion:

Policy change at the regulatory and governmental as well as corporate levels, as well as cultural shifts within the profession and in how caregiving is valued and gendered in society are necessary to assure better levels of equality for mothers working in the law. Barriers mothers who are lawyers face are real. They remain in place. These barriers are not most concerning because they affect the mothers who form part of the statistical samples shown in various studies, or of the interviewees we spoke with in our qualitative study, but rather because it is the profession’s loss.

This spring, we cannot honestly tell talented first year law students, or the promising articling students and junior woman lawyers that we mentor, that the conditions they face will be better than those we walked into.

Diversity and inclusion initiatives are necessary, not just for those lawyers they directly benefit, but to the profession, whose loss it is if talented legal minds are not able to rise through legal work. Their absence is a loss for justice and it should not be condoned or continued.

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