Women and the Law: Is there Real Equality?

Fortunately for me, I was a product of the Whitlam years when feminism, multiculturalism and free education became a part of Australia's social fabric. I was a woman of Greek background, with working class migrant parents, and in previous years a University education would have been denied to me.

Life as a University student in the late 70's was a buzz and I really thought the world was my oyster when I got articles with Ryan Carlisle Thomas, one of Victoria's leading labour law firms. Some 30 years later I am still at Ryan Carlisle Thomas. I have been a partner since 1992 and two children later, I am able to reflect on how life has changed for women in the law.

The recent mini series on Ita Buttrose and the Cleo magazine brought back many memories of what it was like to be a woman in the professions all those years ago. Sleazy middle aged barristers thought that young female articled clerks were easy game and it was commonplace to be cornered in a court corridor by Counsel who thought that they were God's gift to women.

Women barristers were a rarity. I have a vivid memory of one very flamboyant female barrister who turned up to court one morning still wearing an outfit from a night on the town barely disguised by her wig and gown.

Female judges were even rarer and I honestly cannot remember appearing before one female Judge. There were no female partners in my firm or indeed in any other firm with which I was familiar.

Of course the reality now is very different with many female barristers, judges and partners in law firms, myself included. And yet even though women in the workforce have come so far, any close analysis shows how far we still have to go. Even if the statistics didn't show that women still face more barriers in work than men, anecdotally we can see that sexism is alive and well in the workplace.

The recent sexual harassment claim against David Jones is a case in point. What I think was most interesting about this case is the way it captured the public imagination. After all there is nothing so unusual about the allegations made against Mark McInnes (the former CEO of David Jones). Moreover, in the 80's no one would have batted an eyelid at such conduct (particularly not the barristers I referred to above) and I doubt whether the allegations would have ever found their way into court. Women back then just liked it or lumped it.

No doubt the level of damages sought ($37 million) contributed to the media frenzy. There is also little doubt that the fact that the complainant was a young attractive woman helped drive the publicity, and of course the media love any story that involves sex, power and money.

Despite the blaze of publicity, Kirsty Frazer Kirk reputedly settled for $850,000.00, much less than the $37,000,000.00 she was seeking. Even though the reputed settlement sum is still a great deal of money and anecdotally one of the highest settlements we have seen in this type of claim, it would be interesting to ask Ms Frazer Kirk in twelve months time if she thinks it was all worth it.

So whilst on the one hand it is disappointing that conduct such as that complained of might still exist in the workplace, one would hope that young women are less prepared to put up with it.

So how far have women come in the workplace and is equal pay for equal work any closer to becoming more a reality than it was in 1969 when women were granted the right to equal pay for equal work.

2010 ABS statistics The statistics also show that over the last four years the gender pay gap is increasing and if current earnings patterns continue, the average 25 year old male will earn $2.4 million over the next 40 years where the average 25 year old female will earn only $1.5 million. This is still a huge gap for women to be facing in the 21^st millennium.

For women in the law, it is not just the pay differential that hurts. Statistics show that despite huge gains, women lawyers are still failing to equal men in partnerships, at the Bar and on the Bench.

According to the Equal Opportunity for Women in the Workplace Agency, female graduates earn less than men from the day they start work and the gap widens through their careers even though the number of female law graduates now exceeds the number of male graduates.

Males are four times more likely than females to be appointed to partnership positions, according to the annual Lawyers Weekly partnership survey.

Statistics held by the Victorian Bar show that over the period 2003 to 2008 the number of government briefs going to women increased by 10 per cent, from 42 per cent of government briefs to 52 per cent, but the fees received by women for that work increased by only 7 per cent in real terms.

Female barristers briefed by a state government department received on average 59% of the fee paid to a male barrister and a female barrister briefed by the Victorian Government Solicitor's Office received on average 47 per cent of the fee paid to a male barrister.

The increased proportion of female barristers briefed by State Government departments was probably a direct reflection of Rob Hull's, the then Attorney General, policy of gender equality in the law, and some would say affirmative action, to ensure that more women judges were appointed and that Government departments briefed more women barristers.

Despite the very commendable intentions of these policies, it is interesting that sexism still has a way of overcoming the best of intentions. In other words, what possible explanation can there be for the fact that women barristers appear to have been paid less than their male counterparts.

This is either a reflection of the quality and complexity of the work given to women as opposed to men and this differential can only be accounted for by sexism or even worse, the Government thinks that it can get away with paying less to women for the same work.

It is also noteworthy that many female barristers who were briefed by Government Departments or Authorities in an endeavour to meet the then Attorney's expectations, were briefed as junior counsel and all too frequently they do little other than take notes or do research for Senior Counsel or if they were lucky, they were allowed to cross examine minor witnesses.

Women judges still only comprise less than 33% of all Judges and Magistrates throughout Australia with the ACT having the highest proportion of female judicial officers at 45%, Victoria the next best at 38% and Tasmania trailing at an abysmal 25%!

So even though statistics do not always tell the whole truth, these figures alone show how far women still have to go in the law. Having said that, I look back at my own experiences and apart from those early sleazy barristers who frankly didn't faze me at all, I can honestly say that not once in all my career have I felt that my gender has been a barrier.

Nevertheless, the law is still a profession where it is not easy for women to make choices and achieving a work/life balance can be very difficult. I still recall how it broke my heart to go back to work full time when my children were babies but I felt that I had no choice, even though looking back, I went back to work full time because of expectations I placed on myself and not because my partners expected me to do so.

The truth today is that both men and women are struggling with these choices and I believe that it is those work places which recognise and respect an appropriate work/life balance that will attract the brightest and best of our budding lawyers, whether they be men or women.