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References
Virginia G. Drachman, “My ‘Partner in Law and Life’: Marriage in the Lives of Women Lawyers in Late 19th and Early 20th Century America”,Law and Social Inquiry 14 (1989), 221, at 222; the quotation is from Lelia Robinson's letter to the Equity Club dated 22 May 1889. The Equity Club was established in 1887 and was open to all women law students, law school graduates and women practitioners.
The idea of gender as a “hidden” issue in law is addressed in R. Graycar and J. Morgan,The Hidden Gender of Law (Leichhardt, N.S.W. (Australia): The Federation Press, 1990).
Carrie Menkel-Meadow, “Exploring a Research Agenda of the Feminization of the Legal Profession: Theories of Gender and Social Change”,Law and Social Inquiry 14 (1989), 289, at 304.
Pat Armstrong and Hugh Armstrong, “Women, Family and Economy”, In Nancy Mandell and Ann Duffy, ed.,Reconstructing the Canadian Family: Feminist Perspectives (Toronto: Butterworths, 1988), 143, at 163.
Government of Canada, “Integration of Work and Family Responsibilities: Report on Strategies” (Annual Conference of First Ministers: 1989).
Women were admitted first in Ontario in 1897 and subsequently in other provinces in the first two to three decades of this century; however, women were not admitted in Quebec until 1941. See Cameron Harvey, “Women in Law in Canada”,Manitoba Law Journal 4 (1970–71), 9; Beverly Baines, “Women and the Law”, in S. Burt, L. Code and L. Dorney, eds.,Changing Patterns: Women in Canada (Toronto: McClelland and Stewart, 1988), 157; and Mossman, “Portia's Progress: Women as Lawyers, Reflections on Past and Future”,Windsor Yearbook of Access to Justice 8 (1988), 252. The efforts of Clara Brett Martin to gain entry to the profession in Ontario have been described in Constance Backhouse. “‘To Open the Way for Others of My Sex’: Clara Brett Martin's Career as Canada's First Woman Lawyer”,Canadian Journal of Women and the Law 1 (1985), 1.
See, for example, D. Stager and D.K. Foot, “Earnings and Employment of Female Lawyers”, (Unpublished paper: 1987), which reported that larger proportions of women lawyers were unmarried or divorced, by contrast with male colleagues; and Linda Silver Dranoff, “Women as Lawyers in Toronto”,Osgoode Hall Law Journal 10 (1972), 177. Similar patterns are evident in the United States: see Drachman,supra n.1; D. Kelly Weisberg, “Barred from the Bar: Women and Legal Education in the U.S. 1870–1890”, in D. Kelly Weisberg, ed.,Women and the Law, vol. II (Schenkman Publishing, 1982); and Ronald Chester,Unequal Access: Women Lawyers in a Changing America (South Hadley, Mass: Bergin and Garvey, 1985), reviewed by Mossman inCanadian Journal of Women and the Law 2 (1986), 178.
Cynthia Fuchs Epstein, “Faulty Framework: Consequences of the Difference Model for Women in the Law”,New York Law School Law Review 35 (1986), 309, at 332. Epstein has identified this phenomenon as “a result of the cohort effects of past discrimination.”
Judith S. Kaye, “Women Lawyers in Big Firms: A Study in Progress Toward Gender Equality”,Fordham Law Review 57 (1988), 111, at 126 (Emphasis added). The challenges faced by law firms in achieving an integrated workforce are similar to those facing major corporations, financial institutions, and government. Some of the statistics on women lawyers' places of employment suggest that these other employers are currently providing greater imagination and leadership on the work and family issue. See, for example, data on the employment of men and women in the Ontario legal profession inTransitions (Toronto: Law Society of Upper Canada, 1991), at 53–54 and Table 41. See also Deborah L. Rhode, “Perspectives on Professional Women”,Stanford Law Review 40 (1988), 1163; as she has suggested an understanding of the impact of gender in the legal profession could usefully “cast light on practices of wider application and the ideologies sustaining them.” In Canada, see “Touchstones for Change: Equality, Diversity and Accountability” (Canadian Bar Association Report on Gender Equality in the Legal Profession, 1993).
Dana Jack and Rand Jack, “Women Lawyers: Archetype and Alternatives”, in C. Gilligan, J.V. Ward and J.M. Taylor, eds.,Mapping the Moral Domain (Cambridge: Harvard University Press, 1988), as reproduced in Brettel Dawson, ed.,Women, Law and Social Change (Toronto: Captus Press, 1991), 129, at 141. For further discussion see Mossman, “Gender Bias and the Legal Profession: Challenges and Choices”, in J. Brockman and D. Chunn, eds.,Investigating Gender Bias in Law: Socio-Legal Perspectives (Toronto: Thompson Educational Publishing Inc., 1993).
Graycar and Morgan,supra n.3, at 6.
For an interesting discussion of some of these ideas about the nature of legal work, the impact of technology, and the role of women in the legal profession, see A. Esau and J. Penner, eds.,Lawyering and Legal Education into the 21st Century (Winnipeg: Legal Research Institute of the University of Manitoba, 1990), at 3–37.3
Joan C. Williams, “Sameness Feminism and the Work/Family Conflict”,New York Law School Law Review 35 (1990), 347, at 352–353.
Transitions, supra n.10, at 15.
TheTransitions report noted that these trends were consistent with those identified in research on women in the legal profession in the United States; for example, see Barbara Curran, “American Lawyers in the 1980's: A Profession in Transition”,Law and Society Review 20 (1986), 19; and Richard Abel, “United States: The Contradictions of Professionalism”, in Richard Abel and Philip Lewis, eds.,Lawyers in Society: The Common Law World, vol. I (Berkeley: University of California Press, 1988), at 203. The data available from other jurisdictions is similar; see, for example, Sharon Roach Anleu, “Women in the Legal Profession”,Law Institute Journal for Australia 162 (1992), and Susan Nott, “Women in the Law”,New Law Journal 139 (1989), 749 andNew Law Journal 139 (1989), 785 for the United Kingdom. There is an interesting assessment of the connections between paid work and family responsibilities in the context of cohabitees in Marcia Neave, “Living Together — The Legal Effects of the Sexual Division of Labour in Four Common Law Countries”, (1991), 17Monash Law Review 17 (1991), 14.
Menkel-Meadow,supra n.4, at 318. Menkel-Meadow also argues that women may offer a “transformative” vision to the legal profession, expressly adopting (at 290) Virginia Woolf's argument inThree Guineas: For if you [women] will agree to these terms then you can join the professions and yet remain uncontaminated by them; you can rid them of their possessiveness, their jealousy, their pugnacity, their greed. You can use them to have a mind of your own and a will of your own. And you can use that mind and will to abolish the inhumanity, the beastliness, the horror, the folly of war. Take this guinea then and use it, not to burn the house down, but to make its windows blaze.
Transitions, supra n.10, at 4 (Summary Report).
Williams,supra n.14, at 353.
Susan Moller Okin,Justice, Gender and the Family (U.S.A.: Basic Books, 1989), at 127. In her colourful language, she has suggested that there is a “systematically built-in absence of mothers (and presumably of ‘wimp like’ participating fathers) from high-level decisions”. ‘Wimp like’ participating fathers, according to those of whom Moller Okin is so critical, are fathers who take paternity leave and wish to be significantly involved in the care of their children. Clearly, Moller Okin supports the “choices” made by mothers and by such fathers, both of whom may often be regarded in the legal profession as less “committed” to legal work.
Eleanor Fox, “Being a Woman, Being a Lawyer and Being a Human Being — Woman and Change”,Fordham Law Review 57 (1989), 955, at 963.
The idea of gendered experiences for women and men has been recently explored in terms of feminist legal theory in Martha Fineman, “Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship”,Florida Law Review 42 (1990), 25; and Fineman, “Feminist Theory in Law: The Difference it Makes”,Columbia Journal of Gender and Law 2 (1992), 1. See also Carol Smart, “The Woman in Legal Discourse”, (Unpublished Lecture: Utrecht, 1991). between expectations of women as nurturers (a family-based role) and as competent lawyers in the workplace (at 1182–1183): Despite substantial progress toward gender equality over the last several decades, these gender stereotypes remain remarkably resilient. Females aspiring to nontraditional or high-status positions remain subject to a familiar double bind. Those conforming to traditional characteristics of femininity are often thought lacking in the requisite assertiveness and initiative, yet those conforming to a masculine model of success may be ostracized in work settings as bitchy, aggressive, and uncooperative.
Transitions Report,supra n.10, at 46 and Table 35.
Joan Brockman,Identifying the Barriers: A Survey of Members of the Law Society of British Columbia (Vancouver: Law Society of British Columbia Subcommittee on Women in the Legal Profession, 1991), 31–34. According to the report, “the second most frequent category of discrimination against women”, according to women (68.4%) and men (33.8%), was “lack of accommodation for family commitments” (Report, at 31), a perception which was reinforced in a more recent report undertaken by the Law Society of British Columbia (the Hughes Report); seeGlobe and Mail, September 12, 1992, at A1–A2. See also Joan Brockman, “‘Resistance by the Club’ to the Feminization of the Legal Profession”,Canadian Journal of Law and Society 7 (1992), forthcoming; and Joan Brockman, “Gender Bias in the Legal Profession: A Survey of Members of the Law Society of British Columbia”,Queen's Law Journal 17 (1992), 91. For a review of the Alberta context, see Joan Brockman, “Bias in the Legal Profession: Perceptions and Experiences”,Alberta Law Review 30 (1992), 747.
Rhode,supra n.10, at 1183–1184, citing
Rhode,supra n.10, at 1184. Some members of the profession have suggested that younger male lawyers may be more able to respond to the work and family demands because their legal education experience has been shared with female students on an equal basis; however, the survey reports of actual experiences of women lawyers suggest that this solution may be quite unrealistic, at least by itself, in resolving the work and family dilemma for the profession.
“Summary of Hearings”, Commission on Women in the Profession (Philadelphia: Schulman/De Simone: American Bar Association, 1988), 7; see also Martha W. Barnett, “Women Practicing Law: Changes in Attitudes, Changes in Platitudes”,Florida Law Review 42 (1999), 209, especially at 212 ff.
Williams,supra n.14, at 353.
Barnett,supra n.28, at 217, referring to testimony at the ABA Commission on Women in the Legal Profession. The testimony reflects, over and over again, the stress caused by competing demands of work and family for women lawyers, and includes numerous suggestions for responding to them as well as information about “solutions” which have been adopted in firms in the United States. For example, a large firm in Washington, D.C. has created an “on site” emergency childcare facility with licensed staff which is used by both men and women lawyers when their regular childcare arrangements “break down” unexpectedly; the firm has justified such an arrangement because it increases productivity for lawyers who are parents. See Hearings on Women in the Legal Profession, vol. I, at 218.
TheTransitions report suggested that women spent more than twice as many hours on childcare responsibilities as male lawyers; men averaged about 21 hours per week while the average for women was just over 47 hours per week. SeeTransitions, supra n.9, at 47 and Table 35.
Epstein,supra n.9, at 333.
Judge Judith Kaye,supra n.10, at 121. For another account of the experience of women lawyers who graduated in the early 1970's, and their views about the profession's failure to accommodate them, see Victoria C. Swanson, “The More Things Change”,Trial 26 (1990), 44. There is evidence of similar “choices” by new entrants to prestigious corporate positions also; see Barbara Lyne, “Women at the Top: Role Models or Relics?”, (New York Times: 27 September 1992) at F27. This description of women lawyers' “progression” from “pioneer” to “superwoman” to “examining the hard-won prize” probably more clearly describes the experience of white women lawyers; for most women of colour, as Jacinthe Herbert suggested in a critique of this paper, the stage of “pioneer” may be a more apt description at this time.
Epstein,supra n.9, at 334.
Monica Boyd, “Changing Canadian Family Forms: Issues for Women”, in Nancy Mandell and Ann Duffy, eds.,Reconstructing the Canadian Family: Feminist Perspectives (Toronto: Butterworths, 1988) 85, at 87. See alsoCanadian Families in Transition: The Implications and Challenges of Change (Ottawa: Vanier Institute of the Family, 1991).
Boyd,supra n.35, at 92. See also Carol Baines, Patricia Evans and Sheila Neysmith, eds.,Women's Caring (Toronto: McClelland and Stewart, Inc.: 1991).
Epstein,supra n. 9
SeeTransitions, supra n. 10, at 64–70; and Brockman,supra n. 25, at 31. As one respondent in theTransitions survey stated (at 77): The singularly most disappointing thing about the profession is its inability to change its perception of family life to accommodate the modern reality of working mothers and the need for both spouses to share in the development and nurturing of children and family life.
Patricia M. Wald, “Women in the Law: Despite Progress, Much Still Needs to be Done”Trial 24 (1988), 75. The article was adapted from her presentation to the American Bar Association Annual Meeting in Toronto, August 1988.
See Kingson, “Women in the Law say Path is Limited by ‘Mommy Track’”, (New York Times, August 8, 1988); see also Abramson, “For Women Lawyers, an Uphill Struggle”, (New York Times Magazine, March 6, 1988). As a number of authors have commented in relation to this suggestion, “women ... welcome the news that their employers will accommodate the demands of their home lives.... [However, a focus onwomen's roles alone] reinforces the perception that women have sole responsibility for the care of home and children.” See Susan Gluck Mezey,In Pursuit of Equality (New York: St. Martin's Press, 1992), 206.
Carrie Menkel-Meadow, “Women in Law? A Review of Cynthia Fuchs Epstein'sWomen in Law”,American Bar Foundation Research Journal (1983), 189, at 197.
Martha Freeman, “Writing Briefs and Changing Diapers”,California Lawyer 6 (1986), 36. For a trenchant critique of the “liberal legal concept of gender equality”, however, see Martha Fineman, “The Neutered Mother”,Miami Law Review 46 (1992), 301; as Fineman has argued (at 309): The unanticipated by-product of earlier liberal feminist attempts to achieve economic equality has been that the new images of Mother operate to disadvantage many women encountering the law in the context of nonmarket circumstances. Such women are caretakers, nurturers who live lives of dependency — their child's and their own — which is generated by their roles as Mother. The institutions with which they have to deal, the worlds of work and market, are places in which there are no mothers. Workers are motherless, neither having nor being a mother. The very gendered and Mothered lives most women live are not accommodated in the liberal concept of gender equality.
Epstein,supra n.9, at 334. Epstein's point about the subtlety of messages to women lawyers in the 1990's is an important one; and contrasts significantly with the experiences of women lawyers of earlier generations for whom there was often all too little subtlety in the treatment they received as members of the profession. Seesupra notes 7 and 8. However, not all women lawyers would agree that their more recent experiences in law schools and in private clubs, and in their recognition in terms of partnership, have changed significantly; sometimes, women lawyers continue to experience treatment which is anything but subtle on these occasions. For detailed accounts of the experiences of recent women entrants to the legal profession, see Brockman,supra n.25; theTransitions report,supra n.10; and the ABA Report on Women in the Legal Profession,supra n.30. As one respondent in theTransitions survey stated, for example (at 84): Misogyny, sexism and sexual harassment are often the norm and, surprisingly perhaps, not the preserve of older members of the profession. I suppose that eventually the profession will improve, but when I think of the disadvantage and pain that women have suffered, I know that any change has been purchased by women who have put their careers on the line and who often as not will never recoup for themselves what they have personally lost.
This issue is linked to the similar debate which has occurred with respect to sameness and difference in sex equality litigation both in Canada and in the United States, see Mary Eberts, “Sex-Based Discrimination and the Charter”, in A. Bayefsky and M. Eberts, eds.,Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985), 183, at 205–209. The decision of the Supreme Court of Canada inAndrews v.The Law Society of British Columbia, [1989] 1 S.C.R. 143 rejected the “similarly situated” approach to equality analysis, replacing it with one based on a concept of “disadvantage”; such an approach is consistent with work and family policies designed to meet the current needs of women lawyers, but which remain flexible to take account of future changes in parenting responsibilities and arrangements.
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Excellent research assistance by Michael Gardner and Elizabeth Nastasi at Osgoode Hall Law School is gratefully acknowledged. Research for this paper was originally undertaken for the Canadian Bar Association's Task Force on Gender Equality in the Legal Profession.
For reasons of length this article has been divided into two parts. Part Two: The Search for Solutions, will be published in the next issue of this Journal.
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Mossman, M.J. Lawyers and family life: New directions for the 1990's (part one). Feminist Legal Stud 2, 61–82 (1994). https://doi.org/10.1007/BF01117250
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DOI: https://doi.org/10.1007/BF01117250