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The Fragility of the Flexible Contract: How Technology is Widening the Gender Gap

The Fragility of the Flexible Contract: How Technology is Widening the Gender Gap

 

Brigitte Samaha

Bachelor of Laws V


I.               Introduction

 

Jodie is in the office of her eastern suburbs home. Sitting down at her computer, by a window looking out onto leafy genteel streets, she begins to type. For the next two hours, Jodie will turn the documents; revise agreements and return emails – and then, at three o’clock, Jodie will join the party of mums picking their children up from school.

At first blush, Jodie exemplifies the work-life balance – a perfect and discrete allocation of time and priority for the busy working woman. This balance is effected through technology; email, FaceTime and cloud software, which keeps Jodie connected to corporate clients anywhere in the world, 24 hours a day. As the internet erodes the temporal and physical barriers between self and work, the flexible arrangements it facilitates are often heralded as the ‘golden ticket’ for women in the law.[i]

As the internet erodes the temporal and physical barriers between self and work, the flexible arrangements it facilitates are often heralded as the ‘golden ticket’ for women in the law.

In spite of these arrangements, every year women continue to leave the profession in droves. In 2015, 59% of new solicitors were women, however few will go on to achieve admission to senior ranks.[ii] In 2017, only 25.2% of partners at major national firms are women.[iii] The aggressive competition of these elite firms has, by explicit or implicit means, resulted in a policy of ‘up or out’ whereby senior associates who fail to make partner within a certain time must leave.[iv]

This essay interrogates firstly, the notion that technology empowers women in the legal profession, and secondly, the attendant presumption for flexible arrangements.  For beneath this crystalline solution, lies the much deeper contest between the neoliberal demands of the firm and the social needs of the home. That is a contest waged for decades with antecedents rooted in our very conception of what, and who, is appropriate for work.

 

II.            The ideal worker in the age of hyper-competition

 

The law firm, like any organisation, reflects a set of relational principles. When we enter the firm, we contract into a professional culture which demands we suspend or forfeit our lives for the overriding interests of the firm, and its economic imperatives.[v] The hypercompetitive culture of the firm is simply seen as ‘part of the deal’ – what we commit to for the intellectual and financial benefits of belonging to an elite firm.[vi]  This contract appears democratic because, in theory, its terms are publically disseminated and its objects are commercially framed. After all, it is presumed that the market  sees only rational utility, not gender or race.

Contrary to appearances, that contract has always been positioned on masculine terms.[vii] Since the Industrial Revolution, society has enshrined a model of the working husband and his economically inactive wife.[viii] This model is perpetuated in modern times because it is still more socially and economically rational for men to be in full time employment, while women pursue motherhood. Even when women are in the workforce, their existence is often made contingent on fixing the ‘problem’ of child care and familial responsibility which are principally conceived of as ‘women’s issues’.[1] In this way, women are antithetical to the terms of the contract which privileges the overzealous worker, unencumbered by duties outside the firm.

 This notion of what constitutes the ‘ideal worker’ is ever more prescient today, in the age of technological innovation. Technology is having a profound impact on the organisational culture of the firm and  displacing the traditional role of the lawyer. Predictive coding, smart contracts, and e-discovery have automated the review and transmission of information, transforming the labour based profession. The specialised knowledge once held in law is increasingly democratised by online software available to accounting and techno-legal firms outside the customary delineations of what constitutes ‘law’. These technologies, among others, have occasioned in clients an expectation of greater efficiency at a lower cost, at the same time, amplifying the contestability of the market.[x]

Technological changes have therefore deepened the fundamental conflict between the neoliberal demands of the firm and the social needs of the home. In a hypercompetitive market, so too must the subjects compete fiercely against each other for survival and success.[xi] At elite firms, employees strive to position themselves as ‘near-heroic servants, zealous service providers’ for whom working around the clock is seen as a ‘badge of honour’.[xii]  This ideology privileges the worker who has become more machine than human; who discharges results with robotic efficiency unencumbered by any duties outside the firm.[xiii] The dictates of hypercompetition have circumscribed that ideal worker ever more narrowly in the shape of a man.

 

III.           Flexible work – a perfect solution?

One popular solution for remedying the gender imbalance in the legal profession is the provision of flexible working arrangements.[xiv] In theory, flexible work allows women to shoulder the same working commitments, but in temporal and physical arrangements better suited to the needs of motherhood. Women are therefore able to stay at home attending to their children, while still completing work assignments. Technological innovation has facilitated this arrangement, through a newfound capacity to remotely access  work and connect with colleagues online.[xv]

Despite the fact that 89% of Australian firms offered flexible work in 2014, only 6% of respondents in a study completed by Thornton indicated that they presently had a formal flexible arrangement (16% worked part time).[xvi] Given the praise for flexible work, there is a clear gap between intention and reality. 

The reality is that flexible working arrangements, no matter how effective, cannot defeat the ideological imperatives long existent within our institutions. It is precisely the cultural roots of the Industrial Revolution that exacerbates the female condition in an age of hypercompetition, and informs the present stigma against flexible work today.

Compared to the heroic masculine conception of the ideal worker, a woman who undertakes flexible arrangements is stigmatised as lacking commitment to the firm.[xvii] This stigma highlights the incongruence of women in the modern workplace, because flexible workers cannot participate in the 24/7 over-commitment to the firm, which is the hallmark of the ideal worker. Despite the rhetoric, it is well established that presence, visibility and facetime are crucial to reward in the legal profession.[xviii]   Therefore when men are present in the office, this implicitly affirms the expression of normative masculine traits; acute individualism, strong ambition and hard work. On the other hand, when women are absent because of a flexible working arrangement, this affirms an assumption about the traditional traits of women; empathy and caring. [xix]

The negative repercussions of undertaking flexible work are manifold. Thornton has found that women stigmatised by flexible work are ‘no longer viewed as fully committed’ and have been placed on the ‘mummy track’.[xx] Uelmen stated that it was often a form of ‘professional suicide’.[xxi] Women interviewed found themselves precluded from superior assignments, occasioning a slowdown in their career advancement.[xxii]

Not only does flexible work disadvantage women through stigmatisation, but it also undermines the practical benefits which accrue from being in the office with access to mentors and influential business networks.

Where intra-firm competition is so high, informal networks between colleagues significantly aid one’s chances of promotion and inform the development of “partner skills”.[xxiii] Women who are absent from the office are precluded the opportunity of signalling to colleagues their commitment and likeability, and therefore their suitability for partner. This is a strong factor enshrining the gender imbalance in the senior ranks.

Above all, the most surprising aspect of the stigma is that, according to Australian research, flexible workers are the most productive members of the workforce.

On the other hand, a powerful stigma also attaches to men who undertake flexible work, making the problem even more intractable. When men choose some degree of flexibility – for example, enough to pick their children up from school – that may merely engender the notion of being a “good dad” or a “family man”. However, were a man to undertake the extent of flexible work usually fulfilled by a woman, he may be stigmatised because of the feminised connotations of caring. Attendant to this stigma, are a range of traits such as vulnerability, weakness and emotion which are seen as antithetical to the culturally resonant conception of a powerful high status male lawyer.[xxiv]

Above all, the most surprising aspect of the stigma is that, according to Australian research, flexible workers are the most productive members of the workforce.[2] That fact leads ultimately to the conclusion that the stigma against flexible work attaches purely because of gendered stereotype and assumption.[xxv] It seems then, irrespective of radical technological advances, the banal sexism undergirding the glass ceiling remains firmly in place. It is the cultural and attitudinal undercurrent which cements men at the top of the professional apex, where power and status coalesce.

 

IV.          The end of the road?

Jodie is in her home office reading the AFR. On the front page, she sees Andrew’s deal – a $235 million merger putting him straight on the fast track to partner. She turns the page, and places her hand on her stomach with a flutter of anticipation. She thinks about returning to the firm full time. Then she turns to look into the deep bright space of the mirror and wonders about secondment.

 

 

References

[i] The Law Society of New South Wales, ‘Flexible Working’ (Report, The Law Society of New South Wales, 2012)

 

[ii] The Law Society of New South Wales, Gender Statistics (2015) The Law Society of New South Wales < https://www.lawsociety.com.au/ForSolictors/AdvancementofWomen/GenderStatistics/index.htm>

[iii] Misa Han, ‘Allens Lawyer promoted while on maternity leave’, Australian Financial Review (online), 6 July 2017 <http://www.afr.com/business/legal/allens-lawyer-promoted-while-on-maternity-leave-20170626-gwyfp3>

[iv] Margaret Thronton, ‘The Flexible Cyborg: Work Life Balance in Legal Practice (2016) 38(1) Sydney Law Review 1.

[v] Eli Wald, ‘Glass Ceilings and Dead Ends: Professional Ideologies, Gender Stereotypes, and the Future of Women Lawyers at Large Law Firms’ (2010) 78(5) Fordham Law Review 2245, 2271.

[vi] Richard Collier, ‘Naming Men as Men in Corporate Legal Practice: Gender and the Idea of “Virtually 24/7 Commitment” in Law’ (2015) 83(5) Fordham Law Review 2387.

[vii] Ibid.

[viii] Margaret Thronton, ‘The Flexible Cyborg: Work Life Balance in Legal Practice (2016) 38(1) Sydney Law Review 1.

[ix] Beatrix Campbell, The End of Equality: Manifestos for the 21st century (Seagull books, 2014)

[x] Guy Betar, Interview with Danny Gilbert and Dr Phillipa Ryan (Panel Interview, 13th October 2017)

[xi] Margaret Thornton, ‘Hypercompetitiveness or a Balanced Life? Gendered Discourses in the Globalisation of Australian Law Firms’ (2014) 17(2) Legal Ethics 153.

[xii] Eli Wald, ‘Glass Ceilings and Dead Ends: Professional Ideologies, Gender Stereotypes, and the Future of Women Lawyers at Large Law Firms’ (2010) 78(5) Fordham Law Review 2245, 2271.

[xiii] Ibid.

[xiv] Katie Walsh and Edmund Tadros, ‘Law firms embrace flexible working’, Australian Financial Review (online), 9 February 2017 <http://www.afr.com/business/legal/law-firms-embrace-flexible-working-20170203-gu4rsa>

[xv] Margaret Thornton and Joanne Bagust, ‘The Gender Trap: Flexible Work in Corporate Legal Practice’ (2007) 45(4) Osgoode Hall Law Journal 787.

[xvi] Margaret Thronton, ‘The Flexible Cyborg: Work Life Balance in Legal Practice (2016) 38(1) Sydney Law Review 1.

[xvii] Savita Kumra, ‘Busy Doing Nothing: An Exploration of the Disconnect Between Gender Equity Issues Faced by Large Law Firms in the United Kingdom and the Diversity Management Initiatives Devised to Address Them’ (2015) 83 Fordham Law Review 2277.

[xviii] Margaret Thronton, ‘The Flexible Cyborg: Work Life Balance in Legal Practice (2016) 38(1) Sydney Law Review 1.

[xix] Richard Collier, ‘Naming Men as Men in Corporate Legal Practice: Gender and the Idea of “Virtually 24/7 Commitment” in Law’ (2015) 83(5) Fordham Law Review 2387.

[xx] Margaret Thronton, ‘The Flexible Cyborg: Work Life Balance in Legal Practice (2016) 38(1) Sydney Law Review 1, 10.

[xxi] Amelia J Uelmen, ‘The Evils of “Elasticity”: Reflections on the Rhetoric of Professionalism and the Part-Time Paradox in Large Firm Practice’ (2005) 33(1) Fordham Urban Law Journal 81 quoted in Margaret Thronton, ‘The Flexible Cyborg: Work Life Balance in Legal Practice (2016) 38(1) Sydney Law Review 1, 10.

[xxii] Ibid.

[xxiii] Savita Kumra, ‘Busy Doing Nothing: An Exploration of the Disconnect Between Gender Equity Issues Faced by Large Law Firms in the United Kingdom and the Diversity Management Initiatives Devised to Address Them’ (2015) 83 Fordham Law Review 2277.

 

[xxiv] Richard Collier, ‘Naming Men as Men in Corporate Legal Practice: Gender and the Idea of “Virtually 24/7 Commitment” in Law’ (2015) 83(5) Fordham Law Review 2387.

[xxv] Margaret Thronton, ‘The Flexible Cyborg: Work Life Balance in Legal Practice (2016) 38(1) Sydney Law Review 1.

[1] Richard Collier, ‘Naming Men as Men in Corporate Legal Practice: Gender and the Idea of “Virtually 24/7 Commitment” in Law’ (2015) 83(5) Fordham Law Review 2387.

[2] Margaret Thronton, ‘The Flexible Cyborg: Work Life Balance in Legal Practice (2016) 38(1) Sydney Law Review 1.