Devil’s Advocate: Quotas: Should there

Quotas: Should there be Mandatory Diversity Quotas to Tackle Gender Inequality in the Legal Profession?

For  Olivia Tabbernal

Gender equality, or the lack thereof, is undoubtedly a lingering issue in the legal profession that requires addressing. The rate of women entering the profession has increased, with women representing over 50% of the total employees in law practices in New South Wales (NSW) in June 2020. However, systemic issues remain. The gender wage gap still persists, and women continue to be under-represented in senior roles and board positions. For example, only 32% of principals of NSW law practices are women as of June 2020.

In order to stimulate gender equality, diversity quotas should be implemented in the legal profession. Although often considered a temporary tool that may ultimately become redundant, diversity quotas provide a valuable step in the right direction.

Swift Solution & Expansion of Talent Pool The establishment of quotas often involves setting penalties for non-compliance. Therefore, quotas can help achieve gender equality in shorter timeframes, as firms aim to avoid any form of punishment. For example, Norway imposed a 40% minimum quota for publicly listed companies in 2006. Within two years of this, Norwegian companies were found to be exceeding the quota.

Further, imposition of diversity quotas has the effect of increasing the talent pool as it can force firms to conduct a wider search for candidates. This, combined with the effectiveness and quick impact of quotas means that female representation in the legal profession can increase substantially. This can also assist women in breaking the ‘glass ceiling’, overcoming stereotypes and biases, and securing higher roles in legal organisations.

Questionable Nature of Merit-Based Promotions in a Male-dominated Profession In theory, merit-based promotion seeks to eliminate bias and sexism. It focuses on promoting or appointing an individual based on their intellect and talent. However, in practice, merit-based promotion is questionable. Law firm culture is entrenched with male dominance, which has the effect of adversely impacting the career progression of women. ‘Merit’ is often determined within a culture where male leaders

A trickle-down effect of women’s increased representation can present younger women, who are new entrants in the legal profession, with female leaders and mentors.

choose to promote similar candidates as themselves. Given that the concept of merit is unmeasurable, quotas need to be implemented to enable merit-based promotion to be effectively assessed and analysed.

No Stigma & Positive Effects With a large quota in place, women can achieve mass representation. Consequently, women can feel included, and not marginalised. This further helps reduce negative stigma. A trickle-down effect of women’s increased representation can present younger women, who are new entrants in the legal profession, with female leaders and mentors. This can assist in reducing structural discrimination, help firms in achieving diversity and inclusion goals, and can consequently improve overall gender equality in the legal industry.

The legal profession must adopt quotas as an essential tool to achieve gender equality. Community standards are changing, and the industry must keep up and subsequently reflect community values to ensure success. Although highly debated, quotas provide the necessary platform for women to break the traditional male-dominated structure of law firms and achieve greater female representation in high level positions. Therefore, the drastic approach of mandatory diversity quotas is crucial to fast-tracking and achieving gender equality in the legal profession. Against  Abinaja Yogarajah

Approximately 50% of practising solicitors are women, but they account for 32% of principals at law firms. While the idea of affirmative action through imposition of diversity quotas could be a good solution to tackle these issues, they are not a panacea to all diversity-based issues in the industry.

Stigmatisation The stigmatisation of diversity quotas and quota-based recruitment is detrimental to achieving diversity and equality in the legal industry. Often, quota-based recruits are perceived as tokenistic or less qualified, and their achievements are quick to be dismissed. This can impact their ability to effect change in their organisation and can undermine the overall efficacy of diversity quotas. There is ample evidence to suggest that single women in senior management roles in law firms often experience marginalisation or feel delegitimised.

Golden Skirts Phenomenon Diversity quotas are redundant when they are not linked to a broader strategic vision for diversity. A notable example is when Norway imposed a mandatory quota in 2006 that required publicly listed companies to have 40% of board members as women. Due to a lack of qualified women, a select few women known as the ‘golden skirts’ ended up being burdened with board positions at several different organisations. Thus, quotas do not address the systemic issues at hand, and in this sense appear to be more of a band-aid solution. The CEO of Maddocks, Michelle Dixon, has also spoken on this matter and expressed her rejection of hiding behind numbers in order for an organisation to appear more diverse. She believes that senior management are responsible for cultural change, and without this leadership and accountability, it is difficult to bring about real and meaningful change in an organisation.

Quotas In Junior Roles Implementing bare diversity quotas into an organisation ignores inclusion. Diversity quotas do not necessarily foster inclusion of candidates from different backgrounds and perspectives. Moreover, when given a diversity quota, law firms could mechanically apply these numbers and seek to fulfil these quotas with recruits in junior roles. This would mean that firms would not need to give individuals from diverse backgrounds any voice in decision-making processes, nor consider any new perspectives. There is little an intern, clerk or graduate can do to challenge the status quo. Yet, this enables companies to advance their PR efforts and, in some instances, it merely serves as additional marketing material. In 2019, more than 170 General Counsels and Chief Legal Officers drafted an open letter urging for greater diversity in corporate partnerships. Here, they expressed their frustration ‘that many law firms continue to promote partner classes that in no way reflect the demographic of entering associate classes.’

Framing Diversity Efforts Organisational change is always difficult. The semantics used to describe affirmative action plans or diversity quotas matter. The way these efforts are framed in an organisation contributes to how they will be perceived. For instance, simply stating that certain groups are underrepresented typically incites negative sentiments. The Institute for Gender + The Economy delved into the diversity quota debate and considered psychological research which showed that when a task is being forced upon an employee, they become less motivated due to its association with coercion. In applying this theory to diversity quotas, they found that the external pressure imposed by such quotas had a negative impact on the perception of women recruited via quotas, even amongst the employees who ordinarily believe in furthering diverse and inclusive workplaces.

Single Factor Quotas The issue of intersectional diversity and inclusion is often ignored when diversity quotas are imposed on an organisation. Quotas based on single factors such as gender ignore the complex systemic problems that society faces. In the wake of the Black Lives Matter movement, many companies provided assurances and instituted targets to increase the representation of people of colour in their recruitment. While these are certainly stepping in the right direction, many diversity efforts were narrow and failed to consider the intersectional diversity issues faced by people from underrepresented communities.

“While these are certainly stepping in the right direction, many diversity efforts were narrow and failed to consider the intersectional diversity issues faced by people from underrepresented communities.