Vol. 10 No. 1 (January 2000) pp. 60-64.
GENDER, CHOICE AND COMMITMENT: WOMEN SOLICITORS IN ENGLAND AND WALES AND THE STRUGGLE FOR EQUAL RIGHTS by Hilary Sommerlad and Peter Sanderson. Brookfield, VT: Ashgate Publishing Company, 1998. 348 pp.
Reviewed by Sally J. Kenney, Humphrey Institute of Public Affairs, University of Minnesota.
Why do law firms in England and Wales have so few women partners? It is not because the pool is small. Women flocked to the profession in the 1970s and 1980s. They were 44% of new admissions to the bar in 1986 and surpassed men (52%) in 1992 (p. 106). The evidence is overwhelming that women solicitors have a very different career trajectory than men. Sommerlad and Sanderson's book refutes the explanation for this difference that has the greatest hold among labor market theorists, and, perhaps even more importantly, the male senior partners who control law firms, namely, human capital theory. According to this argument, women who plan to marry and bear children choose to invest fewer resources in their legal careers and are thus less competitive in the market. Discrepancies in rates of promotion, vast differences in remuneration, and major differences in numbers of men and women leaving the profession altogether are not, therefore, the result of discrimination or other barriers but rather are caused by qualities intrinsic to individual women themselves. Women's preferences and choices produce their human capital deficits. Sommerlad and Sanderson offer an alternative account: differences in men's and women's career trajectories are not merely the result of individual employers' intentional acts of prejudice, the narrow definition of discrimination. Instead, they are the result both of what Pierre Bourdieu calls the juridical field, that is to say, the ethos and culture of law, and the social field with its gendered expectations about who is responsible for domestic labor.
The book is a comprehensive analysis of women in the legal profession that draws on secondary literatures in history, labor economics, sociology of the professions, and feminist theory, and gives voice to women solicitors themselves. The authors synthesize these literatures to produce a sophisticated analysis that advances our understanding of women's career patterns and the legal profession itself in important ways. They recount the judicial decisions interpreting statutes and common law to exclude women from admission to legal study and the practice of law, the so-called "person cases," and survey the legislation that removed the formal barriers to women practicing law, rightly theorizing exclusion as a process rather than a singular historical event. They describe women's entry into the legal profession and their early experiences. They go on to advance the argument that the very nature of law itself is male and patriarchal. This is well-traveled terrain; however, the authors snappily summarize it. The bulk of the book is devoted to reporting the results of a longitudinal panel study of women solicitors in large commercial firms -- new findings
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that make a valuable contribution to what we know about women and work and the legal profession. The authors' distilling of responses to questionnaires and interviews reads more like ethnography than a dry reportage of numbers, and they expertly weave direct quotations from the women respondents with legal theory throughout.
Although more women than men in the United Kingdom enter legal studies, which is an undergraduate degree with some post-graduate training followed by an apprenticeship known as "articles," and are admitted to legal practice, many do not stay in the profession. In the late 1980s, a predicted shortage of solicitors and a commercial property boom led the Law Society, the profession's controlling body, to commission a study of why women solicitors left the practice of law in higher numbers than men and what might woo them back. Such concern was short lived. The recession left law firms more concerned with ridding themselves of solicitors rather than retaining them. Moreover, the early data pointed to the ethos, working practices and career structure of the profession rather than some rectifiable flaw in the women themselves as the culprit, which generated no quick fix. In 1994, however, the Law Society did support a follow-up study using the same methodology but using a smaller random sample of the original cohort: women who had practiced continuously, left the profession altogether, or returned after a break. Senior partners were also surveyed about their employment practices and experiences. The 1994 study showed women much more pessimistic about their prospects and more negative about the profession itself than those same women had been in 1990. In 1996 and 1997, the authors supplemented these data with 47 in-depth phone interviews. They also drew on additional data collected by recruiters, those who trained returners, the Association of Women Solicitors, Local Law Societies, and model employers. They discuss their sample and methods and their limitations in a lengthy appendix.
Sommerlad and Sanderson deconstruct both the idea of merit and commitment to reveal both to be deeply gendered social constructions despite the ideal of neutral objectivity that employers say guides their behavior. The gender gap in what senior partners describe and what women solicitors report is reminiscent of the gender gaps in responses to questions asked by gender bias taskforces in the U.S. and leaves one wondering, not if men are from Mars and women from Venus, but whether they are currently on the same planet. Sommerlad and Sanderson demonstrate that merely dismantling formal barriers does little to integrate the profession. Although nearly all solicitors have a degree in law and legal training has moved away from an exclusive reliance on apprenticeship and more toward professional educational standards, women have not been able to translate their higher scores on objective law school examinations into job offers and promotions (p. 105). First, women solicitors are dependent on senior men to give them work and show them the ropes. Although the authors demonstrate the willingness of some firms to hire smart but more importantly attractive young women to parade around at events, such women are disproportionately unlikely to secure a mentor whose sponsorship is necessary if they are to advance.
Second, the authors use the data from questionnaires and interviews to develop their argument that the current practice of law is less about the deployment of expert knowledge and more about social relations. It is important to note for non-
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British readers that the legal profession is bifurcated. Solicitors locate and interact with clients and represent them in court for minor criminal or civil matters as well as handle the bulk of commercial transactions. Barristers, in contrast, specialize in oral advocacy and are retained by solicitors rather than directly by clients. All members of the higher judiciary are drawn from Queen's Counsel, the elite of the Bar. Each has an apprenticeship system, pupilage to become a barrister and articles (for articled clerks) to become a solicitor. Many women and progressives interested in the law choose to be solicitors because becoming a barrister involves extensive dining in one of the four Inns of Court, quintessential gentleman's clubs. To attract clients, male solicitors join clubs -- often ones that permit only men to be members, entertain them at sporting events and the horse track, and wine and dine them. The Masons, the Rotary Club, the rugby field, the golf course, and the pub are the places of business cultivation. Rather than including women in these activities or bypassing clubs that exclude women, law firms have established two-tiers of employment.
The "front-men" are the schmoozers who may know little law. They become equity partners. The "back room girls" do the legal work rather than have "front time" with the client. They join the growing ranks of assistant solicitors and, if they are lucky, salaried partners (permanent associates in American parlance)--an institution some argue was designed exclusively to contain the advancement of women. Guess who earns more money? Paradoxically, senior partners recognize the importance of client development (where the deck stacked against women) while simultaneously maintaining that merit is the sole criterion for promotion within firms.
Although women are disadvantaged from the first stage of securing an interview onward, although they are more likely to be hired for their appearance than their scholarly accomplishments and then passed over for a man who is more likely to be "one of the lads," and although women are denied the opportunities and mentoring necessary for them to excel, the real turning point comes when they want to marry and have children, to be less than totally available for the firm. During the recession, many women solicitors were laid off while they were on maternity leave. Virtually all the respondents reported that once they had a child, their commitment to the firm was continually called into question, they were given less valuable work, they were less likely to be reimbursed for client development costs, and even secretaries were less likely to provide them with support. Requests for part-time work are routinely denied, or one is removed from equity partner track, as are all requests to use new technologies to do work at home. Human capital theorists explain this phenomenon as women's choice to invest in home rather than work not firms forcing them out.
Sommerlad and Sanderson deconstruct the gendered meaning of commitment. Their argument parallel's Vicki Schultz's (1990) analysis (of the Sears, Roebuck employment discrimination case) of the role employers play in shaping the motivation, aspirations, and ambition of employees rather than merely taking them as given and fixed when employees first enter the workplace. Sommerlad and Sanderson show that once she has had children, it is virtually impossible for a woman to demonstrate that she is committed to her firm and the practice of law yet becoming a parent in no way undermines how firms conceive of male solicitors. Commitment, then, is a social construct deployed to
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devalue women solicitors rather than an objectively measurable human capital difference between men and women. Like most practices and policies that would benefit women, rethinking the emphasis on face time (valuing being seen sitting at your desk all night rather than evaluating the quantity or quality of work produced) and thinking through the psychological and social repercussions of employees devoting all of their leisure time to entertaining prospective clients, rather than to family life, would be of benefit to men as much as women as the voluminous literature on work and family attests. The cumulative effect of Sommerlad and Sanderson's account is grim. Not only is the profession not being feminized, as one might argue by looking at the numbers of newly-qualified solicitors, but women are firmly being shut out of the higher echelons. These positions are more lucrative and give them more decision-making power in the organization. Sommerlad and Sanderson's study lends support to those who were skeptical of Rosabeth Moss Kanter's prediction that male culture might wither away in the professions as the numbers of women moved from token to minority to parity in large organizations. The result of the influx of women may be the opposite. The threat to the very identify as law as a masculine endeavor may trigger even more virulent opposition, a finding supported by the evidence in this book. Inextricably connected to what goes on in the public world of work is the private world of the family. Although women solicitors as a privileged group of women may have full-time help and supportive partners, the men in their firms perform virtually no domestic labor as they spend all of their time billing hours or developing clients. Sommerlad and Sanderson draw on Carole Pateman's concept of the sexual contract to demonstrate convincingly how the private and public spheres are mutually constitutive. Even if firms offered maternity leave, part-time work, flextime, and some homework, and women could obtain quality affordable childcare, the private sphere must change, too, for women to obtain equality. Until we renegotiate the sexual contract of domestic labor, women will be disadvantaged in both spheres. Nonetheless, it is shocking how little firms are willing to do to accommodate skilled women workers, even, as the respondents report, by merely complying with existing laws.
The argument is convincing and well supported by the interesting evidence collected. The book deserves criticism, however, for the repetition of the argument. The authors reassert their points, particularly the argument against Hakim's human capital theory, over and over and over. The evidence does support the argument, and I am persuaded, but merely repeating the points does nothing to persuade the unconvinced and numbs the minds of the sympathetic. The length could be cut considerably (the text is nearly 300 pages) without sacrificing the richness of the quotations or the useful elaboration offered by the skillful use of history, sociology, economics, and legal and feminist theory. Another criticism I have of the text is that the valuable data that are presented are actually not easily retrieved--important numbers are embedded in the narrative or merely alluded to by citation rather than set off by figures and tables in an orderly fashion.
What does choice mean for employed women when they are mothers and their partners perform no domestic labor? What does choice mean when their employers, who could easily pro-rate
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billable hours or allow them to install a fax to work at home when their children are asleep, refuse to accommodate any commitments other than to the firm? What does choice mean when women confront a culture of drinking and sports and male-only clubs as the only path to obtaining clients? What do choice and commitment mean when women watch less able men rise above them, earn more money, and enjoy more interesting legal work? When women can also see the numbers of women partners carefully kept to a minimum so as to not endanger the reputation of the firm? By carefully attending to the experiences of women solicitors in England and Wales in commercial firms over the course of the 1990s and deconstructing concepts such as merit, commitment, and choice, Sommerlad and Sanderson have made an important contribution to understanding the gendered nature of the legal profession, women's entry into the professions as a whole, and the persistence of women's subordination more generally.
REFERENCE:
Schultz, Vicki. 1990. "Telling stories about women and work: judicial interpretations of sex segregation in the workplace in Title VII cases: Raising the lack of interest argument." HARVARD LAW REVIEW 103:1749-1843.