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The ‘gender flex gap’ in law

This Equal Pay Day (25 August), two BigLaw firms have called on the legal profession to continue working towards gender equality targets and emphasised the value of flexible working for women in law.

user iconLauren Croft 25 August 2023 Big Law
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Equal Pay Day marks the 56 days into the new financial year Australian women work to earn the same, on average, as men did last year. In light of this, the Workplace Gender Equality Agency (WGEA) has urged employers to eliminate the barriers of bias, discrimination and entrenched gender stereotypes that devalue women and their work and drive the gender pay gap.

This comes after recent WGEA data showed that in the private sector – including private practice law firms – the gender pay gap stands at 22.8 per cent.

Despite female solicitors continuing to outnumber their male counterparts and dominating in every area of the legal profession, the gender pay gap still exists in law, with many indications that women are leaving the profession earlier than men, who make up the majority of leaders within the profession.


President of the Law Society of NSW Cassandra Banks said that the organisation would continue to work on guidance for firms to implement gender equality initiatives effectively, following concerning data in the 2022 Annual Profile of Solicitors NSW report.

“As illustrated by the [report] the gender pay gap persists within the legal profession. For example, for the third year running, nine per cent more men than women in the solicitor profession received income in excess of $150,000 p/a. That said, there has been a modest increase in the proportion of women occupying practice leadership roles,” she said.

“Effective law firms recognise that gender equality makes sense both as a value and a business imperative. That includes ensuring that flexible workplace practices don’t result in unintended consequences for those who access or rely on these arrangements.”

From 2024, WGEA will publish the gender pay gap for employers with a workforce of 100 or more employees – and CEO Mary Wooldridge said that “the gender pay gap in Australia is a persistent and pervasive issue that undermines women’s earnings”.

“When it comes to the gender pay gap, you cannot fix what isn’t being measured,” Ms Wooldridge said.

“Publishing gender pay gaps is part of a much-needed, targeted strategy to tackle gender inequality through increased transparency and action.”

At Maddocks, women comprise almost 70 per cent of the firm and represent over 70 per cent of the senior lawyer cohort. Speaking to Lawyers Weekly ahead of Equal Pay Day, partner and diversity and inclusion executive champion Alicia Albury said the firm was committed to working with WGEA and “the broader legal industry to address the gender pay gap”.

“For Maddocks, the business case for gender equality is clear. Employers that promote gender equality have improved productivity and economic growth, increased organisational performance and an enhanced ability to attract and retain staff. As the number of women in our partnership has increased, so too has the firm’s size and revenue growth.

“We review our pay and promotion decisions in line with our commitment to equal pay. We take deliberate and intentional steps such as having structured salary bands in place for all levels of legal staff up to partner, utilising psychometric testing to assess candidates objectively, having specialist talent management expertise in the firm to help coach and guide hiring partners and managers to ensure gender bias does not occur,” she added.

“One of the areas that requires greater commitment from all firms is the advancement and retention of female counsel. We took the deliberate step of working to raise the profile of female junior counsel in June 2020 by launching a campaign called ‘Lifting the Bar’ to enable people to get to know leading female barristers across different areas of practice. We are currently working on an update of this campaign.”

Gender equality is a “fundamental pillar of modern society”, agreed Gadens head of people and development Lisa Eskander.

“It is not just an aspirational goal; it is a crucial necessity for a just and inclusive society. Legal professionals play a pivotal role in shaping laws and policies. When gender equality is front and centre, legal professionals can advocate for legal reforms that address gender-based discrimination, violence and inequality, positively impacting society as a whole.

“Gender equality ensures the legal profession mirrors the diverse population it serves. A gender-equal legal profession includes perspectives from all genders, fostering a balanced and nuanced understanding of legal issues. More diverse perspectives and experiences foster deeper understanding of clients’ needs and more comprehensive legal analyses, problem solving and innovation, and equitable solutions,” she said.

“Gender equality in legal leadership positions provides crucial role models for aspiring lawyers, particularly women. Female leaders inspire confidence and ambition, encouraging more women to enter the legal profession and pursue leadership roles. A gender-equal legal profession is less likely to tolerate gender-based harassment and discrimination. It creates an environment where all legal professionals can work free from biases and stereotypes, ensuring that talent is valued over gender.”

Flexibility key moving forward

Earlier this year, Lawyers Weekly’s Legal Firm of Choice Survey showed that women and junior lawyers were among the most likely to leave their firms. This came after law firm leaders emphasised the importance of flexibility, particularly for working parents, as female lawyers are more likely to face the “motherhood penalty” and be disproportionately impacted by inflation, with some saying the traditional nine-to-five is “redundant” and “sexist”.

Now, new research from Diversity Council Australia (DCA) has pointed to a “gender flex gap” of 15 per cent.

Early data from DCA’s upcoming 2023 Inclusion@Work report has revealed only 57 per cent of men reported using flexible work options in the past year compared with 72 per cent of women, figures that have remained stagnant since 2019.

Flexible working conditions are important for those with caring responsibilities, which disproportionately fall to women. As such, the DCA said that an uptake in men accessing flex work to take on more caring duties is a crucial step in achieving pay parity.

According to the 2023 data, the flex work gap appears to be driven by a stigma on men accessing flexible work options typically viewed as “feminine” or associated with care work.

While all flex workers are more likely to face discrimination and harassment at work than those who don’t, men who accessed flex work in the form of reduced hours were more likely to face negative treatment than women (37 per cent versus 24 per cent), according to the report.

According to DCA CEO Lisa Annese, Australian workplaces must do more to destigmatise accessing flexible working conditions and encourage men to “share the care”.

“Better access to flexible working conditions don’t only make workplaces more accessible for carers, they also help to encourage men to take on more caring duties, which we know disproportionately fall to women,” she said.

“In order to address Australia’s gender pay gap, we need to address the gender flex gap. Workplaces play a significant role in addressing the gendered stigma on flex work and encouraging their employees to share the care.”

Maddocks diversity, inclusion and wellbeing senior manager Marita Pascoe said that while full-time staff at the firm are required to be in at least three days a week, the firm has implemented a number of flexible working policies.

“A longstanding part of our [parental leave] policy has been for people returning from extended periods of parental leave to transition in a phased way and this has extended to the way we approach budget relief for senior lawyers. This, combined with our caretaker partner policy, has tried to breakdown obstacles for progression and advancement for senior women returning to the workplace. We have multiple examples of women who have been promoted either to senior associate, special counsel or partner while they have been on parental leave,” she said.

“Providing everyone with the same opportunity to be caregivers helps to challenge traditional gender roles and stereotypes. Importantly, by allowing men to take time off work to care for their children, it helps dismantle the societal expectation that caregiving is solely a responsibility for women. To help promote a more equal distribution of family responsibilities, we’ve also set targets for the engagement of men to take up extended paid parental leave and have had a 39 per cent increase of men taking up the opportunity in the last five years.

“These kinds of flexible work options and supportive policies are enablers for all partners and staff, who are also the main caregiver in their family, to balance their responsibilities and we also know they can help attract and retain talented people to the firm, not only women.”

Further, Ms Eskander added that when firms have flexible working policies in place, “traditional gender roles can be broken” and the gender flex gap closed.

“Flexible arrangements such as remote work, flexible hours and part-time options empower our people to effectively manage both professional and personal obligations, regardless of gender. Flexible work options also enhance talent retention and engagement. The legal profession has grappled with the ‘leaky pipeline’ phenomenon, where women exit the profession at various stages due to the inflexible demands of the job,” she added.

“By offering flexible arrangements, law firms can better retain experienced female lawyers, thereby contributing to a more balanced talent pool across all career levels.

Embracing flexible arrangements shifts the focus from presenteeism to results, ensuring that individuals are recognised and rewarded based on their contributions rather than their ability to adhere to specific work hours. Gender equality should be a top priority to Australians nationally.”