Law’s “sticky floor” problem

Women have come a long way in the legal profession in recent decades, gaining partnership in prominent law firms and sitting as respected members of the judiciary at all levels of court. It would appear that the “glass ceiling” in law has been thoroughly shattered. However, women still face a steeper climb to success than their male colleagues — particularly early in their careers — known as the “sticky floor” phenomenon. That was the topic of a virtual roundtable organized by the Canadian Chapter of the International Association of Women Judges in collaboration with the Canadian Bar Association’s Nova Scotia Branch (CBA-NS) and the Nova Scotia Barrister’s Society in October, during which lawyers and law students took part in small group discussions led by judges from all Nova Scotia courts.

“We felt this was a very important discussion to take part in,” said Judge Laurel Halfpenny-MacQuarrie, who headed up planning for the event with fellow CCIAWJ representative, Justice Mona Lynch. We wanted to create a safe space, so people could be candid and not feel judged. It was understood that anything we were told would remain anonymous.” 

The “sticky floor” phenomenon was first described in 1992, by sociologist Catherine Berheide. It is a counterpart to the better-known “glass ceiling” phenomenon, in which women tend to get “stuck” at the middle management level, while their male counterparts continue to progress into higher levels of their profession. In contrast, Berheide described the “sticky floor” as women falling behind men at the beginning of their careers, due to “invisible” or unrecognized barriers. As Berheide put it:  “Most women should be so lucky to have the glass ceiling as their problem. Many [women are] mired in …. the sticky floor.” 

Pressures of the “billable hours” model 

Participants in the roundtable noted that the high-pressure “billable hours” model, which encourages long hours in the office, often including evenings and weekends, places a disproportionate amount of stress on women early in their careers, contributing to the “sticky floor” phenomenon.  

The model was created in an era when most lawyers were men whose wives were expected to stay home to attend to childcare, cleaning, cooking, grocery shopping and other domestic duties. Long hours at work were made possible by the invisible, unpaid labour of women at home. Women lawyers today are expected to work the same long hours and meet the same targets as their male counterparts— but in many cases they do so while still shouldering the lion’s share of childcare and domestic duties.

Billable hours pressures today create stress for both men and women lawyers, leading to statistically high rates of anxiety, depression and suicide in the legal profession. However, men do not face the same “perfect storm” of work and family commitments that women do in their early careers. Prime childbearing years for women are typically the same years that are most crucial for building a legal career and advancing within a law firm. Men, in contrast, have a longer biological window for having children and face less societal pressure when it comes to childcare and other household responsibilities. Many firms expect a lawyer returning from parental leave to pick up where they left off, working the same hours and meeting the same billable targets they did before. They don’t take into account that caring for an infant or toddler outside of work — and having to work around available childcare — require some extra accommodation. Women risk “burnout” as a result, trying to balance work and home responsibilities, always feeling guilty about neglecting one or the other. They may also miss out on opportunities or be seen as “less committed to their jobs” when they stay home with a sick child, attend children’s medical appointments or take time for other care-related commitments.

Halfpenny-MacQuarrie says she is familiar with the pressures women lawyers face when trying to balance career and family. She notes that she would likely have left the legal profession altogether if private practice had remained her only option.  

“I left private practice and went into public prosecution,” she says. “Why? Childcare. Working in private practice wasn’t flexible enough, with the old billable hours, to allow me to accommodate childcare and other things I had to take care of.”

Maternity leave for the self-employed

Halfpenny-MacQuarrie and Lynch produced a report summarizing points raised during group discussions. Its findings will feed into to a larger report, drawing on similar discussions across Canada, that will outline recommendations for encouraging greater gender equality in the legal profession.  

The “sticky floor” report notes that women working as solo practitioners, or on a fee-splitting basis rather than as employees, often have no access to Employment Insurance (EI) income for maternity or parental leave. This can be an issue for women of the judiciary, as well, given that judges do not pay into EI and have no access to traditional maternity benefits. Although women who are “employees” in law firms normally qualify for EI benefits, those who take parental leave must play catch-up afterwards and may fall behind male colleagues in terms of promotions and career advancement, putting them—potentially permanently— “a step behind.”

Unconscious bias and discrimination 

Lynch notes that when she was a new lawyer in the 1980s, sexual discrimination was often overt.  “I remember being asked, when I was looking for articling jobs, whether I planned to have children. I got the impression that they basically weren’t going to hire you if you were planning to have children. At that point I was a single mother, so I said I already had a child and that shut the door for me at a lot of places,” she says.    

Lynch notes that she, too, might have left the legal profession if private practice had been her only option. She chose to join Legal Aid and says it offered the flexibility she needed. 

Roundtable participants noted that there may be less overt sexism in workplaces now, but lingering sexual discrimination and biases still exist. An example is the traditional expectation that women be “cheerful, helpful and accommodating,” while men should be “assertive, competitive and outspoken.” As a result, men are rewarded for speaking their minds and pushing for promotions, benefits and lucrative files. Women who do the same, or who point out sexist practices or harassment, are often seen as “troublemakers”, “difficult”, “entitled” or “not team players.” 

Being taken as seriously as their male colleagues in meetings is another issue, says Lynch.  “A number of women mentioned that when they went into a meeting, if there was an articled clerk or a junior lawyer who was male, they, as women were assumed by other lawyers and clients to be the junior and the questions would be put to the more junior male lawyer,” she says. “If the female lawyer provided information, the other party would often look to the more junior male lawyer for further explanations or verification, even though they were less experienced.” 

Women also described being talked over during meetings—even when they were in charge of them— and seeing male colleagues being given credit for their work and ideas. They had to work harder for the respect that male lawyers seemed to get automatically.   It can also be challenging for women to break into more male-dominated areas of practice, such as criminal law and civil litigation. They can get “pigeon-holed” early on into what are viewed as more “female” areas of practice – such as family law. Women also tend to be assigned more “non-billable” tasks – planning office social events, mentoring, giving talks at law schools or other “pro bono” promotional activities. These tasks, while beneficial to the office and community, are often not recognized in associate evaluations (in terms of earning promotions and raises), as they are difficult to quantify.

Inappropriate behaviour and the role men can play 

Some roundtable participants noted having experienced or witnessed sexual harassment, in the form or inappropriate jokes or unwelcome romantic advances.  

One participant described a moment when a new associate pointed out a senior partner’s inappropriate remarks. She said she caught herself thinking, “That’s just the way he is. She’ll get used to him soon,” rather than immediately agreeing with the younger associate that the remarks were inappropriate. Several other participants echoed this remark, noting that it was often easier to just laugh at or ignore inappropriate jokes and brush off inappropriate advances, rather than attempt to call out more senior lawyers for their behaviour and risk becoming alienated within the firm. 

Another participant recalled a situation in which a senior lawyer made unwelcome sexual advances towards a young associate at an office party. The associate reported what happened, but nothing came of it. In the end, she felt too uncomfortable to remain at the firm and left. Some participants noted there was a sense it was “career suicide” to report sexual harassment in the workplace.

The roundtable summary report notes that women lawyers would benefit from having male colleagues who act as “allies”, calling out sexual harassment and discriminatory practices. To do this effectively, men in leadership positions need to acknowledge and be aware of challenges faced by women lawyers and make conscious efforts to help them overcome potential obstacles to success and career advancement.  

“This is not a ‘women’s problem’. Everyone has women in their lives. The ‘sticky floor’ is everybody’s problem,” Lynch says. “This needs to be tackled by the whole legal community.” 

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Moving forward: Recommendations from the roundtable:   

• Encouraging measures of performance other than the billable hours model, including “bundle-based billing” and “value billing.” 
• Encouraging young women to build multi-disciplinary practices (for example, practicing family, property, and wills and estates law together, rather than family law alone), so they do not get “pigeon-holed” early in their careers. 
• Providing sole practitioners and judges with the option to pay into a fund to supplement their income during parental leaves (similar to what is done through Doctors Nova Scotia).
• Adding sexual harassment to the Code of Conduct, so it can be identified and dealt with more effectively.  Making workplaces (work location and hours) more flexible, to accommodate childcare and other family needs.
• Encouraging more male lawyers to take parental leave—normalizing the splitting of family duties between men and women.
• Creating mandatory education for legal professionals regarding unconscious biases that continue to adversely affect women in the workplace (if this education is not mandatory and only those already interested in the topic attend, speakers will be “preaching to the choir”). 
• Providing education on implicit and explicit sexual harassment conduct and having clear sexual harassment policies in place. 
• Having more formal and informal mentorship opportunities for women lawyers, from both inside and outside their firms. Ensuring that non-billable and pro bono tasks are evenly distributed between male and female lawyers. 
• Providing positive feedback from the Bench to encourage new women lawyers interested in litigation.  
• Making a conscious effort to assign women associates to high-profile and lucrative files and to provide them with opportunities to showcase their leadership potential.

Lindsay O’Reilly is a lawyer based in Port Williams, Nova Scotia and outgoing Communications Chair for CBA-NS.