© 2007  Karen Selick
Don't Lower the Bar
An heavily edited version of this article first appeared in the August 22, 2007 issue of The National Post.
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Don't Lower the Bar

When the chief justice of the Supreme Court of Canada speaks, it’s probably a good idea for Canadians to listen—not because Madam Justice Beverly McLachlin is necessarily right in her views, but because grave consequences often follow when such a prominent figure takes up a cause.

Recently, Madam Justice McLachlin spoke out about a “systemic exodus” of talented women from practicing law in private firms. The demanding, inflexible requirements of male-dominated firms, she said, drive out women who don’t want to spend 70 or 80 hours a week working, especially during their child-raising years.

At the same Canadian Bar Association meeting, lawyers spoke of female colleagues concealing cancer or heart attacks to avoid appearing “weak” and unable to meet the demands of their law firms. Twice as many women as men ultimately leave the practice of law. Many other women lawyers choose to practice in less stressful settings such as government jobs, in-house corporate positions, smaller law firms or firms outside the big cities.

The vehement language reportedly used at this meeting (“relentless”, “dreadful”, “soul-destroying”) seemed almost to imply that there’s something sinister going on—some deliberate, malevolent campaign to drive women out of private firms merely because they’re women. Another implication was that something needs to be done about the situation.

However, my reactions to the reports of this conference were twofold. First: nothing is new under the sun. Second: even if it’s true, so what?

We’ve known about the high attrition rate for women lawyers since at least 1991, when a study by the Law Society of British Columbia showed that 23 percent of women called to the bar from 1974 to 1988 had left the profession, versus only 13 percent of men. We’ve also known for many years that both women and men find it stressful to work 70 to 80 hours weekly, and that prolonged stress leads to health problems.

Instead of looking for some sinister interpretation of these data, we might simply conclude that women law graduates are actually smarter than their male counterparts: they are better able to recognize unhealthy situations, show greater respect for their bodies, and more readily take action to extract themselves from life-threatening circumstances.

Women who reduced their stress loads by getting 9-to-5 corporate jobs or choosing new occupations should not be seen as pitiable failures, but rather as success stories—positive examples of how to lead a happier life.

The major difference between this year’s CBA discussion of women’s problems and previous years’ discussion seems to be that—so far as I could tell from reading newspaper reports—nobody this year had the chutzpah to suggest that the “something” that should be done about the situation is to pay women lawyers more money for less work.

Back in 1993, the Report on Gender Equality in the Legal Profession recommended that women lawyers with children should be able to work 20 percent fewer hours for the same pay as the men in their firms. Was this proposal for in-house socialism supposed to make male lawyers feel affection and respect for their female colleagues?

That same year, the Law Society of Upper Canada circulated proposed changes to the rules of professional conduct that would have made law firms guilty of professional misconduct for using the number of billable hours worked as a criterion in the hiring or promotion of junior lawyers.

Fortunately, neither of these foolish suggestions was ever implemented. But now that so eminent a person as the Chief Justice has expressed concern about the issue, we should not be surprised to see “solutions” like this resurfacing.

So, colleagues, here’s the unvarnished reality. Option One: you want to become a partner in your Bay Street firm and make a zillion dollars. The rules, for both boys and girls, are that you work your butt off, ignore all distractions (such as your kids), and risk dropping dead at 60. Option Two: you want to work 9 to 5, take several parental leaves, and take long, frequent vacations. The rules—again, for both boys and girls—are that you get paid what clients are willing to pay for 1,200 hours yearly rather than 2,000 hours, and you don’t ask the guys and gals who chose Option One to fork over 20 percent of their money and perks to you, so that you can lead a more comfortable life than they do.

Chief Justice McLachlin also bemoaned the fact that law firms reportedly lose about $315,000 in wasted recruitment, training and severance costs whenever an associate—two-to-one a woman—departs. A terrible waste, indeed—but one that could easily be reduced if only we would allow law firms and potential employees to sort themselves out into their proper pigeon-holes before hiring. Firms should be able to question applicants about their intended lifestyles and their ability to withstand the rigors of Bay Street mountain-climbing. Do you expect to have children? Who will be looking after them while you’re trapped down here in the meat grinder at midnight? How is your health?

Unfortunately, questions like these are forbidden, both under the rules of professional conduct and the human rights codes. So the waste will go on, until we finally have the common sense to admit that people are different, money isn’t everybody’s top goal, and it’s wrong to try to give people the unearned at someone else’s expense.

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September 2, 2007