The Every Lawyer

After the Pandemic: Addressing the gender wage gap in a Covid recovery

Episode Summary

An interview with Carly Romanow and Catherine Ewasiuk to discuss the impact of the Covid she-cession and why we need better data to understand wage gaps in the legal profession.

Episode Notes

Bonus Episode presented by CBA National, After the pandemic: Addressing the gender wage gap in a Covid recovery. Ep 11

In this month’s episode, Yves Faguy speaks with Carly Romanow and Catherine Ewasiuk of the CBA’s National Women Lawyers Forum to discuss the impact of the Covid she-cession and why we need better data to understand wage gaps in the legal profession.

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Episode Transcription

Pay Equity Nat Mag Final

[Start of recorded material 00:00:00]

Yves: You are listening to the Canadian Bar Association National Magazine.

Hi I'm your host Yves Faguy and I'm the editor-in-chief of CBA National Magazine. Welcome to “After the Pandemic” where we discuss emerging issues in law in a world transformed. Today on the podcast we're discussing pay equity and women's career advancement in law.

Now it's been said more than a few times over the last year, and we're recording this on March 26th 2021. That the economic downturn brought on by COVID-19 very different from the previous recessions we've experienced in that it has had a disproportionate impact on women. Generally they've assumed a greater, or a heavier burden on the childcare front, have suffered greater losses of income, and job losses. And while woman in the legal industry may have faired comparatively well to other industries it's important to recall that prior to COVID-19 were already underrepresented in leadership positions in the business and legal world.

27 years after the CBA's touchstone report the 1993 document that examined discrimination against women in law the issue of diversity and inclusion remains real.

Not that there hasn't been some progress but it's been slow and there's reason to worry during this pandemic that women may not be able to reclaim their gains. And can we hope to reset the discussion around workplace equity and do better than we did before?

To help us better understand all of these issues we've invited Carly Romanow the ED of pro bono law in Saskatchewan, and Catherine Ewasiuk a lawyer at Fulton in Vancouver. Both are members of the CBA's National Women Lawyers Forum. Thank you for being with me today.

Carly: Thanks for having us.

Catherine: Yeah, thank you.

Yves: Let's get started. First of all tell us a little bit about the virtual round table on pay equity in the legal profession that the WLF is organising? Carly can you tell us a little bit about that?

Carly: Sure, we have a webinar, and a small group, focus group session after that planned for April 21st. We're very excited to – for the webinar to be moderated by Robin Doolittle of the Globe and Mail who just recently published really interesting work on pay equity called the Power Gap series.

So the webinar is open to all CBA members, and will feature a panel of experts from Canada, the US, and the UK. And the webinar is part of our national research initiative of the Women Lawyers Forum.

And we are hoping to gather data about Canadian lawyers' experiences, perceptions, and potential solution to the gender wage gap in legal workplaces.

So the point of it is to one, educate our members about the pay equity power gap, or gender situation in the law and in Canada. And then also to gather feedback, to provide some guidance on the women lawyers forum on how to advocate, and deal with this issue going forward.

Yves: But – and so as I understand correctly so this is not just about collecting data on the wage gap itself. There's more that feeds into this, is that right?

Carly: Yeah, I guess the Women Lawyers Forum has actively been dealing with the issue of gender wage gap for a couple of years now. We are looking specifically for experiences form Canadian lawyers from a breadth of places. Whether it's practice area, gender, year of call, geographic location.

We're also looking though for solutions, and ways to move forward from barriers that you know, women and women of colour, our BIPOC populations experience in dealing with some of these pay equity issues.

Yves: Catherine, let me ask you a question. You know, we've talked a lot about, and I mentioned this in the intro that women have been among the hardest hit by the recession caused by the pandemic. And you know it's even been dubbed the "she-cession." To sort of set it apart from previous recessions.

What have you observed in your entourage, and the legal industry in particular have – how have you seen things play out?

Catherine: Yeah, and I think it's as you probably know the previous financial recession is actually called a "he-cession." That was because the first industry that was hardest hit was the manufacturing and goods sector which is – employs a lot of men. This recession is different, and COVID is different because it's affected businesses, and areas of work where people tend to gather. Which is apparently where a lot of women still work and are predominantly employed. Teaching, food service industry, childcare and so I saw a stat, I don't know how accurate it is reported that early on in the pandemic 62 percent of the people who lost their jobs were women. So I think if anything it's really shown that there is still a divide – quite a stark divide in the kind of work that men and women do.

Within the legal industry context I have observed particularly through the lens of childcare. I mean through BC certainly and I think throughout Canada there was definitely a period of time where children weren't in school. And women you know, to this day are still often the primary caregiver of children.

So we're having to take out in order to look after the children. And if you got a parental unit where one person earns less then that tends to be the woman. And one person's income has to take a hit it will probably be the person who's making less. So that is where I've noticed it the most I would say.

Yves: You know, it's interesting because I was talking with Patricia Gabrielle on the French version of this podcast. And she was mentioning one of the things that I thought was interesting that we were talking about you know, the childcare burden.

She was saying you know, one of the things that does have to change is that fathers can take parental leave, but workplaces in the legal industry have to come to terms with that. Any thoughts on that Carly by any chance?

Carly: I think it definitely is a concept that needs to be accepted. And I think it is more so. I think we're seeing it a lot more often than you might have traditionally seen that option. Especially with younger fathers.

But you're right. It's not as common. It's not as commonplace. I think there's been some Federal Government policies that have come into place to incentivise you know, parental leave for fathers.

But it isn't as common as I think what is required in order to have some equity in the childrearing, and for women to not have to necessarily take as much of a hit in taking time off of work.

Yves: Why is it so difficult for men or women, or non-binary people to take parental leave in the practice of law?

Carly: I think a lot of law is being in the action, and being present. A lot of law, and you know being "good" at law is about your personal connections and your networks. Building a good book of business means that you're there and creating personal relationships with clients and with people within your firm in order to get good work. To keep busy, to keep there for files.

So any type of leave can be really hard for lawyers in that they're not physically at the office. They're not top of mind to get file referrals. You know, they're not at the networking events to meet new clients and to build on relationships.

Man, woman, non-binary an individual being present is really important in the traditional sense of the law right now. How the practice of law is being practices right now.

Yves: Catherine, I'm wondering you know, from your point of view – and I realise you're in the fairly early stages of your career, but you know, has the pandemic and in your experience as a lawyer working private practice has the pandemic in any way do you think changed the conversation about looking at opportunities for women to advance in the legal profession?

Catherine: I think there's two sides to that. I think in some ways it's a lot of – particularly at the beginning of the pandemic a lot of firms were just focused on surviving. So it could have had the effect of pushing the discussion to the side.

While firms are trying to survive, and particularly lawyers. I know a lot of – quite a few lawyers who did lose their jobs during the beginning of the pandemic. And many of them have now got them back, but you're not going to have a discussion about pay equity with your employer when you're just worried about keeping your job.

But on the other side I do think it's particularly with the childcare as we've said before it has brought to the front of everybody's mind more that these inequalities do exist.

And it's not just in the legal industry, but everywhere. There's been a lot of discussion about pay equity, and I think that talking about it in the wider spread community is one of the most important ways that we move the conversation forward, and move towards more pay equity between genders.

Yves: Carly, how does the legal industry compare to the business world on this issue?

Carly: I think it's fairly similar. You know, through Robin Doolittle's work through the Power Gap series she makes comparisons between universities, municipalities, provincial governments and public corporations. And then does some – a couple articles specifically on the legal field. And I think the trends are similar.

You know I think that there's lots of issues with not enough women being in positions of power. A lot of women not – again not being paid equitably compared to their male counterparts. I think again in the business world, in private sector I still think that conversations around pay and compensation are taboo. Can be secretive. Hard to get access to.

And so I think there's very similar trends within the practice of law. Same thing with diversity issues as well you know? Generally speaking white individuals rise further than BIPOC individuals. So I think the practice of law is very similar to business, and private sector in dealing – and trying to tackle some of these barriers for individuals to be treated equitably.

Yves: So why do you think it's so difficult in the business world to get good information on pay from people? Why are people in the upper echelons of law and business and all that, why are they so secretive about compensation?

Catherine: I think there's a wider societal attitude towards discussing money that is especially in a Western society it seems rude, and I think that kind of infiltrates into businesses, and law firms.

I don't think it's that people who are making these compensation decisions necessarily sit around and say I'm not going to tell anybody because it directly benefits me, and I can make more money if I pay other people less.

I mean maybe they do, but I don't know that that's necessarily what happens. But there's no drive to change something that benefits you, whether you're aware of it or not. So I think it's you know, and then there are some other like more legitimate concerns as well.

There might be concerns about privacy. So staff personally may not want other people to know their salary.

There may be concerns that it you know, might cause issues within the workplace if some people know that other people make more money than them. Maybe there's a fear that some people will be paid more than they should be paid. And there may be you know, competition issues between businesses and firms may not want other firms to know their compensation strategies and how they compensate people.

So yeah, there's a lot of very complicated problems that surround that. It's difficult to make people aware that you know, transparency is kind of a really important step in moving towards pay equity.

Yves: I think, Carly, any thoughts on that?

Carly: Yeah, I would echo Catherine’s comments and add that pay decisions can be really, really complex. And I don't think it all comes down to one decision you know? Necessarily a pointed decision just saying you know, we're not going to pay this person as much because of X, Y, or Z right?

I think a lot of these decisions come into you know, why does this person have so many billable hours? Why does that person get good files? And so they get good work, and so they you know, can perform on certain issues.

I think there's a long road to get to that, filled with many decisions that a lot of our times our unconscious bias can leak into.

And so the reason at the end of the day when you're going in to get your you know, pay increase, or your review for the end of the year it's not that one decision that's made. I think there's several decisions that are made throughout the year that lead to that person getting that amount of hours. Or getting that type of work. Or getting that type of file.

Or working with that type of partner or client. And so it's complex. And so I think – and it's understandable that some firms or organisations might see it as unfair to see just gender imposed on compensation and therefore it looks unequal when there's a lot of decisions coming into that.

You know, we'd also recognize that gender is not binary. So even from that lens it's not even an accurate description.

So it's complex, however I'm not – you know, I think we also would promote transparency in order for everyone to be understanding where their compensation is coming from.

And to understand those unconscious biases which might be leading to some inequity. Yves: So I mean with the emergence of some of these movements that we've seen accelerate over the last year, to you know – I'm referring to you know everything from non-binary people asserting their rights, and desires. And as well as you know, BIPOC groups also wanting to assert their views in this changing environment. How does that play into women wanting to reinitiate this discussion around pay equity and equal advancement of opportunity?

Does it complicate and muddy the waters? Or is it adding allies to your efforts?

Catherine: Yeah, I think  it's just an inherently very complicated discussion. But I think you can't have equality that doesn't include everybody right? Like without a consideration of intersection – intersectionality within the pay equity discussion is incredibly important.

This thing, but you know, we're looking at it through – we recognize that the lens currently of men and women is a limited lens. But hoping also that we might be able to get some data that touches on more of those intersectional issues as well.

Yves: Are governments, Carly – oh sorry were you going to add something to that?

Carly: Yeah, I was just going to say that you know, it's – I think it also reflects on how far we are behind in Canada. That we don't even have a rudimentary understanding about pay equity.

I guess I'm speaking to the words of the legal system or the legal profession right now – between even you know the binary men and women. So adding these other layers does complicate things, and for the better.

But we don't even have a baseline right now which I think reflects poorly on the legal profession and it's what – something that the Women Lawyers Forum is advocating for. For information to be able to improve this for everybody.

Yves: Well it's a good point. You know, our governments here in Canada at the provincial level, at the Federal level have enacted various labour and human rights laws to address gender-based wage discrimination.

So you know and some of these laws have been around for quite some time. So why is it that they haven't had their desired effect? Where have we dropped the ball?

Catherine: I think it's really difficult to – if there's no transparency how do you know you're getting paid less first of all? And secondly the laws maybe as we just discussed the issue's very complex. I'm not sure that the laws you know, accurately capture the complexity of the issue.

It's hard to say conclusively that somebody is being paid less because of their gender. There's so many factors that go into these pay compensation discussions and decisions. So it's hard to pinpoint that it's because of your gender. It's a whole host of things right? You know, it's gender based things that inform the decisions perhaps.

It's for example a woman is paid less because she – say a firm's compensation structure is based on billable hours. And a woman is paid less because she's spent more hours in a mentorship role instead. That's not a reason because she's a woman, but it is related to these gender roles that we have in society for these roles that women typically fill. That historically women have been expected to perform – expect to be – to have performed for free.

So it's the whole host of inherently – people might not even be aware that they're paying people less because of these gender-based things.

Yves: Another thing that's kind of interesting I find though too is that you know, we're talking about transparency. And you know, I mean we've seen this in law where you have you know, see these like lock-step systems of you know, increases in salary depending on year of call and all that. And you know, we see this a lot in the US, but I think in Canada we see it too. Where you know, firms like to aware bonuses instead of salary raises. I guess it gives them a little bit of flexibility in case things turn sour. Though later down the – a little later down the road. But does it also not perpetuate a practice of lack of transparency?

Carly: I think there's a lot of issues around bonuses. And again as state previously that a lot of unconscious bias goes into that bonus structure. Again I think a lot of times it's not transparent to the associate as to what is even included in that. And then from there, how the firm then makes those decisions about what kind of bonuses are being dealt out? Again in Robin Doolittle's Power Gap series she analyses bonus structures in a certain larger firm.

And again whether or not the firm was aware of this or not, when making these decisions that a majority of the bonuses went to men.

Fewer women got bonuses, and fewer – and women got fewer amounts of bonuses than men.

Again I don't think that is a malicious decision that is being made by the compensation committee at the firm. However again being – trying to be objective and reviewing these standards, or reviewing the processes in order to 1, give out bonuses and how much I think a lot of unconscious bias comes into that, slips into those decisions.

And again I don't think it boils down to one decision. I think it leads – there's lots of tiny decisions that are made throughout the year to come to that conclusion of why that individual should not be given a bonus, or how much the bonus is.

I think yeah, it might engender – I don't know, bad feelings in the firms towards law societies. You know, people find loopholes. It's – there's enforcement of it. Like who's going to enforce it? And then you know there's the nobody enforces it, it kind of just becomes a rubber stamp, or something that people don't follow and kind of …

Yves: Right it looks fine on paper, but it doesn't get – then it doesn't get enacted.

Carly: Places to be safe, and equitable environments for everybody.

Yves: Yeah, and I think that's a fair point that you know, the employers, or the law firms, or even in the business world I think you know, they want – they probably feel a certain amount of pressure to get this right as well. And they probably want to foster you know, healthy work environments too. Because that would be to their benefit.

What is the hardest part about sort of collecting all these unconscious biases? And trying to map out a future where there is a more equitable distribution of pay, and opportunity in law firms? And in you know, and for that matter in a corporate world? Like this seems like a pretty intractable problem. So I'm just trying to see like what for you perhaps Catherine is the most difficult challenge in that?

Catherine: I think it's the fact that they're unconscious biases. It's people as we've seen in the wake of you know the Black Lives Matter protests in the summer. You hold onto these ideas that you don't even really know you have. And it's a lot of personal work, and dissection. And kind of realising that you hold everybody has prejudices right?

So it's about recognizing what prejudices you hold, and kind of coming to terms with that and moving forward, and figuring out ways to do that.

So I think awareness. As Carly said not blaming people because I don't think it's a blame game. I don't think there's a lot of maliciousness that goes into it. I think a lot of it is that people just aren't aware that they're doing it, and that they hold these internal opinions, or biases towards people of certain genders, and colour. It's yeah, it goes all over the map with that.

Yves: So Carly then the question is like form the vantage point of the you know, those who determine pay, and those who determine opportunity for people. What's the answer there? It's you know, how do they check those unconscious biases? Is it just taking a more active approach to looking into these issues?

Carly: I think it can start from square one, and even in their hiring processes. Or even as you know a miniscule or detailed as you know, the forms that they use.

Lots of times our forms talk about gendered positions, or gendered roles, or gender presumptions. So language that we use you know, what are our policies speaking about? And so a lot of this is like digging up the root causes right? So going into hiring you know? How are we doing our hiring practices? Do we have some sort of diversity goals? What do our forms look like? What do our policies look like? What is the language that we use?

And then monitoring things from the hiring process. So again lots of – most firms use a lockstep where you know, it looks equitable is that you know associates are being paid the same level despite whatever you know? Up until a certain point. Also that needs to be reviewed as Catherine was talking about, some of the gendered roles. Are there more women on the social committee? Are there more women on the mentorship committee? You know, who's doing what for extracurricular, non-billable hours for the firm?

So there's a lot of ways that a lens, or gendered lens, or diversity lens needs to be put on a lot of the practices. That again seem you know, harmless when looking at it. You know, Jane wanted to – Jane likes the social committee, and so Jane wanted to volunteer.

And so why can't Jane participate in the social committee? But looking at it then again at the end of the year on the review, well Jane had a lot more non-billable hours for the social committee, or for you know, mentorship, or for you know recruitment or whatever the case may be. So I think it started at square one. I think there's got to be kind of a step back to look at you know, and again not blame. But to be objectionable in your practices and their policies. And to be putting a diversity and a gendered lens on that to ensure that despite the fact that it's harmless, or it – not set out to be malicious anyway, but can have these implications. Which later down the line are inequitable.

Yves: Catherine, you know we've, you know, Carly was mentioning earlier that you know, Canada was a little bit behind on this front. And you know, in terms of our legislation and you know, from a legal point of view. I know that in the UK companies of a certain size have to publish data about wage gaps. My understanding is that applies to law firms as well. I'm just wondering if businesses or law firms here in Canada should be required to do the same in your view? Is that something we need to be considering?

I also think you know, my understanding is also that in the EU many of those countries are looking at similar types of legislation.

Catherine: Yeah, I mean personally I do think that. I think it's a really important step towards transparency in it. But I also would say it doesn't solve the problems. It hasn't solved the problem of pay equity in the UK.

It's important to remember too that different law firms are different. So I imagine that's why the UK law is the way that it is. Is that it only applies to really large companies. As it's harder for smaller companies to be able to do that.

I think there's a host of issues that come along with enacting laws that require people to do things.

Yves: Such as?

Catherine: I think yeah it might engender – I don't know, bad feelings in the firms towards law societies. You know, people find loopholes. There's enforcement of it. Like who's going to enforce it? And then you know, there's the nobody enforces it. It kind of just becomes a rubber stamp, or something that people don't follow. And …

Yves: Yeah, it looks fine on paper but then it doesn't get enacted.

Catherine: Yeah, exactly or it just looks like a flimsy law that you know put – makes it seem like the issue isn't important. So I think there's – I don't think it's not the right way to go, but there are a lot of considerations that should go along with it.

Yves: Carly, any views on that, and like who should you know, like if so who would be responsible for regulating that type of thing? Should it just be government?

Carly: Yeah, like I think UK is a really interesting example of that. There's going to be a speaker form the UK at our webinar on April 21st that all CBA members are welcome to join and listen in on.

And you know, from the UK experience there's been some examples of sharing more after the legislation was enacted. And so I think that's an encouraging example of how legislation can move firms' attitudes towards the increased transparency.

You know, whether that's going to be the Federal Government, Provincial Government, or the law society you know, I think it can be contentious matters. I think Law Societies enacting firms to act in a certain way can – are contentious matters as we've seen with other issues.

So I guess you know, my thoughts on this is whoever is able to be as neutral as possible while still you know, hitting the goal of transparency, and of getting data.

I don't think anything is going to change if we don't have the data. And so that is you know, that's a goal of the WLF. You know, we've been working at this for a couple of years now, and so if there is no data I don't think we're going to pinpoint an issue and then I don't think we'll be able to tackle it.

So data is very important.

Catherine: Yeah, and I think it does something from top down probably does need to happen. Because otherwise without large, wider societal change which is hard to enact, where does the motivation come from to disclose that data?

Yves: Catherine what – you know, in terms of data you know, Carly was talking about you know, the importance of the WLF round table gathering data but you know, what would be a success for you? And what are you hoping that the round table will achieve?

Catherine: I'm excited to hear people's solutions to the problem. I am – yeah, I think that'll be a very interesting portion of it. And they hopefully have – there's going to be a report written afterwards that will kind of put together all of our findings, and hopefully – and kind of inform our work going forward.

So I think there'll be some very interesting things coming out of that.

Yves: And how about you, Carly?

Carly: Yeah, I'm looking forward to the round table. I'm really encouraged with the enthusiasm that we've seen form the people that have been invited to our focus group. The goal is to get perspectives, and to reach out to our members, and to important groups within the legal community in Canada to be able to get a direction. And so get some advocacy points for the WLF to move forward on this matter.

This is the right time for this. You know, as noted with the "she-cession" and COVID-19, but also you know more so with the movements of #MeToo, Black Lives Matter, we're in a really good timeframe right now to push this matter through. And I think this is – COVID has brought really terrible, tragic things for our economy, but I also think it's given us a window of opportunity.

It's been able you know, it's an opportunity for us to see how things can be different. How we can push these matters through.

So we're really excited about it from the WLF's perspective on this. We're thankful for our delegate members for participating and giving their time as well as our webinar hoses, and moderator. So I think it's a really good opportunity for us to push the matter forward.

Yves: Well Carly and Catherine I want to thank you both for your perspectives in discussing these important questions. And so thanks for joining us. Telling us a little bit about the efforts of WLF, and about your own experiences and what you've seen in the industry over the last little time.

So I've been talking with Carly Romanow the ED of pro bono law in Saskatchewan, and Catherine Ewasiuk a lawyer at Fulton in Vancouver. Thank you very much.

Carly: Thank you.

Catherine: Thank you.

Yves: You can hear this podcast and others on our CBA channel The Every Lawyer on Spotify, Apple Podcasts, Google Podcasts, and Stitcher. Subscribe to receive notifications for new episodes, and to hear some French listen to our Juriste branché podcasts.

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A big, big thank you to our podcast editor Ann-Catherine Désulmé and thank you all for listening to this month's episode of After the Pandemic. We'll catch you next month.