CHAPTER 4 LEGAL WORKPLACE TECHNOLOGY AND EQUALITY FOR WOMEN LAWYERS: FORTIFYING OR TRANSFORMING THE. Jane Bailey *

Transcription

1 CHAPTER 4 LEGAL WORKPLACE TECHNOLOGY AND EQUALITY FOR WOMEN LAWYERS: FORTIFYING OR TRANSFORMING THE "MASTER'S HOUSE"? Jane Bailey * Over recent decades there have been numerous predictions of the imminent arrival of the paperless office or of telecommuting by modems, faxes and telephones. Whilst all of these phenomena have progressed to some extent more limited than many predictions the idea of what is "normal" has not changed. However, it may... Women have an interest in changing the paradigm of "normal" conduct of workplace relations in a direction which creates an alternative paradigm that does not require physical propinquity. All of the technologies that I have mentioned will assist in this regard. 1 INTRODUCTION In its 1993 report, Touchstones for Change: Equality, Diversity and Accountability, the Canadian Bar Association Task Force 2 identified a number of barriers to women's equal participation in the legal profession. 3 One of these was the organization and evaluation of legal work. Touchstones noted that the long and irregular hours demanded disparately affected women, who were more likely than their male counterparts to have child care responsibilities that conflicted with those demands. 4 Eleven years later, some things have changed, but others have remained the same. 5 Women lawyers are still more likely than their male counterparts to be in public, rather than private sector positions, proportionately more likely to move within or leave legal practice altogether, and more likely to cite work-life conflict as a significant reason for their departure. On the other 53

2 54 The Changed Context for Women hand, some legal workplaces now offer flexible and part-time alternatives to lawyers, although these programs are often perceived as stigmatizing accommodations likely to negatively affect career advancement and opportunities. At the same time, the proliferation of "instant" communications technologies within the legal workplace and workplaces more generally is profoundly affecting the organization and evaluation of work and raising serious questions with respect to work-life conflict. How will women's struggle for equality within the legal profession be affected by these changes? Will workplace technologies, as some have predicted, assist women in changing the definition of "normal" in legal workplaces, or will they simply extend, and possibly exaggerate, existing systemic barriers? Unfortunately, there is little empirical evidence of the impact of workplace technologies on the aspect 6 of women lawyers' struggle for professional equality affected by women's disproportionate caregiving role. 7 The substantial body of literature documenting more generally the relationship between gender, work, and technology reveals technology's complex effects on women's lives and provides a useful starting point for thinking about its specific impacts in the legal workplace. Much of the existing writing on the topic focuses on the impact of technology on women in "traditional" women's work, including in the home and in clerical and administrative positions. The study of technology's impact on women in the traditionally male field of law presents an opportunity to hone in on its gendered dimensions and invites investigation of the ways in which technology affects professional women experiencing intersecting axes of discrimination. 8 This paper does not purport to answer whether legal workplace technology is dismantling or fortifying the systemically discriminatory structure of "the master's house" 9 identified in Touchstones more than eleven years ago. 10 Rather, it seeks to place the gendered nature of the organization and structure of legal work in the broader context of the relationship between technology and gender, in an effort to highlight further questions that need to be explored and additional empirical research that might be undertaken to better understand whether and how technology is affecting the struggle of women lawyers for professional equality. The first part provides an update of some of the Touchstones statistics on women in the legal profession, also touching on continuing evidence of a gender divide in terms of the assumption of responsibility for caregiving and "domestic" obligations. The second part discusses the growth of technology in the

3 Legal Workplace Technology and Equality for Women Lawyers 55 legal workplace, and in workplaces more generally, noting recent concerns raised regarding technology's impact on gender-neutrally-defined issues of "work-life conflict." 11 The third part draws on existing feminist analyses of the relationship between technology and women's work in an effort to elucidate certain themes revealing the complexity of the relationship between the two, and suggests ways in which the study of women in the traditionally male field of law may provide a unique opportunity to explore that relationship. The conclusion suggests facets of these issues that could be explored as part of future Touchstones-like initiatives. THE STATUS OF WOMEN IN THE LEGAL PROFESSION Much work has been done since Touchstones, permitting evaluation of the progress of women in the legal profession since The results are mixed. 12 Breakthroughs have been made in terms of the number of women entering the profession (with less impressive gains from an intersectional perspective), while there remains a strong perception within the profession of discrimination on the bases of gender, race, disability, and sexual orientation, supported by statistical disparities relating to status within the profession, earnings differentials, and rates of and reasons for attrition. 13 Finally, despite a perhaps more widespread availability of flexible and parttime working arrangements, statistics suggest a troubling perception of such programs as stigmatizing accommodations of exceptions to the norm rather than as redefining "normal" within the legal workplace. Perceptions 0f Bias In 1993 the task force reported that the vast majority of respondents in five law society surveys recognized the existence of gender bias in the profession. While women were more likely to say it was subtle, but widespread, men were more likely to say bias existed but was not widespread. 14 Similarly, a 2004 report for the Law Society of Alberta 15 indicated that 92% of women lawyer respondents and 69% of male lawyer respondents perceived some degree of bias against women in the legal profession, although there was an increase over the results in a 1991 study in the proportion of women who said bias existed, but was not widespread. 16 A majority of respondents in the Alberta report also believed there was bias in the profession against racialized lawyers, gay and lesbian lawyers, and disabled lawyers, and in all cases members of the target group were more likely than non-members to perceive bias. 17

4 56 The Changed Context for Women Law School and Bar Admissions The task force reported in 1993 that before 1970 virtually no women were admitted to law school in Canada. By the mid-1980s about 30% of law school students were women and by 1993 there were roughly equal numbers of women and men entering law school, with even higher rates in Quebec. 18 In the eleven years following Touchstones, women continue to be strongly represented in law school admissions. 19 Further, Federation of Law Societies of Canada (FLSC) statistics reveal that in 2002 women comprised 55% of articling students, 55% of students admitted to bar admission courses, and 53.4% of those called to the bar. 20 Representation and Position of Women Lawyers within the Profession Touchstones reported that women comprised approximately 27% of the practising bar in Canada in By 1996, 30.1% of Ontario lawyers were women. Only 7.3% of Ontario lawyers were "non-white" 22 (well below their 17.5% proportion of the population and significantly below their representation in other professions such as medicine). 23 By 1999, Kay and Brockman estimated that women comprised 32% of practising lawyers in Canada. 24 FLSC statistics showed that in 2002 women made up 34% of practising lawyers and 40.3% of non-practising lawyers in Canada. 25 The Alberta report showed that 3% of respondents self-identified as gay, lesbian, or bisexual; only 6% self-identified as "people of colour or members of visible minority groups;" and only 6% self-identified as having a disability. Taking gender into account, less than 1.6% of the respondents were lesbian or bisexual women and approximately 3.5% were racialized women. 26 These relatively small sample sizes are consistent with results reported in other North American studies, 27 suggesting troubling underrepresentation of a diversity of women within the profession and limiting the available information about the experience of women lawyers facing intersecting axes of discrimination. While the proportion of women in the profession has increased since Touchstones, women's position within law practice has remained remarkably stable. In 1993, the task force reported that the proportion of women in private practice was 10% less than for men, that the largest proportion of women in private practice were in small firms of two to ten lawyers, that women were over-represented in the public sector, and that women tended to be over-represented in corporate counsel positions (with some variation across the country). 28 Similarly, women were under-represented in positions of power and authority, and women in private practice were

5 Legal Workplace Technology and Equality for Women Lawyers 57 less likely to be made partner than men at the same career stage. Further, women were more likely than men to report being denied promotion when they felt qualified. 29 Although some had anticipated that the passage of time and the influx of increasing numbers of women into the profession would alter this dynamic, more recent statistics suggest that progress has been slow. In 1999, women continued to be under-represented in private practice, comprising 26% of lawyers in private practice and 40% of lawyers in non-private practice, so that 81% of men and only 63% of women lawyers were in private practice. 30 The highest proportion of women in private practice were solo practitioners: 38% of women in firms of two to ten lawyers and 15% of women in firms of over fifty lawyers (vs. 47% and 12% of men respectively). 31 FLSC statistics showed that in 2002 women comprised about 26% of lawyers in Canadian law firms, with the majority of women in law firms engaged in solo practice and in firms of two to ten lawyers. 32 The Alberta report showed that women continued to be more likely than their male counterparts to work in government (24% of women lawyers vs. 12% of men lawyers), less likely to work in private practice (79.4% of men vs. 69.3% of women reported being in a law firm), and more likely to work as corporate counsel and in "other" legal positions (8.4% of men and 13.5% of women). 33 Similarly, racialized lawyers, disabled lawyers, and gay and lesbian lawyers were more likely to work in government than those in Caucasian, non-disabled, and heterosexual comparator groups. 34 Within private practice, studies have consistently demonstrated that men are more likely than women to make partner, with one study suggesting that the differential was as high as 50%. 35 In 2003, 18% of women lawyer respondents in the Alberta report were partners, versus 32.4% of male respondents, 36 a figure consistent with a 2002 Ontario survey in which 16% of women lawyer respondents and 34% of male lawyer respondents were partners. 37 Within the small sample of racialized and disabled lawyers referred to in the Alberta report, racialized lawyers were found to be at least as likely as Caucasian lawyers to be partners in law firms, while disabled lawyers were considerably less likely to be partners than non-disabled lawyers. 38 Gendered and Raced Income Disparities Touchstones reported in 1993 that women lawyers were statistically more likely than their male counterparts to be in lower-income categories and were under-represented in higher-income categories, with the disparity

6 58 The Changed Context for Women increasing with seniority. 39 Subsequent statistics suggest a continuation of this gendered income disparity. Using 1996 Census data, Rashid reported that, overall, women earn 63% of what men earn; female lawyers earned 62% of what their male counterparts earned. Controlling for the fact that women lawyers tended to be younger on average than male lawyers, and that women lawyers reported working fewer hours per year, on average, than their male counterparts, Rashid concluded that women lawyers actually earned 73% of what male lawyers earned. 40 In other words, a sizeable portion of the income disparity between men and women lawyers was unrelated to factors typically cited as explanations for gendered wage gaps. Ornstein's analysis of 1996 Census data relating to Ontario lawyers revealed that the gender income gap increased with age, such that by age fifty to fifty-four male lawyers earned 94% more than women lawyers in the same age group. He found that the income disparity after age forty was not fully explicable in terms of differences in reported hours worked, sector of employment or self-employment. 41 Further, Ornstein's analysis revealed a race-based income disparity, such that at the peak of earnings (age fifty to fifty-four) white lawyers earned an average of $130,000 annually compared to $60,000 for racialized lawyers. 42 Kay's Quebec study in 1999 revealed men lawyers earning an average of $69,500 annually compared to $54,100 for women lawyers and that the highest earnings went to men with children and the lowest to women with children. 43 More recently, Kay's 2002 survey in Ontario confirmed that women lawyers continue to be under-represented in the highest pay category and over-represented in the lowest pay category, but she noted a narrowing of the income gap for those attaining partnership. 44 The Alberta report showed that, in private practice, male lawyers earned significantly more than women lawyers, even controlling for number of years at the bar and firm size, the male average at $147,053 and the female average at $105, Again, the Alberta report revealed no significant difference between men and women in terms of the number of hours worked per week. In fact, women without children billed more hours than women with children, men with children, and men without children, although men, on average, billed at higher hourly rates. 46 Attrition In 1993, Touchstones reported higher attrition rates for women lawyers in all years of call, showing women lawyers in British Columbia leaving at a rate 50% higher than men lawyers. Women comprised 20% of practising

7 Legal Workplace Technology and Equality for Women Lawyers 59 and 42.6% of non-practising lawyers in Alberta, and 37% of non-practising lawyers in Ontario even though women represented only 30% of lawyers called to the Ontario bar in the fifteen-year period leading up to the report. 47 By 1999, although women comprised 31% of lawyers in Canada, they comprised 39% of lawyers no longer practising. Women were more likely to explain their departures from the profession as related to family responsibilities or general dissatisfaction with practice, whereas men were more likely to cite career advancement. 48 A similar pattern was revealed in the Alberta report, which showed a narrowing of the attrition gap between men and women lawyers in Alberta from 5% in 1991 to 3% in 2003, such that in 2003, 28% of women called between 1988 and 2002 and 25% of men called in the same period were no longer active members. 49 However, the report also showed that the gap grew as year of call increased and women were more likely than men to report leaving practice for reasons relating to, among other things, child care and hours demanded. 50 Further, on average, women practised law for a substantially shorter period of time (four years) before moving to inactive status, whereas, on average, men moved to "inactive" status after seventeen years. 51 Caregiving Responsibilities Touchstones noted a British Columbia survey reporting that 66% of women lawyers and 33% of men lawyers perceived the lack of accommodation of family responsibilities as an example of bias against women in the legal profession. The task force noted significant differences between men and women lawyers in relation to child care: women lawyers bore almost twice the responsibility for child care of male lawyers and were more likely to rely on paid child care than their male counterparts. Men lawyers could rely on a spouse to be responsible for child care at three times the rate of women lawyers. Unsurprisingly, women lawyers cited child care as a reason for leaving practice more often than did male lawyers. 52 More recent statistics show men continue to be substantially less likely than women to cite demanding hours, child care, or inflexible work arrangements as reasons for leaving practice. 53 The Alberta report revealed that 58% of women and only 12% of men who had left practice said care of children contributed somewhat or a great deal to their decision to leave practice, while 85% of women and only 63% of men said balance with personal life had contributed somewhat or a great deal to their decision to leave practice. 54 Marked differences between racialized and disabled

8 60 The Changed Context for Women lawyers compared, respectively, to Caucasian and non-disabled lawyers were also apparent. Fifty percent of racialized lawyers no longer practising said child care contributed somewhat or a great deal to their decision to leave practice, compared to only 36% for white lawyers no longer in practice. Conversely, only 35% of disabled lawyers said child care had contributed somewhat or a great deal to their decision to leave practice, compared to 57% of non-disabled lawyers. 55 Finally, the Alberta report provided evidence that women lawyers continue to bear greater responsibility for child care than do their male counterparts (women performing 54% of child care and men performing 31%), although both men and women reported having greater child care responsibilities in 2003 than in These statistics within the legal community, of course, parallel broader statistics regarding caregiving activities that showed women in 2001 still performing more eldercare than men and taking on the lion's share of unpaid housework, leaving this gender gap largely unchanged from that reported in However, recent studies also reveal increasing attempts at creating more flexible and supportive environments in relation to caregiving responsibilities. In the Alberta report over half of the workplaces of respondent lawyers offered flexible work hours and compassionate leave, although less than one-quarter offered job sharing, paid parental leave for partners, and part-time partnerships. Less than one-third offered paid parental leave for associates or employees and about one-third offered leaves of absence/sabbaticals for associates or employees. 58 Nevertheless, respondents reported the highest degree of dissatisfaction with hours of work, remuneration, and balance with personal life, as women respondents were significantly less satisfied than male respondents with, among other things, hours of work, opportunities for advancement, and balance with personal life. 59 Further, women lawyers were more likely than their male counterparts to experience negative workplace consequences after having children, including lost seniority, lost income, delays in promotion, testing of commitment to work, and difficulty obtaining flexible or part-time arrangements. 60 The results set out in the Alberta report appear consistent with analyses of accommodative workplace changes implemented in the US. Rhode reports that while over 90% of the firms surveyed by the American Bar Association (ABA) in 2000 allowed part-time schedules, only 3%-4% of lawyers actually used them. 61 Most women lawyers surveyed perceived that any reduction in hours or availability would undermine their prospects for advancement. 62 The findings of a study by the Women's Bar Association of Massachusetts

9 Legal Workplace Technology and Equality for Women Lawyers 61 appear to bear out that perception. Although the number of lawyers using reduced-hours arrangements had increased over time, many participants reported experiencing adverse career consequences, including loss of opportunity for advancement to partnership and involuntary changes in the nature of their work. 63 Trends Since Touchstones A continuing, albeit weaker, perception of bias against women lawyers lingers in the Canadian legal profession. Recent studies suggest that although women have continued to make strides since 1993 in terms of entering law school, bar admissions programs, and the profession, they continue to represent, on average, only about 34% of practising lawyers and about 40% of non-practising lawyers in Canada. To the extent that statistics are available, it appears that women, racialized lawyers, disabled lawyers, and gay and lesbian lawyers continue to be more likely to work in government and less likely to work in private practice than lawyers in male, Caucasian, non-disabled, and heterosexual comparative groups. Women lawyers continue to be less likely to make partner than their male counterparts and earn, on average, about 62% of that earned by their male counterparts, the gender-based income gap expanding with age. Neither gap appears fully explicable in terms of differences in hours worked, particularly in the case of women without children, who the Alberta report showed billed more hours per week than their male counterparts with or without children. Women continue to leave the profession proportionately more than men and are more likely to cite child care, inflexible work arrangements, and hours demanded as their reasons for departure than are their male counterparts. These findings are consistent with both law-related and more general statistics that continue to show that women bear a greater share of the responsibility for caregiving, including child care, eldercare, and unpaid housework. The current picture of the situation of women in the legal profession continues to be a serious concern, despite apparent changes in workplace policies, including the introduction of flexible and part-time arrangements, designed in many cases to "accommodate" the greater caregiving role played by women. In many cases, however, these changes are viewed with suspicion in terms of their long-term impact on women's careers, and they take place in a larger context of ongoing change within the legal workplace in particular the marked growth of workplace technologies. While workplace technologies have been used to enable flexible arrangements, 64 they can also be associated with increased levels of stress and a blurring of

10 62 The Changed Context for Women work and home life. The next part below examines available statistics with respect to the growth of workplace technologies, focusing particularly on more general findings as to their impact on the issue of "work-life conflict" and the gender-related implications of that conflict. THE IMPACT OF GROWING WORKPLACE TECHNOLOGY Trends from tlie 2000 General Social Survey (2000 GSS) General statistics about the impact of technology on the workplace demonstrate notable effects on individuals' jobs, an effect particularly pronounced for those with university education and those earning over $60,000 per year. In 2000, 38% of Canadians responding to the 2000 GSS said that their jobs had been greatly affected by new technology in the past five years; 57.6% of university graduates and 60.9% of those earning over $60,000 reported this significant change. 65 The 2000 GSS affords one of the few statistical profiles of the gender impacts of technology in the workplace, revealing that in every workplace category (i.e., blue collar, sales/service, technical, professional, and management), except clerical, men were more likely than women to say that their job had been greatly affected by technology in the past five years, 66% of all male professionals and 53% of all women professionals so reporting. 66 Other gender-related statistics revealed: 67 27% of men and 24% of women were classified as high-intensity computer users (using computers, , and the Internet in the workplace every day); equal percentages of men and women classified as high-intensity computer users said their job had become more interesting as a result of new technology; 33% of men and 22% of women classified as high-intensity computer users said their job security had increased as a result of new technology; 47% of men and 56% of women in professional occupations (other than business and science) who were classified as high-intensity computer users reported that too many demands or hours of work caused them excess stress and worry; 68 and 69% of men and 74% of women classified as high-intensity computer users said they had used their home computer for work-related purposes in the last month. 69

11 Legal Workplace Technology and Equality for Women Lawyers 63 These figures led Hughes, Lowe, and Schellenberg to conclude that intensive use of information technology is a source of job stress for both men and women, a link, they argue, that merits further study and attention given the negative impacts of work-life conflict both on the job and at home. 70 In that regard, they note: Images of a "leisure society" created through the labour-saving potential of technology seem more Utopian today than when first proposed in the 1960s and 1970s. The future challenge will be to find ways of enabling employees to use technology to reduce workloads and increase flexibility and choice in their work lives. 71 While Hughes, Lowe, and Schellenberg came to the conclusion, based on statistics across occupational categories, that information technology was "gender-blind" in terms of its impact on stress and spillover into home life, they noted that this conclusion varies widely when professional categories are broken down into individual occupations. 72 Even within occupational categories, high-intensity computer-using women working in "other professions" were more likely than their male counterparts to report too many demands or hours at work causing stress and worry and to use a home computer for work-related purposes, adding work hours at home to their regular day. These statistics, particularly when situated in the social context of women's disproportionate caregiving responsibilities, suggest a gendered impact of workplace technologies that merits further study and consideration. Technology Trends in the Legal Workplace When compared to many other business groups, Canadian lawyers have been, at least in some respects, relatively slow to adopt technology into their practices. 73 Nevertheless, recent studies 74 and other anecdotal evidence 75 suggest that certain communications software and hardware have made deep and lasting inroads into the practice of law. What remains largely unclear, however, is the degree to which technological change may be affecting the structure of gender inequality within the legal profession. The scope of technological change raises the prospect of profound workplace reorganization that may be highly relevant to that aspect of the struggle for professional equality related to women's disproportionate caregiving role.

12 64 The Changed Context for Women The 2002 ABA Survey revealed that the vast majority of respondents (80% of whom were men and 20% women) used computers at work, although relatively few used laptops, even though a majority of respondents had laptops available to them. 76 Other technologies with space- and timeshifting potential, such as and faxing software, were available to a vast majority of the respondents, with over half of respondents were able to access these applications from remote locations. 77 Similarly, Internet access, both at work and from remote locations, was available to over 90% of respondents. 78 Cell phones were slightly less available to respondents (68%), 79 and conferencing software even less so (24%). 80 Seventy-nine percent of the firms in which the respondents worked used networks (including 83% of smaller firms of two to nine lawyers), and the use of intranets (internal networks) and extranets (networks permitting access to materials from outside of the firm, e.g., by clients) increased dramatically between 2001 and 2002 to 58% and 27% respectively. 81 Eighty-six percent of responding lawyers said they conducted legal research online: 33% used discussion lists and 19% used online message boards for research. 82 Seventy-one percent reported doing the majority of their legal research in their personal office space, while 17% researched in a firm library and only 6% in an off-site library; less than 1% of total research time was spent on the road, despite the availability of mobile computing tools. 83 Seventy percent of respondents said they used a computer for lawrelated purposes while away from the office; the proportion of law-related computing outside of the office is steadily increasing with firm size (57% of solo practitioners to 90% for lawyers in firms of 100 or more). Interestingly, women were more likely than men to say that they used a computer for law-related tasks when away from the office, although there was no notable difference between men and women in terms of where they used computers remotely or what hardware they employed. 84 Overall, 82% of law-related computing time was spent at the office and 12% at home. 85 The findings in the 2002 ABA Survey regarding technological proliferation in the legal workplace (albeit from a different perspective within that workplace) are mirrored in a survey of law clerks (94% of whom were women) that I conducted in 2003 (the 2003 Law Clerk Survey). All respondents to the 2003 Law Clerk Survey indicated that they used some form of communications technology at work every day: virtually all had used , the Internet, and word processing at work in the prior twelve months. In addition to the use of technology in the workplace, the 2003 Law Clerk Survey also asked respondents to comment on some of the indicators referred to in the 2000

13 Legal Workplace Technology and Equality for Women Lawyers 65 GSS. The vast majority of respondents reported that the introduction of technology and computers had greatly affected their work in the past five years, and most agreed that their work had become more interesting as a result. More than half of the respondents had rarely or never used a home computer for work-related purposes in the prior month (although the men were more likely to have done so than the women); about one-quarter of respondents said technology had permitted them to telecommute in the prior month; and over half of the respondents said that their quality of life outside of work had not changed as the result of the introduction of technology in their workplace over the prior five years. Those who had worked as law clerks for longer than fifteen years were more likely to say that their quality of life had declined as a result of the introduction of workplace technology than were their more junior colleagues. However, it was difficult to draw reliable conclusions with respect to gender differences since 94% of the respondents to the survey were women. Connecting Technological Trends Taken together, the statistics relating generally to technology in the workplace and those more specific to the legal context indicate increasing impacts of technology in the workplace, with tremendous and varied potential to affect many facets of workplace organization and worker experience. On one hand, technology has, for many, led to more interesting work, as well as making time- and place shifting possible for some through telecommuting and remote access to work-related information. On the other hand, some of these same features have increased workplace stress relating to heightened expectations of productivity and shortened deadlines, negatively affected work-life balance, and led to a blurring of the lines between the public workspace and the private home space. 86 While the available statistics only hint at gender differences relating to technology feminist analyses of technology in other contexts have demonstrated that workplace technology cannot be assumed to equally affect the work of marginalized and non-marginalized groups. This may be particularly so with respect to the legal workplace, to the extent that technologies are further enabling rather than transforming workplace structures previously identified as systemically discriminatory. FEMINIST ANALYSES OF TECHNOLOGY: IDENTIFYING THEMES 87 The rich feminist literature on the intersections between women, work, and technology elucidates certain themes supportive of the theory that legal

14 66 The Changed Context for Women workplace technology is playing a complicated role in women lawyers' struggle for professional equality. At the same time, the privileged position of women in the traditionally "male" occupation of lawyer vis-a-vis the position of many of the women in more traditionally "female" occupations that were the subject of much of the existing research provides a perhaps more precise opportunity to isolate the gendered effects of technology. 88 Further, a finely grained study that attempts to correlate perceptions of technological impact based not only on gender but also race, ethnicity sexual orientation, and disability could enrich understandings of the relationship between professional women and technology by permitting analysis of intersectional experience. Technology and Women's Work in the Home There is a rich feminist literature deconstructing the impact of technological developments on women's consumptive and productive roles in the home. Luxton's examination of three generations of housewives in the mining town of Flin Flon, Manitoba yielded an important deconstruction of the social discounting of women's unpaid work in the home, its economic significance and centrality, and its mischaracterization as simply "a labour of love." 89 She revealed how the introduction of domestic technologies, such as the washing machine, the stove, and the refrigerator, offered both liberating reductions in the degree of physical labour and time spent in performing certain work in the home and the de-liberating and too-often camouflaged impacts of increased expectations as to the frequency with which and the standard to which these tasks would be performed. Luxton also noted an element of deskilling, particularly in relation to the introduction of "convenience" food, as women working in the home increasingly became the subjects of externally imposed (and marketed) definitions of and approaches to "what was needed" in the home. Finally, her work revealed the ways in which technology led to gendered change in the structure of the home environment, for example, to the marketing and consumption of "efficient" kitchens designed for a single user that further entrenched women's social isolation, reducing interaction with and participation by other family members in the process of food preparation. 90 Thus, Luxton's work revealed that certain domestic technologies' marketed promise of "more time to spend with family and other important things" did not manifest itself quite so simply (or perhaps at all) in the lives of the women she studied. 91

15 Legal Workplace Technology and Equality for Women Lawyers 67 Sanger's analysis of the impact of the car on women's lives revealed similar complexities. While cars were marketed as symbols of women's liberation allowing women to "get away" from traditional roles in reality, women's access to cars has, to some extent, reinforced those roles by enabling suburbanization and adding new driving-related responsibilities for women working in the home. Further, cars have come to be marketed through the appropriation of women's sexuality. 92 Sanger notes that while cars enabled women working in the home to move more easily in public spaces, movement remained insulated within the confines of the car, fostering class and racial distinctions by allowing those who could afford cars to avoid economically disadvantaged and racialized individuals who were statistically more likely to depend upon public transportation. Sanger concluded that while women's access to cars undoubtedly carried with it an increased ability to access work and participate in other "public" opportunities, this technology "disappeared" women's work by making labour look easy, just as "domestic" technologies as washing machines and refrigerators had done. In this regard, she noted, "the car camouflages (even as it eases) the real work that driving represents." 93 Technology and Women's Work in Public Spaces The "computerization" of public workplaces has also carried with it conflicting impacts on women's struggle for equality. While on one hand arguably creating "demand" for women's participation in the public workforce, 94 computerization and mechanization is also associated with women's deskilling and performance of routinized tasks, 95 and their segregation into lower-paid and lower-status tiers within manufacturing industries 96 and in professions. 97 These trends have been especially pronounced for racialized women of lower socio-economic status working in manufacturing and other computer-based occupations. 98 On the positive side, workplace technology enabling "telecommuting" or "teleworking" 99 has frequently been held out as promising for women's equal participation in public workspaces. Variously characterized as "a wonderful arrangement for working moms" 100 and as a potentially liberating technology for working women by providing "an alternative paradigm that does not require physical propinquity," 101 telecommutingenabling technologies such as faxes, cell phones, , BlackBerries, online connections, and video conferencing software undoubtedly create the possibility of flexibility by facilitating the shifting of the time and location of

16 68 The Changed Context for Women work. 102 Further, surveys of some of the estimated 1,000,000 teleworkers in Canada show that teleworking can be associated with, among other things, increased job satisfaction, more time with family, and more convenient child care arrangements. 103 At the same time, it is associated with reduced opportunities for socialization, greater feelings of isolation, and increased potential for "workaholism." 104 Further, much like earlier technologies, those enabling telecommuting have proven to be far from uniformly affirmative for women. Despite the potential of telecommuting and its not infrequent characterization as a "solution" to address the aspect of workplace equality related to women's disproportionate share of caregiving responsibilities, telecommuting in practice has been shown to both repeat and build upon gender-related workplace concerns. Sociological evidence on point suggests that when offered to high-level, upper-middle class professionals (predominantly men), telecommuting offers increased work-life autonomy, flexibility and choice, with no impact on job status. 105 In contrast, when offered to low-level workers in clerical or data processing positions (predominantly women), it is frequently used to reduce costs, increase employer control, lower pay and benefits, and reduce autonomy, job security, and advancement opportunities. 106 Consistent with other studies that have suggested that computerization has widened the gap between the quality and status of men's work versus women's work, these studies on telecommuting confirm technology as a dependent rather than independent variable, capable both of transforming and reaffirming existing inequities. Telecommuting can be structured to transform gender hierarchies in workplaces, or it can simply be used to magnify or extend them, possibly exacerbating rather than reducing the gender-related imbalance related to caregiving, leaving telecommuting women to work "at home," while telecommuting men work "from home." 107 Further, these same technologies that create the potential for time- and place shifting also facilitate unprecedented levels of connectivity, which may simply be used to extend the workday and exaggerate, rather than transform, the "hours billed" organization of the legal workplace. 108 The very possibility of connectivity on a twenty-four/seven basis may itself engender unhealthy and unhelpful expectations of connectivity and feelings of surveillance, even within workers' private spaces. The following passage from a magazine article relating to Canadian women lawyers hints at some of the conflicting impacts of technology-facilitated connectivity on the experience of women lawyers:

17 Legal Workplace Technology and Equality for Women Lawyers 69 [T]he computer screen and the BlackBerry are dead give-aways. They plug her into a world of high-stakes, fast-moving international deals... "1 want to have a family... and the thought of going back online at eleven at night leaves me cold. But I know I will do it." 109 Insights from the Literature Certain themes resonate across the literatures on women, work, and technology, which bear consideration in thinking about how legal workplace technology may be affecting the aspect of women lawyers' struggle for equality related to women's disproportionate caregiving role. The impact of technology is highly unlikely to be uniformly positive or negative. Rather, it can be expected to have diverse and complex effects. If imposed, rather than chosen, legal workplace technologies are likely to exacerbate workplace tensions, stresses, and lack of control, relegating women to the role of object rather than subject. On the other hand, communications technologies may enhance women's ability to achieve a degree of flexibility that could assist in addressing the gendered disparity resulting from legal workplace organization around billable hours. However, along with the ability to connect when one chooses are likely to come growing externallyimposed expectations of accessibility and connectivity, perhaps leading to a blurring between public and private spaces. Further, technologyenabled telecommuting may create a sense of isolation and segregation from co-workers and the "pulse" of practice, possibly creating a feminized digital ghetto (particularly in legal workplace cultures where "face time" is highly valued). The time-saving aspects of certain technologies may simply engender increased expectations regarding productivity, thereby undermining attempts to address the disparate impact of the organization and evaluation of legal work around lengthy and erratic hours. CONCLUSION In 1993, having highlighted the disparate impact on women of the organization and evaluation of legal work around the billable hour, the task force called for accommodation within Canadian legal workplaces. Despite numeric advances for women 110 in the last eleven years in terms of entering law school and the profession, implementation of more flexible and part-time structures, and the reported concern of new generations of male lawyers for work-life balance, disproportionate levels of female attrition, gender-based pay inequities, and limited opportunities for advancement continue to be associated with conflicts between workplace demands and

18 70 The Changed Context for Women women's disproportionate caregiving role. As Governor General Adrienne Clarkson noted in a 2003 address to the Law Society of Upper Canada: [T]he legal profession has been built by men for men in a man's world. It's not surprising to me that many women find it distinctly uncomfortable after a certain number of years to continue to live within a world which basically grants them certain privileges from the height of the masculine world. 111 In 1993 Mary Jane Mossman noted that legal work arrangements based predominantly on the billable hour affected both men and women lawyers negatively but were not neutral in their effect, as women lawyers bore, on average, twice the child care responsibilities of their male counterparts and were significantly more likely to cite child-rearing as their reason for leaving practice. 112 At that time she advocated a fundamental rethinking of the nature and organization of legal work and asked whether then "current arrangements... [took] advantage of the flexibility of new technologies, particularly innovations that allow effective communication from a distance." 113 Too little has been done in the Canadian context to explore this question, despite statistics suggesting increasing reliance on technology in the legal workplace, indications of a connection between growing technological use in the workplace and work-life conflict, and a strong and convincing body of literature documenting the gendered and raced impacts of technology at home and at work. Any future analysis of the struggle for diversity and equality in the legal profession that fails to take into account the impact of workplace technology would ignore an issue flagged as gendered in 1993, and one that can be expected to continue to profoundly affect workplaces across Canada and in many other parts of the world. Past analyses suggest that any inquiry into the impacts of legal workplace technologies is likely to be intricately interwoven with multiple axes of discrimination. While this paper has focused on only one aspect of technology's impact on diversity within the profession the organization and evaluation of legal work and the legal workplace technology may be equally relevant to many other systemic barriers identified by the task force and by others. 114 Connectivityenhancing technologies, for example, could improve junior women's access to mentoring and support networks of other women lawyers, while acting as less time-consuming "rainmaking" tools for women lawyers by facilitating maintenance of ongoing client relations and attracting new ones. On a less optimistic note, technologies facilitating more "impersonal"

19 Legal Workplace Technology and Equality for Women Lawyers 71 forms of communication, as well as Internet access, may also be associated with increased opportunities for harassment within the legal workplace, 115 exacerbating another of the barriers to equality identified by the task force. 116 Further study is needed in order to begin to understand whether legal workplace technology is being implemented in ways that maximize technology's promising transformative effects or simply fortify pre-existing discriminatory patterns. ENDNOTES * Assistant Professor, University of Ottawa Faculty of Law, Common Law Section. The author wishes to express her gratitude for the work done by Joan Brockman and Fiona M. Kay, and to thank Louisa Garib for research assistance and indefatigable support. Of course, all inadequacies remain those of the author. 1 Honourable J.J. Spigelman, Chief Justice of New South Wales, Address to the Women Lawyers Association of New South Wales (August 1999), online: < wlink.nsw.gov.au/sc%5csc.nsf/pages/sp_250899>. 2 The Canadian Bar Association Task Force is hereinafter referred to as the task force. 3 Canadian Bar Association Task Force on Gender Equality in the Legal Profession, Touchstones for Change: Equality, Diversity and Accountability (Ottawa: Canadian Bar Association, 1993). 4 Ibid, at The conclusions set out in this paragraph are drawn from work by Fiona M. Kay, Joan Brockman, Michael Ornstein, Deborah Rhode, Joan Williams and others, which will be addressed in further detail in Part I, infra. 6 While this paper focuses on technology's role in relation to the disparate impact of the demanding billable hours model of legal workplace organization on women's struggle for equality in the legal profession, this is but one aspect of a larger series of barriers for women in law. Law societies are just beginning to collect statistics that would permit an analysis of the barriers to access for, let alone equal participation by, women experiencing discrimination along numerous axes of discrimination, including race, aboriginality, disability, and sexual orientation. In many cases, sample sizes and response rates are so low that even assessing the representation of diverse women in law presents a challenge: Michael Ornstein, Lawyers in Ontario: Evidence from the 1996 Census: A Report for the Law Society of Upper Canada (Toronto: Law Society of Upper Canada, 2001); a follow-up study based upon the 2001 census is expected later this year.); Merrill Cooper, Joan Brockman, and Irene Hoffart, Final Report on Equity and Diversity in Alberta's Legal Profession (Edmonton: Law Society of Alberta, 2004) (the Alberta report); Deborah Rhode, The Unfinished Agenda:

20

21

22

23

24

25

26

27

28

29