This paper examines the use of face-to-face interviews and self-response questionnaires as methods for studying issues of gender bias in the legal profession. It draws on personal interviews with 50 women and 50 men called to the bar in British Columbia and the construction of, and responses to, four self-response questionnaires (for members and former members of the Law Society of British Columbia and for active and inactive members of the Law Society of Alberta). In order to illustrate how questions about gender bias in the legal profession might be constructed from a feminist perspective, the paper examines issues surrounding the definition and study of: (1) gender bias and discrimination; (2) sexual harassment; (3) gender harassment; and (4) the combining of career, children, and chores.
"This questionnaire appears to have been prepared by a wild feminist at her raving best! Why do we waste our time and money on such things?"
(Respondent to a survey of members of the Law Society of Alberta, 1991)
The colourful description above was scrawled over the top of a questionnaire from one of four surveys I completed between 1989 and 1992 of current and former members for the Law Society of British Columbia (Brockman, 1992b, 1992c), and of both active and inactive members for the Law Society of Alberta (Brockman, 1992a, 1994). The questionnaires used in the Alberta surveys were similar to those used in the British Columbia surveys, and they have been considered by other law societies across Canada.(1) Following these surveys, I conducted personal interviews in 1993-94 with a stratified random sample of 50 women and 50 men who had been called to the Bar in British Columbia between 1986 and 1990, and who were still members when the sample was drawn in 1993 (Brockman, under review).
In the context of studying gender issues in the legal profession, this paper examines research methods, methodology, and the politics of constructing questionnaires with committees in an organization that is the governing body of the group being studied (in this case, the law society committees in British Columbia and Alberta). It then examines some of the shortcomings of these questionnaires and of the interview questions, in light of feminist perspectives on the study of gender bias in the legal profession. The research methods or tools used, in this case questionnaires and interviews, do not necessarily preclude or presume a feminist perspective (Brockman and Phillippe, 1991; Reinharz, 1992). Rather, it is at the methodological level that feminism can have an impact on research. How does one ask questions about what appears problematic from women lawyers' perspectives? How does one ask questions which reflect the "lived experiences" of the respondents?
In order to illustrate how questions about gender bias in the legal profession might be constructed from a feminist perspective, the paper then examines issues surrounding the definition and study of: (1) "gender bias" and "discrimination"; (2) sexual harassment; (3) gender harassment; and (4) the combining of career, children, and chores. While it is necessary to provide some of the results of my studies for illustrative purposes, this paper is designed to address the questions asked, not the results obtained. Finally, I ask the question: what about male lawyers? Do we ask questions about whether men face discrimination, and do we ask men our questions?
The use of two different research methods (a mail-out, self-response questionnaire and face-to-face interviews) raises questions about whether one of the methods used, the mail-out questionnaire, could ask questions "for women lawyers." There are some who believe that there are distinctive feminist methods, and that a mail-out questionnaire with quantitative results is not one of them. I am of the view, however, that there is no distinctive feminist method; rather, there are feminist epistemological and methodological approaches to whatever research method is used (Brockman and Phillippe, 1991). According to Sandra Harding (1990, pp. 89-90), epistemology refers to a "theory of knowledge," or a set of "strategies for justifying beliefs." Once we realize that epistemologies are ways of justifying knowledge, we can ask questions about the hostile environment which accompanies this approach to knowledge. Methodology refers to "a theory and analysis of how research does and should proceed" (Harding, 1987a, pp. 2-3). Shulamit Reinharz, studying feminist researchers, concluded: "[F]eminist researchers do not consider feminism to be a method. Rather they consider it to be a perspective on an existing method in a given field of inquiry or a perspective that can be used to develop an innovative method" (1992, pp. 241). Therefore, one can talk about feminist interview research, feminist ethnography, feminist survey research, feminist experimental research, etc.
This is not to say that it makes no difference whether you send out questionnaires or conduct fact-to-face interviews, only that neither has a monopoly on a feminist approach to social science research. Women social scientists have recognized the importance of triangulation, or the use of more than one method, since the late 1880s. For example, Beatrice Webb, who wrote about the importance of qualitative and quantitative methods before Weber and Durkheim wrote about methods, commented that, "statistical enquiry without personal observation lacks all sure foundation; while personal observation unless followed by statistical enquiry leads to no verified conclusions. The two methods are in reality two equally essential acts in all scientific investigation of the structure and growth of existing societies" (quoted in McDonald, 1994, p. 218).
In addition, there is no clear dividing line between quantitative and qualitative methods. Mail-out questionnaires can elicit qualitative data as well as quantitative data, and the interview can be subjected to quantitative analysis, as well as yielding qualitative comments. Triangulation likely results in the greatest insight into the subject of investigation (Creswell, 1998, p. 202; Reinharz, 1992, pp. 197-213; Ussher, 1999).
Prior to conducting the four surveys and the 100 interviews, two students and I applied Sandra Harding's work on feminism and science (see, for example, Harding, 1986, 1987a, 1987b, 1990, 1991) to ask questions about how one might study gender bias in the legal profession from a feminist perspective (Brockman et al., 1992). Harding is of the view that a feminist approach will more readily approximate objective reality than an androcentric approach (1986, p. 110). So-called "objective" questions in an androcentric world simply reinforce the status quo. Questions from women's perspectives "study up" and ask questions about what appears problematic from women's perspectives.
Harding's suggestion that we "study up" also includes asking questions about men, their behaviour patterns, and why they do not meet our expectations/standards, rather than constantly asking ourselves why we do not meet theirs. Feminist perspectives on women in the legal profession would focus on at least four levels: (1) gender structure -- the division of labour, e.g., barriers to entry; (2) the construction of individual gender at the occupational level -- segregation within the profession and the culture of the legal profession; (3) the construction of individual gender at the personal level -- sexual and gender harassment; and (4) the production of gendered social life -- gender symbolism and the objectification of women (discussed in more detail in Brockman et al. 1992, pp. 47-62).
In retrospect, my surveys in British Columbia in 1989-1990 were studies of white women in the legal profession. This changed somewhat in the Alberta surveys (1991-92) and the interviews in British Columbia (1993-94), in that at least there were some questions about discrimination on the basis of characteristics other than gender. But my studies were still limited to privileged women, most of whom were white and middle class. Needless to say, my research fell far short of a "wild feminist at her raving best." However, in light of these limitations, and having struggled with this paper for eight years, I will continue in the hope that it might shed some insight into the research process and assist others in avoiding the pitfalls.
The Politics of Constructing a Questionnaire
Throughout the exercise of discussing methodology, I am constantly reminded of the practicalities of integrating methodology into the process of constructing questions. Constructing a questionnaire is to a large extent a political activity -- its politics are much more obvious when you attempt to ask questions which might be of some interest to a minority group (in this case women) within a male-dominated profession. How does one ask questions for women lawyers in a way that does not favour the status quo? And how does one take into account the cultural, racial, sexual, and other diversities (see, for example, Carasco, 1993; Duclos, 1990; Kline, 1989; and 1991; Majury, 1994; Petersen, 1994; Razack, 1992; Neallani, 1992)? In 1989-90, the Law Society of British Columbia's Women in the Legal Profession Subcommittee thought that their mandate was to study women in the legal profession, which to them meant leaving out any reference to women's diversity,(2) whereas the Law Society of Alberta's questionnaire asked questions about discrimination on the basis of race, disability, age, martial status, sexual orientation, and parental status. In the interviews in British Columbia, I showed the respondents the Law Society Rule which prohibited discrimination on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, marital or family status, disability or age, and asked them whether they had ever been discriminated against in the legal profession on any of these grounds.
The politics of constructing questionnaires with law society committees for the purpose of studying lawyers is also influenced by the structure and composition of the committees within the organization. I had convinced the Subcommittee on Women in the Legal Profession (British Columbia) that the questionnaires should be returned to the Law Society, rather than to me at the University. I thought this would increase the response rate. Decisions by the Subcommittee had to be approved by the Law Society's Planning Committee (this also was a factor we considered when we designed the questions -- would the question be approved by the Planning Committee?). When I appeared before the Planning Committee to defend the questionnaire and the plan for returning questionnaires, the latter was attacked by a senior male lawyer (with probably no expertise in survey design) with the authoritative and conclusive statement that "lawyers would never fill in the questionnaire if it had to be returned to the Law Society." The Planning Committee decided that the questionnaires would be returned to me. In contrast, decisions by the Alberta Committee on Gender and Inequality in the Legal Profession were not reviewed by any other committee. The committee could decide what questions to ask, and where the questionnaires would be returned. They accepted my advice that returning questionnaires to the Law Society would increase the response rate. In fact, the response rate in Alberta from the men was twice that received in British Columbia (47 percent compared to 23 percent), and the response rate for women was also greater in Alberta (62 percent compared to 53 percent). Other than one respondent who could not be located, the response rate for the interviews was 100 percent.
The Concept of Gender Bias
There was little discussion when we drafted the questionnaires about the use of the term "gender bias" as opposed to, for example, sexism,(3) but "gender bias" was used in conjunction with "discrimination" in a number of questions in order to add clarify to the concept. For example, respondents were asked:
What is your perception of gender bias or discrimination against women in the legal profession in British Columbia/Alberta?
__ there is none
__ it exists, but is not widespread
__ it is widespread, but subtle and difficult to detect
__ it is widespread and readily apparent
We still do not have an ideal conceptual or operational definition of gender bias and discrimination. In traditional social science research, an ideal definition would be one that is shared by everyone. However, ideals are seldom achieved and there is rarely complete agreement on what a concept means. For example, one respondent wrote, "[There is] gender bias only [against women in the legal profession], I don't think discrimination is at all prevalent."
Not all of the respondents saw gender bias or discrimination as a negative concept: some bias against men was viewed as a positive bias. Some respondents commented that gender bias against men in judicial appointments was a positive and necessary change. Comments by men included: "Women are now able to secure judicial appointments because we have some catching up to do"; "the bias is a necessary one"; "[bias exists] at least for the short term until the ratio is balanced"; and "more women are being appointed as judges to offset the past male domination." However, for the most part, bias was viewed as something which should be eliminated. In the interviews it was much easier to clarify how the respondents understood the concepts.
Since the closed-ended, general question on gender bias (reproduced above) does not ask about the nature of gender bias, there were a number of other questions which attempted to operationalize the concept of gender bias or discrimination. The current wisdom is that the closed-ended question with an "other" category is the appropriate way to construct such questions (see, for example, Fowler, 1984). Obviously, the categories will suggest possible answers, and the greater the number of categories the greater the number of forms of gender bias that will be identified. This is clearly demonstrated in the question which asked respondents:
If you think there is gender bias or discrimination against women or men in the legal profession, how would you categorize it? (Check as many as appropriate)
The British Columbia questionnaire listed 11 possibilities (other lawyers not giving appropriate weight to opinion, career advancement, access to clients, assignment of files, remuneration, hiring, attaining partnership, access to managerial positions, opportunity to appear in court, judicial appointments, and lack of accommodation for family commitments), and an "other" category. The Alberta questionnaire listed 17 possibilities and an "other" category. The additional items in the Alberta questionnaire were: setting hourly rates, judicial attitudes, unwanted sexual advances, unwanted teasing, jokes or comments of a sexual nature, the nature of office/firm functions, and the nature of promotional functions. The results show that adding categories of gender bias or discrimination to a questionnaire increases the likelihood that these forms of bias will be identified. For example, the British Columbia Subcommittee did not want to ask about judicial attitudes, because they were of the view that judicial attitudes were outside their mandate. As a result "judicial attitudes" were added by the respondents in the "other" category, but "judicial attitudes" were not identified nearly as often as they would have been had they been listed in the checklist. Only 12 (1.7 percent) women and one man (.09 percent) in the British Columbia survey added comments about "judicial attitudes" in the "other" category; it was, however, the most frequent form of gender bias identified in that category. Had "judicial attitudes" been in the list in the British Columbia questionnaire, I estimate that approximately 50 percent of the women and 20 percent of the men would have identified "judicial attitudes" as a form of gender bias against women.(4) Simply directing respondents to turn their minds to a question should not affect their attitudes towards the subject matter.
One should perhaps ask what other categories were still excluded from the question asked in Alberta? The answer can be seen in what respondents wrote in the "other" category. Missing from the list is: the nature of the mentoring system, respect for feminist approaches to problem solving, gender-biased language, values in the legal system, and bias against lesbians and gay men. There may have been other areas which were not identified, but to a large extent the ones identified were issues of concern to women lawyers.
There were other questions in the questionnaire which tried to operationalize 'gender bias.' A number of questions asked about whether women or men had a better chance of being hired as articling students or lawyers, and whether women or men had a better chance of advancement. These questions illustrate how the phrasing of a question can affect the results. For example, the Alberta Committee considered the following question from the British Columbia questionnaire:
In the last 5 years, have you been denied an opportunity to work on a file: Frequently Sometimes Rarely Never Don't Know because a client objected on the basis of your gender because another lawyer in your firm objected
The Alberta Committee then substituted the following wording of the question:
In the last 5 years, do you feel you have been denied an opportunity to work on a file: Frequently Sometimes Rarely Never Don't Know because a client preferred a lawyer of the opposite gender because another lawyer in your firm preferred a lawyer of the opposite gender
The Alberta Committee was of the view that "have you been denied" was asking respondents to limit their responses to situations where the denial was blatantly obvious. They also thought that "objected" was too strong a term, because the objection might be phrased in terms of a preference. The question as reconstructed for the Alberta survey had the effect of decreasing the uncertainty for the women respondents. In the British Columbia survey, 35.8 percent of the women did not know whether they had been denied an opportunity to work on a file because a client objected on the basis of their gender, and 30.9 percent did not know whether they had been denied an opportunity to work on a file because a lawyer in their firm objected to them on the basis of gender. In the Alberta survey, in contrast, 22.0 percent of the women did not know if they had not worked on a file because a client preferred a lawyer of the opposite gender and 20.7 percent did not know if a lawyer in their firm preferred to work with a lawyer of the opposite gender.
In the face-to-face interviews, I provided the respondents with a copy of the anti-discrimination rule which the Law Society of British Columbia introduced into their Rules of Professional Conduct in May of 1993, and read it to them. The Law Society rule states that lawyers "shall not discriminate on the basis of race, national or ethnic origin, colour, religion, sex, sexual orientation, marital or family status, disability or age." Respondents were then asked whether they had ever been discriminated against in the legal profession on any of these grounds. Those that said "yes" were asked to elaborate, and to indicate whether the discrimination was by lawyers, judges, or clients. Respondents were asked how they reacted or responded to the discrimination, whether they or someone else took effective action against the discrimination, and whether they thought that the Law Society's anti-discrimination rule would be effective (Brockman, 1997). They were also asked whether the discrimination or their reaction to it adversely affected their career, whether the discrimination affected them personally, and if so, in what way. The interview format allowed for greater elaboration on the effects of discrimination. The question was not asked in the British Columbia survey, and in Alberta the question was followed with: "If you experienced any problems and wish to elaborate on the circumstances, please use a separate piece of paper." The face-to-face interviews allowed for more probing and elaboration for those who had experienced discrimination. A long sequence of questions on discrimination on a mail-out questionnaire, on the other hand, might have the effect of putting respondents off.(5)
Questions in the mail-out surveys regarding sexual harassment were limited to the number of times the respondents had observed or experienced sexual harassment in professional settings in the last two years. Mere number crunching about the extent of sexual harassment without regard to its consequences can have the effect of objectifying the experience, since possibly "the power of the message is lost in quantification" (Brockman and Phillippe, 1991, pp. 44). A wild feminist at her raving best would have asked about the consequences of sexual harassment for those who experienced it. Studies of sexual harassment have established some of the damaging effects that it has on women: loss of self confidence, poor job performance, nervousness, irritability, severe weight loss, disgust, and uncontrolled anger (Adkins, 1995; Backhouse and Cohen, 1978; Gutek, 1985; Loy and Stewart, 1984; Sev'er, 1999). The Supreme Court of Canada in Janzen and Govereau v. Platy Enterprises Ltd. et al.,  4 W.W.R. 39 (S.C.C.) at 64-65 described sexual harassment as a "demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it."
It was clear from some of the comments by the respondents in the mail-out surveys that the severe consequences of sexual harassment on some people are not appreciated by others. Comments included: "unwanted but unoffensive in firm"; "so much ado about nothing"; "I haven't seen it unwanted. If restricted to teasing, etc., it offers relief through the day and a smile."
The lawyers whom I interviewed were told that the Law Society's Rules of Professional Conduct defined sexual harassment as a form of prohibited discrimination, and they were provided with a copy of the rule and the accompanying footnote, which stated in part, that the rule reflects the Supreme Court of Canada's decision in Janzen v. Platy Enterprises Ltd.,  1.S.C.R. 1252. The Court discusses the issue at pp. 1276-1291. The Chief Justice said:
Common to all of these descriptions of sexual harassment is the concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands (at 1281).
Respondents were asked whether they had ever been sexually harassed in work related situations, including professional functions, since entering the legal profession as an articling student. If they had been, they were asked to elaborate, and to specify whether the harassment was by lawyers, judges or clients. They were also asked how they reacted or responded to the harassment, whether the harassment or their response adversely affected their career, and whether the harassment affected them personally. Again, the face-to-face interviews made it easier to follow up on the questions asked, and shielded those who had not experienced sexual harassment from irrelevant, detailed questions.
Gender harassment includes "harassing a woman in an attempt to make her fit a particular gender stereotype and offering personal comments that are inappropriate in professional settings" (Brockman et al., 1992. p. 59). These comments may be directed at a woman's social habits or physical appearance. Gender harassment is a means of social control, much like sexual harassment. But as Bartky (1988, p. 75) writes, the lack of specific institutions to enforce this discipline "creates the impression that the production of femininity is either entirely voluntary or natural." Recent writers on the legal profession in both Australia and the United States have remarked on the correlation between women's equality and efforts to increasingly sexualize women. Thornton (1996, p. 135) notes that the increase in the number of women in universities and law school has coincided with the increase in sexually explicit entertainment such as lap dancing. Harrington (1994, p. 6) also notes the relationship between liberalization and sexualization of women. Both authors elaborate on how images of women, including the sexualization of women, operate to impose controls upon them and to keep them in a subordinate state. None of my studies asked questions about gender harassment.
Combining Children, Chores, Careers
Women will never achieve equality in the legal profession if gender bias is confined to an examination of androcentric notions of what is involved in the practice of law. The dominance of the male perspective can be illustrated by a comment from a committee member when I posed a question for a questionnaire that would detail what lawyers do in terms of household chores. The question I drafted attempted to determine who did the cooking, cleaning, laundry, meal planning, household shopping, dishes, yard work, garbage disposal, and household errands. She asked, "Well, what does all of this have to do with practising law?" The response is, obviously, "everything." The fact that the question could be asked by a woman lawyer who was knowledgeable of the issues women face in the legal profession, and who had children, illustrates the extent to which we are all affected by the dominant perspective.(6)
The relevant question for the survey was eventually reduced to asking respondents about the number of hours they spent on household chores. This is the standard approach with most surveys of the legal profession (see Kay et al., 1996 for an exception). When I conducted the interviews, I asked respondents with children the proportion of work they, the child's other parent, or other child givers performed in terms of organizing day care or school; preparing or supervising children's breakfast; getting children ready for, and transportation to and from, school or day care; caring for sick children, doctor appointments; attendance at parent-teacher days; time spent with children on recreational activities; disciplining children, bathing children, changing clothes, etc.; supervision of children after school or child care until they go to bed; reading to children, helping with homework; putting children to bed; attending to general questions and demands of children; and other family-related activities. I also asked a series of questions about the proportion of household chores done by the respondents, their spouses, or by paid labour. The list included cooking; cleaning house, putting things away; laundry; meal planning and grocery lists; grocery and other household shopping; dishes; gardening and other yard work; organizing car maintenance and repairs; organizing home maintenance and repairs; garbage disposal; household accounts; sending birthday, holiday, and other cards; general supervisory work, such as who decides what needs to be done; and other domestic activities.
What do children and chores have to do with the practice of law? For women, everything, but for men, far too little. The fact is that women lawyers who work full-time and have children spend more time on child care than their male counterparts. The women in British Columbia and Alberta provided a median of 40 percent of the time required to care for their children, as compared to a median of 20 percent provided by the men in British Columbia and 25 percent by the men in Alberta. In both surveys the women who had children requiring care spent over twice as much time on caring for children as the men (Brockman, 1992b, 1992c; see also Kay, 1997a). The usual approach to dealing with problems of child care is to restructure the workforce so as to accommodate women who have childcare responsibilities. Suggestions for reform include part-time work, part-time partnerships, parental leaves, child care near the workplace, etc.
A wild feminist might start asking questions about how to restructure the workforce so that men spend more time at home (preferably on childcare and household chores). A 24-hour work-week in which women and men participated equally in the paid workforce and the unpaid labour of childcare, housework, and household management, is one possibility. In 1983, Bruce O'Hara, who worked as a counsellor and encountered many clients who were either unemployed or overworked, founded Work Well, Canada's first work option resource centre. He coordinates the Work Well Network, a Canada wide network of people dedicated to reducing the work week (O'Hara, 1993, 1994). Since that time, the problems of overwork and underemployment have become worse. In 1995, only 54 percent of workers worked a standard 35-40 hour week, compared with 65 percent in 1976. Today Canadian workers are more likely to be overworked or underworked. Statistics Canada determined that in the first quarter of 1997, 18.6 percent of Canada's employees worked over-time, and about 60 percent of these did so without over-time pay. Unpaid over-time workers worked an average of 9.2 hours a day, while paid over-time workers worked an average of 8.5 hours. Over the last 20 years, the percentage of involuntary part-time workers has gone from 2 percent to 6 percent (Little, 1997, p. B1).
However, the problem runs deeper than an attempt to restructure the workforce so that men spend more time at home on childcare and household chores. We must move to the next stage of examining the production of gendered social life. If providing time for men to do child care and household chores was the sole issue, re-engineering might actually work. But we live in a society which expects nothing less of women than to care for their children, and one which over exaggerates a man's virtues when he contributes anything to childcare and household chores.
The different expectations we have of women and men is illustrated by Tannen (1990, p. 183), who tells of a graduate student who called her at home on a Sunday night about a thesis problem. Tannen asked, "Why don't you ask your supervisor?" The student responded, "I don't want to bother him at home." Studies have shown that students expect far more of female faculty members than they do of male faculty members. If students get the same response from female and male faculty members, the women are seen as just doing what is expected while the men are seen as going out of their way to be helpful.
How can we ask questions which might lead to changes in these attitudes? Asking men about who does what around the home and who does the numerous tasks involved in child care, and asking them about their satisfaction with the arrangement and their spouses' satisfaction, brings to their attention questions with which they might not otherwise grapple. In addition, asking men how having children has affected their careers puts them in a position of thinking about whether having children should have an impact on their careers. These questions, asked in the context of an interview focussing on their careers, did cause some of the respondents to think about the division of labour, and to realize that maybe their spouses were unhappy with it.
What About the Men?
There was some discussion with both law society committees over whether the questions should be gender "balanced" or gender "neutral"; that is, should the questions ask about gender bias or discrimination against men as well as against women. Some might be of the opinion that a wild feminist at her raving best would not have asked questions about gender bias against men. However, much depends upon what one wants to achieve. In the end it was decided to proceed with a gender "balanced" questionnaire, that is the questions also asked about bias against men. Some respondents were offended by this approach. Women respondents in the former members survey in British Columbia wrote, "You must be joking!" and "How can there be gender bias against men in 1989?" Some respondents, including some men, thought that asking questions about gender bias against men detracted from the purpose of the questionnaire.
Despite our efforts to "balance" the questionnaire, there were still some men who did not view the questionnaire as balanced, and were still offended that the law society had the audacity to ask some of the questions which in their view were "biased." They wrote:
What in the world is the purpose of this survey? It certainly does not appear to be very balanced. It is suggestive, and in all likelihood will result in a witch hunt.
This survey is biased -- results will generally be useless. The survey seems to be prepared to prove discrimination exists against female lawyers.
This survey is very biased in favour of women. Why don't you deal with the fact that men are discriminated against when women are given judicial appointments because they are women, and better qualified men are passed over?
This last comment was by a man who indicated that there was no bias against women or men, and he did not check any of the categories of bias against women and men, which included the option of indicating that men faced bias or discrimination in "judicial appointments." Another wrote:
I am offended by the format -- the questions dictate the answers -- and create issues where none should exist. The only question is whether a person is a good lawyer -- "male-female" is a non-issue. I am really interested in the Society fulfilling its mandate -- and this -- as far as I'm concerned -- is far outside its mandate.
In spite of these comments, the "balanced" approach in the questionnaire likely had the advantage of increasing the response rate from men. However, the criticisms expressed by some of the men are an indication that it would be completely impossible, from their perspective, to ask questions about gender bias in a "neutral" or "objective" fashion. The mere fact that questions were asked about gender bias was offensive to them. Nevertheless, it is important to canvass the views of women and men about bias against men.
The second issue regarding men has to do with whether we even ask men questions. For example, Harrington (1994) and Thornton (1996) each interviewed approximately 100 women lawyers, and no men. Harrington does not explain why, other than to say that she wanted to gather and publish stories of women lawyers "whose voices were often not heard in a male-dominated profession" (1994, p. vii). Thornton (1996, p. 5-6) explains that she did not interview men because,
the experiences of women in the legal profession are far more than the mirror images of the experiences of men of law, and I do not believe that methodological neutrality would have been achieved by such an approach. The fiction that neutrality is the distinguishing characteristic of benchmark men is the underlying presupposition of the masculinised norm. The struggle by women in law to shake off the seeds of invidiousness that attach to them is not the history of benchmark men, a narrative that has already received extensive attention.
Men are rarely asked questions which are of interest to women. If one wants to change men's attitudes towards the raising of children, household chores and management (the assumed domain of women), we must ask them the same questions that we ask women. The alternative is to tinker with the structure of the workforce so that some women lawyers can return home from their shift at the office to their second shift (household tasks and management), their third shift (child care), and their fourth shift (a husband).
Another problem which surfaces when we neglect to ask men our questions is that we cannot seem to resist making assumptions about what men think and what they are like. For example, Harrington (1994, p. 123) asks, "what, then, is this culture that is male but also unappealing to many men?" Thornton writes, "men are bemused about the nature of the ground rules in negotiating with professional women" (1996, p. 153), and "while there are women lawyers who relentlessly seek power, prestige, and money like male lawyers, many women with young children have different priorities" (1996, p. 247). The key is not to ignore men lawyers, but to ask them questions that matter to women. The effect of such questions in my interviews was that some men were already thinking about these issues, and others were reluctantly talking about them (perhaps for the first time).
The questionnaires I used fell somewhat short of how a "wild feminist at her raving best" might ask questions; however, the questions still raised issues of concern to some women lawyers. Asking questions about women's experiences is especially difficult when women's voices have been silenced for so long. In 1966, a woman lawyer from Ontario had this advice for women lawyers:
The best way to tackle prejudice [against women lawyers] is to ignore it.... The MORE women complain about sex prejudice, the more they draw attention to being women, rather than lawyers...don't fret about prejudice. (quoted in Cameron, 1970, p. 22)
Similarly, a lawyer in Saskatchewan objected to a survey in the mid-1980s on discrimination in the legal profession. She wrote:
Should the results of this survey show that women lawyers feel they face discrimination, if published, it would only tend to typify women lawyers as "complainers" and tend to reinforce any discrimination. I do not want to be associated with any "feminist" group complaining about discrimination. I prefer to do my job well and by doing so, demonstrate that any discrimination is unjustified (Savarese et al., 1988, p. 37).
We are now moving beyond the stage of silencing women, at least in the legal profession. Not a single woman in the four surveys I conducted expressed these concerns. Both women and men expressed gratitude that the surveys were conducted. In addition, some of the women and men who were interviewed commented on how useful it was to sit down and reflect upon some of the questions which I asked them.
There were, however, a number of men in the self-response setting who would have preferred that the questions not be asked. For example, men wrote comments such as "I trust this survey will not be used to create problems where there are none," "most stupid thing I have read," "Misnomer--you should have disclosed that this was yet another 'feminist' attempt to justify the false allegation of a bias which is 'passe' and does not exist!" and "You are trying to cause trouble." These attempts to silence women lawyers have not been successful. Law societies across Canada, and in other countries, have taken the allegations of gender bias seriously by introducing anti-discrimination and anti-sexual harassment rules (Brockman, 1997), and in some cases, educational programs (Mossman, 2000).
The widespread surveys of lawyers serves an educational role, and are a necessary step to any changes. There are still men who view themselves as privileged, with the "right not to know" about gender issues, for example, in legal education (Feldthusen, 1990); however, a wild feminist at her raving best should ask these men about sexual and gender harassment, the distribution of child care, household chores and management, and the effect these tasks are having on their careers, and their spouses' satisfaction with the arrangement. Equality in the legal profession demands nothing less.
1. This is a revised version of a paper presented at the Law and Society Association Annual Meeting, Toronto, Ontario, June 1, 1995. I would like to thank Fiona M. Kay and V. Gordon Rose for their helpful comments on this paper. Since beginning this paper, I have had the opportunity to read and be exposed to numerous criticisms of white feminist research. These criticisms have illuminated the absence of the diversity of women based on race, sexuality, class and disability found in this research.
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(1) The questionnaires used in British Columbia were considered by the Law Society of Upper Canada's Women in the Legal Profession Committee when they were constructing their questionnaire for a survey of lawyers in Ontario (Kay, 1991). Copies of all four questionnaires (which can be found in the published articles) were sent to the Nova Scotia's Barristers' Society and the Law Society of Manitoba, in response to their requests. In 1993, the Canadian Bar Association Task Force on Gender Equality in the Legal Profession (Wilson, 1993) summarized the results of the provincial law societies' (Buckley, 1993).
(2) Since that time, the Law Socirty has established a Multiculturalism Committee and a Disability Advisory Committee, in addition to a Gender Equality Monitoring Committee. These committees work closely with the Lesbian/Gay/Transgendered Rights Section of the Canadian Bar Association.
(3) There is some debate in the literature as to whether the use of the term "gender bias" is appropriate. Schafran (1985a, p. 110) comments that the terms " 'sex bias' or 'sexism'...made many judges uncomfortable." Sheilah Martin questions the use of a "sugar-coated concept" to name a problem, and asks, "if it is sexism shouldn't we call it what it is and give it the right label, even if it may make some people uncomfortable?" (Martin, 1993. p. 20). Some of the earliest studies and commentaries on gender bias in the legal profession used the word sexism (see, for example, Bankier, 1974; Sachs and Wilson, 1978).
(4) This is a rough guestimate based on comparing the responses in British Columbia with the responses in Alberta, which in many of the other questions were very similar.
(5) Another shortcoming of the questionnaires was that there were no historical questions about career paths and job mobility which might reveal the course of discrimination. Fiona M. Kay and John Hagan have conducted a number of studies which examine this issue (Hagan and Kay, 1995; Kay, 1997b; Kay et al., 1996; Kay and Hagan, 1998; Kay and Hagan, 1994).
(6) For a discussion of the "hidden" issues about work and family in the legal profession see Mossman, 1994a, 1994b.…