A new era of matriarchal lawyers

Despite Latin America’s deep ‘cultural institution’, which has led to gender bias at both work and at home, GC finds that, with the help of conglomerate investment and the #MeToo movement, women in the legal profession are increasingly able to break barriers and question their role with the workplace.

As a region, Latin America accounts for a 22% share of all lawyers globally, and an estimated 33% share of female lawyers globally. Despite this, just 25% of top management roles are occupied by women, and those in top management roles earn just 60% of that paid to their male counterparts. In Argentina, Brazil, Colombia, Chile, Mexico, Peru and Venezuela, women earn between 49 and 68 cents for every dollar that men earn in the same or similar roles.

Disappointingly, this is in step with much of the rest of the world. According to a 2019 report published by the World Bank, just six countries globally achieved a perfect score in gender equality, which means that the law in each of those countries treats men and women equally in every dimension measured by the research. The report covered 190 countries.

While Latin America shares the struggle for gender equality with much of the world, it faces unique barriers (in addition to those common to the rest of the world) in achieving that goal. Chiefly, the region’s distinct cultural and religious history has led to especially institutionalised gender bias, informing modern day attitudes which in turn make efficient reform difficult. A 2013 McKinsey & Company survey of 547 executives across Latin America found that 70% of those surveyed indicated that societal views of women’s primary responsibilities – namely, the raising of families – were a strong influence on how women make career decisions.

In some countries in the region, the institutionalised gender bias is subtle, but in others it is more obvious. Jair Bolsonaro, president of Brazil, Latin America’s largest economy and the world’s fourth-largest democracy, is renowned for his ‘government-by-machismo’ approach to politics, and is illustrative of populist attitudes toward women. Bolsonaro has been the subject of numerous protests since his inauguration, due to his inflammatory comments regarding women, as well as various ethnic and sexual minority groups. Bolsonaro has outright placed himself in opposition to what he pejoratively calls ‘gender ideology’ – a largely conservative term used to undermine pushes for equality as antithetical to religious and family values.

“Bolsonaro has outright placed himself in opposition to what he pejoratively calls ‘gender ideology’.”

But it is not just men who perpetuate gender stereotypes. Arguably, a large number of Latin American women also feed into these traditional gender roles. They believe it is their responsibility to take on all of the ‘home work’, which becomes more apparent after having children. Patricia Barbelli, Diageo’s legal and corporate security director of Paraguay, Uruguay, and Brazil, argues that men and women may take up distinctly separate positions at both work and home, to encourage a work-life balance.

Female perpetuation of stereotypes has also been seen through the remarks of Damares Alves, Brazilian minister of human rights, family and women, who assists Bolsonaro in his battle against ‘gender ideology’. Alves strongly supports traditional gender roles and is an opponent of so-called ‘ideological indoctrination’. In January 2019, when Bolsonaro came to power, Alves tweeted: ‘Women are made to be mothers’ and ‘It’s a new era in Brazil: Boys wear blue and girls wear pink!’. Alves asserts the view that diversity and inclusion programmes are a ‘threat’ to Brazilian families. Bolsonaro has also concisely propagated the long-peddled excuse for gaps in pay between men and women, arguing that men and women should not receive equal salaries and that he wouldn’t hire women with the same salary as men because women may fall pregnant.

The gender pay gap

According to the World Economic Forum, the gender pay gap of 29.2% in Latin America will take an estimated 64 years to close. The lack of practical regulation requiring businesses to observe compliance with equal rights legislation, especially gender pay regulation, to government and authoritative bodies, remains a substantial obstacle in ending the gender pay gap. Currently in Latin America, recording obligations exist only in Peru and Colombia. That said, Latin American governments are increasingly making an active effort to rectify this.

Gender discrimination is expressly prohibited in Argentina, Brazil, Colombia, Chile, Mexico, Peru and Venezuela. These nations all allow for provisions for differing legal action in relation to employees, against their respective employers, who permit gender discrimination within the workplace. For instance, in Mexico, employers who allow gender discrimination in the workplace may face labour ministry sanctions. Mexican employees are also able to bring civil action for ‘moral damages’ and criminal action under discrimination against their employer. These employees can also choose to file a complaint to the National Commission to Prevent Discrimination for payment of damages, a public warning, and/or a public or private apology.

In 2011, the Colombian Ministry of Labour stated that all Colombian businesses must document a gender pay record for audit or visits. Though this is not a direct recording requirement, it requires businesses to retain salary, job specifications, and requirements when beginning employment at the business via a gender lens.

More recently, in 2017, the Peruvian government passed a law prohibiting discrimination between men and women. The law prohibits salary discrimination between men and women, implements a recording specification (similar to that of Colombia) and prescribes businesses to notify their respective employees of payroll initiatives (and aspects affecting wages). Failure to comply with such laws may result in severe penalties for the employer. The 2017 law also recognised that sustained discrimination within the workplace would be treated as a ‘hostile act’, raising grounds for legal action against employers to allege ‘constructive dismissal’ and the payment of ‘mandatory severance’.

Research suggests that one of the primary causes of the gender pay gap is lack of representation of women in senior roles, but the lack of women in senior roles is a problem in itself. Companies and law firms are only now beginning to view gender bias as a problem. This is seen to be a separate issue that must first be addressed before the inclusion of women in senior roles. ‘The top levels of companies and most partners within law firms are still being filled by men,’ says Barbelli. According to the 2018 McKinsey & Company and LeanIn.org ‘Women in the Workplace’ paper, men surpass women at every level within the workplace.

Mónica Jiménez González, secretary general of Ecopetrol Colombia SA, outlines how instead of taking slow and rigid action in addressing the gender pay gap, Ecopetrol is analysing its own company data. Ecopetrol assesses the salaries of their employees at all levels with reference to their job title. When the company has completed a comparative analysis of all job specifications, then Ecopetrol decides the employee salary. This comparative method disregards any gender bias.

Private progress

With negative attitudes toward the position of women in the workplace common at all levels of Latin American society – from religious institutions to the highest of national offices – and with governments occupied by more imminent concerns (such as widespread corruption), it may fall to private businesses to take the lead in correcting entrenched biases and disparity in the workplace.

‘We can see that in the last few years significant efforts have been made by various governments, but most importantly by the privately-owned companies, which I believe are the present leaders when talking about changing traditional mind-sets, not only as a part of natural evolution, but also as a way to improve their labour environments, which can surely lead to a revenue increase as well,’ says Ivonne Romero, SSA Mexico’s general counsel.

As such, internally developed policies and efforts in the private sector might become the most effective tool at advancing the cause of diversity, equality, and inclusion in Latin America.

‘We make sure that we have recruitment processes with an equal number of men and women candidates, in order to ensure that we have an expanded applicant pool that allows professionals to be selected objectively,’ says Sandra Monroy, legal director, Andean region for Uber and Uber Eats.

Programmes such as diversity in candidate pools, as implemented at Uber, are intended to safeguard the inclusion of women and other specified groups within the workplace. The 2016 Harvard Business Review article ‘If There’s Only One Woman in Your Candidate Pool, There’s Statistically No Chance She’ll Be Hired’ outlines that when ‘there were two women in the pool of [four] finalists, the status quo changed, resulting in a woman becoming the favoured candidate,’ and there would be a 50% chance of hiring a woman. These initiatives, if implemented, will undoubtedly increase women’s representation within the workplace.

Although law firms and companies have, in recent years, focused on recruitment processes to tackle the lack of women of women in top management roles, firms and companies alike are now increasingly identifying that more action is required to help women advance. Men and women progress through the workplace pipeline at differing rates and it is clear that gender prejudice and discrimination are an explanation for this. As far back as 2011, Catalyst’s report ‘The Myth of the Ideal Worker: Does Doing All the Right Things Really Get Women Ahead?’ outlined the idea of a ‘social penalty’ where women are more likely to be perceived negatively when asking for work promotions and salary increases, than their male counterparts. But thankfully, that is slowly starting to change with the growing influence of women in senior roles.

‘At SSA Mexico the legal function is part of the executive team, so we have the opportunity to advise the company on how to deal with gender inequality. In my team there are women lawyers (mothers and single). They know that they can count on my support when speaking of their development as women and lawyers,’ adds Romero.

As research continues to be conducted on the effects of diversity in firms – legal and otherwise – the business case is becoming increasingly hard to ignore, and charges of ‘meaningless box ticking’ hold less and less weight.

‘This is not just a moral obligation, but a sound business strategy,’ Barbelli surmises.

Diversity and business value

There is an established connection between gender diversity and a company’s bottom line profit. There is also clear connection between focussing on the gender pay gap and the war for attracting and retaining talent.

Regional trends Regulation concerning discrimination, harassment or sexual assault within the workplace differ from region to region in Latin America. However, ‘if a company has strong policies defining what is acceptable or not in regard to behaviour that may be considered discrimination or harassment in the workplace, this will help a lot to define the boundaries of what is tolerated or not from the employees,’ says Barbelli. Diageo implements a global ‘Dignity at work’ policy whereby every employee is individually responsible for demonstrating the highest standards of integrity in their behaviour, and harassing, sexually harassing or bullying, victimising, threatening or retaliating is not tolerated. Romero states that, ‘it is important to realise that although a company’s nationality can potentially help create a cascade effect in its corresponding subsidiaries in terms of policies, it does not necessarily mean that the company will completely follow that model in a local context, such as Mexico. For instance, we can see that a lot of Mexican locally-owned companies are currently putting a lot of effort in to inclusion, sometimes even more so than international ones. The latter are probably at a loss when trying to apply inclusion policies at a local level.’

Studies also suggest that one of the leading reasons women are deterred from pursuing leadership and partner roles stems from a lack of flexibility, and a lack of positive women role models and mentors.

Various businesses are now active concerning women employee advancement, and this often means going beyond statutory regulations. SSA Mexico, for example, operates ‘flex time’ working schemes and offers additional maternity days, which are not necessarily specified under Mexican law.

‘Uber has several employee resource groups, devoted to women, such as “Women of Uber” and “Parents at Uber” among others, which allow women to embrace themselves and improve every day in their working environment,’ says Monroy.

Mentorship can play an important role in development, with ‘a good role model inspiring you to be the greatest version of yourself, not only on the professional, but personal field too. We [women] are often seen as rivals, when we should be allies. The importance of advocating for women’s higher performance, mentoring, and establishing a support network, all help to erase damaging stereotypes,’ Monroy says.

Fatima Picoto, assistant general counsel and legal director Brazil at GlaxoSmithKline (GSK), also speaks of the value in mentorship for progressing in the workplace, arguing that it is a valuable tool for all employees, not solely women. ‘However, considering the different challenges that women tend to face, identifying someone who can support and sponsor you will have a huge impact,’ Picoto adds.

Pregnancy discrimination (despite being against the law) still exists within Latin America. According to the US Bureau of Democracy, Human Rights and Labour, ‘some employers sought sterilisation certificates from women job applicants or tried to avoid hiring women of childbearing age.’ In the past, it was known that some Latin American employers went so far as to dismiss women employees from their job after hearing of their pregnancies. Despite both actions being unlawful, these laws are seldom enforced across the region. Pregnancy discrimination is inherently linked to a society that has historically tended to view women as home makers and mothers, rather than individuals valued in a workplace.

González notes that Colombia’s 18 weeks of maternity leave is unsatisfactory. Ecopetrol has an extended maternity leave due to the benefits it provides to both parents and children (the World Health Organisation recommends at least six months breastfeeding): ‘This will mean more breastfeeding in Colombia. In the cities, breastfeeding is almost disappearing, but in rural areas, breastfeeding is very high. Working while breastfeeding can be very tough. At Ecopetrol, we still want people to be able to breastfeed, if that’s their choice. We have maternity spaces in our buildings for women to breastfeed, which is very important. But, there’s still a long way to go,’ adds González.

Barbelli adds that ‘achieving gender equality in the workplace requires fundamental changes to a range of working practices. It is of utmost importance to reinforce that men’s parental leave is key to women’s progression.’

The ‘trickle down’ effect

Many Latin American businesses have increasingly encountered demand from, mostly foreign, shareholders to implement equal pay for equal work, or at least conduct equal pay equity audits. According to the 2018 ‘Women in the Workplace’ report, women continue to remain considerably underrepresented in the workplace, and corporations and firms must alter their approach in the hiring and promotion of employees at both an entry and manager level ‘to make real progress.’

Nonetheless, international investment in Latin American conglomerates and corporate governance in global companies is having a progressive ‘trickle down’ influence via region-specific diversity and inclusion policies. Several international businesses with teams in Latin America have voluntarily begun to enforce reformist initiatives such as extended maternity leave, flexible working, and mentoring programmes. These initiatives are aimed to appeal to, engage with, and advance women in the workplace.

Romero notes that as a subsidiary of Carrix, which is headquartered in the US, SSA Mexico ‘offers additional benefits to me as a woman who is working in an executive position. At SSA Mexico, we have a great local executive team, which is on the same page as our US counterparts.’

Many Latin American corporations are now embracing and implementing initiatives that go far above the present national statutory guidelines. Barbelli states that Diageo, which is headquartered in London, England, is transparent and candid when it comes to discussing the progression of women with careers in legal with their panel law firms.

Diageo’s credentials concerning the betterment of women in the workplace, without the existence of formal legislation, is outstanding. Women at a senior level have grown from 22% in 2017 to a mammoth 50% in 2019 and 49% of employees in Brazil’s São Paulo office are women. From July 2019, Diageo has offered six months fully-paid parental leave to both men and women employees, without any existing statutory requirements.

Monroy raises how the development of technology has impacted the increase of diversity policies globally: ‘One of the perks of the digital era is having the possibility to be connected, and somehow close, as if we are all in the same place. Uber has a global policy on diversity and inclusion that applies worldwide, allowing diversity initiatives to take place everywhere without limitations like distance.’

Many Latin American corporations are now embracing and implementing initiatives that go far above the present national statutory guidelines.

There is now a strong movement whereby women and minority groups are gaining momentum in Latin America. Picoto observes that, ‘GSK has 51% of women in our total staff and 49% of our leadership positions are also occupied by women in Brazil offices.’

#MeToo #NiUnaMenos

The advent of the #MeToo movement (or #NiUnaMenos, ‘not one less’, the #MeToo equivalent term coined in Latin America) has created a sense of ‘familiarity’ across the board with all women in their respective geographical regions, while providing them with a platform to voice their own experiences and concerns.

Given the historical role that women have traditionally played in Colombia (and Latin America as a region), the movement has started conversations about what is appropriate in the workplace and what is not. González argues that ‘#MeToo made people think: “What is that?” “Why is that everywhere?” “Why is it on Twitter?” “Why is it in the press?” “What does #MeToo mean to me?”. I have heard a lot of conversations concerning #MeToo in Colombia – this is amazing because you’re seeing women, and vulnerable women, in Colombia talking about it, which means that they are realising that they do indeed have a voice and it’s not okay for those lines to be crossed.’

“Many Latin American corporations are now embracing and implementing initiatives that go far above the present national statutory guidelines.”

The #MeToo movement created an awareness of the difficult reality that many women were, and still are, facing within the workplace environment. After recounting her own experience of harassment, Monroy states that #MeToo has had a positive impact on the women of Latin America in that they are now able to voice their concerns. This helps other women to come forward. Monroy also describes how the #MeToo movement has had a direct influence on Latin America’s ‘cultural institution’ where women who were once afraid of speaking out now have the confidence to do so.

#MeToo is a spawned concept: despite not yet being on a legislative level, it has bought awareness to the topic in Latin America. González does however note that ‘the Colombian government is of course aware of the movement and it’s making them, along with companies, ask themselves “how is this impacting us?”.’

Monroy adds: ‘Don’t ever let society-established parameters define what you can do and how far you can get.’

The barriers that women face in the Latin American legal profession originate from their historically weak status within society: from traditional gender roles to the stereotypical cultural norms of Latin America as a region. This has led to the arguable continuation of work place sex discrimination across the region. We are seeing the remnants of the Latin American ‘cultural institution’ filter down into the way women in law are perceived, with research even suggesting that the gender pay gap primarily concerns gender representation rather than pay discrimination, naming the causes as existing bias and historical pay discrimination allowing for the continuation of the gender pay gap.

Discrimination due to socioeconomic status, sexual orientation and gender identity continues in schools, reproducing stereotypes and traditional roles for women, particularly in relation to their role within the household. This ‘cultural institution’ has not only been fed by men in powerful positions, such as politicians, but also by women themselves who believe that there are specifically established roles which men and women should play. This can clearly be seen with the lack of women in senior roles and the very existence of the gender pay gap.

However, Latin American firms and companies are now seeing more and more women question how executive corporate decisions are made. The current unstable political climate in several Latin American nations, supported by the arrival of the #MeToo movement, and the ‘trickle down’ effect of conglomerate businesses, have all encouraged women to contest their role within society and workplace. This intervention by multinational companies may even cue Latin American governments to begin to include gender-related issues in their own policy programmes.

But, only a handful of Latin American nations have made headway in making motherhood and employment harmonious. Despite the majority of Latin American countries legislating to require businesses who employ 20 or more women to establish day care facilities, these laws are rarely ever enforced. The same can be said about laws governing pregnancy discrimination. There is obviously a disconnection between Latin American legislation and general attitudes towards women in the workplace. Increased efforts are required on behalf of national governments to enforce inclusion and other diversity policies locally.

We are slowly starting to see cultural developments in Latin America that don’t necessarily conform to the traditional historical norms and this has been a direct result of the advancement of the lives of women themselves. This activity will help facilitate the ending of discriminatory obstacles that Latin American women in law must overcome. As Monroy points out, the stereotypes have ‘if anything, challenged us [women] to reach our best within the legal profession,’ and that the progress in Latin America in recent years is ‘extremely valuable because of its history and the rough path that women have been through to get to this point’. Although progress on this front may be gradual, the long established cultural perimeters of specific gender based roles are also slowly (but promisingly) being eradicated.