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Sexual Harassment in the Workplace: a Global Challenge

Over 122 countries prohibit sexual harassment in the workplace and 116 extend this protection to both women and men. In the aftermath of the #MeToo movement, employers are, more than ever, acutely aware of the global risks posed by sexual harassment. These include individual and corporate reputational damage, the risk of litigation, vicarious liability (in some legal systems) and criminal proceedings, as well as a negative impact on staff productivity, recruitment and retention.

Businesses have acted to strengthen workplace policies, introduce training and reinforce a culture of dignity and respect. Yet surveys around the world consistently suggest that sexual harassment remains under-reported in the workplace.

A recent UK poll found that two-thirds of Britons who have been harassed in the workplace failed to report their experience to anyone. This is undermining the effectiveness of workplace policies which, typically, depend on reporting to tackle issues and prevent a reoccurrence.

In this article we highlight some key issues when managing global harassment investigations, and review the latest legal developments, to support employers in their efforts to build employee trust in reporting and to reduce sexual harassment in all jurisdictions.

Managing global sexual harassment investigations – lessons learnt

Investigating sexual harassment across different jurisdictions needs careful handling, both legally and culturally.

Legal pitfalls

Some countries have procedural requirements that can wrong-foot the unwary. These may mandate the appointment of specific bodies or people to investigate complaints, such as an Internal Complaints Committee in India which must be constituted with a minimum number of female members.

Déborah Attali, employment partner in Eversheds Sutherland’s Paris office, says that employers should take care to involve the works council in French sexual harassment complaints.

‘Generally, the works council members must be informed of the complaint and involved in the investigation process. As such, the complaint is “on the record”.’

Top tips: global sexual harassment policies and procedures

  • Take advice on local legal requirements and cultural differences.
  • Have global standards (which may need to sensitively transcend local norms).
  • Provide accessible, confidential and trusted reporting frameworks.
  • Monitor workplace culture – proactively identify inconsistencies between policies and values and what happens in practice.
  • Act on hotspots.
  • Require regular training and awareness raising.
  • Keep an open mind – avoiding a rush to judgement.
  • Use confidentiality (non-disclosure agreements) appropriately/lawfully.

DIANE GILHOOLEY (pictured)

Global practice head of the human resources and pensions group

Eversheds Sutherland

Similarly, in Germany, Frank Achilles, employment partner in Eversheds Sutherland’s Munich office, warns employers conducting sexual harassment investigations ‘to beware of triggering fixed timescales within which a dismissal must take effect in order to be lawful. This means that the investigation should commence as quickly as reasonably possible, with the alleged perpetrator interviewed last. The risk being that a dismissed employee may seek reinstatement if the dismissal is not handled carefully.’

Data privacy rules also differ across countries and non-compliance, particularly across the EU, risks significant penalties. As such, employers gathering evidence as part of an investigation must consider the lawfulness of accessing CCTV images, personal messages on a work device or other personal data. A recent Swiss court decision illustrates the difficulties for employers. The court held that an employer acted unlawfully when reviewing private WhatsApp messages on a business mobile phone. It decided that unless the employer had clearly communicated the rules around the personal use of work devices, then employees had reasonable expectations of privacy, even on a business mobile phone.

Cultural challenges

Workplace culture, particularly where operations are dispersed globally, far from the head office location, must also be addressed if businesses are to change behaviour. In our experience, the appetite to raise and address issues can vary and unless the business establishes a global standard of behaviour that is universally applied in local contracts of employment and workplace rules, it can be difficult to ensure consistency of approach.

Local resistance to sexual harassment investigations can also arise where the alleged perpetrator is a key performer or leader in the business. It may want to retain the employee, despite the misconduct. While #MeToo has helped to shift the debate on these issues, bringing in an independent investigator can also help to achieve an appropriate outcome.

An enduring cultural challenge is giving local staff the confidence to speak up, wherever they are in the world and whatever the size or structure of the local team. Employers should not assume that the number of complaints is an accurate reflection of the level of harassment happening in a country. Even if a business’s head office has launched sexual harassment policies and training, employees may not feel sufficiently secure to raise a complaint if the complaint involves a local manager who has the power to dismiss or to influence their career.

Other factors may also come into play, as Jennifer Van Dale, Eversheds Sutherland employment partner in Hong Kong explains.

‘Power dynamics can make it very difficult for employees to challenge their boss, and this can be made more difficult in some countries if the topic is socially taboo, such as sex.’

Monitoring the effectiveness of policies and taking proactive steps to detect harassment will help to identify any warning signs or hotspots. For example, employers should check what is happening in practice by conducting anonymised staff surveys, asking questions at exit interviews, analysing absence data and canvassing views through mentoring programmes and staff networks.

Recent legal developments in sexual harassment

The fallout from #MeToo has also galvanised legal change. In 2019, the right of everyone to work free from violence and harassment was agreed in an international treaty (the ILO Violence and Harassment Convention) and will be progressively ratified by the 187 International Labour Organisation member states.

A number of themes have emerged globally from those countries that have implemented or proposed new harassment-related legislation. One such theme is restricting or eliminating the use of confidentiality/non-disclosure agreements (NDAs). Whilst it is recognised that there may be legitimate reasons to use such agreements to the benefit of both parties, the concern is that they can be used inappropriately to cover up issues of harassment and silence victims, resulting in hidden systemic issues within an organisation not being tackled and eliminated, with risk to other workers.

Emerging legislative themes – a summary

  • The appropriate use of non-disclosure agreements.
  • Extending sexual harassment protection to all workers, regardless of contractual status.
  • A positive obligation on employers to take corrective action.
  • Mandatory training.
  • Mandatory reporting of complaints/settlements.
  • Regulator or governmental codes of employer good practice.

For example, in the US state of New Jersey, legislation now prevents the enforcement of certain non-disclosure provisions contained in employment contracts and settlement agreements. Other states have also passed laws banning mandatory arbitration for sexual harassment claims. In the UK, legislative proposals provide that confidentiality agreements will be legally ineffective to prevent disclosures to certain organisations, including law enforcement agencies.

Another emerging theme is to place a greater responsibility on employers to take action to prevent sexual harassment from occurring. In some US states there are new requirements for a sexual harassment prevention policy that meets minimum prescribed requirements, including revamping existing employee training or introducing new training.

Recent legislation in Denmark clarified what might constitute sexual harassment, which necessitates employers reviewing workplace norms against the new standard, and new government guidance requires employers to complete a written risk assessment on harassment in the workplace. In Romania, employers are now obliged to implement an internal policy aimed at eliminating harassment at work. Hong Kong has also recently expanded the scope of protection against sexual harassment in the workplace, with a new code of practice issued by the Equal Opportunities Commission. In the UK, developments have taken the form of proposals for a legal duty to prevent harassment and a statutory code of conduct to help employers understand and demonstrate that they have taken all reasonable steps.

Greater transparency, through corporate disclosures, is also on the rise. For example, in Canada, amended legislation has been proposed to ensure that employers respond effectively to incidents of alleged harassment, including mandatory recording and reporting obligations. In some US states, disclosure of settlements, and whether such settlements included a NDA, will be required.

However, legislative developments to protect against harassment have not been globally universal and, despite the significant impact of #MeToo in a number of countries, less traction has been experienced in others. For example, in some countries in Asia, criminal proceedings are the only legal recourse, which may contribute to workplace harassment going unchallenged.

Comment

With legal change ongoing in different countries and sexual harassment controversies continuing to attract public attention, employers around the world are advised to be vigilant and to regularly review their policies and training.

To maintain investor confidence, staff morale and avoid brand damage, employers will be expected to demonstrate a genuine commitment to eliminating sexual harassment in the workplace and ensuring wider issues of inequality are tackled. Achieving this will typically require a long-term focus on creating and maintaining trusted reporting frameworks, on ensuring an appropriate workplace culture and on the effectiveness of policies across all operations, whatever the location, including taking appropriate action if harassment is found to have occurred.

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Fighting Fires

Beginning in June 2019 with a series of uncontrolled blazes, Australia’s bushfire season – since dubbed the ‘Black Summer’ – has spiralled into one of the worst on record in the country, causing widespread devastation to communities and wildlife.

By the end of January 2020, the fires had claimed more than 30 lives, burned through millions of acres of bush, forest and parks, and led to the deaths of an estimated one billion animals – with fears that some endangered species have been driven to extinction by the disaster. Over 2,000 homes have been destroyed and countless communities evacuated by the unprecedented ferocity of the bushfires. Smoke from the flames has caused disruption to major metropolitan areas such as Canberra, Sydney and Melbourne, with the air quality in Australian cities sinking to among the lowest in the world at various points throughout the crisis.

The crisis has impacted all sectors, as businesses, government organisations and charities were called into action to battle the flames – either on the front lines, or behind the scenes. With the legal function playing an ever-increasing role in the management of crises of all kinds, in-house lawyers throughout Australia are diligently working to play their part in the management and mitigation of the unfolding disaster.

Feeling the heat

The scale of wreckage caused by the fast-moving Australian bushfires has been catastrophic, and has placed a lot of pressure upon organisations involved in the relief effort. But, for general counsel on the ground, their response to the tragedy has been similar to that of any crisis.

‘The bushfires are no different to any other crisis that in-house lawyers can face. I have worked in other industries throughout my career and this is no different. Crisis is something that is faced by all in-house lawyers at some point in their careers,’ says Tara Eaton, head of legal and policy at Australian Red Cross.

Australian Red Cross is a humanitarian and community services charity that has raised over AU$127m towards the bushfire disaster relief effort.

‘At the Red Cross, we do have an existing framework within the team and we build on that during times of crisis. For example, the team is set up to have a lawyer dedicated to a particular department – with that, we are able to build stronger relationships,’ says Eaton.

‘Therefore, in a crisis, different departments within our organisation immediately think of legal. They get you involved in the crisis management team from the beginning and, because of that, you are abreast of issues as they develop, you are part of the team that sits on daily, or even sometimes multiple times a day, update calls.’

The pressure to deliver timely, accurate and efficient legal advice is well-covered ground for in-house counsel, but in times of crisis, where life is at stake, this imperative only intensifies, explains Eaton.

‘One of the most challenging things in a crisis is being able to provide ad hoc legal advice. Not knowing all the information, but still having to make a call on things because the issues are moving so quickly, is difficult. One of the greatest skills for in-house counsel everywhere is the ability to trust your gut,’ she says.

‘It is absolutely necessary to provide ad hoc legal advice in response to a crisis situation.’

‘This is a necessary skill in a crisis. Having knowledge of your industry, business and the requirements to make decisions is essential to providing the best guidance you can at any particular time. So we have been doing that as a team, as the bushfires have been developing. We have been issuing daily emails to support our colleagues, saying here is today’s legal guidance, and we build on that as the team faces additional questions.’

‘During a crisis, general counsel need to show compassion and understanding for members of their organisation, while maintaining a clear head and providing objective legal advice under pressure,’ agrees Katrina Bullock, general counsel at Greenpeace Australia.

‘This requires resilience, a strong support network and self-care.’

Also feeling the pressure to provide speedy legal advice during this crisis is Sarah Donald, general counsel of Sunshine Coast Council. The Sunshine Coast is just one of many local councils across the eastern seaboard of Australia that have felt the devastating effects of the bushfires.

‘The recent bushfires presented unprecedented challenge to our community, with the immediate evacuation and displacement of thousands of people,’ says Donald.

‘It is absolutely necessary to provide ad hoc legal advice in response to a crisis situation.’

Sow the seeds

With times of crisis adding more layers of pressure to lawyers already grappling with the demands of the in-house job, steps taken pre-crisis can go a long way to ensuring the response to disaster situations is efficient and as stress-free as possible. Having systems in place aimed at mitigating risk during times of crisis is essential to providing effective legal advice.

‘Bushfires are not uncommon in Australia,’ says Donald.

‘As a result, significant systems are in place to manage these events. In Queensland, these are managed pursuant to the Queensland Disaster Management Act 2003. This Act outlines the principles of disaster management in Queensland.’

Provisions under the Act provide a legal framework for local councils during times of crisis, covering the disaster response capabilities required of local government and the training required of those involved in disaster management.

‘Local government is responsible for managing disaster events in our local areas, and this is done through our Local Disaster Management Group (LDMG). Our LDMG is coordinated by the Sunshine Coast Council, and membership is made up of liaisons from all emergency agencies (police, fire, ambulance, State Emergency Services), as well as community service providers (both government and non-government) and media representatives,’ outlines Donald.

‘The Council and in particular our disaster management team, works very hard to ensure we have excellent relationships with our emergency services partners, so we are able to have seamless operations when we are required to activate our disaster management plans and coordination centre in response to events affecting our region. These relationships were essential when we were managing the recent bushfires in our region.’

The importance of cultivating relationships extends to external counsel to whom the legal team can turn when crises demand specialised legal advice, fast.

‘You may be called on to give urgent advice on specialist areas that are not necessarily within your own expertise – then it is good to have good relationships with advisers that you can call on quickly,’ explains Astrid Heward, general counsel and general manager at the Bureau of Meteorology in Australia.

Bigger Picture

The crisis highlights the need for organisations and their in-house teams to be appropriately prepared pre-crisis, and efficient in the provision of advice mid-crisis. But, for some organisations, their work will stretch far into the future, beyond the crisis of the day.

‘We have a professional duty to ensure that our response is not just limited to the immediate effects of these fires, but rather focused on the root cause,’ explains Katrina Bullock, general counsel at Greenpeace Australia.

‘Climate change is driving catastrophic bushfires. This is a coal-fired crisis: coal is driving both the bushfire crisis, and the Australian federal government’s inaction on climate. We have ignited the shared social and economic power of Australians through our climate petition, which demands that the federal government respond to the bushfires by declaring a climate emergency and taking action to mitigate climate change. Over 81,000 people have signed to date. Across the organisation, we continue our multifaceted work to support renewable energy investments and dismantle the systems that support the climate crisis; to hold those responsible for contributing to climate change accountable – in the streets, at the ballot boxes, in financial markets and in the courts.’

She adds: ‘It is becoming increasingly important to embrace new, time-saving technologies and ways of working that empower our crew to make well-informed, timely decisions. I think we will also see increasing climate-related litigation against Australian directors who have acted negligently in ignoring climate risks, and a surge in activist investors who boycott fossil fuels. This will generate some interesting and complex legal work in the years ahead.’

‘For example, I’m no expert in industrial relations, so I have a couple of advisers I trust that I can call to bounce things off quickly.’

However, when time is of the essence, it is ultimately up to in-house legal teams to make initial assessments and provide preliminary legal advice in times of crisis.

‘Our external firms have been very supportive, but in a crisis you do not have a lot of time to go out to external counsel,’ says Eaton.

‘I have always described the role of in-house counsel as being a GP: we diagnose the head colds, the broken ankles, and then decide if we need to go out and see an ear, nose and throat surgeon. But we as in-house counsel are doing the first diagnosis of what is wrong.’

In the end, whether seeking guidance from external advisers or relying on internal resources, general counsel depend upon on the relationships they have developed.

‘To me, it boils down to relationships – we as lawyers work really closely with our colleagues to understand the issues that arise, and then work with them to find solutions,’ says Eaton.

‘It is important for in-house counsel to not become the department of “no” – of course we have to be that in this role sometimes – but particularly pointed in a crisis are the relationships you have built that enable you to have a seat at the table. Your practical guidance can be implemented very easily in a crisis; because you do not have a lot of time, you do not have the ability to come up with new policies and procedures – you just have time to give short, sharp guidance to help.’

Where there’s smoke there’s fire

Managing the legal efforts from the skies is Heward at the Bureau of Meteorology (BOM), an executive agency within the Australian government responsible for compiling weather forecasts, warnings and observations and delivering them to the Australian public.

‘The Bureau’s mission is “to provide trusted, reliable and responsive weather, water, climate, and ocean services for Australia – all day, every day”, and Bureau staff have a very strong sense of public service,’ explains Heward.

‘The majority of the work that my team does to support our operational groups during the extreme weather season in fact happens when Australia is not in its “severe weather season”.’

Australia’s severe weather season traditionally occurs in spring and summer, and features weather events such as drought, severe thunderstorms, flooding, tropical cyclones and bushfires.

‘A key factor in the success of the emergency service response to the bushfire crisis is the collaboration and co-ordination between the various agencies that are involved in the response effort. The legal team supports this with MoUs [Memorandum of Understanding]/agreements that facilitate the Bureau’s meteorologists to be embedded in the emergency services as required in extreme weather events.’

‘It is important for in-house counsel to not become the department of “no”.’

Nevertheless, as with many crises, planning can only take you so far. Severe weather is, by its nature, extremely volatile. Emergency situations are inevitable. When adversities such as the devastating Australian bushfires occur, general counsel are relied upon to provide fast, accurate and essential legal advice.

‘If I am called upon to give urgent advice, I try to keep an eye on the bigger picture, and the risk levels, to understand how the advice needs to be prepared and presented. It’s obviously important to give the right answer, but “right and done” is better than “perfect”,’ outlines Heward.

‘One of the most challenging issues that arose in my role over the last couple of months related to the Meteorological Authority Office. Under the Civil Aviation Regulations, the Bureau’s CEO is able to authorise equipment to be used to provide reports for use in forecasts for the purposes of civil aviation.’

Thick plumes of smoke that wafted into cities had an adverse effect on the visibility of crucial airport services. Providing visibility reports are essential. However, equipment used to provide such reports was not always regulatory compliant to measure smoke particles.

‘Existing runway visual range (RVR) equipment at certain airports in Australia was already authorised for the purposes of providing reports in relation to fog/mist, but not for other types of lithometeor particles (such as smoke),’ says Heward.

‘Due to the serious smoke haze experienced at these airports, the Met Authority team had to work urgently to manage the complex regulatory and technical matters that allowed for the RVR equipment to also be authorised for smoke.’

Paved with good intentions

On the ground, in-house counsel are supporting organisations dealing directly with the physical fallout caused by the bushfires. Life-or-death videos from inside the inferno have been viewed by millions of people across the globe, with the destruction sparking an outpouring of donations from those eager to help – both financially, and otherwise.

‘The images of the bushfires have been broadcast worldwide,’ explains Eaton.

‘The world is a much smaller place because of the speed in which news travels and just the outpouring of support from Australia has been phenomenal, as well as the outpouring from all parts of the world: Mongolia, Estonia, and the US – every corner of the world knows about the bushfires and wants to help. This is humanity in action.’

Greenpeace Australia has also drawn attention and support to the cause.

‘We raised over $74,000 on behalf of the Rural Fire Service to support their work in battling the fires on the ground,’ says Bullock.

‘Additionally, we have provided a platform for bushfire survivors to tell their stories to the world, and our creative team has been busy documenting the destruction of homes and nature to help people truly understand the effects of climate-related emergencies.’

The response of people wanting to donate to the cause has been overwhelming, and has been helped by social media. But, while undoubtedly positive, charity in the 21st century raises unique questions that must be addressed by legal teams such as Eaton’s.

‘A lot of the issues that we have been working through relate to the proliferation of social media and people sharing our fundraising links,’ she explains.

The response of people wanting to donate to the cause has been overwhelming.

‘This is therefore raising questions: can we accept donations from overseas? What are our limitations with respect to the donations? How do I characterise those donations? Could we be considered fundraising in other jurisdictions? If so, what does that mean?’

‘Coming up with this guidance in the online space can be very difficult, because you might have one link in Australia which now can be shared globally. Nowadays, those issues are just tricky for all businesses to navigate.’

‘This is not just relevant to us in this particular situation – talking about disasters – but I am sure many other legal counsels are faced with the issue of how do we make our laws, which are jurisdictionally based, relevant to a global online environment.’

Overcoming this challenge, Eaton focused on drawing legal similarities to other similar situations.

‘How I characterise this is similar to a financial services organisation,’ she says.

‘When they are running an IPO, you are getting money from the public to do something – namely, an IPO is aligned to accepting donations from the public – and with that comes great responsibility to make sure you are telling people accurately where that money is going, how that money is being spent, and where those funds are going to be allocated.’

‘So one of the more tricky issues we have been managing is around the social media response and global organisations wanting to fundraise on our behalf – what does that mean from a regulatory perspective?’

As in-house counsel operating on the front lines, crisis management should be viewed through multiple lenses, stresses Eaton.

‘Part of our role, I think, as legal is to not only approach things through a legal lens but, in times of emergencies, to also bring a different focus. By looking at it through the eyes of our donors – our very extraordinarily generous donors – as well as the community, we have to consider: what are their expectations? What are the needs of the community we are trying to serve? How are we balancing those needs? How are we trying to do the most good we can, and support people in this challenging time? All whilst making sure we have all the checks and balances in place.’

At your own risk

Whether battling the fallout of a financial meltdown, supply chain interruption or environmental disaster – such as the Australian bushfires – crisis management is a core skill for general counsel, irrespective of the industry they represent. Counsel will be relied upon to give efficient, fast and accurate legal advice during emergencies, and play a key role in navigating the business through complex regulatory challenges and obstacles in times of disaster.

Despite having to overcome major legal obstacles, the scope of legal work can be rewarding for those on the front lines, believes Eaton.

‘It has been fascinating, actually. One of the things I love about being in-house is the diversity of work that we are faced with on a daily basis, and when there is a disaster, such as the bush fires, it has really come to the fore.’

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Too much of a good thing?

Nearly $1bn was invested in legal technology and New Law disruptors in 2018. That was across more than 50 funding rounds and included start-ups through to more established players, according to research from Investec. Venture capital, private equity, non-legal companies and trade buyers are increasingly interested in what they see as a highly lucrative legal sector.

The frequency and scope of legal tech funding has also jumped markedly: a Thomson Reuters report in mid-2017 put investment into UK legal tech start-ups at just £16m in the previous 18 months. Hundreds of legal tech companies have subsequently popped up. Every law firm is quick to tout its latest innovation or partnership with a technology provider, while some even have incubators where they work with start-ups over several months, honing products.

But the adoption of legal tech and automation tools by in-house legal departments is harder to track. Many general counsel complain it is difficult to deduce the substance from the noise, believing in-house tech solutions largely fall into the latter camp. Others are more upbeat on progress made over the last few years: ‘There’s been a shift,’ comments easyJet group GC and company secretary Maaike de Bie. ‘Where tech and automation were once looked at by some in-house legal teams, they are now definitely mainstream.’

The growing influence and prevalence of in-house legal operations teams, continued pressure on budgets and a desire to improve the quality of work for in-house lawyers are all contributing to the change. There is no shortage of vendors looking to crack the in-house market either. With this in mind, we surveyed 70 legal departments and spoke to more than two dozen GCs to assess how much progress has been made with legal tech; what is being used and what for; the major barriers to adoption; and expectations for the future.

With two-thirds of in-house teams reporting they have no dedicated annual budget for legal tech and a third not currently exploring new tools, the conversation is shifting from what is out there to how teams can make use of existing technology and the importance of the broader digital transformation triumvirate of people, process and technology.

‘Technology is a facilitator and part of a solution. It is never in and of itself a solution to a problem,’ says Pearson associate GC for technology and operations, Robert Mignanelli. ‘You first have to scope your problem, understand what you’re trying to solve and then find a piece of technology that can help automate and drive that.’

Going mainstream

GCs constantly talk about running their legal teams like a business. To do that, however, you need to know exactly the nature of that business. Document management systems, workflow tools, e-billing solutions and management information services have existed for many years, but there has been a rapid evolution and increasing sophistication of these products. They have crucially become more user-friendly too.

Broadly, there has been an increase in basic management tools that are not necessarily cutting edge but vital to running a department. Increasingly, the point has been about finding systems that can talk to others so that, for instance, your workflow tool and document management system work in tandem. As an example, Neota Logic – which offers document management, expertise automation and workflow automation all in one platform – finds many legal departments need to start with a simple triage application to work out exactly what their department has to deal with on a daily basis and route those requests to the right people.

‘It’s changed rapidly,’ notes UBS investment bank and EMEA GC Simon Croxford. ‘I’m a big fan of the technology and process efficiency developments we’re seeing in the industry, because there is a lot that we can improve in our legal departments to become more efficient.’

Meanwhile, Barclays has integrated its matter management, e-billing, time recording and external legal spend tracker over the past three years. Head of legal transformation Ben Eason comments: ‘We’ve taken the time and the effort to do that, even if it’s not deemed the fancy work. That enables you then to start looking at stuff like AI.’

The consensus is that using tech has moved from rhetoric to action, particularly for larger in-house teams. At Vodafone Business, the FTSE 100 telecoms company’s B2B arm, legal director Kerry Phillip implemented a contract lifecycle platform three years ago. There are more than 60,000 searchable contracts on that system now, used across ten countries, while the workflow tool sends work directly to the relevant team. Phillip says that at the time it was first used, however, Vodafone was an outlier: ‘It is now accepted you need to do it and there are a huge range of providers out there. It’s unusual not to be thinking about or implementing some form of tech, which was not the case three years ago.’

‘There’s been a shift. Tech and automation are now definitely mainstream.’

As a further sign of growth, Thomson Reuters made a significant play in this area with the mid-2019 acquisition of secure file-sharing and collaboration platform HighQ for a reported £200m. HighQ sells to both law firms and in-house legal departments, marketing itself to the latter as a tool for streamlining operations. There has also been a boom in contract tools, broadly split into pre and post-signature analysis: contract review, due diligence, contract lifecycle management and understanding the data within contracts. Israel-based contract review automation company LawGeex, which announced a partnership with Neota Logic to automate a third-party non-disclosure agreement (NDA) approval process, is cited by multiple GCs. Liberty Mutual Insurance innovation director for corporate legal, Jeffrey Marple, comments: ‘In the last year or so there’s been a massive explosion in the contract space. Based on the number of products, there must be a market, because they seem to be popping up everywhere.’

Trainline GC and director of regulatory affairs Neil Murrin adds: ‘What you’ve got now is a lot of market entrants and that’s driving competition among providers, but we are still in a period of development. Certainly with some of the AI and legal tech we’ve used, we’ve been the guinea pigs.’

Back to basics

Automation of repetitive, low-value work has become more commonplace in-house, however. Tools for automating NDAs and self-service tools are widely provided by GCs as examples of successful recent tech projects. Just over a third of the in-house legal teams surveyed say they use tools to automate contract and data management, while NDAs and other forms and templates are automated by 8% and 14% respectively.

ICICI Bank UK GC Priti Shetty has introduced an internal chatbot, developed by the business itself. It is used to identify which clauses are important and do not necessarily need to be fielded by in-house lawyers. Sheldon Renkema, general manager of legal for Australian retail conglomerate Wesfarmers, used AI automation platform Neota Logic to build marketing review and contract review tools. The former is used to educate the business about the most important aspects of marketing campaigns from a legal perspective, a built-in response to the team being asked the same questions repeatedly. The latter, meanwhile, ensures contract owners in the business provide the legal team with relevant background data and context.

‘We’re looking at further opportunities for self-service tools, but you’ve got to do that quite cautiously because the personal relationship is super important,’ he comments. ‘It means we get a seat at the table because we are helping people, and have closer relationships, and get involved earlier on, which makes our lives easier.’

Many GCs are also not convinced their legal teams need to use specific legal tech products. ‘It’s not all about AI and complicated sounding terminology – at one of the biggest tech companies in the world, I have found that the most basic tools can transform how lawyers service their client teams,’ Facebook associate GC Caroline Kenny comments. ‘We use document-sharing tools like Google Docs and Quip, which clients can feed into in real time, saving the back and forth and duplication. These things are not specific to legal teams.’

Anglo American head of legal for M&A, Samantha Thompson, joined the FTSE 100 mining company at the end of last year. In March, she took on an optimisation and innovation role with a mandate to assess legal tech offerings. She quickly learned that the legal department was better placed to optimise use of existing tools within the organisation as a priority, such as Microsoft Office 365, rather than bespoke legal tech. That has involved talking to the company’s IT team to put the legal function forward for any upcoming pilots in areas such as document management. ‘What has struck me is there are an awful lot of different options out there, and people are trying to sell me things, and want to talk about legal tech,’ she comments. ‘I stepped back and said: “Lawyers don’t necessarily have special needs – we need to optimise the tech that we’ve got.”’

It is a common sentiment, with many GCs referencing Office 365 in particular, including those at blue-chip corporates Pearson, Centrica, Vodafone, Aviva, Spire, Three and easyJet. Most highlight it as an intuitive collaboration platform, while group communication tools such as Microsoft Teams are also widely used. Former Royal Mail GC de Bie, who joined easyJet in mid-2019, says when she is looking at tech, her first thought is not whether there is a tool on the market, but whether she can improve the process around the problem first and whether it can be solved by existing tools within the company. ‘Is there something I can adapt that works already within the enterprise environment, rather than bringing in another tool into the already many applications that many organisations have? The more you bring in, the more you are introducing complexity and risk.’

Case study: Wesfarmers

The Australian retail conglomerate Wesfarmers introduced a legal operations and tech working group three years ago, led by general manager of legal, Sheldon Renkema. The team of five had been looking at new processes and tech tools part time, alongside their day-to-day roles.

But they have already implemented a number of tech products: Xakia for matter management, Persuit for tendering work and Neota Logic to create various self-service applications in areas such as marketing. Xakia has established metrics around internal demand for the legal team, while Renkema says Persuit has saved the company hundreds of thousands of dollars on high-volume areas of work, such as public liability claims. Wesfarmers uploads a matter to the system that law firms then bid for.

Renkema comments: ‘We found quite quickly there was a huge delta between the top and bottom price, but within the space of a couple of months that narrowed and we discovered what the market price was. Some firms self-selected out of that and others love it.’

As part of its declared strategy of reducing the volume of low-complexity and low-strategic significance work that the legal team is engaged in, Wesfarmers focused on the automation of the high volume of NDAs that the company creates, choosing Neota to provide a solution integrated with Neota’s Workflow and Analytics Dashboard, allowing Wesfarmers’ lawyers a single console from which to view the status of every NDA associated with the business. The dashboard not only tracks at what stage of the process a particular NDA is up to, but also provides insight into each individual agreement.

Renkema noted that early business users of the application ‘Were surprised at how easy and intuitive the application is to use’ and highlighted the efficiencies it has created ‘By allowing for a much quicker turnaround.’

Aviva’s head of legal operations, Caroline Brown, adds: ‘While there are a lot of nuanced tools out there, there are also lots of non-legal tools we’ve been able to use. We’re looking at working with Microsoft to roll out Office 365 and we’re finding it to be an intuitive tool. People have been able to pick up the features easily, which raises the bar for other technology platforms on things like file and document sharing.’

Three GC and regulatory affairs director Stephen Lerner has similarly turned to a non-legal tech solution provided by Microsoft, using business analytics tool Power BI. Three years ago, he hired four non-lawyer business analysts and IT experts into his legal, commercial and regulatory affairs team of 130 staff. That team is tasked with using Power BI to mine internal data and track things such as resource optimisation – how many matters are coming into the legal function and how they are staffed. ‘It took probably a year or so to get it right, but now I can open up this tool on my desktop any time and see what demand is coming through the department, and how we are staffed to meet that,’ he comments. Similar outcomes can be achieved with an application built in by Neota Logic using its analytics component on its platform to access the various requests coming into the legal department.

GCs also say the people aspect is more important than the technology. Digital training programmes and the employment of non-lawyer professionals or lawyers with wider skillsets are firmly on the agenda. At the beginning of 2018, UBS kick-started an in-house legal team transformation and digitisation programme. Croxford says there has been a focus on enabling its lawyers to talk technology. This has manifested in a number of ways, including an in-house academy to educate lawyers in areas such as digital literacy – understanding the technology it uses and how it impacts the business. But there are softer aspects, such as sitting product-focused lawyers with data privacy and technology lawyers so they can mix ideas.

‘There are lawyers who exist with data and tech skills or exist with product skills, but the market hasn’t developed to the point where it’s doing what we’re trying to do, which is combine the two,’ he comments. ‘To be a successful in-house lawyer nowadays you need a variety of different skills that were rarely needed five years ago and definitely not ten years ago.’

Making the case

It is clear why GCs turn to existing company tools for solutions. The cost of legal tech, and finding ways to articulate the business case and expected returns, is regularly cited as a major obstacle to adoption. Of the third of survey respondents to report a dedicated budget for legal technology, most were at 10% or less of their overall legal spend. Many GCs say the cost of much legal tech has been prohibitively expensive, although it is improving, while establishing which metrics show return on investment remains difficult.

Two-thirds say their company’s IT department is involved in the decision-making process for implementing technology, with procurement and the C-suite involved for a third each as well. But for half of the survey’s respondents, less than 50% of their legal spend is on outside counsel. They are therefore looking for ways to reduce internal costs. Phoenix Group GC Quentin Zentner, who uses legal spend-tracking software Apperio, comments: ‘Securing a budget is key. You need a good, plausible business case. It was easier to secure approval by making the proposed technology spend part of a wider cost-cutting initiative.’

Liberty’s Marple comments: ‘Technology providers claim to save you money on x, y, and z, and they probably will, but unfortunately we may not have a clear understanding of the possible savings. You do all the research and analysis you can up front, but sometimes you just have to hold your breath and jump in, and hopefully it works out.’

There is also a sense that much legal tech offers solutions to non-existent problems and does not easily connect to existing tech infrastructure. ‘A lot of the solutions out there are looking for a problem. All legal departments are different and the tech all seems to be a bit one-size- fits-all,’ Spire GC and group company secretary Dan Toner comments. ‘The tech needs to come from the demand side. The cost of it is dropping rapidly, but it’s working out how much it works with our tech, and it’s getting the time and the head space to put work into it.’

Adds Anglo American’s Thompson: ‘The impression I get is people are just struggling with the number of products out there and it’s not clear that there’s a market leader or someone with longevity, or that there’s even a need for the niche tech.’ This is where the increasing prevalence of operations professionals within legal teams comes in. Only 33% of those surveyed have a legal operations role within their team, but many of those achieving tangible results with tech have done so through legal ops. Guardian Media Group GC and company secretary Stephen Godsell comments: ‘The great value of operations is that it gives somebody the task of driving change in a way that it’s their day-to-day job. Lawyers are very busy and there’s not a lot of space to investigate how we can do things differently.’

Neota, a no-code AI automation platform targeting professional services companies, is just about to launch a web-based tool called Canvas, which allows subject-matter experts, such as lawyers, to prototype apps for automating legal services. Vice president, markets and growth, Jackson Liu, says demand from in-house legal teams for technology has increased, led by the larger North American market, but with EMEA and Asia-Pacific growing quickly. Legal operations teams – which have featured in the US market for longer – led process improvements, with many now looking to add technology to those.

Implementing new technology: a guide for GCS

Finding internal technology champions, building use cases across multiple departments, learning how to measure return on investment (ROI), and simply being willing to give it a go: these are the keys to success for using legal technology, says Neota Logic’s director of client solutions and engagement, Shaz Aziz.

‘Tech providers should help people understand the market, especially when companies are early on in the technology-building and solution-finding process,’ he says. ‘You can look at the legal tech market and see 100 different names and it just looks like the Wild West.’

To navigate that plethora of providers, Aziz says in-house legal teams should expect potential tech partners to help them establish potential use cases and to understand their business’ needs and requirements. ‘Back in the day, you’d sell the software to somebody, chuck it over the fence and they’d work out how to use it.’

As technology providers are increasingly expected to be advisers on technology, in-house legal departments will need to identify internal technology champions – often legal operations staff but, just as regularly, legal counsel – and importantly, establish use cases across multiple departments. If a legal team can find a solution that crosses over into human resources or procurement then there is greater scope for adding value across the business, as well as sharing the cost. Aziz comments: ‘If you can connect those people up in the business and allow cross-sharing, then it makes the process of getting buy-in much easier.’

Furthermore, legal teams need to learn how to measure the ROI from technology. This can be difficult to do with potential tech partners as information on cost is not easily shared, however. ‘If you can, in a granular way, understand what the cost saving is and can start to be able to put figures to things, that can make a massive difference in the early stage,’ adds Aziz.

‘They’re now looking for a platform, an off-the-shelf solution, to look at how they can implement automation capabilities on top of those new processes. Having a separate team focus on the process and technology side in legal operations is good because it separates that from the legal counsel team, which means they’re not dragged away from the day-to-day tasks.’

GCs are also leaning on their law firm advisers to use technology to provide more efficient, and cheaper, services. There is a transparency issue on that side as well, however, with GCs unclear on what law firms offer, despite the bevvy of press releases each pushes regarding their innovation credentials. Anglo American group GC Richard Price comments: ‘They’re all talking about it and they’re all looking at it, and they’re talking to us about how they might be able to use tech in a way to optimise the service that they provide to us, but we’re yet to see significant applications of that.’

Others are more optimistic. UBS talks to the firms that run innovation and tech incubators to keep an eye on developments. Croxford sees the growth of managed service and contracting teams at some firms as an important development too. ‘It’s not just the sourcing of legal advice but how we run our departments as well. That’s the next evolution of relationships between banks and external law firms.’

Demonstrating value

The GC100 group, made up of more than 125 GCs and company secretaries primarily from the FTSE 100, has put tech growth and adoption onto its agenda. Everybody is keen to share and get a grip on the market. ‘Everyone assumes that they’re far behind and everyone else is much further ahead, and it’s helpful to talk to our peers to understand we’re all just trying to get our arms around it,’ Price comments.

There is undoubted appetite, and need, for in-house legal departments to adopt tech. There are multiple examples of early success in automating volume work, while many teams are now tracking data on their use of internal and external resource. That resulting data is where many GCs see the next wave of advancement. Analytics and then true AI and machine learning – despite the prevalent scepticism – will be used by GCs to understand their workflow and allow it to be optimised. More AI solutions aimed at interpreting and creating legal documents and contracts are expected to pop up as well.

But GCs are keen to pull the conversation away from a focus on pure technology, and back to a broader emphasis on how that fits in with people and teams. They are analysing whether they have the right people in the right locations, the right levels of seniority, and then whether they are doing the right work. ‘To run a truly successful and efficient department, technology helps you get there, but it’s not the be-all and end-all,’ Croxford comments.

Adds de Bie: ‘I’m a big fan of data. Business colleagues are used to presenting data and level of risk, and I don’t see any reason why we as a legal team cannot do the same. I’ve really seen the value of collecting data to demonstrate value.’

For more information, please contact: E: [email protected] www.neotalogic.com

Artwork and imagery used by kind permission of Haynes Publishing Group, a leading supplier of content, data and innovative workflow solutions for the automotive industry and motorists. For more, see www.haynes.com

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GC Insider: Timo Matthias Spitzer

In my personal opinion, to be a strong and independent leader, the general counsel needs the trust of the CEO – not only to advise on issues of legal compliance, but also on the righteousness of corporate action and, ideally as part of senior management, assist with the creation of sustainable stakeholder value. Importantly, the stakeholder group goes beyond the shareholder and also includes employees, customers, suppliers, the environment and the wider society in which a company operates as corporate citizen. A rigid adherence to the outdated doctrine of shareholder primacy could have the adverse effect of making corporate decision-makers potentially indifferent to the interests of other stakeholders, which, at least in the long run, may even harm the shareholders themselves.

Respectively, in his book Fixing the Game, Roger L. Martin, then-Dean of Rotman School of Management, made clear:

‘Total returns on the S&P 500 for the period from the end of the Great Depression (1933) to the end of 1976, the beginning of the shareholder-value era, were 7.5% (compound annual). From 1977 to the end of 2010, they were 6.5% – suggesting that shareholders have little to celebrate, despite having been made the clear priority.’

A sole focus on profit maximisation may not only overshadow a company’s true purpose in society, but even create unintentional pressures for corruption, which might ultimately tempt some managers towards taking irresponsible actions just to meet potentially unrealistic financial targets.

Consequently, human leadership with integrity is key, especially in a highly regulated and tech-reliant corporate environment. We must always retain and train our human ability to make responsible judgement calls in order to ensure sustainable decision-making in a fast-paced, globalised business. Leadership is not just about making shareholders wealthy. Leaders build a corporate culture where employees can feel safe and valued so that they may perform to the best of their abilities. It is about leading with kindness, concern and compassion, with regard to the society as a whole. The great thing about this is that it results in an organisation that creates sustainable benefits for all stakeholders, making a corporation a desirable commercial partner for anyone on a global level. Society does not want to do business with entities it does not understand and respect. A decent and humane management, relying on a strong, voluntary ethical framework and the power of morally capable people, is key to ensuring both internal and external sustainability.

Corporate governance codes around the world have begun to address the problem of shareholder primacy. For example, in the US, various state codes recognise the wider range of stakeholder interests beyond the shareholder. A revised UK Corporate Governance Code was published by the Financial Reporting Counsel in 2018, representing a refocusing of the role of the company and the board toward not only generating value for shareholders, but contributing to wider society. The German Corporate Governance Code, as amended in 2019 and about to enter into force, highlights the management and supervisory board’s obligation to ensure the continued existence of the company and its sustainable value creation that is in line with the principles of the social market economy. South Africa’s Institute of Directors published the King IV Report on Corporate Governance in 2016, establishing the transition from a purely shareholder-oriented capitalism to a wider stakeholder-oriented capitalism.

By elevating the general counsel to the C-suite, the CEO can ensure a cross-functional dialogue.

While this is a step toward recognising the problem of pure shareholder primacy, it is not a solution in and of itself. These codes cannot guarantee the inclusion of wider stakeholder interests when they are non- binding in nature and, as such, the company could easily opt out.

What, then, should be done to address this issue properly?

One solution is to move away from the classic corporate form where the shareholder(s) alone can dominate the direction in which a company is going. For stakeholder interests to be effectively included, we should change the corporate form by building an all-stakeholder entity where not only shareholders, but also employees, customers and representatives of the wider community could exercise a shared vote and, as such, have a legally binding say in the move toward sustainability. Such an entity would not only focus on the shareholder, but on each relevant stakeholder. In addition to maximising shareholder value, the effect of this would be that the company would fulfil its societal purpose by legally taking into account the entire context of its responsibilities.

However, achieving this legal solution is admittedly difficult. The fundamental changes to corporate laws required to create this multi-party entity are hard to achieve due to current market realities.

Nevertheless, there is a practical solution that can be done that does not involve significant changes to applicable corporate laws. By elevating the general counsel to the C-suite, the CEO can ensure a cross-functional dialogue within a working group on corporate strategy, and involve the general counsel in assessing wider stakeholders and general sustainability factors. The general counsel can play a cardinal role in supporting the CEO not only as a legal expert, but also as a trusted and accountable adviser, acting as part of the corporate moral compass.

Because while a company’s long-term success depends on strong performance and prudent risk management, it also depends on high integrity, which requires leadership from people with a refined ability to make moral judgement calls. The essence of integrity is, first, to ensure that the rules – whether legal, commercial, or ethical – are fair, and then to comply with them. Traditional moral values also must be reinforced, including (but never be limited to): honesty, fairness, trustworthiness, reliability and commitment to inclusion. It is crucial that the CEO and his or her colleagues around the table adhere to a sustainable corporate culture, in order to gain the trust and cooperation of all relevant stakeholders. A general counsel next to the CEO in the C-suite may prevent the company from significant costs and loss of reputation, ensure sustainable corporate decision-making and, last but not least, strengthen the legal function.

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Foreword: Steven Gartner

Diversity and inclusion initiatives have risen in prominence across the business world in recent years. They stem from core business goals – not abstract social objectives – and are publicly embraced and supported by leadership at the highest levels. Law firms around the world have long recognised the need to invest in diversity and inclusion programmes that further commitment to these ideals, but industry progress has been modest.

At Willkie, we believe everyone benefits from a diverse and inclusive workplace in which all personnel are treated with courtesy, dignity, and respect. The confluence of people of different gender identities, races, cultures, religions, beliefs, and sexual orientations across the firm yields a stronger team that is more adept at creative problem-solving on behalf of our clients. In fact, Willkie’s first female associate, Mary MacDonagh, was hired in 1939, which was extremely rare at the time. We have always known our most valuable asset is our people.

We are committed to continuing to enhance diversity and inclusion on a long-term basis, including in our leadership ranks. Currently, two women and one diverse partner are on our firm’s management committee. Seven women and five diverse partners serve as department or practice group chairs or co-chairs, five women and three diverse partners or counsel lead firm committees, and three diverse partners and two women serve as office managing partners. Of the US-based attorneys elected to the partnership this past year, 45% are women and 36% are diverse. The firm’s head of our Latin America Practice Group, Maria-Leticia Ossa Daza, who is profiled in this issue, has done a tremendous amount to support these efforts by actively supporting and mentoring other women at Willkie and across the industry. She leads our firm’s Latinx Affinity Group and regularly speaks about diversity at industry conferences in Latin America and the US.

As companies around the world have implemented comprehensive diversity programmes, law firms have welcomed the opportunity to partner with clients in these efforts. At Willkie, we regularly collaborate with clients on initiatives to further diversity and inclusion, including educational seminars, conferences and roundtable panels, and pro bono and mentorship programmes. Diversity also plays a major role in the success of our Latin America Practice Group, made up of lawyers from Brazil, Mexico, Colombia, Chile and Uruguay. This diversity enriches our practice and client relationships across Latin America, and our firm generally.

On a firm-wide level, embracing diversity and inclusion is critical to our overall success. We recognise that there is still much more to do at Willkie and across the legal industry. Diversity and inclusion will remain core to the values of the firm. We look forward to continuing our work, in conjunction with our colleagues and clients, of cultivating an environment that is diverse and inclusive at all levels.

Steven Gartner Chairman Willkie Farr & Gallagher LLP

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Andrea Gualde

My journey into an in-house legal role has not been a traditional one. I reached my current leadership position as Director of legal and institutional affairs without having any previous corporate experience. In fact, I had next to no previous experience in the private sector at all!

My career developed almost entirely in the public sector, where I focused on administrative and regulatory law. In 1991, almost exclusively I started working for the Executive National Legal Counsel and Solicitor General’s Office. This was the beginning of a career that lasted more than two decades. My roles over that time encompassed many different responsibilities, but mainly I was leading legal teams at the Ministry of Justice and the Secretariat of Human Rights, where I was the national director of legal affairs. During those years, I worked heavily in the international arena, involving topics as wide-ranging as investment protection treaties and human rights. Despite the diverse nature of those topics, they shared many common aspects: the development of complex strategies; the coordination of interdisciplinary teams for international arbitrations and trials; and human rights legal proceedings and negotiations. I learned from excellent mentors the skills I needed in cases before the International Centre for Settlement of Investment Disputes (ICSID), the Inter-American Commission and Court of Human Rights, the United Nations Human Rights Council, and Mercosur.

From a very early stage, I understood that these tasks demanded combining the law’s more technical aspects with wider political analysis and a knowledge of international relations. Thankfully, politics was not absent from my education nor from my calling.

I became a student at the School of Law of Universidad de Buenos Aires in 1985. I was part of the generation that lived during the transition to democracy, which started in 1983 with the election of President Alfonsin and ended seven long years of military dictatorship. This historic circumstance left a deep mark on law students who moved between classes and deliberation forums, thinking about the effects caused to a society whose rule of law had been substituted with terror practices. This was, definitely, the origin of my professional calling on the area of human rights, where I worked for more than 15 years as a public official, and which I continue to support even after leaving government. In fact, I currently head the regional advisory board for Latin America of the Auschwitz Institute for Peace and Reconciliation in parallel with my corporate in-house role.

Another very strong influence for me – and one which shaped the way I perceived the law at a very early stage of my career – was the opportunity to continue my academic studies at Yale University as a visiting scholar. Throughout those years, I was exposed to discussions that weren’t yet taking place in Argentina: exciting discussions about feminism, diversity, and multiculturalism. These discussions had a lasting impact on me.

After working as a government official for more than 20 years, another great challenge was put before me: I received the invitation to join an Argentinian private healthcare company to help it strengthen its in-house legal department and to help it tackle important regulatory challenges related to the business’s growth and expansion. (Healthcare is a highly-regulated industry in Argentina.) And so, in 2013, I joined Farmacity to lead its legal department. Not long after I joined, my responsibilities expanded to include leading the area of institutional relations, communication, and sustainability.

“My point of view is that the gender agenda cannot be separated from the history of my generation, nor from my professional training.”

The transition from the public to the private sector was a steep learning curve for me, and involved having to adopt different cultures, languages, practices, and traditions. However, despite working in such a different environment, I realised that the training, principles, and my perspective on justice and the application for the rule of law remained the same and enabled me to adapt quickly to my new situation. I became aware that every position, every role, has been and will always be a continuous learning experience, in which the skills developed and assimilated at one time and for a specific context are adapted and used at other times and in other contexts.

In my corporate life, I find myself applying many of the skills I learned in my years as a government official: the ability to manage and resolve conflict, to lead big teams, to work under pressure, and to make decisions and face the consequences. My experience working within interdisciplinary areas also allowed me to learn vital communication skills: explaining complex legal concepts to non-lawyers, and managing interfaces between political decisions and technical structures. Those same communication skills are used daily in my job as in-house counsel. They are present in the relationships I have with external counsellors for the development of strategies, and during the decision-making process with our shareholders.

As a corporate in-house lawyer, it is important to understand who is responsible for the legal strategy or institutional decision, the scope of the external advisory services, and the way in which the in-house professional provides a unique view of the business’s needs. Also, it is vital to remember the point of view of your shareholders.

The combination of experiences I talk about are not reduced simply to the technical legal skills or qualifications I have gained. It is so much more than that. In this regard, I would like to focus on the human rights agenda – mainly in connection to the gender agenda – and the connection between cultural and societal values and beliefs, and how organisations behave.

My point of view is that the gender agenda cannot be separated from the history of my generation, nor from my professional training. Legal education and professional legal practice for women in Argentina historically reflect the same structural discrimination experienced by other professions and activities, and that women face daily in their lives outside of work as well.

Most students in schools of law in Argentina are women. However, that proportion is transformed in the labour market, where the pyramid is totally inverted. Let us specifically have a look at the proportion of women who are partners at big law firms, or the negligible proportion of women in managerial positions. Let us look at the public sector where most workers within the judicial system are women but only a small number of those women are judges – and those women judges hold office mostly at courts of first instance, seldom at courts of appeals, and where only one woman is among the justices of the Supreme Court. It is worth mentioning that only in 2004 did a woman become part of the highest court in Argentina, and only in 2009 did the School of Law from Universidad de Buenos Aires appoint a woman as dean – for the first time since it was founded in 1821.

Of course, this reality is not unique to the legal industry, not to Argentina. Across the corporate world, most of the top positions in companies are held by men. However, in the legal industry, this vertical segregation is also coupled with horizontal segregation. There are legal areas traditionally performed by women and others by men. The ‘women’s world’ of legal practice has been historically limited to family, labour, and employment law or to those areas considered protective, and related to care. At the opposite end of the spectrum, we have the world of power, dominated by men: public law, business, and diplomacy. These areas are rarely entrusted to women.

This double layer of gender segregation relies heavily on unconscious biases that support the training, recruitment, and professional development of men at the expense of women. The professional development of a woman lawyer when she graduates is different from that of men. The opportunities to study a major, to study abroad, to publish articles, to become a member of professional boards, and to attend networking activities have historically been more limited for women than for men. This is because the time for professional development often coincides with the time at which women are of reproductive age. If development opportunities occur without any accompanying active policies that allow women to balance their professional lives with their decision to become mothers – and also level caring activities between men and women – this gap will only become wider.

Inequalities and gaps are not fixed on their own. In top in-house positions, as with any other leadership role in any other organisation, corrective measures must be implemented to fix the original inequality. Organisatations should regularly review their selection and promotion processes, they should incorporate gender perspectives into their assessment processes, and they should develop policies to make work and family life compatible.

“All women who have been able to develop a successful professional career have a responsibility to our gender to offer support and guidance.”

For women lawyers in in-house leadership positions, there can be an additional barrier in their way – that legal departments in companies are often support areas, and therefore outside the ‘core’ business areas, which are still very much dominated by men, and seen as men’s responsibility. This segregation is, once again, not only vertical but sometimes horizontal.

Happily, though, a new paradigm is emerging in organisations. The global women’s movement, to which Argentina constitutes no exception, is changing the way in which the gender agenda must be considered by the private sector – almost mandatorily.

Diversity, inclusion, and, in general, human rights, are not only a matter for state or international bodies, but are also starting to become part of companies’ agendas. In 2011, the United Nations issued a document of Guiding Principles on Business and Human Rights. As a consequence of that universal declaration, the topic is, little by little, moving from the periphery of the private sector’s agenda and advancing towards the center of the business. Companies that embrace diversity and inclusion are committed to broaden the scope of their human rights work; they are moving from traditionally isolated actions that were undertaken under the umbrella of corporate social responsibility, to developing a whole agenda on gender, labour conditions, diversity, and environmental protection for the entire organisation.

This is what we propose to achieve at Farmacity. For more than five years, we have been putting actions in place related to the promotion of equality and the fight against gender-based violence; to educate, prevent, sanction against, and eliminate discrimination and violence against women in any of its forms; and to create alliances with government bodies and organisations from the private sector and civil society to boost the actions carried out together within the framework of the United Nations Sustainable Development Goals. In line with our belief that words matter, we made a public declaration that Farmacity is a company with a focus on gender equality.

That said, actions speak louder than words, and so our first concrete action was developing an internal protocol for gender-based violence interventions. We established a procedure that must be followed when violence cases are detected; this includes the provision of special leave for women who are the victims of violence, and arranging assistance with the help of the legal and human resources teams, in a strictly confidential process. In collaboration with specialised institutions, we train all our personnel on gender-based violence: how to detect it and how to provide assistance to the person affected. We also contribute with public campaigns about this serious social problem, which in Argentina causes the death of one woman every 32 hours.

This was then followed by several other initiatives. In collaboration with the National Ministry of Justice, we developed a programme that trains convicted women or women recently released from prison in cosmetics and personal care. This empowers women and also provides job opportunities to an often invisible group of women that faces many different types of discrimination.

We also implemented self-assessment initiatives with the United Nations programme, which enables us to develop a sustainable equality agenda, tackling issues such as women in leadership positions and the reduction of the gender pay gap, amongst many others. These initiatives, along with others that we intend to put in place in the future, result from having an organisational culture that values and promotes an inclusive leadership, and that encourages individuals to be committed to gender equality and women’s rights.

I believe that all women who have been able to develop a successful professional career have a responsibility to our gender to offer support and guidance. The organisational culture that I am committed to promotes and encourages women in such way that they should not have to make any extra effort to demonstrate their value.

From the positions we have, we must contribute to make the road easier for future generations and I believe mentoring constitutes an essential activity within all organisations. For those who are already in senior positions, it is so important to share your experience with those starting their career, to enable an easier road, to reduce gaps, and to eliminate inequalities.

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A new era of matriarchal lawyers

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.

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Patricia Barbelli

My decision to pursue a career in law was driven mostly by the male role model I had when I was teenager: my father. He has always shown strong passion, commitment, and energy. He was also very dedicated to his legal career, having been an executive of a large bank and a Judge for some time. I was inspired by him to also follow a career in the legal industry.

I completed my undergraduate degree in law, my postgraduate degree in contract and tax law, and then completed an MBA. Unlike a lot of lawyers, who often begin their careers in private practice, I have always worked in in-house counsel roles. I began my career as a lawyer for PepsiCo before moving to Bayer, where I was promoted to the role of senior legal manager. After six years with the company, where I was also a member of the executive team (as corporate secretary to the CEO), I became a GC for the first time at Pirelli. I then moved to Whirlpool as their legal director of Latin America. I was at Whirlpool for almost four years when I was contacted by a head hunter to speak about an interesting opportunity at Diageo.

There are many reasons why I decided to move to Diageo. The main reasons, though, were its reputation (in having strong governance, values, and compliance); its solid and remarkable brands; its leadership in the spirits industry; and, finally, its bold diversity and inclusion agenda.

For me, the role of the legal department is so much more than simply a business partner – we are a business peer. The legal department must, fundamentally, help the business to do business. At the end of the day, in-house legal teams must consider themselves as a department that helps to sell and helps to deliver the company’s goals and strategies. We are not a support function for the business. Legal is a role that thinks not only for the consumers, but also for both the stakeholders and shareholders. It is important to challenge the often-held belief that the role of the legal department is to say no! We are there to ensure legal compliance, and to find solutions, always bearing in mind the consumer, stakeholder, and shareholder interests, and to help the business to grow.

This belief is very much reflected in how my team is structured and how our work is done. My team and I typically have very intense work days, which usually involve business meetings, discussions, projects, and deliverables that link to the company’s strategy. And, of course, we are responsible for all legal matters across the business. This involves various kinds of litigation, including tax, which is a complex area of law in Brazil. Our litigation work is not limited to liability but also includes asset litigation, contract litigation, environmental law, data privacy issues, real estate, mergers and acquisitions, antitrust, brand protection, and corporate security.

I believe it is very important to emphasise the different roles men and women may (and often do) play at home and work. It is even more important to establish limits when necessary in order to support the work-life balance, for both genders. This is where we must count on mentors or leaders within companies and organisations to support diversity and inclusion initiatives. Alongside this support though, it is just as important to lead by example.

Since the beginning of my career, I’ve personally faced many challenges as a woman. But I overcame these by being professional, resilient, and by showing my commitment and capabilities. I can recall many business meetings in my career where ‘manterrupting’ and ‘mansplaining’ were commonplace. I overcame this by being respectful, while also creating a space to put across my point of view. More importantly, I stood up for myself, and was not afraid to show my points of view and capabilities.

“The role of the legal department is so much more than simply a business partner – we are a business peer.”

Some years ago, I joined the executive team of a multinational company (a more traditional business) and I was the only woman to occupy an executive position. The other executives were much more senior than me and had been working for many years for this company. In the beginning, it was very difficult for me to gain their trust, their attention, and to be included in the most important discussions, to really ‘sit at the table’. I faced challenges to build the relationships and get closer to them, but I am glad to say that they have turned into very nice colleagues… and one of them is currently my mentor!

In my opinion, the largest barrier facing women in the legal industry – and particularly in the in-house profession – is not getting women in, but the promotion of women to the top levels . This is because many companies are only starting to discuss diversity as an important issue. Unfortunately, from a practical point of view, this means that women tend only to occupy some levels in the hierarchy of organisations, and often only up to managerial level. While this is true to some extent in the corporate arena, it is especially prevalent in law firms. Senior leadership positions in companies and most partner positions in law firms are still occupied by men. Often this is because a lot of women give up their careers when they have children. This is not due to their skills, capabilities, or desire to return to work. This is, more often than not, due to the lack of flexibility from companies and law firms in helping women to continue to grow their career while also being a mother.

I certainly faced challenges when I had my daughter. Although I was lucky in that I found several supportive executives (both male and female), I was surprised at the low level of support I received from some female executives (some of whom were already mothers). It can be very tough without the right support. Taking lessons from my own experiences as a working mother I am, as much as possible, very supportive of my colleagues, my team, and other women who are pregnant or returning to work from maternity leave. I strongly believe that, as women, we must support each other because we all face similar challenges in life (in work and at home), and have the same aspirations and ambitions as men do.

With that in mind, and alongside my role leading the legal team, I also sponsor Diageo’s Diversity and Inclusion Committee. This was created in order to address matters concerning women’s participation in the workplace, people with disabilities, race, sexual orientation, and gender identity, and support them with initiatives to promote diversity and inclusion. I am also a board member of WILL (Women in Leadership Latin America), an international organisation with chapters in São Paulo and New York and an advisory board in London. The aim of the organisation is to share best practice, aimed at closing the gender pay gap, promoting women in leadership roles, and helping organisations to establish career development programmes for women.

As a company, Diageo is very open and transparent in having conversations regarding female advancement in the legal profession. Gender equality remains a major issue in most organisations and there is still a gender gap in the vast majority of companies in Brazil. Despite the relatively slow progress in Brazil, Diageo has an impressive track record in advancing women (without having laws in place) and being a benchmark for companies in Latin America. For example, females in senior leadership positions has increased from 22% to 50% in the last two years.

If I could give one piece of advice to myself at the start of my own career, it would be to have a mentor and to make connections with a diverse range of women. It would also be to share my own experiences more, learn with other women, and count on their support. Mentorship is very important for young aspiring female leaders. Having a mentor may help the young woman to share their own experiences while learning from others’ experiences and counting on their own mentor’s support during their career.

I am fortunate in that I have had the pleasure of working with many admirable women in my teams throughout my career. Some women who joined my team in junior roles have progressed to being mothers in senior roles. I also have mentorship sessions with women who are new, or may not be on my team, to help them with their respective careers. I always try my best to teach, discuss, and give feedback to my mentees. I try to motivate them to keep focussing on both their career paths and own life aspirations, despite any challenges that they may encounter.

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Zelma Acosta-Rubio

I would like to say that my move from private practice to an in-house role was a carefully thought out decision; but, as with most things in life, it was simply an opportunity that presented itself at the right time and where all the conditions were there for me to step in and thrive. The decision was not so much to go in-house – it was more about the challenge to build a modern, innovative legal team profile in a Peruvian bank that was already at the forefront of redefining banking services in Peru.

When it was privatised in 1994, Interbank’s revised value proposition focused on convenience, speed, and service. It was the first bank to establish financial stores operating seven days a week (9am–9pm) at supermarkets. It built a large distribution network, owned the largest out-of-branch ATM network, and redesigned its financial stores with a human-centric approach. By 2010, data mining and scoring had evolved, and the bank moved from product offerings to customised financial services solutions based on deep knowledge of clients’ needs. The challenge for the legal team was to modernise the way legal services were delivered. Speed was key.

When I joined Interbank in 2007, we renewed about 40% of the legal team and set ourselves a vision: ‘to unlock value for corporate strategy’. In terms of speed, that meant working closely with cross-functional teams from the outset in order to design timely solutions with strategic value. Thus, all our lawyers were required to develop business, strategic, and financial acumen to ensure the legal function’s strategic alignment with the rest of the organisation; and to understand Interbank’s strategic intent and be able to articulate our internal clients’ business plans and KPIs. We launched (and continue to run) meet-ups and workshops to instil these new skills and develop a strategic mindset across the entire team. For me it is imperative that, as an in-house team, you have a deep understanding of your company’s strategic intent, and make strategic decisions when dealing with legal risks. You are not just acting in an advisory capacity; you need to own your recommendations and decisions and understand the value proposition as if you were responsible for the P&L.

When I started my first job in New York, I was hired as a foreign associate and had a front row seat learning about power dynamics in private practice. I worked in the financial services practice – an area that was 100% dominated by men, and where women struggled with late nights and family commitments. By the time I got to London a year later, I had made the decision to focus on work, and maybe – just maybe – have a family later. While London was a bit more cosmopolitan, and a bit more inclusive, the hours were still very long and it was still highly competitive. I made a conscious choice to get ahead by playing on my strengths: my knowledge of civil and common law, my pitching skills, and Latin America’s privatisation wave. I was 28 years old and originating deals in Latam, which was unusual for a young associate.

When I moved in-house to Interbank, it was a very different experience, not only because it was a move to an in-house role, but because it was in Peru. However, there was one factor that remained the same, and that was the nicely packed set of stereotypes and unconscious bias in the workplace that help to perpetuate and hold together the dynamics of power. What I observed was a strong underlying assumption of ‘women take care’ vs ‘men take charge’ as a shared belief by men and women alike. This was not only in Interbank, but across the corporate sector in general. And it applies equally to private practice. This, I believe, is the biggest barrier to true gender equality.

“As our research progressed, we realised that it was strategically important for us to accelerate diversity and inclusion.”

In private practice, I think the focus on hourly billing is particularly troublesome; the lack of flexible working arrangements and the penalties women endure for taking maternity leave set them back on their path to attaining partnership. Working in-house is not necessarily better. Stereotypes and unconscious bias are still present; however, what we do see is more and more corporates taking decisive action towards diversity and inclusion, which of course benefits the entire organisation. At Interbank, for example, we share with our panel law firms our diversity and inclusion initiatives, and will be asking them for their data, policies, and accountability for diversity and inclusion in the teams we work with. We also push our firms to give us more women as contacts, especially because firm relationship management has typically been a space reserved for male senior partners.

Alongside my role as GC, I also hold the position of board secretary. I realised I wanted to learn more about diversity in the boardroom. And so I asked for Interbank’s data. In 2012, overall female representation at Interbank was 58%, with 44% C-suite female executives. On the surface this looked to be a good balance. But when we delved more deeply into the data, we learned that female representation reduced to 38% (supervisor), 34% (deputy manager), and 11% (manager). This showed us that we had a significant pipeline issue. It was at this point that I ‘dug my heels in’ and decided to figure out the why, the how, and the what of diversity and inclusion for Grupo Intercorp. We started by asking the following question to large groups of women in several of our Group companies: what are the main reasons that prevent women’s development and keeps them from attaining higher positions? Is it a matter of skill sets, lifestyle, or confidence?

We then asked the following, more in-depth questions:

Skill sets

  • Do women have different skill sets than men?
  • If so, are these differences a key element that will advance a man’s career to the detriment of a woman’s?

Lifestyle

  • For you, what is a normal day?
  • Does being married or single make a difference? Why?
  • Is being a mum an obstacle to career advancement? Why?

Confidence

  • Are men more confident?
  • Is lack of confidence a barrier for women’s career advancement?

As our research progressed, we realised that it was strategically important for us to accelerate diversity and inclusion, and to build on the collective learnings across Grupo Intercorp. In December 2018, the role of chief diversity and inclusion officer was created, as was a Diversity Board, and we have made significant progress since then.

All Group company boards now have approved D&I policies and guidelines and accompanying action plans. We determined to set internal targets by the end of 2019. The policies recognise diversity as a value and inclusion as a leadership trait. The guidelines for 2019 were, first, to prioritise three tracks: (i) attraction, selection, retention, and advancement of women in the organisation, (ii) work-life balance, and (iii) zero tolerance of sexual harassment; and, second, to educate on and build awareness of stereotypes and unconscious bias. All our Group companies prioritise the same three tracks, though some may decide to take on additional ones depending on their own demographics. We also continue to participate in Ranking Par, Latin America’s first-ever gender equality ranking.

We hire for competence and hold interviews with structured and diverse panels. I am also a full supporter of female-led law firms. In the past two years, I have retained (+3) and recommended female lawyers who have set up their own individual legal boutiques. These are women who left the larger firms because they wanted to own their time and deliver results.

Internally, I make sure women get stretch assignments and I expose them to senior leaders across the organisation. I lead by example by engaging in the conversation, making a point of bringing people’s views forward, and being explicit about being equal in our differences.

My commitment to promoting gender equality in the legal industry extends beyond my roles at Grupo Intercorp and Interbank. In 2016, together with ten other lawyers, I formed Women in the Legal Profession (WIP) Peru, an initiative borne from the Cyrus R. Vance Center for International Justice for the empowerment of women in the legal profession. At WIP-Peru, we focus on five tracks:

“The advice I would give to any woman wanting to get ahead in the legal industry is this: play to your strengths. Understand complexity. Always negotiate your salary. ”
  • Design and divulge guidelines for the selection, promotion, and retention of female lawyers;
  • Develop leadership skills for female lawyers (workshops);
  • Actively commit to have female lawyer representation at public events;
  • Run mentoring programmes;
  • Measure best practices and progress.

As part of WIP-Peru, and as GC of Interbank, I promote direct conversations with law firms around diversity and inclusion matters. I encourage them to adopt guidelines for the selection, promotion, and retention of female lawyers and design D&I action plans. Of course, the question of quotas versus targets often comes up. For me, it’s about looking at the demographics, setting realistic targets for diversity, and managing expectations. Personally, I believe 40% is a nice target to start with. In some cases, though – and depending on the toxicity of the culture or the need for change – a hard quota should be placed to accelerate the inclusion of women. I want to stress, though, that in all cases you must make sure you have the best talent ‘auditioning’ for the part, whether or not there are quotas or targets in place.

Finally, the advice I would give to any woman wanting to get ahead in the legal industry is this: Play to your strengths. Understand complexity. Always negotiate your salary.

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Mariana Olivares

I decided to become a lawyer when I was in high school. I am the very first lawyer in my family, so I cannot say it came from a sense of family tradition. However, my parents instilled in me from a young age the importance of justice and values, to do the right thing, and to always be ethical, no matter the consequences. From my very first class at law school, I was incredibly passionate about it; I knew I was in the right place.

Like many lawyers, I started my career in private practice, and had not really planned to move from private practice to an in-house role. But when the opportunity with Sodexo came about, it was too good to turn down. I remember that when I first started, I felt very strange! I was used to managing many different corporate legal accounts, and not ‘only one’. But I soon realised that, in fact, an in-house legal department also has many different clients – all the company’s other departments!

I believe that as an in-house lawyer it is very important to be involved with the strategy, the company’s business: you cannot be unaware of the core business units and interlinked functions. The legal department’s decisions affect the entire company: our shareholders, providers, employees, and community. Our mission is to provide high quality services – with high ethical standards – in order to contribute to the accomplishment of the corporate mission and the company’s objectives as well.

If we compare women’s progress in the legal industry, we can see that the situation is the same in different countries. In the majority of cases, the positions of equity partner and managing partner are held by men. Is this a coincidence? Absolutely not.

Put simply, the ‘rules’ have been made by men: that is the reason why most of the top positions are occupied by them. I strongly believe that had those rules been established by women (or, at the very least, in consultation with women), the reality would be different.

For me, it is very important that men and women work together in order to achieve gender equality in organisations. But how can this be done? First, review your hiring and promotion process; second, train your lawyers regarding unconscious bias and stereotypes in the legal profession; third, empower your women lawyers; and, finally, always review whether the conditions for men and women are both equitable and equal. This last one is very important because, while the aim of equality is to promote fairness, it really only works when everyone is starting from the same place (equity).

In the case of in-house lawyers, you do see more women in leading positions (e.g. legal director, general counsel) than you do in private practice, however there is still much to be done before there is true gender equality and representation. The individual challenges might be different, but, in essence, we are all supporting the same cause. We are all working to obtain equitable conditions for women in the workplace. We have to ensure that not all the leadership positions are for men. And we must always remember that, just because we do not see women in those positions that there are not talented women lawyers. It means the system is broken, and needs to be fixed. We have to empower women and make visible our capabilities. We must take action.

In my career, I have faced the challenges that most women have – not only because I am a woman, but also because I am a mother of two wonderful children. I got through those challenges with work, work, and more work.

“I feel a responsibility as a woman to help other women reach their full potential and progress in their careers.”

I am also lucky because my husband and my family have always supported my decisions and my career. In addition, my company and my colleagues really do believe that businesses with gender-balanced teams do better, not only for company results, but because it is the right thing to do.

Working in a global company such as Sodexo has given me several opportunities to grow and develop my career in many areas, not just in legal. For example, a few years ago I joined Sodexo’s leadership programme for women, based on development opportunities for women in senior management positions. Then I passed to the second stage of the programme: mentoring sessions.

I am also now responsible for the D&I strategy in my country. Along with other members of our D&I local committee, I work every day to reach gender balance in our company. In August 2019, we launched Sodexo’s ‘So Together Peru’, an internal network that seeks to promote the development and empowerment of women in open spaces, in which women and men participate equally to build a true culture of gender equality.

Sodexo also encourages us to volunteer with a worldwide programme (Stop Hunger) to fight hunger and malnutrition. I am the leader of this programme in Peru, and we work for a hunger-free world in three fields of intervention: support to local communities in need, women empowerment, and emergency assistance. We are convinced that providing women with better education, training, means of production, and financial resources will maximise the possibility of eradicating hunger from the world by 2030. Our commitment with Peru’s gender balance is also as a corporate citizen and this year, I was proud to receive recognition of our work from CONFIEP (The National Confederation of Private Business Institutions). This recognition motivates me to continue working on gender equity.

Beside my role at Sodexo, I am member of WIP Peru (Women in the Profession), an initiative from the Cyrus Vance Center for International Justice. I am part of the leadership committee, and this year I am a mentor in the mentoring programme. This initiative is only for women lawyers. I feel a responsibility as a woman to help other women reach their full potential and progress in their careers , but I also encourage other women in leadership positions to be role models for others.

Sodexo is strongly committed to advancing gender equality. As a world leader in quality of life services, the company fosters an open, inclusive culture where everyone can thrive. The global gender balance strategy is a key driver in ensuring that both men and women have equal access to growth and opportunities in our workplace.

Sodexo’s research shows that gender-balanced teams perform better, and so we are working globally to have women represent at least 40% of our total leadership by 2025. This goal will not be met overnight, so the company has established a specific gender strategy to help to achieve this.

Not only do we have cross-border initiatives, but we also develop many local initiatives. Last year we published an inclusive language manual that we now use in all our communications. We trained our senior management regarding unconscious bias and stereotypes and promote campaigns about gender balance. We also participate in panels, forums, and committees with other companies, and last year Sodexo Peru was considered first in the Aequales Ranking as the company with best practices promoting gender equality (category more than 1,000 employees).

Of course, multinational companies such as Sodexo that have strong D&I initiatives positively influence other companies and they set a good example. However, local leadership is very important to implement D&I initiatives and adapt them to a country’s culture. In our case, the issue of gender equity is balanced against things such as violence against women, which in our country reaches high percentages. So, while the global initiative is fundamental, local leadership is necessary to develop a D&I strategy that is aligned with the country reality.

With every day that passes, I am more convinced that we need quotas to achieve gender equality. Working to a ‘best efforts’ rule is not enough: we need quotas in order to achieve our goals. Once we have equity in leading positions, we can change our mindset, trust in a meritocratic system, and talk about equality between men and women without the need for quotas. In the legal function at Sodexo, we have a diverse team, but we are now working on developing capacities, nurturing talent, and empowering women so we can grow under the same opportunities.

It is important to always follow words with actions. While there are specific challenges faced by women in the legal industry, unfortunately gender imbalance is a global issue and one that needs to change. If I could give any advice to those women who are just starting out on their career path, it would be this: What you see as your weaknesses are your greatest strengths. It is what it makes you unique. Your youth is an opportunity to see the world with a fresh new eye. Never give up, fight for your ideas, and for what you really care about. Be ethical. This is the best gift you can give.