Prevalence of Gender Bias in Mauritian Legal Profession Law

The Historical Exclusion of Women from the legal profession- A Global Perspective. History is rich in its depictions of old professions, their evolution with time and the way they are shaped presently. Dynamic societies, changing demographics, increased access to education, change in perceptions on gender roles, transformations of the law- all these have revolutionized today's professions.

Now, women are allowed to gain entry into professions that were hitherto barred to them. Studying women's progression is crucial because of the rarity of such studies. This historical examination will create an adequate context for understanding women's professional employment in the past, the present and pave the way for an improved future.

Hence, the previously male-dominated legal profession, and its historical exclusion of women, will be the focal point of this part of the research. In so doing, a case study will be presented on the United States, the United Kingdom and Mauritius.

Noteworthy are the major hurdles faced by women in achieving entry into the legal profession:

First, decades ago, special legislation was needed in many countries to open the doors to women.

Secondly, women had moderate difficulty in obtaining financial and family support to initiate their legal studies.

Third, after acquiring the legal status to plead in court, the fight for employment ensued.

Then, after many years of struggle, personal qualifications started to count more than social status or gender.

Finally the last hurdle was to quash the latent belief that women were not fit for the hardships of legal work.

Case Study: The United States

In the America of the 1800s the legal profession, similarly to medicine and politics, was closed to women. The quote below sheds light on the situation:

"Nature has tempered women as little for the judicial conflicts of the courtroom as for the physical conflicts of the battlefieldA¢â‚¬A¦ OurA¢â‚¬A¦ profession has essentiallyA¢â‚¬A¦ to do with all that is selfish and extortionate, knavish and criminal, coarse and brutal, repulsive and obscene in human life. It would be revolting to all female sense of innocence and the sanctity of their sex."

(Chief Justice Ryan of the Wisconsin Supreme Court, opposing admitting Lavinia Goodell to the bar, 1895, cited in Epstein, 1993, p. 269)

Despite Justice Ryan's vivid language, the reasons for men's resistance to women lawyers "likely has to do with the law's close relationship to power in our society."(Morello, 1986, cited in Martin and Jurik, 2007, p. 107) According to Epstein (1993, p. 13):

members of the legal elite preside over power and property relationships;

they play a leading role in the legislative and regulative bodies that write the law;

they direct the executive agencies responsible for enforcing the law;

they rule the courts that elaborate and apply the law and,

they guide the corporate and financial institutions that constitute the most important property interests.

Exclusion of women from the legal practice was thus successful up until late 19th century. Then, the early women's movement's struggle for civic rights started the mechanism for change- Women were allowed to become legal professionals and they pushed for the professionalization of the legal practice. Schultz and Shaw (2003, p. 13) underline that: "Social status as a base for admittance was discarded, allowing formal qualifications to be the ultimate criterion for entry. This led to an increasing proportion of lawyers with formal education."

The history of the struggle of women in the United States to enter the legal profession was similar to women's struggles in England, other commonwealth nations and Europe.

Case Study: England

Guyard Nedelec (2010) certifies that in the United Kingdom, the first application by a woman to be admitted as a solicitor was in the year 1876. Her application was rejected by the Law Society on the grounds that she was not a "person" within the terms of the Solicitors Act 1843. For Lord Justice Swinfen Eady, in the case of Bebb V. Law Society 1914 1 Ch. 286: "the very fact that women had never been solicitors meant that women could not be solicitors."

Three decades later, lobbies and public debates wrought a significant change in Britain's legislation. In 1919, the Sex Discrimination (Removal) Act was passed, allowing women to be termed as 'persons.' Conductively, England and Wales began to admit a limited number of women around the 1920s.

However, Guyard Nedelec , (2010) reports they were only allowed to practice in restricted areas such as family law, matrimonial and probate work. Decades later, around the 1970s, a number of factors caused women to be admitted to the bar in increasing numbers. First, formal education training became the main requirement for entry into law, rather than apprenticeship, and secondly, structural changes led to a rise in the demand for lawyers. (Schultz and Shaw, 2003, p. 143)

The table below depicts the historical milestones marking the Entry of Women into the Legal Professions

Country

First Woman Admitted to Law Faculties

First Woman Law Student Graduated

First Woman Lawyer

First Woman Judge

First Woman Legal Academic

USA

2nd half of 19th Century

2nd half of 19th Century

Canada

1899 Northwest Territories

1892

Ontario 1895

Quebec 1942

Australia

Victoria 1905

Tasmania 1935

1st Supreme Court Judge 1965, 1st High Court Judge 1975

New Zealand

1893

1897

1st Maori 1982

1st Pacific Islander 1982

1965 1st Law Lecturer

UK

1873

1917

Solicitors:

Scotland 1920

England 1922

Barristers: 1920

Country Court 1960, Court of Appeal 1988

Germany

1900-1909

1912

1922

1965 1st Law Professor

Netherlands

1903

1947

Poland

1915

1925

1929

Norway

1890

Sweden

1897

Finland

1906

1930s

France

1887

1897

1900

1946

1931 1st Law Professor

Italy

1876

1777

1919

1963

Korea

1946

1951

1952

Belgium

1921

Denmark

1919

Ireland

1920

Portugal

1918

Venezuela

1936

Table 1, Source: Schultz and Shaw, 2003, p. xxxiv

With the table above, it can be seen that countries like Canada (Ontario) admitted women to the Bar as early as 1895, whereas in South Korea it took until the year 1952 to find women in the occupation.

The History of Female Lawyers in the Mauritian Legal System

Mauritius obtained its independence in 1968. The Constitution which guarantees equal rights to both genders, made it possible for women to gain entry in the legal practice. All the evidences demonstrate that Mauritian women, unlike their American and English counterparts, did not have to struggle for entry into law practice.

Besides the supreme law of the country, legislative provisions have also been enacted to ensure equal rights of entry to law. Section 4 of the Legal Practitioners Act entails that "any citizen of Mauritius who has been called to the Bar of England and Wales may apply for admission to practice as a barrister."

In this context, the first female lawyer in the Mauritian Legal System, Mrs Pillay, was appointed during the late 1960s, whilst the second, Mrs Anita Kumari Bacha, was admitted in 1971. Mrs Bacha, now retired, accorded this research an interview in order to bring light to the situation of female lawyers at that time. [Refer to Appendix A]

In Mrs Bacha's opinion, no gender discrimination existed when she was practicing law- female members were treated equally. Her promotion as both prosecutor and magistrate substantiates her disagreement on any inequality shrouding the legal system.

However after further probing, she admitted that a male magistrate once qualified her as "indecent" when she appeared to plead in court in her maternity clothes. Moreover, she deplored the way slang terms were allowed to be pronounced in court by counsels. She ascertains that one lawyer in question resorted to the use of crude language to destabilize female counsels and to distress female victims.

She believes that women should be aware of this fact before choosing a career in law. Finally she pointed that there are "softer" areas of the law where women can find themselves at ease. These are family law, adoption law, magistracy and judicial posts.

The situation of female lawyers at the time is therefore a subjective matter. It is difficult to attribute a definitive yes or no to the question of the predominance of gender discrimination.

A study of the number of male and female lawyers could probably give more light to this research.

The table below gives a numerical depiction of the amount of lawyers admitted for practice at the Bar in Mauritius.

Year

Men

Women

Total

% Women

1950-1960

6

0

6

0

1961-1970

6

1

6

16

1971-1980

40

2

42

5

1981-1990

27

6

33

18

1991-1992

16

2

18

11

1992-1993

0

0

0

0

1993-1994

5

0

5

0

1994-1995

15

2

17

11

1995-1996

10

0

10

0

1996-1997

5

5

10

50

1997-1998

8

2

10

20

1998-1999

5

4

9

44

1999-2000

8

4

12

33

2000-2001

11

4

15

26

2001-2002

9

8

17

47

2002-2003

9

5

14

35

2003-2004

13

10

23

43

2004-2005

20

8

28

28

2005-2006

20

13

33

39

2006-2007

15

12

27

44

2007-2008

23

6

29

20

2008-2009

19

18

37

48

2009-2010

17

7

27

25

Total

307

119

426

28%

Table 2, Source: Supreme Court Library as at 17th June 2010

No prescribed pattern can be ascribed to the above data. The amount of women over the years has shown a propensity to change drastically from one year to the other. For instance in 1994-1995 there were 11% of women and the following year 1995-1996 had none. The figures change around the 21st century.

Possible factors that can account for the increase in female professionals are:

The increase in demand for lawyers,

free access to education,

increase in standard of living;

All these factors helped in shaping the demographics of the legal profession. The amount of women has now reached 28% which is more than the amount of women in the Mauritian Parliament of today.

A comparison can be drawn to other countries:-

Country

% Lawyers

USA (2000)

27

Canada (1999)

32

Australia (1994-1995)

24.7

UK (1998)

34

Israel (2000)

34

Germany (2000)

24.6

Netherlands (1993)

30

Poland (1998)

Advocates- 29.5

In-house Advisers- 49.3

France (1999)

45

Brazil (Rio de Janeiro)

37.87

Japan (1991)

5.9

South Korea (1998)

1.9

New Zealand (1999)

29

Finland (2000)

43

Table 3, Source: Schultz and Shaw, 2003, p. xxxvi

The above data displays an average of one quarter to one third women in the world's legal jurisdictions. Though, in Brazil, France and Finland, the share of women lawyers is considerably higher.

South Korea and Japan show the lowest rates, mainly because of the persistent exclusionary strategies preventing women's participation in law.

We will now investigate whether contemporary patterns of inequality exist in the Mauritian legal system. The following themes will be explored:

(B) Does women's greater presence improve the legal institution?

(C) What are gender stereotypes and what are their effects on female law practitioners?

(D) Women lawyers' career prospects in Mauritius:

Private and Public Sector

Glass Ceilings and Income Differentials

Family Responsibility

Sexual Harassment

Senior Counsel Nominations

(e) Recommendations

Does women's greater presence improve the legal institution?

One of the ultimate debates surrounding women in the legal profession has this question as its centerpiece: Do women change the legal profession, or does the legal profession change them? Solimine and Wheatley (1995, cited in Martin, Reynolds and Keith, 2002) argue that:

"Women's participation will not alter the system or affect how justice is done because the system is guided by objective, gender-neutral laws and practices, in accord with the classical model of judging."

Furthermore, many scholars question the claim that the legal institution is substantively and in practice a "male and masculine institution that moots women's presence and influence." (Mackinnon, 1987, cited in Martin, Reynolds and Keith, 2002, p.667)

On the other side of the coin, McKinnon (1987), Pateman (1989) and Kenney (1995), cited in Martin Reynolds and Keith (2002) dispute that:

"Since the system was created by men, based on a concept of citizen as men, with laws written from men's standpoint, the ability to take women's standpoint fully into account is undermined."

Therefore, women's standpoint, as quoted above can be defined as an intuitive ability for affection and an innate rejection of violence.

In a book entitled: 'Gender trials: emotional lives in contemporary law firms', Pierce (1958, p. 103) wrote on a character in Shakespeare's Merchant of Venice. Portia, a female character, disguises herself as a male judge "in an attempt to bring the plea for mercy into the halls of justice." She rejected the adversarial method employed where one party loses and the other wins- arguing instead for a solution where "none of the parties will be harmed."

Carol Gilligan. (1982, p.105) refers to Portia's stance as an illustration of morality based on what she calls 'an ethic of care'. However, Gilligan has stated that she did not present the care perspective as either biologically determined or 'unique to women' (1986, p. 327, cited in Schultz and Shaw, 2002)

Nevertheless, her research has been seen and used to support that there exists a distinctive and natural (Freyer, 1995, p.201, cited in Schultz and Shaw, 2002, p. 193) female approach to moral problemsA¢â‚¬A¦ [Which] even if the product of male oppression may be deployed to disrupt and reform patriarchal structures and discourses.

To endorse the above, Ms Narghis Bundhun, a leading female lawyer in Mauritius, expounded in her interview (Appendix B) that "women lawyers, in my opinion, are better listeners and more ethical in their practice of law."

Thus there are debates that confirm or reject the 'women will change the institution' thesis. The task is to find whether women lawyers' participation will create an "innovation and transformation of the practice of law." (Menkel-Meadow 1989:198-9, cited in Schultz and Shaw, 2002, p. 193)

To find a corollary, extensive research has to be carried out. However cost and time constraints defy the feasibility of such a research in this dissertation- justifying the need to consider another researcher's conclusion:

Carrie Menkel Meadow (1995, p. 34-5) found through her research that women lawyers:

"may be more likely to adopt less confrontational, more meditational approaches to dispute resolutionA¢â‚¬A¦ women will be more sensitive to clients' needs and the interests of those who are in relation to each other, for example clients' families or employeesA¢â‚¬A¦ women employ less hierarchical managerial stylesA¢â‚¬A¦ are more likely to have social justice or altruistic motives in practicing lawA¢â‚¬A¦ and to develop greater integration between their work and family lives."

Gender Stereotypes and their effect on female law practitioners

What is meant by the term Gender Stereotype?

Stereotyping forms part of the human nature. It helps in categorizing the people around us- making life simpler. However it can have "a particularly egregious effect on women." (Cook and Cusack, 2010, p. 1)

Interestingly, women themselves may be socially conditioned to absorb negative stereotypes about themselves and to fulfill the subordinate, passive role they consider appropriate to their status.

For instance in an article by News On Sunday in 2010, it was outlined that 61% women work as clerks or sales persons and only 19% of them work as legislators, professionals and semi-professionals according to the Central Statistics Office.

In its concluding comments on Mauritius, The Committee on the Elimination of All Forms of Discrimination against Women (CEDAW) in 2006 wrote:

"The committee is concerned about the persistence of patriarchal attitudes and stereotypes regarding the roles and responsibilities of women and men in the family and society, where men are still considered the main breadwinners and women's primary responsibility are still household chores."

When societies ignore the existence of such prejudices it may "exacerbate a climate of impunity with respect to violation of women's rights." (Cook and Cusack, 2010, p. 1)

Thus, naming a gender stereotype and identifying its harm is critical to its eradication. Harms of gender stereotypes can take the form of:

Degrading women or diminishing their dignity, and/or

Denying them justified benefits or imposing unjust burdens.

How do gender stereotypes affect women legal practitioners?

In the ABA Commission on Women in the Legal Profession (2001, p. 15), it is said that:

"The characteristics traditionally associated with women are at odds with many characteristics traditionally associated with professional success such as assertiveness, competitiveness and business judgement. Some lawyers and clients still assume that women lack sufficient aptitude for complex financial transactions or sufficient combativeness for major litigation."

Women can as a result be recipients of negative gender constructions. Being too feminine can lead to being qualified as too "soft". Being assertive can be perceived as too "aggressive." Therefore, gender bias can take an omnipresent form in the livelihoods of female lawyers. They experience pressing needs, namely:

The need to socialize and work for long hours,

The need to be as competent as men,

The need to dress like men in sober suits,

The need to face reluctance of some clients to deal with female lawyers,

The need to espouse masculine and feminine styles when convenient, and

The need to face possible criticism when their assertiveness is graded as aggressiveness.

One anonymous female commercial property lawyer, cited in Shultz and Shaw (2003, p. 199), wrote in some detail of the pressure she experienced:

"I think there is still definitely a view that women are not as strong as men. So with colleagues you always have to appear totally confident and positive- wear a smile and be a superhuman professional- and never talk about problems in your private life- that would be weak. And clients often test you too. I am tough, assertive, and meticulous in preparation, to counter all that. You have to be, because of women's reputation for weakness."

Men also tend to confirm women's fears. An interview with a successful Mauritian male senior lawyer [Appendix C] brought the following: "Women in general are not seen working as hard as men, in the field of criminal law, from dawn to dusk in and outside the courtroomA¢â‚¬A¦ thus it is justified for them not to be nominated as Senior Counsels."

Moreover, in Shultz and Shaw a male insolvency practitioner interviewed in 1999 said:

"Clients definitely prefer males in my experienceA¢â‚¬A¦ and I notice too that particular judges when faced with a woman on the other side would nearly always decide against herA¢â‚¬A¦"

Whether judges really write judgements by adhering to pre-conditioned stereotypes is beyond the scope of this part of the study. An analysis of this question will be carried out in the next part.

Ms Gariboo,[Appendix D] a Principal State Attorney in the Attorney General's Office, said in her interview that she has not been part to, nor seen any overt forms of gender discrimination.

However she noticed evident methods of gender stereotyping, where male lawyers would confer tasks upon their female colleagues such as "doing secretarial duties [taking notes during meetings] or making tea." Further, Ms Gariboo condemned the way women lawyers were not allowed to wear traditional clothing such as "churidars" and "sarees"- Thereby fixing the "habitus" of the legal profession.

Her last two observations were:

"no male lawyers ever attended the Gender Policy meetings as ascribed in every ministry department, in order to promote gender equality", and

"Women who are too womanly are not taken seriously and women who are prettier are treated more kindly by male lawyers."

This creates the problem for women of knowing when to hide their difference and when to assert it. Thus as the respondents described above, women find themselves in a tricky situation. Conformity may cause professional alienation when women are deemed too "manly." On the other side, non-conformity brings its individual sanctions of not earning due respect for being too feminine.

Yet, for one woman, the fact that she had to adopt different personas and employ different skills depending on the situation she was in and the people she was with was part of the attraction of the job. She wrote: "especially as a woman, I think, you have to act; sometimes hard and aggressive, sometimes soft. I quite enjoy it in factA¢â‚¬A¦ being attractive and a chameleon." (Schultz and Shaw, 2003, p.200-1)

Consequently, a woman's success in the legal practice may depend on a reflexive ability to change her mannerisms intuitively and quickly, so as to prevent negative gender constructions by the legal environment she evolves in.

Women Lawyers' Career Prospects in Mauritius

Private and Public Sector

The legal profession in Mauritius is divided into two branches, barristers and solicitors. It is not possible to be qualified as both at the same time. Traditionally, barristers are self-employed and have an exclusive right of audience in higher courts. Solicitors on the other hand are instructed by lay clients and may instruct a barrister if required. Barristers and Solicitors per the Legal Practitioners' Amendment Act 2008, work together in Chambers to share administrative costs. Mauritian barristers must be members of the Bar Council while Mauritian solicitors have a legal obligation to form part of the Law Society.

The private sector therefore includes all the barristers and solicitors who are not employed by the government. The public sector on the other hand comprises of The Attorney General's Office, also referred to as the State Law Office or the Parquet. Under its aegis are the offices of the Solicitor General and the offices of the Director of Public Prosecutions.

The Table below shows the amount of men and women lawyers employed in the Public Sector in 2010

Post/Grade

No. of Men Employed

No. of Women Employed

Total

Solicitor General

1

1

DPP

1

1

Parliamentary Counsel

1

1

Deputy Solicitor General

1

1

Assistant Solicitor General

2

2

4

Chief Legal Secretary

1

1

Assistant Parliamentary Counsel

1

1

2

Chief State Attorney

1

1

Principal State Attorney

1

1

2

Principal State Counsel

2

3

5

State Counsel

2

11

13

Senior State Attorney

1

3

4

Curator of Vacant Estates

1

1

State Attorney

1

5

6

Legal Research Officer

3

3

Legal Assistant (Cadre)

1

1

Chief Legal Assistant

1

1

Principal Legal Assistant

2

2

Senior Legal Assistant

1

1

2

Legal Assistant

1

10

11

Total

17

46

63

Table 4, Source: Ministry of Gender Equality, Child Development and Family Welfare, Statistics Office

In the above data, 26% of the legal professionals working in the government are male. The rest, that is, 74% consists of women. The table has included both temporary employees as well as trainees. The propensity of having more female lawyers in the public sector has been explained by Schultz and Shaw.

Women legal practitioners are said to prefer working in softer areas of the law which can bring a flexible timetable and be adapted to their family responsibilities. Furthermore, they are

"more likely to be encouraged to concentrate on matters of lower visibility, profile and financial rewards, whereas men are more inclined (as well as encouraged) to focus on work which offers prestige and better opportunities to develop legal skills and client contact."

When interviewing a male senior barrister [Appendix C], the message that he conveyed was that according to him: "women succeed rarely in criminal law. They should perhaps choose other fields more appropriate to them." Some female lawyers also share this belief and they may be right or wrong.

Glass Ceilings and Income Differentials

Martin and Jurik (2007, p. 145) exhort that "women face a glass ceiling," or a limit on opportunities to climb beyond certain lower steps on the career ladder. Glass Ceilings, or Sticky Floors, as scholars describe, prevent women from reaching higher echelons in a profession.

This invisibility of women at the top legal positions in Mauritius has been deplored by Mrs. Boollel. In her interview [Appendix E] she said: "it is a pain to find women lawyers who have reached to the top in Mauritius."

"The top" in her opinion, would be

To find women barristers or solicitors at the head of law chambers,

To create precedence in case law,

To make a permanent place for oneself in the profession and,

To earning respect from peers, clients, and superiors.

Moreover, Mrs. Boollel ascertained that gender discrimination, glass ceilings and income differentials are much less in the public sector than in the private practice. According to her, discrimination is "crying out" in the private legal sector.

It is true that income, salaries and wages are determined by the Pay Research Bureau as far as the public sector lawyers are concerned. The same cannot be said of the private sector. The income received by lawyers in the private practice has never been studied through research. Moreover it is quite uncertain and largely kept secret. Thus any assumptions in this research would not be possible.

However examples can be drawn from overseas jurisdictions. In Canada, a study made by Hagan (1990, p. 835 cited in Schultz ans Shaw, 2001, p. 62) attempted to find whether any income differentials existed. The following factors were considered:

Specialisation,

Years of experience,

Law school,

Ethnicity, and

Employment context.

Hagan concluded that the gap in earnings remained even after taking into account all the afore-mentioned factors.

In Australia, the table below will shed light on income differentials in the state of New South Wales:

Gross Income

Male %

Female %

Total %

<=$50,000

29.9

48.1

35.7

$50,001- $75,000

22.8

27.0

24.2

$75,001- $100,000

14.0

10.6

12.0

$100,001- $150,000

14.1

6.6

11.9

$150,000+

13.2

4.0

10.6

Unknown

6.0

3.7

5.6

TOTAL

100.0%

100.0%

100.0%

Table 5, Source: Schultz and Shaw, 2001, p. 96

The table proves that Australian women's earnings are considerably lower on average than those of their male counterparts.

This research would like to point out the incidence of lower earnings for women legal professionals in other countries. Without verifiable data, it would be hard to make suppositions.

However the small amount of women in upper echelons of the Mauritian legal practice is a factor contributing to lower earnings for women.

Family Responsibility

The central quest of this sub-part is to investigate whether a practical framework is available for Mauritian lawyers with family responsibility.

Section 5(4) of the Mauritian SDA 2002 clearly defines "Family Responsibility." It is the responsibility of an employee to care for or support: a dependent child, and members of the family in need of care.

Brockman (1992, cited in Schultz and Shaw, 2002, p. 68) on his research of the Canadian legal establishment censured:

the lack of accommodation for family commitments,

the lack of flexibility to work on a part time basis and

the lack of adequate maternity leave arrangements.

The Canadian Bar Association proclaimed its agreement with Brockman's study. It underlined in a 1993 report that:

"Women lawyers with children are discriminated againstA¢â‚¬A¦ and this results in reduced incomes and fewer opportunities for advancement."

Thanks to the Employment Rights Act of 2008, employed female lawyers benefit from leave with or without pay, depending on whether they have worked for more or less than 12 months respectively.

Self-employed female law practitioners, on the other hand, can normally make this decision singularly; but with the knowledge that cutting back on work can result in reduced income and fewer possibilities for advancement.

On the other side, men are usually dispensed from such concerns. This is mainly because women normally assume primary responsibility for family responsibilities. In the News on Sunday article dated 9th April 2010, findings from the central statistics office were echoed:

"Working women spend more time than working men on household chores. A working woman has around 1 hour free time less than a working man everyday and on Sundays the working woman spends an average of 4 hours 30 minutes on household chores and caring for children and 2 hours at work compared to a man spending 2 hours and 3 hours respectively on these activities."

However, men can also be discriminated against as the law provides for a short period of 5 days of paternity leave. (Section 31 Employment Rights Act 08)

This measure both diminishes the importance of fathers in household care and attempts to shape social behavior in order to attribute child care responsibilities principally to women.

Considering the above, it can be purported that more concrete strategies are needed to accommodate work and family demands for legal professionals.

Sexual Harassment

The legislative framework for Sexual Harassment

Sexual Harassment is defined in our Mauritian law as the act of humiliating, offending or intimidating another person by making-

1- An unwelcome sexual advance, or an unwelcome request for a sexual favour to that other person; or

2- Engaging in any other unwelcome conduct of a sexual nature towards that other person.

(The Sex Discrimination Act 2002, section 20)

Further, the Criminal Code (Amendment) Act 1998 added a new section 254(1) to the main Criminal Code of 1838 which provides that any person deemed guilty of sexual harassment is liable to imprisonment "for a term not exceeding 2 years and to a fine not exceeding 100,000 rupees."

Victims of sexual harassment can therefore:

Lodge a case in court and sue on the grounds of breach of section 254(1), or

Reported the case to the Sexual Discrimination Division [SDD] of the National Human Rights Commission. [NHRC]

The SDD employs mediation as a means to settle discrimination and harassment complaints. On August 2006, CEDAW showed its disapproval of the current mediation system:

"The committee is particularly concerned about the weak enforcement of labour laws by the Sex Discrimination Division of the Human Rights Commission, which apparently opts for mediation rather than the referral of cases of non-compliance with the Sex Discrimination Act to the office of the Director of Public Prosecutions."

Mediation is indeed useful when, for example, the SDD persuades an employer to revise his attitudes towards pregnant employees and not terminate their employment. However for cases where the sexual offenders have caused harm to the victim, soft methods such as mediation can hardly be entertained.

Sexual Harassment in the legal environment

Sexual harassment has been documented as a significant obstacle to women's abilities to develop their careers in the practice of law. In interviews conducted in 1994-4, Brockman (cited in Schultz and Shaw p. 67) found that lawyers described the effects of sexual harassment to include" depression, embarrassment, anger, irritation and distress." To counter these negative effects, Canadian legislation created a law precisely for the legal practice, describing sexual harassment as a "professional misconduct."

This research investigated whether cases of sexual harassment have ever been lodged by Mauritian lawyers. It has been observed that the SDD received complaints from several occupations, but none are derived from the legal profession.

This occurrence is worth studying as several factors may influence the lack of complaints. The Australian Human Rights Commission identified these factors in their key findings. In 2008, only 16% of those who have been sexually harassed in the last five years in the workplace formally reported or made a complaint, compared to 32% in 2003.

For those who did not make a complaint in the 2008 national telephone survey:

43% didn't think it was serious enough

15% were fearful of a negative impact on themselves

21% had a lack of faith in the complaint process

29% took care of the problem themselves

It can be surmised that the above four factors greatly influence lawyers in their choice not to report sexual harassment cases in Mauritius.

Senior Counsel Nominations

In the 2008 report of the NHRC, the SDD deplored the fact that: "No woman has yet been made Senior Counsel." This statement was enhanced when two years later when, out of the sixteen senior counsels nominated, none were of the female gender. This research will focus on female barristers as female solicitors have been acknowledged with the title of Senior Attorney.

In her letter, Mrs Pramila Patten, a leading barrister in Mauritius gave an illuminating description of the "Senior Counsel" title:

"The appointment of Senior Counsel provides a clear and public identification of those barristers whose skills, legal experience and personal qualities mark them out as being the best within the legal profession. It is recognition of professional eminence, with those achieving the rank being identified by their peers as leaders in the field of law they practice. For the public, it is a mark of excellence and of a continuing expectation that an individual will consistently perform to the highest standards."

In the newspaper "NewsNow", an article appeared on the 16th of July 2010, explaining the appointment process of Senior Counsels: "Generally, for a legal counsel to receive the accolade of SC, he or she must be recommended by the judges, the Queen's Counsels (QC), the SCs and the Chief Justice who will then

forward the report to the President of the Republic. It is then the prerogative of the president to approve the recommendations."

The amount of women senior counsels in Mauritius being zero, it is now of utmost importance to inspect whether the same happens in the UK for Queen's Counsel nominations.

The table below depicts the number of women nominated as Queens Counsel (QCs) in Britain:

Year

Women QCs

Men QCs

Total

1991

6

67

73

1992

7

62

69

1993

6

64

70

1994

9

68

77

1995

8

63

71

1996

4

62

66

1997

5

63

68

1998

10

50

60

1999

9

60

69

Table 6, Source: Schultz and Shaw, 2003, p. 154

It is often suggested that the low number of women QCs results from the fact that women have only been admitted to the Bar only recently. In Mauritius also, it is judicious to note that normally, barristers who can claim a right to the SC title have up to 10 years or 20 years standing at the Bar in Mauritius. Thus considering the small amount of women who have been nominated [ NB: Refer to Table 2] it is but just not to find any on the list of Senior Counsels.

This supposition however cannot be endorsed by factual evidence. Indeed around 10 to 15 female barristers have around 10 to 20 years standing at the bar of Mauritius. Therefore, the amount of experience criterion can be questioned. In order to avoid considering criteria which are not official, it is crucial now to consider the guidelines published by the Chief Justice. They are:

Standing in the profession, maturity, professionalism in approach;

Credibility, integrity and objectivity in the practice of the profession; Contribution to the development of the law and the legal profession;

Known empathy and assisting in inculcating in the younger members the time-honoured traditions of the noble professions;

Noted interest in and preoccupation with upholding the ethics of respective professions;

Any national or international contribution or exposure relevant to the discipline of the law.

Mrs Urmila Boolllel, in the interview she offered to this research, stressed the fact that she personally knows many female lawyers who fit the criteria cited above. Mrs Pramila Patten, in her open letter to the Chief Justice, mentioned the opacity of the appointment process and derived examples from the system employed in the United Kingdom.

"In UK, the reform of the appointment process was partly inspired by an acknowledgement that women lawyers can be victims of either direct or indirect discrimination such as glass ceiling, confinement to certain areas of law, in turn resulting in the low number of women QCs. In Mauritius, the Sex Discrimination Act 2002A¢â‚¬A¦ as well as the more recently adopted Equal Opportunities Act are not enough to remedy the culture of discrimination experienced by women barristers."

It might therefore be judicious to consider the appointment process in Britain so as to bring more diversity to those who are officially proclaimed as a credit to the legal profession. This will be further examined in the next chapter entitled "Recommendation

Recommendations

The creation of a draft equality code to be circulated amongst all legal practitioners.

The implementation of professional sanctions for gender discrimination and sexual harassment in court or outside.

Efforts must be made to educate the public on the negative impacts of gender stereotypes. In this optic, the Ministry of Education may attempt to remove pictures, examples and illustrations of a stereotypical nature from pre-primary, primary and secondary school syllabus.

The creation of a Gender Balance goal in nomination of lawyers by the Council of Legal Education.

The setting up of an independent body of selection for Senior Counsels and the appointment of meritorious women senior counsels.

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