Free Market Feminism: A Review of Accidental Feminism: Gender Parity and Selective Mobility among India’s Professional Elite

[Ed Note: As part of our blog round-table book discussion on Professor Swethaa Ballakrishnen’s Accidental Feminism: Gender Parity and Selective Mobility among India’s Professional Elite, this is the review by Dr. Akshaya Kamalnath. The introductory post and the links for the other reviews can be found here.]

Professor Swethaa Ballakrishnen’s Accidental Feminism: Gender Parity and Selective Mobility among India’s Professional Elite deftly analyses career pathways of female lawyers (some of whom are Partners) in India’s “elite” (Big Law) law firms. The interviews of these lawyers reveal the pathways to success for women in these firms. It is a refreshingly thoughtful book that goes beyond simply focusing on the number of women partners in these elite law firms. By comparing this analysis with that of female journeys in the traditional litigation firms in India and also with the Indian offices of global consulting firms, Ballakrishnen is able to tease out factors that might have contributed to the law firms’ feminist outcomes.

Gender does not matter until it does

Gender “is not an issue” for many of the interviewees (women in elite law firms) in Ballakrishnen’s book and having worked briefly in one such firm, I would have mostly agreed with this view at that time. The idea of the perfect worker, as Ballakrishnen writes, is not gendered in these firms. Additionally, the presence of female Partners sent the message that those top roles are available for both men and women. Male interviewees’ responses in these workplaces suggest, as Ballakrishnen points out, the role of the new law schools in normalising women as high performers. These law schools attracted a majority of the female students on the strength of the international market available to them, via the new law firms. By contrast, the litigation market where family connections still matter, attracted very few women.

Ballakrishnen explains that the new law firms offered egalitarian recruitment and promotion practices for two reasons. The first was the lack of existing family networks in the new market and the second was the need to fit into the global standard. Why did they need to fit into the global standard? While India’s liberalisation efforts in the nineties brought international investments and hence clients needing legal advice, the legal constraints on the entry of foreign lawyers into the Indian legal market meant that domestic law firms had to service global clients. Ballakrishnen reveals an interesting contrast to consulting where global firms were allowed to set up offices in India. The India offices of these global firms might have had the luxury of throwing up their hands in the face of local hurdles to gender equality; whereas the domestic law firms in India did not have that luxury. As a result, Ballakrishnen notes that they not only mimicked “modern, meritocratic institutional scripts” that they thought was followed in western law firms, they actually ended up outperforming those that they sought to mimic. The mimicking is also attributed to these new firms needing to distance themselves from the pre-existing litigation firms that were supporting restrictions for the entry of foreign lawyers into India. In any case, the mimicking and urge to be “global” seems to have resulted in a great value placed on meritocracy. Incidentally this seems to have resulted in gender parity at the Partnership level in Indian law firms.

Ballakrishnen’s use of the consulting firms as a comparative metric with which to understand gender trajectories in law firms is very interesting. The fact that the focus on meritocracy (without special gender-oriented measures) resulted in improved gender parity in law firms sits in stark contrast to consulting firms which seemed to have some gender-focused measures but still did not manage to retain women in the upper levels of the workforce. The reason behind the law firms’ success in retaining women seems to be threefold. First, by the time women in these firms have children, they are already at top positions with negotiating power and are able to negotiate their workplans to accommodate childcare duties. This was possible because of the new law schools that offered a five-year undergraduate degree which meant that lawyers from these schools started their careers early. The fact that the law firms were new also meant that they were eager to bulk up their partnerships thus fast-tracking career progression. Second, clients of these firms are mostly international and do not have gendered expectations in the way that domestic clients might. Third, the women in these law firms are able to access childcare from women in their extended families who are not in the workforce. The last of these reasons can clearly apply to women in other workspaces as well. Despite the relative success, Ballakrishnen points out that there was a high female attrition rate and one amongst the many reasons for women leaving was the inability to balance work and family responsibilities.

The particular issue of balancing childcare with work comes up at a later point in women’s careers which is the possible explanation for many lawyers (including myself while I was at one of these firms) feeling that gender was “not an issue”. For those who do manage to negotiate workplans around child care, Ballakrishnen concludes on the basis of the interview responses that there was cheap labour available in India for housework. In this context, I have to add that although the existence of cheap labour is a benefit, Covid-19 saw many Indians learning to use machines for many household chores that had already been automated in western countries. Lawyers in the elite firms discussed are well able to afford these amenities. An astute conclusion in the book is that most of these lawyers were able to call upon the previous generation of women in the family to help with childcare responsibilities. However, some women did not have this advantage either because the previous generation in their family was working or not located in the same city. I myself have witnessed this play out in my family when my mother, a busy career woman herself did not conform to the usual role of taking over child care responsibilities of her working daughter (my sister). As the issue becomes more common, the market for child care services in India is likely to improve manifold.

A significant point that emerges from the book is that the women lawyers who had managed to strike the right balance seemed to have partners that contributed to house work and childcare. This is worth stressing because although support from workplace policies can go a long way, support at home is important and not something that is commonplace in India. As the interviews of those in consulting firms show, women were likely to be penalised in terms of career progression for opting for flexible work options which were available in those firms. As more men begin to shoulder child care responsibilities and avail of flexible work options, it will start to seem like less of a women’s issue. It will be interesting to see if the post-Covid world has a more benign response to flexible work situations since the Covid era has seen both men and women working from home.

Class/ caste

The book’s final chapter suggests that caste/ class is a variable in the success of these women in elite firms. This seems speculative since none of the interviewees mention caste or class privileges or disadvantages and it is not clear whether data in this regard was collected. Ballakrishnen compares two lawyers at the same firm saying that one of them was able to negotiate a work flexibility to accommodate childcare while the other had more difficulty with these negotiations because she was an “outsider”. The implication seems to be that she is an outsider in terms of either caste or class but this is not clear. While it is true that a pre-determined policy that all women within the firm may access when they need to would be simpler than each woman needing to negotiate her options, it is not clear that caste or class is a barrier here.

Implications (hopes) for the future

Ballakrishnen worries about what the situation would be after the “impending liberalisation” of the legal market. I am less hopeful about the liberalisation being impending than Ballakrishnen is but if it does happen, I am not as worried as they seem to be. They worry that foreign firms may merge with existing domestic firms and as a result, the partnership track would inevitably become longer than it currently is, thus taking away one of the factors that allowed women to negotiate their work plans to accommodate childcare. I would expect the market liberalisation to result in a wide variety of options for Indian lawyers – domestic firms that have merged with foreign firms, domestic firms that do not merge, and in time, foreign firms that set up shop in India. This range of options in a market will give lawyers (men and women) more choice and firms would have to respond by providing more than just attractive salaries to retain talent.

Accidents and intentions

The road to hell is paved with good intentions; but perhaps the road to something better than hell in paved with happy accidents? Since some of these accidents detailed in Accidental Feminism were brought about by India liberalising its economy in the 1990s, this might also be a story of free market feminism.

Thus, while I find the title of the book delicious, I would have to say that what Ballakrishnen calls unintended or accidental feminism, I see as free market feminism. I see the merit in calling it accidental considering the range of variables that needed to come together to make the “gender is not an issue” story come alive in Indian (elite) law firms. However, many of these variables were market responses to the liberalisation efforts (coupled with foreign law firms being barred from the country) in the nineties. If women lawyers in these firms needed childcare help, the existing family networks and a type of labour force came to the rescue. The availability of women from the previous generation meant that the female lawyers in question could depend on them rather than on domestic help. When this is not available in future, professionals in need are bound to get over their hesitation about employing people of a different caste/ class to perform childcare duties. In any case, I do not have the same hesitation as Ballakrishnen about allowing actors to use the term feminism even if they do not subscribe to the mainstream version of feminism, whatever that is. In fact, allowing the firms to take on that title may incentivise them to live up to it by pursuing more intentional policies. The only worry is that the intentional policies might inadvertently undo the gains achieved so far.

In this book’s account, the positive outcomes were unintentional. However, there may be well-intended actions (the introduction of gender quotas on company boards for instance) with negative consequences. It is important to be alive to the costs and benefits – of law, regulation, or even voluntary corporate action – to ensure that there is a net gain. On the other hand, when we see a net gain from actions, even if those are unintentional, we should not hesitate to take advantage of it. The focus on merit in these firms has worked, albeit with some issues. This book helps us identify the issues and consider improvements to the current model. As Ballakrishnen says, the time for this is now. I would just caution that any intentional actions should be well-considered.

Akshaya Kamalnath

Akshaya Kamalnath is a Senior Lecturer at ANU Law School. She runs The Hitchhiker's Guide to Corporate Governance Blog and tweets at @Akamalnath.

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