Germany is often viewed as a progressive jurisdiction for women in the workplace. However, there is a 21% gender pay gap in the country and a low proportion of women are in high level positions. The article “Fix the firm or fix the woman” cites research from 2016 which found only 10% of partners in Germany were female. This low female proportion is not particular to just law but is true of most high positions in the workplace. The German government is aware of the problem and has attempted to manage it with the Act on Equal Participation of Women and Men regarding Leadership Positions within the Sectors of Private Economy and Public Service, which came into effect in 2015, and the Transparency of Remuneration Act, which became enforceable in 2017.
Managing IP interviewed some well-respected female IP professionals in Germany to get their perspective on the effectiveness of the new acts and to understand what they believe may be the core reason for this gender imbalance.
In recent years, the German government has attempted to increase the number of women in leadership positions. The Act on Equal Participation of Women and Men regarding Leadership Positions within the Sectors of Private Economy and Public Service is one piece of legislation that has been brought in to improve gender balance at work. The interviewees say that it has been positive in bringing the discussion of women in the workplace to the forefront but that it is not as effective as it could be.
“You don’t have equal pay in Germany and that’s a fact. When you negotiate your own salary I think women tend to be more modest than men”
Astrid Gérard, Preu Bohlig & Partners
Astrid Gérard of Preu Bohlig & Partners in Munich explains: “To be clear, this doesn’t provide any promotion of women in management positions. It says, amongst other provisions, that there must be a higher percentage of women on supervisory boards (30%), which means, to apply to a company, the company must have a supervisory board.”
In addition to this, a large number of German companies will be obligated to create a women's quota for the supervisory board, management board and higher management levels. Gérard notes, however, that few midsize and smaller firms – which make up a large proportion of the German legal landscape – will be affected directly by the Act, although it is hoped the larger debate this has created will put more pressure on them.
Another Act intended to create gender balance is the Transparency of Remuneration Act. Gérard expresses the need for this legislation: “You don’t have equal pay in Germany and that’s a fact. When you negotiate your own salary I think women tend to be more modest than men. From then on they are paid less.” For a long time, certain jurisdictions such as Norway and Sweden have made it possible to find out another person’s income. Germany has chosen to follow this approach and improve the visibility of pay to reduce the pay gap. But the Act is limited: it only applies, again, to larger companies. Additionally, to obtain the pay information there are more conditions that must be satisfied than in other jurisdictions.
Christine Kanz of Hoyng Rokh Monegier in Düsseldorf is unfamiliar with the new Act but comments on some of the prerequisites to obtaining the information: “If you have to find six people in the same position to enforce this right, for many people it will not be applicable. Even finding two or three people who are doing the same or a similar role to me is difficult. It sounds like a nice idea, but I would be surprised if it helps.”
In the UK, one factor that has helped promote diversity and equality for women in law is government pressure on the commercial sector and scholarships set up by associations such as the Law Society. Kanz explains that in Germany “there are some movements, but I still think there is not enough to help young women to find that courage and motivation to say, ‘I can do this.’”
“I know people in the US who work in almost entirely virtual law firms. In Germany working from home is not as common and generally the women on top tend to have no children”
Sandra Pohlman, df-mp
Sandra Pohlman of df-mp in Munich adds that the government is not particularly promoting diversity for women or black, Asian and minority ethnic groups in IP and law, but that there is outside pressure making firms more aware of diversity: “Some clients do ask us to list the people we have from minority groups.”
Gérard of Preu Bohlig & Partners confirms this but is more sceptical about its impact: “Yes, companies have in their T&Cs you must promote diversity. This possibly helps... If they really check it.”
The part-time problem
With these positive provisions in place, why is the gender pay gap still so wide? One common argument is that the gender disparity in pay and position is a result of mothers working part-time to balance work with caring for a family. In theory if you are working fewer hours or taking time off, then a promotion is less likely. This is a particularly big problem in Germany because there are tax disincentives for second earners in dual-earner couples. This makes it unlikely both parents will work full-time.
But why is it more common for the mother to become part-time? Both Pohlman and Gérard explain that their partners are supportive, but admit they never seriously considered the father working part-time.
Cordula Schumacher of Arnold Ruess in Düsseldorf is a mother who works full-time and adds her frustration at this still prominent cultural presumption that the burden of care should be on the mother: “Practically every time someone learns that my husband and I have three kids, people will ask me, 'how do you organise this?' assuming the task of organising is upon me. My husband has never been asked. Culturally, it is not as well-received if a woman with children works full-time and the kids are looked after by someone else.”
The ability to work from home and flexible working hours are implemented by many businesses in different jurisdictions to help accommodate parental responsibilities. US-born Pohlman of df-mp compares the approach of Germany with the US when it comes to flexible working: “In the US there is a lot more support for parents and a trend to work from home. I know people in the US who work in almost entirely virtual law firms. In Germany, working from home is not as common and generally the women on top tend to have no children. Here, it seems people believe they have to choose between having a family and having a successful career.”
“I still think there is not enough to help young women to find that courage and motivation to say, ‘I can do this’”
Christine Kanz, Hoyng Rokh Monegier
Gérard of Preu Bohlig & Partners agrees that in Germany “remote working is not often used”. She continues: “Don’t ask me why because everything I am doing here I could do from home. I think eventually it will change. Germany in some ways is very progressive but in others it is backwards.”
Gérard is a board member of Women in IP in Munich, a community for IP professionals to network and attend seminars. “We were founded because the patent sector is dominated by men and we wanted to create a place where women can network.” She continues: “We also provide mentorship matches and hold events so that junior practitioners can meet other women who have worked their way up the ladder.” Kanz is a mentor with the network: “I think the most important thing is mentoring to show that it is achievable and it’s not a miracle.”
Where do we go from here?
The German government is clearly taking steps to increase the number of women in work. It has created programmes to address gender stereotypes in schools, it is investing in childcare facilities, and it has even reformed paternal leave making it beneficial for both parents to take some of the leave.
“Culturally, it is not as well-received if a woman with children works full-time and the kids are looked after by someone else”
Cordula Schumacher, Arnold Ruess
Although these will all have a significant impact, the changes introduced by the new Acts might be more effective if they were less complicated and were targeted at smaller, midsize and larger companies.
Additionally, as the OECD economic survey for Germany in 2016 notes, it would be beneficial to change the taxation regime for dual-earners and lower the tax burden on the second earner.
The country still adheres to the stereotype that women should predominantly care for children and as a result, this tax regime impacts women's choice and career potential.
Things are changing in the right direction, but perhaps a bit more tweaking is needed before the boardroom is an even split.
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