Gender, Law, and Culture in the Legal Workplace: A Chilean Case Study
| Autor | Ann C. Mcginley |
| Cargo | University of Nevada, Las Vegas, Boyd School of Law, United States |
| Páginas | 213-238 |
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018), pp. 213-238
GENDER, LAW, AND CULTURE IN THE LEGAL
WORKPLACE: A CHILEAN CASE STUDY
Ann C. MCGinley*
Abstract
To examine law and culture’s effects on labor conditions of male
and female lawyers, the author interviewed Chilean lawyers. The
study found that the reality of women’s family responsibilities
and stereotypes about women’s weaknesses as work leaders harm
women lawyers’ careers. Although the law permits mothers to
share their six-month post-natal leaves with fathers, fathers ra-
rely take leaves because of societal and employer disapproval, a
practice that reinforces traditional separation of male and female
roles. The article concludes that culture has an even greater effect
than law on the gendered conditions of lawyers’ work, but that
law also may affect behavior. Culture is not static, and lawmakers
should consider law’s effects and unintended consequences to
propose new legislation to correct inequities.
Key Words: Lawyers, Sex Discrimination, Gender, Stereotypes, Parental Leaves, Law and
Culture.
1. INTRODUCTION: LAW VS. CULTURE IN CHILEAN
LEGAL CIRCLES
Although Chile is a traditional country, it is changing rapidly.1 It has twice elected
a female socialist president, Michelle Bachelet, who has made signicant changes
in labor law and law regarding women’s rights.2 Chile has a relatively new law that
*1 University of Ne vada, Las Vegas, Boyd S chool of Law, United States (ann.mcgin ley@unlv.
edu). This art icle is a shorter version of a more detailed ar ticle forthcomi ng in the Arizona Law
Rev iew, MCGin ley (2018). Thank you to the e ditors of the Ar izona Law Review for per mission
to reprint these p ortions of the ar ticle. Than k you to Sergio Gamona l for his intellect ual and
personal suppor t, to Alberto Pino for his help in e diting th is paper, and to all of the anonymous
interviewee s who made this project po ssible. Artic le received on May 21, 2018 and accepted for
publication on June 26, 2018.
1 Divorce was illegal in Chile until 2004, but many married people lived with other persons and had
children out of wedlock. Hepburn and SiMon (2006), pp. 50-51. The upper classes found a way
around the problem. Thanks to Sergio Gamonal for this insight. Abortion was just legalized in 2017
for three causes only. DiDeS and MAulHArDt (2015). The new President, Sebastián Piñera ran as
a conservative and may dismantle some of Bachelet’s initiatives. el MoStrADor (2017); bonnefoy
and lonDoño (2017).
2
MCGinley (2018).
Ann C. McGinley
214
LATIN AMERICAN LEGAL STUDIES Volume 3 (2018)
protects dignity rights of private and government employees.3 Chilean law also pro-
vides generous paid pre- and post-natal parental leaves and forbids ring pregnant
women and mothers on maternity leave (fuero), absent serious cause.4 It requires busi-
nesses with twenty or more female workers to subsidize infant care,5 and gives lactating
mothers time off from work to breastfeed.6 Given these and other family-oriented
laws that far exceed U.S. protections, if law governs employers’ behavior, female
workers in Chile should thrive, unless a culture of discrimination dominates or the
law has an unintended consequence.
Given the apparent contrast between its progressive labor legislation that
supports women in the workplace and traditional culture that sees women’s role as
caregiver for the family, Chile presents an excellent environment to test the question
of whether family-friendly laws create equal working environments for women or
whether traditional culture deprives women of equality in the workplace. To partially
answer this question, I conducted a snowball study7 between January and August
3 In 2006, Chile enacted changes in the labor laws, articles 485 to 495, which make constitutional
protections of fundamental rights applicable to labor contracts. These changes create a special
process for workers to vindicate their dignity rights -- the tutela laboral – that applies to actions of
private and public employers. uGArte CAtAlDo (2009), pp. 23-26.
While the so called “Zamudio’s Law” of 2012 prohibits discrimination based on race, color, sex, gender
identity, sexual orientation, disability, age, political afliation, and other categories, it has few remedies.
“Ley de Zamudio”, Ley N° 20.609, Art. 2º (2012). https://www.cbsnews.com /news/4-guilty-i n-
chile-gay-murder-that-led-to-hate-law/; https://www.leych ile.cl/Nave gar?idNor ma=1042092
4 Women have six weeks of paid pre-natal leave, and six months of paid post-natal leave. Art. 195;
Art. 197 bis. While many of the female lawyers take the entire six months, a few told me that they
took much shorter leaves. See Interview CH03, at 12; CH52, at 14. Permitting an employee to return
early to work, however, is illegal in Chile. Labor rights are not waivable. Mothers may share the nal
three months of post-natal leave with the baby’s father, but this is rarely done. Men independently
have ve days of paid paternity leave that some men take, but, despite the rights granted by the
law, even taking ve days off is a taboo in many ofces. Art. 195 inciso segundo del Código del
Trabajo. The government pays for the pre- and post-natal leaves, but because there is a cap (tope), a
lawyer whose salary exceeds the cap will either be paid less than salary, or the employer may pay the
difference between the cap and the person’s salary. The fuero protection against ring of pregnant
women appears at Art. 201. Interview CH10, at 5. Chilean pregnancy protection and parental leave
policies are far superior to those afforded by U.S. law. MCGinley (2015).
5 Art. 203; GAMonAl (2013), p. 65.
6 Art. 206. This is the “right to alimentation.” The mother may take time off during the workday
or arrive one hour late for work or leave one hour early, or by split the time to one-half hour in the
morning and one-half hour in the afternoon. GAMonAl (2013), pp. 64-65.
7 A “snowball” study gains momentum as it progresses. The interviewer asks the interviewee to
recommend others who would voluntarily participate in the study. A snowball study was appropriate
because it sought qualitative rather than quantitative responses, and earning trust of the subjects was
crucial to the success of the study. Although this was not a highly sensitive area, it was sufciently
sensitive that the interviewees needed to trust the interviewer. As the only interviewer, although I
was a foreigner, because I was both a lawyer and a professor in the U.S. and was able to relate to
the interviewees, I gained their trust, and they contacted other lawyers and judges they knew to ask
them if they would like to participate. The rst group of master’s degree students and graduates was
selected out of convenience (a “convenience sample”), but as the study grew, I broadened the study
by considering lawyers of all different specialties in different kinds of workplaces, of different ages,
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