‘Masculinity contest cultures’, and gender imbalance?

Evidence before the Parliamentary Joint Committee inquiry into Ethics and Professional Accountability [1] (PJC inquiry) may assist in considering the gender imbalance recommendation of the PJC’s July 2023 Report on Corporate Insolvency (PJC Report). 

A submission made to the PJC inquiry by SCOLA suggests that ‘masculinity contest cultures’ may be a reason for the concerns about alleged misconduct in the major accounting, audit, and consultancy firms.[2] 

Gender imbalance in insolvency

In contrast, the PJC Report said that a major reason given for this imbalance is rather routine – the current qualification requirements for registration as a liquidator with ASIC (and as a trustee, with AFSA) of at least 4,000 hours of relevant experience in the past five years.  This is said to impede people with caring responsibilities from coming back into insolvency. This is despite the law changes that came into effect on 1 January 2021 that provide liquidator and trustee registration committees with broader scope to consider what is relevant work experience. The PJC Report suggested that reforms could include increasing the period over which experience is demonstrated or replacing part of the required hours with a competency-based exam.

Others disagree [3] or suggest that the lack of female representation may be the result of broader systemic issues. It was noted for example that gender imbalance also exists in other jurisdictions such as the United Kingdom – where 600 hours experience are required, and New Zealand, 1-2000 hours. 

Nevertheless, the PJC Report said we should aim to “have an insolvency profession that reflects the economy and the country that it serves” which ARITA says “makes sound business and ethical sense”.

Reasons?

The business and ethical reasons for addressing the imbalance may include the claim that female IPs bring a different perspective to insolvency practice than men, pursuing ‘feminist ideals of ‘inclusion, connectedness, social justice and the flattening of hierarchies’, displaying elements of ‘compassion and social justice’, being qualities that are ‘to a greater or lesser extent visible in all the insolvency theories that tend to focus on more than just the interests of creditors’. Male IPs are said to want to divide, exclude and create hierarchies among the stakeholders, leading to ‘oppression’ of certain of those stakeholders who are thereby ‘left without much power’ in the insolvency.  Feminist input to the theories of insolvency? – Murrays Legal.[4]

Other defining features are said to include a female ‘disinclination to enjoy football and golf’ and the consequential formation of gender-defined networks, given the significance of networking to insolvency practice: Joyce Y., and Walker S. P. (2015) Gender essentialism and occupational segregation in insolvency practice. Accounting, Organizations and Society pp. 41-60.

It is beyond my expertise to assess this except to say that, if accepted, it would have far-reaching consequences, including for insolvency judges.  

On the other hand, increased diversity and inclusion through allowing broader access to insolvency practice for other professions and skills might have merit, including for those professions that might already have their own gender bias: see Gender, and diversity, in insolvency practice, continued – Murrays Legal

‘Masculinity contest cultures’

All this is leading to SCOLA’s submission of 31 August 2023 to the PJC inquiry in relation to the culture of the big 4 firms which suggests that ‘masculinity contest cultures’ may be a reason for the concerns that are the subject of the inquiry.[5] 

SCOLA refers to studies concerning what are said to be masculine traits of male dominated firms where the mindset is said to focus on ‘winning’, ie, making the most profit, rather than to focus on rule compliance. This can occur, it is said, in any complex organisation that follows a hierarchical governance structure. Such firms reward the achievement of performance goals with high remuneration and failure to achieve the goals with negative consequences. A culture develops where the means by which the goals are achieved are not questioned.

The relevant masculine traits listed include a swaggering confidence that admits no doubt, “no sissy stuff”, strength, stamina and endurance, such as the ability to work long hours without breaks, allowing no interference from any outside or personal sources, a gladiatorial arena where winners dominate and exploit the losers and rivals are crushed.[6] 

The masculinity contest mindset is said to dismiss or trivialise compliance with codes of conduct, ethical practices, internal institutional controls as well as respect for customers, teamwork, and restraints on the use of devious or manipulative behaviour.

Overall, the studies suggest this mindset as a “key reason why the workplace gender revolution has stalled”.[8]

SCOLA does not explain what comparable feminine qualities exist but its submission will no doubt attract interest. 

Insolvency firms

Whether these insights provide some reasons for addressing the gender imbalance in insolvency, that is, whether insolvency firms suffer in this overly masculine way because of their gender imbalance, is debatable. 

With some comparison, the industry presents insolvency law and practice as difficult, complex and demanding, although consistently with the way any other profession would promote itself, with dramatic examples used. An earlier UK report [7] quoted an IP saying that

“insolvency can involve nasty situations, such as having to enforce confiscation orders on drug traffickers … it has been known for insolvency practitioners to be threatened at gunpoint in such situations” … The dynamic, hero­like approach required of the insolvency practitioner was also conveyed to us by most of our interviewees (in their majority male)”.

That comparison may be dated and may not otherwise be valid because while IPs are generally accountants, working in firms, they do not have the rules that apply to other comparable professionals the subject of the PJC inquiry. They have no client relationships, they exercise quasi-judicial authority and wide commercial discretions, their remuneration is not secure and they perform statutory roles on behalf of the state.[9]  They are also bound by strict process rules.  

But while the regulation of IPs is based upon the individuals themselves, their firms no doubt influence their culture.  For that reason, the UK is moving to also regulate insolvency firms along with their individual IPs, comparable with UK audit and legal firms, about which I will make comment shortly. 

Underlying this is the commercial reality of the need for IPs to ensure their firms make a profit from work on insolvent estates, in competition with other firms, where these claimed adverse traits may prevail.

In any event the PJC inquiry’s assessment of this gender-based submission by SCOLA in relation to the large firms under scrutiny may, or may not, be instructive in terms of the PJC Report’s recommendation to try to resolve the gender imbalance in insolvency practice. 

Comment?

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[1] PJC on Corporations and Financial Services inquiry – Ethics and Professional Accountability: Structural Challenges in the Audit, Assurance and Consultancy Industry, 2023. 

[2] Society of Corporate Law Scholars, SCOLA, 31 August 2023. SCOLA is yet to give any oral evidence.  It did not raise this issue in the PJC’s corporate insolvency inquiry.

[3] In defence of 4,000 hours, (2023) 35(3) ARITA J 24, M Brennan

[4] Others suggest that the likelihood of business failure has a gender component. See also The proportion of insolvency practitioners who are women – Murrays Legal

[5] Society of Corporate Law Scholars, SCOLA, 31 August 2023

[6] Berdahl et al, ‘Work as a Masculinity Contest’ (2018) 74(3) Journal of Social Issues 422. Work as a Masculinity Contest – Berdahl – 2018 – Journal of Social Issues – Wiley Online Library

[7] Insolvency Practitioners and Big Corporate Insolvencies, John Flood and Eleni Skordaki, 1995

[8] Berdahl et al, ‘Work as a Masculinity Contest’ (2018) 74(3) Journal of Social Issues 422.

[9] Australian Insolvency Practitioners as Unique Professionals: An Examination of the History of Liquidators and Trustees (2023) 31 Insol LJ 97, C Symes and M Murray