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Monday, August 17, 2015

Baby Mama Esq.

By now we all know that the US is dead last among OECD member countries in the parental leave benefits that are offered to working mothers: in the US, there is no paid parental leave guarantied by law, and only 12 weeks protected unpaid leave (and even then only if employed for 12+ months at a big-enough company). This is, frankly, an embarrassment to the country and speaks volumes with respect to the value our society and government truly places on motherhood and on children. 

Women lawyers who have babies, however, are usually better off than their non-lawyer peers. Most firms offer paid leave (50% - 100% of salary) for anywhere from 6 to 16 weeks. When I had my first baby in 2002, Fried Frank gave me a generous 4 months of fully paid leave. In fact it was a huge selling point for me when I considered their offer of employment (even though I was not pregnant at the time, I expected that I would have a child at some point after joining the firm).  One might therefore think that the real battleground for paid parental leave lies beyond the personal experience of lawyers. But that isn't necessarily true. First of all, as a June 2015 article in the ABA Journal put it, "for many female attorneys, maternity leave can be the equivalent of a poisoned chalice - offered as a benefit, but damaging to a career." The New Republic agrees - generous leave policies can inadvertently reinforce a glass ceiling in a profession. My anecdotal experience (personal and thosee of friends and colleagues), supports this conclusion as well.

Reality here truly does bite: most women who take advantage of generous maternity leave policies and flex-time policies end up sliding off the partner track and settling into the mommy track. A study published by Working Mother magazine found that although flex-hours were offered and widely accepted work arrangements for women with children at top 50 firms, none of the top 50 firms had promoted a flex-time attorney to partner in 2014. And among the 50 top law firms, only 19% of the equity partners are women.

The ABA Journal column noted that some firms (like Minneapolis-based Nilan Johnson Lewis) have bucked the trend and have promoted women to partner shortly after taking maternity leave. But this remains the exception to the general rule that partnership and motherhood are challenging to balance. As a mother of 4 who practiced law for a decade and a half before making the jump to academia, I'm keenly aware of this challenge.  And today's female law students - who constantly approach me as a "role model" of a mother who continually practiced law while having multiple children - are very concerned about this too.  They need to be aware, however, that reality in firms doesn't always match optics.  I've spoken to big-firm interviewers after their on-campus interviewing and heard expressed concern about 2L candidates who mention that one reason that they were attracted to the firm was because of its touted flex time options. This  seems to suggest to the interviewer that the candidate is more interested in family (gasp!) than billable hours. (I think that the fact this point was raised in a first interview also suggests that these 1Ls are both more honest and more naive than one might expect.)

The impact of paternal leave on tenure and promotion in legal academia is unproven. (There was an interesting post in this blog 3 years ago on the topic of delaying going up for tenure because of paternal leave - here, and the AAUP has a paper regarding parental leave for university professors here.) My sense (devoid of any empirical study) is that policies regarding parental leave for female law professors are all over the map - from no paid time off to an entire semester or more of paid leave.  When I was at the new law professor AALS summer program, discussants in the women in law group shared a wide variety of experiences with respect to pregnancy and childbirth and maternity leave on a law school faculty. Policies with respect to paternity leave, I believe, vary even more.

Gentle reader (to borrow the phrase), what are your experiences with parental leave at your law practice and law teaching workplaces? Should the legal profession develop norms and expectations regarding paid leave as a way to increase gender diversity in partnership (and tenured professorship) ranks? Have you seen a generous leave policy backfire into mommy-tracking competent, ambitious female lawyers? And, if so, what is the right solution?

Approximately 50% of law school graduates today are female.  It is likely that a large number of these will at some point in their career have one or more children.  I believe it is time that the legal profession confront this reality and ensure that women in law are not forced to choose one of these three unsatisfactory options:

(a) dropping out of practice,

(b) going into a mommy track limbo, or

(c) sacrificing an unreasonable amount of time with their newborn.  

Yes, this is an issue that faces both mommies and daddies in law, but the biological reality remains that although an uber-dedicated father-to-be big law associate might even miss his child's birth, that option is frankly never possible for even the most overly dedicated expectant lawyer mom.


Posted by Andrea Boyack on August 17, 2015 at 10:19 PM in Culture, Gender, Life of Law Schools, Workplace Law | Permalink


Andrea there is another option that has been creeping up more in more in these discussions: Egg Freezing. For some of my thoughts on how this may play out, see http://abcnews.go.com/Business/apple-facebook-pay-employees-freeze-eggs/story?id=26189761. For some good academic reflections in the Journal of Law and the Biosciences, see http://jlb.oxfordjournals.org/content/early/2014/03/28/jlb.lsu002.full and http://jlb.oxfordjournals.org/content/early/2015/02/08/jlb.lsu037.full.pdf. One possibility for women on the partner (or tenure) track is to freeze her eggs and get pregnant past the decision point of these tracks, though it is of course expensive, is not guaranteed, and may present risks of ovarian hyper stimulation. In a future when these technologies become widespread, it will be interesting to see whether we see even more stigmatizing of women who choose pregnancy while on the track.
For what it is worth, at Harvard, in the last few years I think that just about every woman *and* man on the faculty who has had children has taken parental leave, tenured or tenure-track.

Posted by: I. Glenn Cohen | Aug 17, 2015 11:50:38 PM

Interesting study that adds two cents to this conversation--does it depend on gender how people use their leaves, and what's the difference between parental leaves in academia versus practice? http://www.bloomberg.com/bw/articles/2012-02-21/even-in-academia-dads-dont-do-diapers.

Posted by: Margaret Ryznar | Aug 18, 2015 3:59:01 AM


Better link above.

Posted by: Margaret Ryznar | Aug 18, 2015 4:00:18 AM

I think it is important to remember that we are dealing here with elites. Could it be that, because of sex discrimination and the continuing effects of traditional gender expectations, there are just fewer women in one percenter heterosexual couples who are eager to be the primary breadwinner (and perhaps fewer men who are willing to participate)? I'm closer to retirement than I am to law school graduation, but I still sense that even among young people being a SAHD, for virtually all men in hetero couples where both have the opportunity for elite jobs is simply not a realistic hope. If one party's contribution to the marriage requires an absolute certainty of economic success, it is no surprise that such a person would not take parental leave, or would use it, in part, to advance their career for the benefit of the family unit.

Posted by: Jack | Aug 18, 2015 10:05:27 AM

A good place to start would be to identify what (1) can be changed through legislation, (2) what can only be changed through social norms, and (3) what stands no reasonable chance of being changed.

For instance, you can mandate a certain amount of leave by law. However, you cannot mandate by law how your coworkers think about you taking leave. We can change the norms around taking leave though, and that will change how your coworkers feel about it. But, we can't change the fact that if you take 4 months of leave you have been gone for 4 months and now have 4 months less experience.

Regarding (3), I'm not sure how you get around the problem of some employees being more expensive to hire than others without having the government step in to pick up the costs.

Posted by: Derek Tokaz | Aug 18, 2015 10:23:57 AM

"This seems to suggest to the interviewer that the candidate is more interested in family (gasp!) than billable hours."

This is rather unfair. Just as it is unreasonable to expect employees to care more about the firm than their families, so to it is unreasonable to expect firms to care more about employees' families than the firm.

Posted by: Brad | Aug 18, 2015 11:00:57 AM

Of course firms care first about the firm. I never meant to suggest this was wrong, just that the disconnect between 1L expectations and firm realities was clear.

The links in the comments are incredibly interesting (although the first link in the first comment is broken). I love Margaret's point, and agree. The good thing about egg freezing options is that it may give women some additional choices, but it would be bad if this became the expectation.

Jack - I'm the primary breadwinner in my family and always have been and my husband has alternately been working in management and a SAHD. Maybe I'm the exception.

Personally, I've had good and bad parental leave policies and reactions.

And another law professor (at Washburn) was recently promoted to tenure after taking an entire semester of parental leave - and I thought that was an encouraging sign.

Posted by: Andrea Boyack | Aug 18, 2015 11:10:27 AM

It seems that leave policies are going to be very heavily dictated by the nature of the work, and specifically the degree of intrafirm unique expertise required, the divisibility of the work, and the essentialness of the work.

By intrafirm unique expertise, I mean basically how many other people are capable of doing the work you're doing. By divisibility, I mean if the work can be spread out among multiple coworkers.

For example, teaching a section of 1L Contracts is not terribly intrafirm unique. There are likely several other professors capable of doing so. But, the work is not divisible -- 1 professor will have to teach the entire class.

Meanwhile, an attorney's work at a firm may be very divisible. If your workload tends to consist of 3-5 client matters, that can easily be split among 3-5 other attorneys. The issue would be how much expertise is needed. If it's a niche practice, you may have intrafirm unique expertise. (And of course, unique expertise could impose a cap on the work's divisibility. If only 1 other person shares your expertise, it stops being divisible.)

Work at a firm will almost always have an essential character. If it doesn't get done, the firm loses the client. Maybe some probono work can be let go, but most of what you do at a law firm isn't elective. At a law school though, there are many courses the school could simply choose not to offer. There's likely a great overlap between classes that require unique expertise and those that are not unique. Maybe no one else can teach Bird Law, but it's not necessary to offer it. Contracts is necessary, but there are many others qualified.

No idea what policy ideas to take away from this; it's just some issues to consider. I think it's important to look at not just the career of the person taking leave, but also what has to happen at the firm when that leave happens. Probably on my mind a bit because I'm currently filling in for an employee who's on maternity leave. You can mandate that firms give sufficient leave, and you can reform the culture to be more accepting of leave. But what can you do about a substitute who decides they'd rather have your job long-term? (Thankfully in my case, I don't.)

Posted by: Derek Tokaz | Aug 18, 2015 2:30:39 PM

"policies regarding parental leave for female law professors are all over the map - from no paid time off to an entire semester or more of paid leave."

To me, these aren't really "all over the map," because we operate on a semester system. I assume that many law school administrators reason that, depending on pregnancy due dates, students are best served when a professor commits to either teach or not teach for the semester, rather than asking someone else to take over the course somewhere in the middle. (I gave birth the day after handing in spring grades and had the summer as maternity leave; I later learned that's called "the perfect academic baby.")

As for big firm life, my experience is consistent with yours-- many of the female litigators I know have been punished in ways large and small (and tangible and intangible) for taking leave or choosing a flex schedule, usually culminating in being gently pushed out before going up for partner. Other forms of sexism and biased treatment along the way compound this effect, leading the pathetically small number of female partners at large firms to remain stable.

Posted by: aj | Aug 23, 2015 8:51:25 PM

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