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Article Excerpt
NOTE CONTENTS
INTRODUCTION 1 LEAVE POLICIES AT U.S. LAW FIRMS A. Methodology B. Availability of Leave for Men and Women C. Types of Leave D. Patterns in the Provision of Leave E. Law Firm Prestige and Leave Available II. LEAVE POLICIES AND GENDER DISCRIMINATION A. Gender Discrimination in Law Firms B. Leave Policies and Assumptions About Women C. Leave Policies and Assumptions About Family Dynamics III. TITLE VII CHALLENGES TO LEAVE POLICIES A. Development of Federal Law B. Challenging Extended Disability Leave C. As-Applied Challenges to Primary Caregiver Leave D. Explaining the Persistence of Vulnerable Policies CONCLUSION
INTRODUCTION
America's most prestigious law firms fiercely compete for talented lawyers and law school graduates, enticing them with lavish recruiting trips, expensive gourmet meals, and glossy informational brochures. Some estimate that recruiting and training a new associate to replace a second- or third-year associate can cost as much as $500,000. (1) Given this spare-no-expense attitude toward recruitment, it is no surprise that firms have become concerned as the popular media and legal press have focused the spotlight on "family friendly" workplaces in the legal profession. (2) As a result, many law firms have positioned themselves to highlight the benefits they provide to attorneys with family commitments. (3)
Maternity and parental leave programs, which offer attorneys paid time off after the birth of a child, are a centerpiece of law firm rhetoric regarding lawyers with families. For example, one firm explains that it is devoted to "address[ing] the work-family needs" of its attorneys by providing the "greatest possible amount of support in the critical months following the arrival of a new child." (4) Indeed, America's largest law firms universally offer some paid leave to new mothers, and a majority also offer some form of paid leave to attorney fathers. (5) Nevertheless, the policies differ greatly in both program structure and overall generosity. Of particular interest is the remarkable variety in the paid leave that law firms provide to fathers.
This Note provides an empirical investigation of paid maternity and paternity leave policies at America's one hundred "most prestigious" (6) law firms. Part I describes the methodology and results of the investigation, highlighting important patterns in law firm provision of parental leave. The data collected here reveals that some firms provide generous leave to men and women, but other firms provide mothers with extremely extended maternity leave--well in excess of their pregnancy-related disability--while offering fathers little or no paid time off when their children are born. These grossly disproportionate leave policies fail to distinguish between childbearing and childrearing in problematic ways.
Part II discusses how disproportionate leave policies create hurdles for male and female attorneys. Women are stigmatized by inferences about their abilities and their commitment to their careers, while men are burdened by assumptions about fatherhood that prevent them from engaging fully in their children's lives. This account of family responsibility discrimination is rooted in feminist theory's conception of the "ideal worker" norm, (7) which intersects with parental leave policies in important ways.
Part Ill furthers this inquiry by illustrating how some of these law firm policies are so inconsistent with federal legal requirements as to be seriously vulnerable to a Title VII challenge. Employers violate Title VII's prohibition on sex discrimination when they fail to distinguish between leave available to women as a result of pregnancy-related disability and leave available to parents to bond with a new baby. As discussed below, this is true even in light of Supreme Court precedent that allows employers to treat pregnancy disability more favorably than other conditions.
I. LEAVE POLICIES AT U.S. LAW FIRMS
Although attorneys may choose from a wide variety of practice settings, (8) large firms represent the most visible and highest paying employers in the profession and warrant investigation. Researching parental leave policies at America's largest firms offers an opportunity to understand how an influential group of employers provides family leave benefits.
Law firms are also an excellent target for empirical study. New attorney recruitment occurs on a fixed track and is regulated by a powerful trade association. (9) Large firms offer relatively comparable work, (10) and draw employees from a single, competitive labor pool. The analysis here is particularly important because it focuses on benefits provided to high-status employees in a market where employers are competing on that basis. In the workplace as a whole, lower-paid employees generally are offered leave benefits consistent with the minimum requirements of federal law or collective bargaining agreements. (11) In many contexts, higher-paid employees are excluded expressly from official parental leave policies, and generous benefits are not part of the employment culture. (12) Law firms, by contrast, are facing a crisis in "work/life satisfaction" and are experimenting with creative ways to accommodate women attorneys. (13) If, even in this context, employers persist in offering discriminatory leave policies, then one can infer profound disparities in the workforce as a whole.
Moreover, large law firms have a unique and tumultuous history of rejecting, then cautiously welcoming, and now struggling to accommodate women and parents. Forty years ago, large firms were largely off-limits to female lawyers; it was not until law students threatened suit in 1969 that they began hiring an appreciable number of women. (14) Today, women make up 49% of new associates. (15) Yet women still face challenges. (16) They constitute only 16% of the equity partners at large law firms (17) and endure discrimination from colleagues, clients, and supervisors. (18) In addition, competitive pressures are forcing firms to reevaluate their attorneys' work-life balance, and are rethinking their conception of parenthood for attorneys of both genders. (19) Understanding how law firms offer maternity and paternity leave can offer insight into the changing role of women and parents in America.
Before turning to the empirical investigation of law firms, it is useful to provide a brief overview of parental leave policies in the workforce as a whole. Federal law requires most employers to provide most employees with twelve weeks of unpaid leave. (20) A 2005 study revealed that employers provided an average of 16.7 weeks of (possibly unpaid) job-guaranteed leave to women, and 14.5 weeks of leave to men. (21) With respect to paid leave policies, which are the subject of this Note, 54% of employers offer at least some paid leave to women, while 12% offer paid leave to men. (22) No data is available on the average amount of paid leave available, but evidence suggests that it is reasonably common to offer women paid leave during a six-week period of pregnancy-related disability, and substantially less common to offer other kinds of paid leave. (23) As described below, law firm policies differ from this general structure in several important ways.
A. Methodology
This analysis examines parental leave policies at one hundred firms--namely, the firms listed in the 2008 edition of the Vault Guide to the Top too Law Firms. (24) For each firm, the following information was collected: total weeks of leave available to women, total weeks of leave available to men, leave provided as disability leave, leave provided as "parental" leave, leave provided to "primary caregivers," and leave provided as a nondisability maternity leave or paternity leave. This Note considers only paid parental leave policies; the analysis does not look at unpaid leave or leave available for other kinds of family commitments, such as caring for an aging parent or sick spouse.
The Notes relies on information drawn from two sources: law firms' own websites describing attorney benefits, and the "workplace questionnaire" data collected by the National Association of Legal Professionals (NALP) and made available on its website in January 2008. (25) The relevant questions from the NALP workplace questionnaire are not detailed (for example, "How many weeks of paid parental leave do [f]emale attorneys receive?" (26)), but in all cases the firms provided enough description in the questionnaire to explain sufficiently how their leave policies work. Information was not available from any source for fourteen of the one hundred firms surveyed; results for the remaining eighty-six firms are presented below.
Important limitations to this approach deserve some discussion. To begin, this analysis looks only at firms' leave policies, not at actual attorney usage of available parental leave. A number of researchers are investigating the extent to which male and female attorneys actually take time off, (27) and many observers have called attention to the fact that fathers often do not take leave even when it is available to them. (28) Nonetheless, the policies themselves are still important, both because they are prerequisite for attorney usage of leave, and because they perform a valuable signaling function to new parents. Another important limitation is the constantly changing nature of law firm leave policies. Recent research, for example, indicates that a number of law firms' policies have changed since they last updated their NALP records, and other firms show inconsistencies between the paper and online versions of the NALP survey, which were completed at different times. (29) The data is also limited by its relatively narrow scope, as it considers only one hundred prestigious firms. While these firms are not a representative random sample of legal practice, they do represent industry leaders and employ a significant percentage of law school graduates. (30) Moreover, the intense competition among these employers is important, as it underlies the assumption that employers are adopting these policies out of need to entice and retain employees. Thus, the data described here paints an interesting, if incomplete, picture of leave policies.
General descriptive statistics are presented in Section I.B. Sections I.C and I.D classify firm leave policies into several categories based on the types of leave they provide, the differences in treatment of men and women, and the overall generosity of the parental leave program. The relationship between firm ranking and available leave is examined in Section I.E. This analysis reveals that firms often fail to distinguish between childbearing and childrearing in the design of their parental leave policies, offering women benefits that far exceed their pregnancy-related disability without providing a comparable benefit to men.
B. Availability of Leave for Men and Women
Of the firms for which information was available, all provide paid maternity leave to female attorneys, ranging from four to eighteen weeks and averaging 11.9 weeks. The standard deviation (31) is 2.82 weeks, and the median and mode are both 12 weeks. Eighty-seven percent of the firms analyzed also offer paid leave to male attorneys, ranging from one to twelve weeks. The average leave available to men is 3.9 weeks, (32) with a standard deviation of 3.18 weeks, and the median and mode both equal four weeks.
These descriptive statistics reveal two striking facts. First, for both men and women, the distribution seems remarkably symmetrical: the mean, median, and mode are nearly identical. This indicates that while it might be typical for firms to provide twelve weeks of leave to women and four weeks of leave to men (indeed, a plurality of firms offer precisely this policy), these values operate as neither a floor nor a ceiling on the amount of leave employers choose to offer. In fact, 21% of firms offer women more than twelve weeks of leave, while 20% offer less. (33)
The second observation focuses on the standard deviations of the two distributions. For men, the standard deviation is large in proportion to the mean, indicating that the distribution is not only symmetrical, but also fairly flat. That is, there is substantial variation in the amount of leave available to men at large law firms. Leave available to women, on the other hand, is much more tightly clustered around the twelve-week mean. This suggests that law firms may be more aware of each others' maternity leave policies, and competitive pressures are more influential in driving women's leave policies toward a twelve-week standard.
C. Types of Leave
Although numerical analysis provides an interesting summary of family leave, a much sharper image emerges from a more qualitative analysis. The above discussion focused on the total leave available to female and male attorneys--broadly termed maternity leave and paternity leave. In fact, leave policies generally are not structured in this way. Instead, firms offer complicated policies with different kinds of leave--some available only to one gender, some available to all new parents. In general, firms rely on three types of leave: disability leave for women, parental leave for all attorneys, and nondisability leave, which is offered differently depending on the attorney's gender.
Disability leave offers women paid time off to recover from the physical disability associated with childbirth. Some firms compensate women for the actual "period of pregnancy disability," defining the length of the pregnancy disability leave in the same way that disability leave for heart attacks or skiing accidents are defined--the actual period during which the attorney is unable to work. (34) For normal pregnancy and childbirth, postpartum disability lasts approximately six weeks, though some women in certain occupations can return to work much sooner, and some complicated pregnancies or deliveries create much longer periods of disability. (35) Most firms, however, do not base disability leave on the circumstances of the individual woman's pregnancy. Instead, they offer a "fixed" disability period. Fixed disability leave ranges from four to sixteen weeks, and a female attorney who gives birth automatically receives the entire fixed-leave period, regardless of her level of actual disability. (36) Disability leave, therefore, can be either actual or fixed, and fixed leave is either normal (four to eight weeks) or extended (ten to sixteen weeks).
Many firms also rely on parental leave periods. As one firm explains, these periods "relate to the time necessary to adjust to the demands of a new child in the home and, therefore, are offered to both male and female associates in the [f]irm." (37) Despite the implication of parental parity, parental leave is not always available on an equal basis. Some firms offer different parental leave periods to "primary" and "nonprimary" caregivers. For example, one firm offers twelve weeks of paid leave "for the lawyer with primary childcare responsibility or up to three weeks [of paid leave] for the lawyer with secondary childcare responsibility." (38) Although these programs appear gender neutral, their application often relies on gendered assumptions. For example, one firm offers a lengthy leave to "a birthmother who is the primary caregiver," and then offers a much shorter leave to all "male attorneys," ignoring the possibility that male attorneys may be primary caregivers. (39) Thus, parental leave can be categorized as short (one to two weeks), moderate (four to six weeks), generous (eight to twelve weeks), or primary/non-primary. (40)
The final type of leave offered is a catch-all category that includes family-oriented leave periods, other than disability leave, which makes a distinction based on gender. At one firm, a "paternity leave" is available to "male associates and income partners," (41) while another firm explains that "[m]ale attorneys receive four or six weeks, depending on the circumstances." (42) In most cases, these policies offer men some paid time off at firms where women receive an extended fixed disability leave.
D. Patterns in the Provision of Leave
The firms analyzed here use some combination of the three general leave types described above to create an overall policy. For example, combining a moderate parental leave with a normal fixed disability leave results in "four weeks paid leave for all new parents ... plus eight weeks additional paid leave for biological mothers because of short-term disability." (43) Although the leave policies are diverse, a number of patterns emerge.
First, fully half of the employers in the analysis mimic the example above, and combine a disability leave for women with a parental leave that is equally available to attorneys of both genders. Only seven of these firms, however, rely on a woman's actual period of pregnancy disability; the rest use a fixed disability leave ranging from four to sixteen weeks. Remarkably, for those using fixed disability leave, only 52% of firms rely on a normal fixed disability leave of four to eight weeks. The remaining firms offer extended fixed disability leave often weeks or longer. Moreover, one quarter of fixed disability leaves are twelve weeks or longer, and two firms offer an astonishing sixteen weeks of "disability" leave to new mothers. This pattern is particularly remarkable because these firms have chosen explicitly to offer a parental leave alongside their disability leave, which makes it all the more inexplicable that so many offer extended disability periods. With respect to the parental leave portion of the package, 17% of the firms in this group offer a generous parental leave while 35% offer a brief parental leave of one or two weeks.
Excluding those firms that rely on the dominant model described above, the remaining leave policies divide into a number of widely diverse categories. Ten percent of employers in the sample, for example, provide no leave to men at all and only offer a fixed disability leave to women. At the other extreme, 15% of firms offer identical leave to all attorneys--only a parental leave ranging from four to twelve weeks. Thus, while many firms have decided to offer identical benefits regardless of gender, nearly as many make no accommodations for male attorneys. An additional 12% of firms offer a permutation on the disability leave/parental leave combination by using an explicitly gendered leave policy. These firms either offer different "maternity" and "paternity" parental leave, or they offer an extended fixed disability leave for women and a short parental leave available only to men. Finally, 13% of firms use policies that distinguish between primary and nonprimary caregivers, occasionally combining this with a disability leave, but generally casting the entire policy in terms of caregiver status. Although this appears facially gender neutral, Section III.C highlights the biased application of primary caregiver leave.
These policies begin to illustrate the ways in which law firms conflate childbearing (pregnancy-related disability leave) and childrearing (leave for the purpose of raising...
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