Childbearing, childrearing, and Title VII: parental leave policies at large American law firms.

• Author: Young, Christen Linke

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.

1. 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.

   1. 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...