Childbearing, Childrearing, and Title VII: Parental Leave Policies at Large American Law Firms
Young, Christen Linke, The Yale Law Journal
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
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. …