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References
Martha Freeman, “Writing Briefs and Changing Diapers”,California Lawyer 6 (1986), 36.
Linda Marks, “Alternative Work Schedules in Law: It's AboutTime”,New York Law School Law Review 35 (1990), 361, at 362; and quoting A. Hochschild (with A. Machung),Second Shift: Working Parents and the Revolution at Home (New York: Viking, 1989), 12–13 (emphasis in original). According to Hochschild, most workplaces have remained inflexible in the face of family demands on the part of their workers, and at home, most men have yet to really adapt to the changes in women's workforce participation; the author refers to this situation as “the stalled revolution”, one that affects not only women, but also men and the whole family structure.
See, for example, Commission on Women in the Profession, “Lawyers and Balanced Lives: A Guide to Drafting and Implementing Workplace Policies for Lawyers” (Chicago: American Bar Association, 1990), a publication which provides advice and sample policies for law firms with respect to parental leave, alternative work schedules, and sexual harassment. See also Marks,supra n.2; Sheila Nielsen, “The Balancing Act: Practical Suggestions for Part-Time Attorneys”,New York Law School Law Review 35 (1990), 369; and Marsha Simms, “Women in the Lawyering Workplace: A Practical Perspective”,New York Law School Law Review 35 (1990), 385.
Marks,supra n.2, at 363.
According to Marks,supra n.2, one lawyer who usually worked 70 hours per week reduced his hours by 80% but maintained his billings at 90%; thus, he worked about 63 hours per week, an arrangement which she suggested did “not seem very part—time.”
ABA report,supra n.3, at II–4. The ABA report also makes clear that such arrangementsmust always be distinguished from the “reduced work schedule” which should be available to women lawyers returning to the firm after maternity leave; that is, maternity leave and the accompanying need for reduced work schedules for a short period on return to work should be addressed quite separately from these part time arrangements.
Marks,supra n.2, at 364.
Marks,supra n.2, at 365.
ABA report,supra n.3, at II–9.
Marks,supra n.2, at 365.
ABA report,supra n.3, at I–5. These goals are stated in gender neutral language, although it seems clear that i. would apply only to birth mothers and not to birth fathers or adoptive parents; and that iii. might be more applicable to birth mothers than to the others, although not exclusively so. Defining goals in gender neutral language thus obscures differences in the circumstances being addressed by the policy. In this example, it might be preferable to define goals for each kind of leave separately; thus, the goals for maternity leave would be defined differently from those for paternity or adoption leaves; in each case, goal iv. would undoubtedly appear. It may also be arguable that iv. should be placed first in this list of goals for parental leave policies.
ABA report,supra n.3, at I–5. It is important to note that these recommendations occurred in the context of the United States which does not have a national maternity leave policy; as Marks stated (at 365), in relation to maternity leave policies, the United States is “on the level with South Africa and Upper Volta.” In the Canadian context, therefore, where the concept of paid maternity leave is an established part of legal and institutional arrangements, the ABA recommendations appear quite consistent and workable for the legal profession. In 1993, theFamily and Medical Leave Act was enacted in the United States, requiring employers with 50 or more workers to provide up to 12 weeks of unpaid leave for family medical emergencies, childbirth or adoption (see New York Times, 15 August 1993, at E—3).
SeeTransitions (Toronto: Law Society of Upper Canada, 1991), 58. The data shows very strong relationships between women's role in childcare and their exits and re-entry to the legal workplace. Asked to identify their primary activities between first and second positions and between second and third, 21% of women stated childcare as their primary activity between first and second positions and 35% did so regarding their activity between second and third professional positions.No men indicated childcare as a primary activity in either situation, a response that is as dramatic as it is perplexing. (The other choices were travel, further education, unemployed, illness or injury and “other”; by far the highest percentages of men indicated either unemployed or travel as their primary activities both between their first and second positions, and between their second and third.)
Marks,supra n.2, at 366.
ABA report,supra n.3, at II–9: Some alternative schedule attorneys find that they can successfully field questions and problems by speaking to their clients or offices from home. If feasible, they can install a separate telephone line to handle a message machine, a fax and/or a computer to isolate business—related calls.
Marks,supra n.2, at 366. See also Andree Brooks, “Making Offices Compatible With Flexible Schedules” (New York Times, October 4, 1992) for suggestions about cost savings involved in re—designing workplaces so that each employee has a dedicated telephone line and laptop computer, along with filing cabinets on wheels, but no “dedicated” office. According to some industry specialists, such arrangements permit companies to “divert more resources to improving the field support for these workers, like providing more laptop computers, cellular phones and fax machines”; others have suggested that the concept has become more attractive as more corporations utilize flexible work hours, part time arrangements and job sharing. In a critique of this paper, Dorothy Quann made some useful suggestions about alternative arrangements and the need for law firms to re—think what an “office” needs to be for law practice in the 1990's and beyond.
I have argued elsewhere that the legal doctrine of separate spheres which was used to exclude women from entering the legal profession at the turn of the century now may be an apt description of the differing roles of men and women lawyers within the profession — with male lawyers disproportionately at the top of the profession and women disproportionately represented at the lower end. See Mossman, “‘Invisible’ Constraints on Lawyering and Leadership: The Case of Women Lawyers”,Ottawa Law Review 20 (1988), 567. See also J. Hagan, M. Huxter and P. Parker, “Class Structure and Legal Practice: Inequality and Mobility among Toronto Lawyers”,Law and Society Review 22 (1988), 9.
Joan C. Williams, “Sameness Feminism and the Work/Family Conflict”,New York Law School Law Review 35 (1990), 347, at 355–356.
Williams,supra n.18, at 355–356.
Williams,supra n.18, at 356. See also Karen Czapanskiy, “Volunteers and Draftees: The Struggle for Parental Equality”,UCLA Law Review 38 (1991), 1415. According to Czapanskiy, fathers are given support in the legal system for being “volunteer parents, people whose duties toward their children are limited”, while mothers are “draftees, people whose duties toward their children are extensive”; thus, she proposed a “reconceptualization of parenthood”. For an excellent analysis of the precarious position of “domestic workers” in Canada, see Audrey Macklin “Foreign Domestic Worker: Surrogate Housewife or Mail Order Servant?”,McGill Law Journal 37 (1992), 682.
Williamssupra n.18, at 356. A thoughtful analysis of the need for societal change in arrangements for “caring” is found in Don Edgar, “Sharing the Caring: Rethinking Current Policies”,Family Matters 31 (1992), 40.
David Chambers, “Accommodation and Satisfaction: Women and Men Lawyers and the Balance of Work and Family”,Law and Social Inquiry 14 (1989), 251. The study focused specifically on the ways in which men and women lawyers accommodated their multiple roles as parents and lawyers.
Chambers,supra n.22, at 287 (emphasis added). Chambers' research did not directly address links between women lawyers' choices to accommodate work and family on one hand, and the ways in which such choices subsequently affected career progress: the glass ceiling problem. A similar view about the satisfaction of balancing work and family was expressed by Epstein in 1981 when she characterized the competing demands of work and family for women lawyers as energizing: I found in my investigations of the lives of women lawyers that when faced with numerous demands, many did not feel a sense of strain or negative stress. Rather, these women found their lives exciting and dramatic. They developed greater energy when the demands proliferated, rather than feeling drained, and often did not define their situation as problematic. Cynthia Fuchs Epstein,Women in Law (New York: Basic Books, 1981), 315–326.
Ronald L. Hirsch, “Will Women Leave the Law?”,Barrister 16 (1989), 22.
Williams,supra n.18, at 355.
Transitions, supra n.13, at 78.
ABA report,supra n.3, at 5. The ABA report clearly identified the balance of work and family as only one of a number of reasons for re—thinking the need for ever—increasing numbers of billable hours. As the report stated: Beyond the need to accommodate family demands, the best women and men in the legal profession are more often attracted to workplaces that recognize and respect their broader responsibilities and outside interests, such as pro bono and community activities, involvement in political organizations, and CLE and law school teaching. The extraordinary increase in expected billable hours over the last fifteen years ... is making it extremely difficult for lawyers to pursue these other interests. Lawyers in firms are aware that there are other types of challenging work that do not require billing 2000–2500 hours per year. They are leaving law firms and the law to find it, resulting in a brain drain that the profession should be seeking to stem.
Sheila Nielsen,supra n.3, at 375–376. Nielsen also noted that it is always more difficult to be the first person to challenge the status quo of workplace arrangements (at 376): Try to find a workplace where reduced hours options are already in place and working well. Many of the frontier—women who blazed the trail for future attorneys are legends now because they were unable to work out a good long—term part—time arrangement, and have long since left the firm or workplace. Remember, the first reduced hours arrangements are often learning experiences for everyone.
Nielsen,supra n.3, at 376–377.
Nielsen,supra n.3, at 376.
As Nielsen,supra n.3, has argued (at 379): “Cutting an ad hoc deal at the time of pregnancy is playing with fire. Success or failure may depend upon whether the managing partner thinks women should be home with the children, whether he or she likes you, whether your specialty is valuable enough to the workplace, whether your mentor is powerful enough, and a myriad of other factors outside your control that can bring your career to a grinding halt. Policies [by contrast] allow people to plan their futures.”
According to Nielsen,supra n.3, it is often useful to include “elder statesmen” members of the firm who “are learning about the value of reduced hours options from their daughters, as their daughters try to balance career and family.” She also cautions against letting preconceived notions about co—workers prevent their participation, citing her own reluctance to involve her extremely hard—working supervisor in such discussions at her work place; “surprisingly, this supervisor turned out to be very interested in part—time work. My supervisor was Scott Turow and he was working on his book,Presumed Innocent and is now a part—time partner at a large Chicago firm.” Nielsen,supra n.3, at 379.
ABA report,supra n.3, at I–7.
ABA report,supra n.3, at I–8.
ABA report,supra n.3, at I–6. According to the report, “without policies that are responsive to the needs of its lawyers, a firm's costs will rise as turnover escalates.”
ABA report,supra n.3, at I–7. Note that the ABA distinguished between the periods of paid parental leave (six weeks plus ten weeks) from any additional period of unpaid leave (up to two months).
ABA report,supra n.3, at II–14. Acceptance of this basic principle does not mean that there can be no flexibility; as the report further stated: “A firm may decide that working less than full time will result in a pro rata, slower progression toward partnership. If so, this should be articulated in the firm's policy. But meeting the criteria for partnership depends on the capabilities of the individual. It is therefore possible for an alternative schedule attorney to progress at a faster rate than a pro—rata formula may suggest.”
ABA report,supra n.3, at II–15. The report stressed, moreover, that: “It is key that such an alternative be voluntary, uninfluenced by firm policy or pressures, and that a firm's policy offer this option only in addition to alternative work schedule partnership track opportunities. Otherwise the policy amounts to a controversial and unnecessary ‘Mommy Track’.”
ABA report,supra n.3, at II–26.
Lynn Hecht Schafran, “Gender and Justice: Florida and the Nation”,Florida Law Review 42 (1990), 181, at 202. Schafran has also suggested that “even the women on these task forces who begin with some knowledge about gender bias in the courts and the legal profession emerge with new insight into the pervasive, deeply rooted nature of the problem.”
Simms,supra n.3, at 388.
Ibid.
The “grapevine” in Toronto, for example, suggests that quite disproportionate numbers of women lawyers (by contrast with men in the same cohorts) have recently been asked to depart from large firms, but there have been no formal complaints, to my knowledge; significantly, perhaps, some of these same firms have made substantial contributions to the CBA Task Force on Gender Equality, a position which suggests their openness to reviewing current practices. In the academic context, on the other hand, there has been more vocal criticism and challenge on the part of women faculty and, to some extent students, perhaps because of women's relatively more secure positions in these workplaces; see, for example, Sheilah McIntyre, “Gender Bias Within the Law School: ‘The Memo’ and its Impact”,Canadian Journal of Women and the Law 2 (1987–8), 362, especially at 389–390; and Bruce Feldthusen, “The Gender Wars: ‘Where the Boys Are’”,Canadian Journalof Women and the Law 4 (1990), 66.
Justice Elizabeth Evatt, AO, “Foreward”, in R. Graycar and J. Morgan,The Hidden Gender of Law (Leichhardt, N.S.W. (Australia): The Federation Press, 1990), vi.
This issue was addressed more fully in Mossman, “Gender Bias and the Legal Profession: Challenges and Choices”, in J. Brockman and D. Chunn, eds.,Investigating Gender Bias in Law: Socio-Legal Perspectives (Toronto: Thompson Educational Publishing Inc., 1993).
See Eleanor Fox, “Being a Woman, Being a Lawyer and Being a Human Being — Woman and Change”,Fordham Law Review 57 (1989), 955, at 962–963.
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Excellent research assistance by Michael Gardner and Elizabeth Nastasi at Osgoode Hall Law School is gratefully acknowledged. Research for this paper was originally undertaken for the Canadian Bar Association's Task Force on Gender Equality in the Legal Profession.
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Mossman, M.J. Lawyers and family life: New directions for the 1990's. Feminist Legal Stud 2, 159–182 (1994). https://doi.org/10.1007/BF01105176
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DOI: https://doi.org/10.1007/BF01105176