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Oh, Baby! 40 years After the Pregnancy Discrimination Act and a Long Way to Go

This year marks the 40th anniversary of the passage of the Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act. This amendment made it illegal to fire women for becoming pregnant, to deny insurance coverage for pregnancy-related conditions, or to require women to take unpaid leave after becoming pregnant.

While these overt acts of discrimination are, hopefully, a thing of the past, pregnant women, and in particular attorneys, still encounter numerous other less express, but still harmful, forms of discrimination at various levels from their employers, clients, and even courts. By way of example, the law firm of Morrison & Foerster was recently sued by three female associates who allege after taking maternity leave, their careers stalled.  They claim they were denied opportunities for promotions and higher pay, but still had to bill clients as though they had been promoted.

I know from personal experience that I and many of my fellow working-mothers have faced similarly frustrating circumstances. For example, during my last pregnancy, I told an arbitrator that I was expecting and was going to be on leave from April to July.  He then proceeded to schedule the arbitration for May, thus denying me the ability to get valuable experience without so much as attempting to schedule it before or after my leave.  Another co-worker, while sitting in a judge’s chambers to schedule a mediation deadline, asked for the deadline to be in March when she would be back from leave.  The judge refused, setting it instead for February when she would be out.

Many female attorneys have been told that they would have been assigned to projects, cases, or clients if not for being pregnant, even when the attorney would not be out on leave for many months. Others have been in depositions, even with other women, where counsel has refused to break for lunch, leaving pregnant women desperately needing to use the restroom and to get something to eat.

These are only a few examples of experiences pregnant attorneys have all too commonly faced. So why does it matter? And, more importantly, how do we fix it?

Why It Matters

Law firms need working mothers. We can all agree (or at least my husband better!) that mothers excel at multi-tasking.  Time for mothers is precious, and we do not waste it.  If a mother can get a toddler and an infant up, fed, dressed, teeth brushed, bottles prepared, and diapers packed, all while getting showered and out the door to work on time, she can certainly handle a fire storm injunction or temporary restraining order, or balancing the demands of all her cases during a typical day.  Working mothers are forced to learn quickly how to manage better and find ways to do more than other people with whatever moments they are given.

It also may come as a surprise, but mothers often do welcome a break away from their kids and enjoy having challenges in their day that are more complex than negotiating meals and bedtimes (although those negotiations are sometimes more difficult than anything at work). I know while I personally was not ready to leave my children full time after maternity leave, I was very ready to return to work, not take care of a baby all day, and work on something difficult and fulfilling. 

Clients also benefit greatly from having women, including moms, on their legal teams. Many studies have shown that diverse teams solve difficult problems more effectively and that the more women included in top leadership teams, the more likely the team’s success.  Likewise, firms need to retain women as study after study shows that companies with higher gender diversity are more likely to have better financial returns than others in the industry.

How to Fix It

So what do we do? Try to empathize.  Imagine being afraid to tell your co-workers you will be having a child because doing so could cause you to lose opportunities. Imaging having  to give your work away, the difficulty of being out of the loop for 12-16 weeks, and possibly having to fight to get your work back when you return.  If you can empathize and understand what your female colleagues are going through, it will create a more positive work experience for them, and you.  To that end, policies which decrease billable hour expectations on working mothers, both during and in the weeks leading up to and following leave, can help develop a more positive working environment for new and expecting parents.  So too can restructuring goals for bonuses to account for the fact that a new parent has not been working for a quarter of the year.

Don’t assume; ask. Sure, pregnant women are discouraged from flying at the end of their pregnancies. That does not mean, however, that they cannot attend depositions or closings around the country before that time. Partners, colleagues, and supervisors should engage expecting attorneys on these topics.  Avoiding the issue, while perhaps based on a good intention, can create a negative experience for the working mother by removing her from the decision-making process and taking away important opportunities.  Additionally, don’t assume that because someone is out on maternity leave, she does not want to be included on emails or conversations regarding her cases.  Every person is different, and there will certainly be days where work is the last thing on her mind.  But that doesn’t mean that she does not want to be able to keep up generally with what is happening at work.

Finally, raise these issues with your clients as well. For example, if an attorney is going to be on maternity leave when a trial is scheduled, ask your client if they will agree to reschedule.  Missing out on these opportunities is easily one of the most frustrating aspects of being a pregnant attorney. 

The Pregnancy Discrimination Act provides protections for pregnant women that are much needed. On the 40th anniversary of this necessary Act, it is imperative that attorneys continue to ask whether there is anything that could be done to help a pregnant colleague  gain opportunities that will further her career. That conversation will benefit your entire law firm, and as importantly, your clients.

Meaghan Klem Haller is a partner at Bingham Greenebaum Doll LLP who focuses her practice on corporate governance disputes, breaches of fiduciary duties, covenant not to compete litigation, and transportation and product liability defense.

  • Partner

    Meaghan describes herself as an “unapologetic advocate” who will be upfront and honest with clients and thoroughly prepared on the law and facts of her cases.  She focuses her practice on corporate governance disputes, breaches ...

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