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Summary: How can pregnant women and new mothers get along in sexist law firms?
Big Law firms tout amazing maternity benefits to attract talented female attorneys, but what happens when women actually get pregnant? Some attorneys have expressed positive experiences, and the law firms where they work have been rewarded by being placed on numerous Best Of lists. However, for attorneys at less family-friendly law firms, having a child is something that should be carefully navigated. These types of firms may say they provide parental leave, but attorneys who actually use the benefit come back to hostile environments and sometimes end up getting canned down the road. According to The Spiggle Law Firm, the number of pregnancy discrimination lawsuits has risen by 50% in the last 15 years, and this number isn’t wholly indicative of how prevalent discrimination towards pregnant women is because there are instances where women do not report or file litigation.
Unless you know which type of employer you’re working for, the following is a detailed guide on how to navigate pregnancy while working at a law firm.
When should women tell their law firms they’re pregnant?
When you discover that you’re pregnant, you’re probably calling everyone you know and already thinking of what kind of baby announcement you want to make—a funny post on Facebook, an email with gifs, or hours of phone calls. But while it may be fun to tell your friends and family, one group you probably don’t want to tell right away is the people at your law firm. After all, how will your boss react? Will you start getting iced out of assignments? Will your clients look at you as less competent? While men who are about to have a child don’t usually face these problems, women unfortunately do. Companies claim to have policies to combat sexism, but sometimes human nature can be an ugly beast.
Most pregnant attorneys choose not to tell people at work about their baby bump until absolutely necessary, which often means when they start showing and there’s no way to not address the elephant in the room. When you do inform your boss, your coworkers, and your clients about your pregnancy, let them know what dates you plan to take off and when you plan to return. Be professional and don’t tell them super personal details. Save that talk for your friends.
If you’re pregnant during the interview process but aren’t showing, don’t disclose it. For one, you don’t have to, thanks to The Pregnancy Discrimination Act, but secondly, telling a potential employer about your family plans is a bad idea. Although they aren’t supposed to discriminate, employers may not hire you knowing that you’ll immediately be taking time off. If an employer asks you during the interview process about babies or brings up family planning, know that you don’t have to answer those questions because it is illegal to ask them. However, if they push the subject and make you uncomfortable, you probably don’t want to work for a firm like that anyway.
Should pregnant attorneys use all of their maternity leave?
The Family Medical Leave Act is a federal law that guarantees 12 weeks of time off for women to have and care for their baby. After the 12 weeks, they are guaranteed to still have their job or a similar one when they return. This only applies to companies with 50 or more employees, and Big Law firms tend to offer maternity benefits that are even more generous than required. For instance, Orrick Herrington & Sutcliffe offers 22 weeks of paid parental leave for attorneys and Cooley offers 20 weeks.
When it comes to actually taking the full time off, in a perfect world, take it all. But in the law firm world, it’s up to you to decide whether to take six or ten weeks. About a month after you give birth, you can determine the state of your physical and mental health as well as your childcare needs. Once you decide on what you want, contact your employer to discuss when you will return and/or options such as flexible hours, part-time work, and working from home arrangements. Hopefully, your law firm will be accommodating.
What to do if you experience retaliation at a law firm
At most major law firms, lawyers charge clients an hourly rate; and with this billable hour system, the firm is aware of your value based on how many hours you accrue. So, for attorneys wanting to have kids, this is a scary environment to take time off in because when you’re away with your baby, you aren’t racking up those precious hours.
While utilizing maternity leave is a legal right and a law firm benefit, some attorneys have admitted that they have returned to hostile environments after taking time off. Sometimes these women are met with resentment by others who took on their workload, while other moms experienced being given worse assignments or less work upon their return. Being given less work can lead to danger in the future. If you don’t have enough hours to bill, you may find yourself on the chopping block eventually. Employers can then say you were fired because you weren’t meeting expectations and not because you got pregnant.
If you return from maternity leave and find yourself unfairly treated, you should seek advice from outside counsel because you may end up filing a lawsuit against your firm. There are numerous pregnancy discrimination cases that were ruled in the plaintiffs’ favor, even though firms tried to argue the women were let go for performance. In 2002, the Equal Employment Opportunity Commission (EEOC) received 4,714 charges of pregnancy-based discrimination, according to American Pregnancy. During that year, the EEOC resolved almost all of the complaints filed and was able to recover almost $10 million in monetary benefits.
What are your rights as a pregnant woman?
As a pregnant woman, you are protected under federal law from discrimination thanks to The Pregnancy Discrimination Act which is an amendment of Title VII of the Civil Rights Act of 1964. According to American Pregnancy, the act prohibits “discrimination on the basis of pregnancy, childbirth, or related medical conditions that constitutes unlawful sex discrimination.” It is noted that this act only applies to companies with 15 or more employees.
The Pregnancy Discrimination Act protects women in the following ways:
Hiring: During the hiring process, an employer is not allowed to ask you about your pregnancy status. They can also not refuse a new hire because she is pregnant.
Pregnancy and maternity leave: An employer is not allowed to discriminate against an employee’s ability to work based on their pregnancy. If a pregnant employee claims to be able to work, she must be allowed to.
An employer can ask for the employee to submit a doctor’s note before taking leave or sick benefits. If an employee cannot work due to pregnancy, the employer is required to treat them like a disabled employee.
Health insurance: Company health insurance must cover pregnancy-related procedures.
Fringe benefits: Pregnancy benefits apply to all women, regardless of their marital status. If an employer gives any worker leave benefits, then those benefits must also apply to maternity leaves.
The second law you are protected under is the Family and Medical Leave Act (FMLA). FMLA requires employers with 50 or more employees to give workers up to 12 weeks of time off for family or medical reasons, and it guarantees that one’s job or an equivalent will be there when they return. To qualify for FMLA, the employee must have worked at the company for at least 12 months and worked at least 1,250 hours during that time. FMLA is unpaid, but many law firms offer paid maternity leave as part of its benefits package.
The jobs of mothers who return from FMLA are protected unless they cannot perform essential functions, would have been fired regardless of taking FMLA, took FMLA fraudulently, or are amongst the highest paid in the firm and her return will cause economic injury to the firm.
It is illegal for an employer to punish an employee who uses FMLA. To take FMLA, you are required to give your employer 30-days-notice before your leave unless you experience an emergency.
Another law that protects mothers in the workplace is the Americans with Disabilities Act. According to Tom Spiggle of The Spiggle Law Firm, the ADA protects new moms who suffer from post-partum depression and mothers who have a family member with special needs. Some people are unaware that the ADA covers more than just physical disabilities, but in 2009, courts broadened the definition of what it means to be disabled. Now, pregnancy-related health issues and depression may be covered by the ADA if you need accommodations.
The best law firms for women
Law firms big and small may publicly express their commitment to diversity, but what firms actually walk the walk when it comes to their treatment of women? Each year, Working Mother releases its list of the Best Law Firms for Women, and this list is created based on the firm’s work-life balance and number of female equity partners.
Working Mother, along with ABA Journal, creates its list by polling law firms with 50 or more attorneys on staff, and they ask detailed questions about topics ranging from flexibility to development and retention of women, from parental leave and paid time off to representation. These attributes are usually what you should look for when searching for a family-friendly law firm; and one should especially note the percentage of female equity partners, not just female partners. Law firms that give female partners equity prove their commitment to valuing their female attorneys, and having female equity partners is proof that the firm culture actually allows women to thrive.
Women make up over 50% of law school graduates but are only 35% of the law firm population and only 20% of equity partners, according to a 2017 report from Law360. While the reasons for women’s lack of representation are not completely known, a theory is that women who have children eventually leave the law firm environment, by choice or by circumstance.
Pregnant attorneys have legal protections to their jobs, but there is always a chance of being discriminated against. Because of this, make sure you are aware of your firm’s policies and maintain your professionalism. If you are ever discriminated against, seek outside counsel.
If you are a female attorney who is looking to join a firm but also wants to start a family, look into law firms with generous parental leave policies, flex-time, or similar benefits but also look for firms with a decent percentage of female equity partners. The number of female equity partners can actually tell you more about a firm’s culture than the other benefits because it shows that women can stay and grow there.