Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Please welcome Susan Dunlap back to our pages.
In my previous article, I described a day in the life of a woman lawyer in Biglaw working from home with no childcare. My goal was to reveal that many women lawyers, through no fault of their own, are having to do the impossible — work full time while having full- or part-time childcare responsibilities. These woman are not OK. Since that article was published, many articles have been written on this subject, including the recent New York Times article “In the COVID-19 Economy, You Can Have a Kid or a Job, You Can’t Have Both.” This crushing dilemma is challenging for women in all industries right now. But the challenge in Biglaw was extraordinary even before the pandemic because the Biglaw system was built by and for lawyers who have the ability to be available 24/7 with no competing commitments. This has never been a reality for most women lawyers, particularly those in the critical career years of midlevel associate to early partner (which coincide with the childbearing years for most families). The pandemic has exposed the significance of the systemic disparity that can no longer be ignored.
The need for action on this problem is particularly acute now. Many families are coming to grips with the fact that no end is in sight for the need for them to manage child care, home schooling, and domestic work on their own going into fall. This realization has created a sense of hopelessness and fear for many women lawyers. One of my clients explained it this way: “I am afraid that at any moment I could lose everything that I have worked my entire life for.” Another client told me, “I feel like a failure from the minute I put my feet on the floor in the morning until the minute I go to bed late at night.” No one could be expected to keep this up indefinitely.
Law firms who lose women during this period risk losing some of their best talent, their reputation around the issue of diversity, their ability to recruit women in the future, and current and future revenue from clients who value diversity.
Given the unprecedented nature of the realities we face in the pandemic, there are no ready-made, road-tested options for solving this problem. However, I would like to suggest a process to help identify actions that move us closer to ameliorating this intensifying problem. The process I am suggesting involves the following four steps:
Step 1: Acknowledge The Problem
The current system law firms use for evaluation, compensation, and promotion will adversely affect many women lawyers during the pandemic period because, through no fault of their own, they cannot keep up their pre-COVID pace. As such, failing to take steps to address this situation could undermine decades-long efforts by law firms to move the needle on gender diversity. This will result in a loss of two of the most important assets for law firms: talent and revenue.
Once we acknowledge the problem, the next step is to identify the many questions the problem evokes.
Step 2: Surface The Questions
These are some questions that occurred to us:
Do law firm leaders really know how the pandemic is affecting many of their lawyers? Women lawyers do not talk as loudly about their struggle because they are afraid they will be viewed as somehow “weak”, “not committed”, or simply “under-performing.”
What are the consequences of failing to take action to address this problem?
Do law firm leaders who are able to work singlemindedly all day (i.e., because they do not have primary responsibility for child care and other home care responsibilities) recognize the inequities of using the traditional evaluation methodology for lawyers who cannot work 24/7?
Are law firm leaders willing to invest money or make other concessions (see below for ideas) to retain their women lawyers during this period when many firms are cutting salaries and instituting layoffs?
Do law firm leaders recognize that their women lawyers who are striving to “keep up” their pre-COVID pace are actually demonstrating a superlative level of commitment to the firm rather than a lack of commitment?
Would making an investment or concessions to women lawyers be fair to the lawyers who have been able to maintain pre-COVID pace because they do not have primary responsibility for child care?
To what extent are male lawyers who are also caregivers also suffering in a disproportional way?
Is there a fairer way to measure the value that lawyers bring to their clients and their firms other than the billable hour? Can or should we use this crisis to begin rethinking a system of compensation and promotion that is equitable for high-performing lawyers who also have important responsibilities outside of work?
After surfacing the key questions concerning the problem, the next step is to seek multiple perspectives regarding the problem, the answers to which will guide the development of potential options for action.
Step 3: Seek Out Multiple Perspectives
At least three major stakeholder perspectives should be considered here: 1) lawyers whose home-care responsibilities make it impossible for them to maintain their pre-COVID work pace; 2) law firm leaders making policy decisions about these issues; and 3) lawyers who have been able to maintain their pre-COVID work pace.
It is beyond the scope of this article to imagine all of the perspectives stakeholder groups may have regarding this problem. However, it is inescapable that many law firm leaders (who are charged with creating policy on issues such as these) simply do not currently have, and may never have had, the “lived experience” of working full time while being the primary parent for child care and housework. In fact, for many law firm leaders the pandemic has afforded them even more time to work singlemindedly. Lacking the life experience of balancing work and homecare responsibilities, it is understandable that many law firm leaders may not be able to grasp the significance of this problem. Research shows that it is very difficult to have empathy for the suffering of others when you have either never experienced the problem yourself or, if you did, it was a long time ago.
Making matters more complex, law firm leaders themselves are suffering as a result of the pandemic, but for very different reasons. In fact, the pandemic probably is posing the most significant challenges they have ever faced: managing a large multinational organization remotely, meeting client demands virtually, and trying to ameliorate the actual or potential loss of revenue and profitability. So, while law firm leaders may have a real commitment to gender equity in the abstract, they have a competing commitment around the financial health and continued viability of their organization.
Seeking and understanding the perspectives of all stakeholders won’t solve the problem, but it is an essential precursor to designing pragmatic action, the final step in the process. The pragmatic action will come from understanding the need to balance support for gender equity AND the need to tend to profitability and a sense of fairness to all stakeholders. Given the complexity of the task, it would be impossible to design action that solves the problem. Rather, the goal is to design experiments that respect the perspectives of multiple stakeholders and move us closer to equity.
Step 4: Create Pragmatic Experiments
What do pragmatic experiments look like? One way to generate ideas for small experiments is to look at what other industries are doing to ameliorate the suffering the pandemic has caused for their constituencies.
Recognizing that all of their employees have different situations and responsibilities at home, Facebook offers up to 10 weeks paid leave and 30 days unpaid leave to employees who need it for caregiving purposes. This is on top of normal vacation and sick leave. In addition, Facebook employees will not be given official performance ratings during this period. Instead, all 45,000 of Facebook’s employees will be paid bonuses based on an “exceeds expectations” rating. Employees will receive low-key reviews but nothing will be logged. Facebook is also working on ways to reward its employees who have gone above and beyond during the pandemic.
How might this translate to law firms: Law firms could lower the hours expectations commensurate with some number of weeks of “paid leave” for caregiving responsibilities. For example, 10 weeks of paid leave would translate to lowering billable hours expectations by 400 hours. Many women lawyers don’t even take their earned vacation because they fear using vacation time will put them at the top of the list to be fired. Performance reviews could be waived for this period guaranteeing that everyone would at the least “meet expectations.”
The Federal Government
Recognizing that it is not the fault of the small-business owners that the lockdown has resulted in their businesses failing, the federal government has provided funds through the Payroll Protection Program to help carry these businesses and their employees through this period. Although the PPP is styled as a loan-forgiveness program, it actually is a subsidy program designed to offset some of the unexpected costs and losses eligible businesses are incurring directly due to the pandemic.
How might this translate to law firms: Law firms could “subsidize” the billable hours of their lawyers whose home and family responsibilities currently are preventing them from maintaining their pre-COVID hours. Some may argue for lawyers going part-time, but many women lawyers are also the primary breadwinners in their families, so they cannot afford to take a salary cut to go part-time as a result of the pandemic.
Recognizing that it is not the fault of students that they have to study from home and that every home environment varies in terms of equipment, broadband, and privacy, colleges and universities are allowing students to take all classes pass/fail.
How might this translate to law firms: Law firms could consider basing reviews, salary increases, and promotions on pre-COVID performance. The COVID period would be a pass/fail system. Women are very anxious about how their performance will be evaluated during this time, and that anxiety is making it even harder to work.
These are just a few ideas from other industries. What are your ideas for small experiments? What have you seen law firms try to address the problem?
The Risk And Opportunity For Law Firms
Firms that neglect to address this problem run a grave risk of negatively affecting their talent bases, reputations, and bottom lines for years to come. If women lawyers face compensation reductions, delays in career advancement, and a loss of job security simply because the pandemic is preventing them from working at their pre-COVID pace, firms may lose some of their highest-performing women during their prime performance years. Aside from the costly loss of talent, the reputations of these firms will suffer, and they likely will face greater challenges in attracting top female talent in the future because women will see a lack of commitment and a bleak path forward. This regression will directly impact the bottom line because clients are increasingly factoring in diversity when choosing outside counsel.
Law firms who lean into this problem and work diligently and creatively to address it will be the winners here because they will retain the highly talented women lawyers who are demonstrating heroic commitments to their firms while handling significant commitments at home. These women will tell other women lawyers about the leadership at their law firms, which will make it easier for these firms to recruit and retain more talented women lawyers now and in the future. These law firms will have a competitive advantage when pursuing new work from clients who value diversity. Law firms should see this moment as an opportunity to take a stand for women lawyers and reap all the benefits of retaining and recruiting top talent, improved reputation for diversity, increased ability to compete for future work, and improved bottom line.
Susan Dunlap is a leadership coach and the founder of the Women’s Leadership Forum (WLF), a national leadership development program for women in Biglaw.