In Massachusetts, several statutes give employees rights to significant time off for caregiving: the Family and Medical Leave Act, the Massachusetts Parental Leave Act, and the Massachusetts Paid Family Leave Act. To comply with these laws, Title VII, and the Massachusetts Fair Employment Practices Act, parental leave policies must be designed and applied equally among genders. Yet, the majority of people who exercise their rights under these laws continue to be birthing mothers. When men or non-birthing mothers seek to take parental leave, they are often discouraged if not outright penalized for using their full benefits.
The moral case for extending equal, generous parental leave should, at this point, be apparent. The definition of “family” has drastically changed over the past few decades, as have the traditional roles of men and women in the workforce and at home. The notion that most attorneys have a partner at home who can handle the bulk of childcare and other family obligations is a relic of the past. Equally arcane is the idea that men have no interest in raising their children. All people, regardless of gender, should have the opportunity to bond with their new child, adjust to the sleep deprivation, stress, anxiety, and new routines that often accompany a new child, and support their partner, who may be facing new challenges such as physical and mental complications following childbirth. Further, allowing all parents to take equal leave would go a long way toward eliminating the stigma and disadvantages that mothers often still face.
However, given the glacial progress thus far, the moral case may not be enough to generate meaningful change in law firms’ parental leave policies. Here we focus on the business case. Based on the authors’ experiences as a legal recruiter and as an employment litigator, providing increased and equal parental leave policies can more than pay for themselves by making law firms more competitive in recruiting and by avoiding legal liability.
Gaining the Edge in Recruiting Through Progressive Leave Policies
By Andrew Glynn
Being a single dad, I am part of the ever-changing definition of “family” and what defines a parent. Frustratingly, until recently, the majority of law firms would either have not allowed me, a single father, the benefit of taking parental leave or discouraged or penalized me for taking it because they did not recognize that parental leave should cover both mothers and fathers.
As a recruiter, I have negotiated detailed changes to the parental leave benefits offered to candidates. Unfortunately, firms are generally willing to make these accommodations only for candidates they deem exceptional—and only during times of economic prosperity and a competitive legal hiring environment. Even when firms are willing to make changes to leave policies for a specific candidate, those changes generally apply only to that one potential employee and rarely spark a greater sea change within the organization.
However, “times are a-changing” (albeit slowly) when it comes to parental leave policies and for an interesting reason: associates. Associates are influencing their firm’s parental leave policies not because they are immediately using those policies, but because Millennials and Gen-Z-ers, who typically make up the majority of the associate class, overwhelmingly view progressive human resources policies as a strong reason for accepting an offer and joining a new firm. In other words, progressive human resources policies—even if they affect only a small percentage of attorneys—have become a strong recruitment tool.
In practice, the number of people who use parental leave each year is a small fraction of a law firm’s entire workforce, and those who do not fall into the “father, mother, and (at least) one biological child” category who use parental leave policies make up an even smaller percentage. Despite this, in the end of 2020, all of 2021, and the beginning of 2022, multiple associate candidates with whom I worked selected among offers based solely on a firm’s parental leave policy, even if that policy did not affect that candidate at the moment and even if that policy would never affect that candidate.
Associates today view the value of a firm beyond just market pay and market bonuses. While those two factors will always be enormously important, most firms fall in line with current standard pay-scales and thus, based solely on pay, are indistinguishable from each other. With nearly 40% of the workforce being either Gen-Z or Millennial, firms will attract more candidates and, more importantly, better candidates by ensuring the firms are competitive on factors beyond just pay. One stellar hire each year could potentially make up for any costs associated with an updated parental leave policy.
The workforce is changing. Recognizing this new reality and making consistent meaningful change in parental leave policies to support employees of all genders and family types is not only the right thing to do, it also is an incredibly effective recruitment tool.
Four Common Parental Leave Mistakes For Firms to Avoid
By Rebecca G. Pontikes
After 25 years of litigating sex discrimination and caregiving cases, I have concluded that the disparities in parental leave policies and how they are used by men and women are wrapped up in our implicit biases about the roles men and women have in caregiving. These biases affect not only individual superiors’ views toward caregivers but also how law firms design and apply their parental leave policies. These biases also lead to several legal and practical mistakes that could result in law firm liability.
Mistake 1: Designing policies to give men and women lopsided amounts of bonding time for the birth or adoption of a child. A distinction made in leave time to allow for physical recovery of birthing parents is permitted. Guidance from the Equal Employment Opportunity Commission (EEOC) acknowledges that a person who gives birth needs time off for physical recovery. EEOC also recognizes the current guidelines from the American College of Obstetricians and Gynecologists that physical recovery takes between six and eight weeks.
Bonding time, however, must be equal and employers risk liability if they fail to comply with this requirement. A cautionary tale is the Estee Lauder Consent Decree that resolved a suit brought by the EEOC against the cosmetics giant. Estee Lauder provided men with a two-week paid leave while it provided women with a six-week paid leave and “return to work” benefits to help them ease back. The suit settled in 2018 and per the consent decree, Estee Lauder agreed to provide 20 weeks of gender-neutral bonding leave, with additional physical recovery leave for birthing parents.
Law firms are not immune. Two former associates of Jones Day sued the firm because biological fathers received only 10 weeks of paid leave, unlike the 18 weeks of leave received by birthing mothers and adoptive parents of any gender. The additional eight weeks for birthing mothers were designated as physical recovery—legal under the law. However, there is no denying that biological fathers get the least amount of paid leave of any parents. The firm could have avoided this problem by giving all parents equal paid bonding time and providing additional paid leave for birthing mothers, as the EEOC mandated with Estee Lauder.
Mistake 2: Applying a policy unequally or in a way that disparately impacts men. In the early 2000s, law firms began writing parental leave policies that distinguished between “primary” and “secondary” caregivers, with the former receiving generous leave and the latter very little leave. The intent was to be inclusive of LGBTQ+ couples. Although the language “primary” and “secondary” seems gender neutral, implicit biases got in the way when the policies were put into practice. If primary caregiver is defined as the person primarily responsible after birth, de facto that is likely the birth mother if she is breastfeeding. In addition to denying the current reality of parenting, whereby both parents may equally share or stagger caregiving responsibility, this type of policy had a disparate impact on biological fathers. As “secondary” caregivers, they generally took smaller leaves or none at all. When fathers did claim the designation of primary caregiver, they (unlike mothers) were often asked to “prove” it.
Mistake 3: Retaliating against any parent who takes leave. Requiring parents to work while on leave is illegal, yet it still happens. Those “quick questions” assume that the parent is available for work when the assumption should be the opposite and new parents often feel pressured by firm culture to pick up the phone and remain available while on leave. Also, penalizing parents when they return could be actionable as both retaliation or sex discrimination. In my experience, men who take long leaves face ridicule in the workplace both before and after taking the leave or are pressured (either outright or subtly) not to take their full leave. Likewise, testing the commitment of parents when they return by deliberately assigning them travel or short deadlines could also be a form of retaliation.
Mistake 4: Failing to accommodate post-birth mental or physical disabilities, such as postpartum depression or anxiety. Even when a new parent has exhausted statutorily required leave, firing the person for needing more leave, or intermittent leave, after returning is a legal and practical mistake. The Americans with Disabilities Act (ADA) requires firms to explore additional leave as an accommodation to a disability. In addition to the birthing parent, a parent whose partner has mental or physical disabilities after birth is also protected against discrimination under the associational provision of the ADA.
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To stay competitive and avoid potential liability, law firms need to balance short-term financial interests with the potential long-term pay-off of more generous, equal parental leave policies. Such policies not only support attorneys during one of the most challenging times in their lives, contribute to attorney morale and retention, and promote diversity, but they also, as explained above, make good business sense. The opportunities to bolster existing policies in their terms and implementation are great. In addition to providing more leave for all parents, firms can offer other benefits such as gradual return-to-work policies that allow all returning parents to ramp up slowly while they figure out how to balance their new responsibilities, providing coaches or mentors to help new parents return to work, and assigning sponsors to new parents to ensure they have assignments and opportunities when they return.