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COPYRIGHT 2001 Stanford Law School
Kevin Knussman was not asking for much. His wife was suffering medical complications from childbirth, and his newborn daughter needed his care. Knussman went to his employer and sought twelve weeks of paternity leave under the Family and Medical Leave Act (FMLA) of 1993.(1) The Maryland State Police, Knussman's employer, saw things differently. "Unless your wife is dead or in a coma," Knussman's supervisor said, "you could not be the primary provider."(2) His request for extended leave was denied, and he sued.
When Knussman became the first man to win a gender(3) bias claim under the FMLA in 1999,(4) he was depicted as a "poster dad" and "something of a folk hero" by an adoring national press.(5) Unfortunately for Knussman, the battle did not stop there. Before he could return to work, his employer required him to take a psychiatric test.(6) Although the state police claimed that the exam was "routine," the retributive message was clear: Any man who goes to such lengths to put family above work must have some sort of mental defect.(7)
The resistance Knussman encountered is emblematic of a larger struggle occurring within the American workforce. The balance of work and family, once an issue isolated to the "woman's domain," has found a place in the American male psyche; many of today's working men seek the dual objective of maintaining successful careers while being involved in their children's lives.(8) However, the working father's appetite for time with his children is often trumped by the greater hunger of the robust American economy, which is in the midst of its largest expansion in history.(9) With the country's unemployment rate at a thirty-year low,(10) there is an ever-increasing demand for employees to stay at work longer, away from their families.(11) One economist estimates that today's workers spend a month longer at work each year than their parents did.(12)
As the hot U.S. economy swallows employees' time, no industry is hungrier than the carnivorous legal market. The unbounded nature of the law firm economic structure allows firms to grow exponentially.(13) This growth potential, coupled with the economic boom of the late 1990s, has created a record demand for legal services(14) and a dramatic rise in billable hour requirements;(15) today's law firms are increasingly hard-pressed to attract and retain the best legal talent. As one industry journal reports: "[G]ood economic times have swung the employment pendulum in favor of the associates who are seeking jobs."(16)
At the same time, lawyers' dissatisfaction with their work has reached startlingly high levels.(17) Lawyers have the highest job dissatisfaction rate among all major professional groups.(18) Half of the lawyers in a Rand study said that, if given the chance, they would choose a different career.(19)
Given the state of the profession, it is little wonder that firms remain associate mills, churning in and spitting out a new crop of lawyers annually. The "normal" large law firm turnover rate of twenty percent is over double that of other industries.(20) Even one major firm's marketing director admits that attrition rates are "staggeringly high."(21) By the end of their third year of employment, over forty percent of all associates have left their firm.(22) Within eight years, the typical law firm has lost seventy-seven percent of its original associate class.(23) The ABA Young Lawyers Division reports that nearly one-third of lawyers under the age of thirty-six are "strongly" considering leaving their firm within the next two years.(24) Only ten percent of respondents say they "definitely" will not consider leaving their current firm in the next two years.(25)
Faced with the stark view of what life in the law firm holds for them, many of today's law school graduates make employment decisions based not only on salary but also on quality-of-life considerations, such as a firm's personnel policies and work atmosphere.(26) In doing so, this "`life-centered' generation of talent"(27) approaches the legal job market with a value set quite distinct from their predecessors. The old notion that associates must "eat, breathe, and sleep" their work might not be as palatable to the new recruits as the old guard would like.(28) Over half of the college students responding to a 1999 survey identified "attaining a balance between personal life and career" as their primary professional life goal.(29) In a recent study of American workers, the job characteristic that was most often cited as being "very important" was "[h]aving a work schedule which allows me to spend time with my family."(30) "I think people coming out of law school feel that they are entitled to a lifestyle," says one legal recruiter who worked eight years at large law firms before transitioning to the career services industry. "When I got out of school, I didn't think I was entitled to a life."(31) Law students' lifestyle considerations have been studied by psychologist Everett Moitoza, who says, "Firms are speaking about the dilemma because the best and brightest associates come in with the attitude that they have a life, a profession and a family, and wish to negotiate the balance."(32)
A rational economic model suggests that the greater clout law graduates and young associates hold in the job market should yield lifestyle-enhancing concessions by the firms. Firms openly state that recruitment and retention of associates are among their primary business goals.(33) To that end, law firms have instituted a wide set of policies to make the workplace more "family-friendly."(34) Explains one legal journal: "With young lawyers and even law students announcing family as a priority, firms have followed suit, making their [family-friendly] policies ... a prominent selling point of firm brochures and Web sites."(35)
However, beyond serving marketing goals, these programs have done very little to assist lawyers with attaining a work-family balance.(36) The fact remains that although these policies are facially supportive of a lawyer's familial commitments, structural deficiencies and cultural mores remain firmly in place to keep most lawyers, especially men, from taking advantage of the programs.(37)
This note will consider the effect of law firm policy and culture on lawyers in general and on men in particular. Large law firms are the primary focus of this note because of their extraordinary influence on the national legal landscape. These firms leave an indelible mark on law and policy formation in this country by influencing legal precedent through high-profile litigation, as well as by contributing large sums of money to local and national political campaigns.(38)
The first part of this analysis will provide an overview of the current state of law firm leave policies. Although law firms each possess their own unique culture and climate, some broad trends can be seen in the industry, which has adopted family leave policies that require men to prove they are the "primary caregiver," while forcing women into that default position. Part II will describe flexible work arrangements and the working man's low use of them. Part III will analyze the reasons male lawyers are particularly averse to alternative work schedules; this non-use by men reinforces stereotypes of women in the legal workplace, while keeping men from realizing their dual goals of family involvement and workplace commitment. Part IV will outline the efficiency gains of modified work schedules and will offer an example of a model law firm that has incorporated a family-friendly culture while still meeting the bottom line.
In any business setting, successful adoption of alternative work schedules will only occur once clear support of the policies is given from upper management, which in turn will lead to a critical mass of men using these programs. The lesson to large firms is unmistakable: Having a family-friendly policy on paper means nothing in an environment that fails to honor a man's simultaneous commitments as lawyer and father.
I. LAW FIRMS AND PARENTAL LEAVE
A. The Family and Medical Leave Act of 1993
On February 5, 1993 President Clinton made the FMLA his first bill to be signed into law.(39) The FMLA, which had been vetoed twice by President Bush in similar forms, entitles eligible employees to twelve weeks of unpaid, job-protected leave for family illness, childbirth, adoption, or elder care.(40) In its wording, the FMLA recognizes the national importance of allowing fathers and mothers time off to care for their infant children.(41) However, beyond the symbolic wording of the Act lie serious limitations that prevent a great many workers from taking formal parental leave.
Before the FMLA's passage, the United States was one of only two industrialized countries that lacked a formalized parental leave policy.(42) Yet, even after the FMLA's adoption, the United States still lags far behind European countries in the leave it offers parents.(43) Professor Carol Daugherty Rasnic's 1994 analysis of the parental leave policies in nineteen European countries(44) shows that the United States has not come close to matching the family leave standard set by Europe.(45) All European countries surveyed provided statutory maternity leave with pay, and eleven of the countries provided paid paternity leave as well.(46) The European model is set among a backdrop of state-subsidized support for families with children, including national healthcare, cash benefits for families based on the number of children in the family, and guaranteed minimum child support payments for single parents.(47)
Although it was touted as a monumental breakthrough in pushing employers to honor family commitments, the FMLA has considerable drawbacks that keep it from having a greater impact on the U.S. workforce because 1) the leave is unpaid, thus making it "largely a pipe dream" for parents with low wages,(48) and 2) the FMLA only applies to employees in companies with fifty or more employees; any person working for a small business is not covered. In sharp contrast, not one of the European countries limits an employee's ability to take parental leave because of company size.(49) The result of the FMLA company size limit is that only two-thirds of U.S. workers are even eligible to take leave under the Act.(50)
With regard to lawyers, most large law firms have already adopted formal policies that meet the FMLA's minimum guidelines. As this note will demonstrate, however, most of these law firm policies are not gender-neutral; while women can take paid leave, male attorneys must meet a "primary caregiver" benchmark in order to enjoy the same benefits.(51) At first glance the FMLA may appear to be more pertinent to small and mid-size firms, many of which do not have any family leave policies. However, because the Act requires a minimum of fifty employees, small firms may not be covered. Further, the FMLA only applies to "employees," and incorporates the definition of "employee" set by the Fair Labor Standards Act (FLSA) of 1938.(52) Courts have consistently stated that law firm partners are not employees, as defined by the FLSA.(53) Because of this limitation, even partners with minimal equity or no controlling interest in the firm are excluded from the benefits of the FMLA. Given partners' exempt status, small to mid-size firms will have to achieve the fifty-person requirement entirely from associates and support staff. In essence, the Act has very little practical effect on law firms, because 1) the larger firms have already adopted similar, although gender-skewed, leave policies, and 2) the smaller firms will not meet the FMLA's size requirements.
B. Paternity Leave Within the U.S. Workforce
Even if companies were to adopt paternity leave policies that were more generous than the FMLA, men would still have to overcome the sizeable attitudinal barriers of upper management. When asked what is a reasonable amount of time for a father to take off from work upon birth or adoption of a child, sixty-three percent of 1,500 chief executive officers and human resource directors said "none."(54) Given this number, it is no wonder that only fifteen percent of eligible fathers take formal paternity leave, while most fathers use informal methods such as sick leave and vacation time to spend an average of five days with their newborns.(55)
Even before the days of the FMLA, a father was very unlikely to take any formal leave when his newborn sprang into the world. One study conducted before the FMLA's passage by Catalyst, a nonprofit research group, found that men took paternity leave at only nine of 384 companies offering it.(56) Financially, it is often impossible for a man to take unpaid leave when the household has already lost the income of his spouse, who is more likely to take leave after the birth; a federal study conducted by the Commission on Family and Medical Leave found that the top reason parents avoid taking parental leave is fear of lost wages.(57) However, the low number of men taking advantage of the FMLA is not for a lack of paternal desire to spend time with their children. A host of research shows that, if made financially feasible, men would be coming home in droves to be with their families during the critical days and weeks that follow birth.(58)
The financial barriers associated with leave affect men even more than women, given the overt workplace policy differentials that provide paid leave for mothers but force fathers to take time off without compensation. The Families and Work Institute, a nonprofit organization that addresses the changing nature of work and family life, surveyed U.S. businesses with over 100 employees and found that fifty-three percent of the companies offered time off for maternity leave with replacement pay, but only thirteen percent offered the same paid leave to men.(59) Like the majority of CEOs who say that men should take no time off for the birth of their children, corporate policies ingrain age-old attitudes about what a man's role, or lack thereof, should be in his newborn's life.
C. Fathers, Firms, and the Double-Edged Sword of Paternity Leave
Although law firms have slowly progressed beyond the expectation that new fathers should "just go to the hospital, take a look, and come right back to work,"(60) the pressures on men within the firm not to take time off when their babies arrive are extraordinary. Mirroring the larger U.S. workforce, most law firms have parental leave policies that treat male and female lawyers differently.(61) A sample study of major law firms last year revealed that nine of ten firms had separate policies for male and female attorneys, either giving men less leave time off than women or requiring men to prove that they were the "primary caregiver" in order to receive parental leave benefits.(62) Unsurprisingly, a survey of lawyers with children showed that while twenty-three percent of female lawyers had taken over three months of family leave, only five percent of men had taken that much.(63)
A leave policy that differentiates between sexes, although perhaps a well-meaning attempt to assist female; attorneys with work-family challenges, codifies gender roles for men and women at the firm. As one lawyer describes the difference in leave policies: "The intentions are good ... but the results aren't necessarily fair."(64) By forcing men to prove they are primary caregivers in order to "earn" paternity leave, the law firm subverts the man's already difficult struggle to obtain some semblance of work-family balance. A male associate who musters the courage to approach his managing partner and ask for time off to be with his family will have to overcome a policy that is predicated on the assumption that parental leave is woman's work. This comes at a time in a man's career when being successful both as a lawyer and as a father is particularly important for long-term success on both fronts.(65)
An official policy breeds unofficial stigmatization that motivates male attorneys to stay within prescribed norms. Says one male partner at a large New York firm: "There are some things that are somehow more expected of women. It is not a macho thing to do. It's a function of social roles.(66)
Similarly, female lawyers are hampered by a benevolent policy that automatically assumes they are the primary caregiver for a newborn. Women who do not take maternity leave may be viewed as suspect mothers; at the same time, women who take time off to be with their newborns face the opposite presumption that they are somehow less "committed" to the firm.
Firms claim that women "need" more time off than men because of their pregnancy "disability." However, this excuse fails on a rudimentary medical level. Following the average childbirth, most mothers do not have a "physical need" for three months of recovery. The average hospital recovery time for an unassisted delivery in the United States is 2.1 days.(67) Assume, for example, that two married lawyers who work at Fulbright & Jaworski are expecting their first child. As per their firm's policy, the mother would receive three months paid leave after birth, whereas the father, being unable to prove primary caregiver status, could not take any paid leave. If the mother recuperates within a week of delivery, she would have the remaining eleven weeks at home to form the strong bonds with her baby emblematic of a primary caregiver. The learning curve for the parent during these first days and weeks with the newborn is sharp. While the father is away from home all day at the law firm, the mother quickly learns the baby's patterns and routines, thus making her the "expert" and the father her "assistant."(68) Although the "physical need" justification for granting women extended leave is really a pretext for gendered presumptions of caregiver status, the policy becomes a self-fulfilling prophecy. The mother really does become the expert caregiver. A misleading perception is created whereby women just seem to be better nurturers and therefore better designees for more "generous" leave time. Bolstering cultural expectations, the perceptions created by the policy codify roles for both the mother and father.
A rather simple first step to remedying the problems faced by both sexes would be to make all language on parental leave gender-neutral. One New York firm did just that, offering both men and women one month paid leave after the birth of a child.(69) Since the policy's 1993 inception, eighty percent of eligible men have taken paternity leave. The fact that the vast majority of firms have not taken these steps speaks to the age-old stereotypes that underlie these programs. This double-edged sword must be redefined if women are to obtain equal upward mobility in firms and if men are to play a more prominent role as fathers at home.
II. BEYOND LEAVE: MEN, LAW FIRMS, AND MODIFIED WORK SCHEDULES
A. Overview of Low Usage of Part-Time Schedules Among Lawyers
Although parental leave is an important aspect of family-friendly policies, there is a sort of media fixation with citing the low number of fathers who take parental leave as a proxy for a lack of paternal commitment. Viewing men's involvement as fathers solely through the lens of paternity leave presents an incomplete picture, and is what James Levine, Director of The Fatherhood Project, calls "paternity leave preoccupation."(70) Levine recalls when Bill Gates's daughter Jennifer was bona in 1996 and a paternity-fixated journalist asked about Gates's decision to do what most American men do; Gates did not take an official leave from Microsoft, but instead took an informal, brief break from work to be with his wife and daughter. Levine said:
Please don't turn this into one of those stories that uses paternity leave at childbirth as the only way to explain whether fathers are...
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