Convictions: Slate's blog on legal issues

Maternal Profiling—Single Moms as a Suspect Class

My thanks to Deborah Pearlstein for her thoughtful reply, which illustrates well the professional disregard for both women and family in academia as well as in the law firm and corporate contexts—though, by virtue of de facto independent contractor status of most professors, the groves of academe are sweet compared to the bitter hardships borne by single moms. I've been helping a single mom in my parish church for the last several weeks try to retrieve her car from an impound lot when the sheriff towed it (after her ex-husband turned her in for various alleged vehicle-code violations). Stepping into her well-worn shoes for even these brief moments has been unnerving, to say the least. To make an unbelievable story short, after several continuances (which took no account of her job or child-care responsibilities), the judge recognized the charges to be more spousal spite than legal breach, and dismissed. When single mom went to get her car, the city had (wrongfully) sold it, and so now we begin a civil action which will no doubt worsen the Bleak House nature of it all. In the meantime, she knows the car is out there somewhere, because, apparently, the city sold it to a scofflaw who is running up parking tickets under her registration.

This personal experience merged together this morning with Deborah's intervention of her own experience among the haughty con-law fraternity and another response to my earlier post, this one from a reader who forwarded an article on "maternal profiling" which suggests that in some places—Pennsylvania (which has a primary, last time I looked, later this month)—employers are not only turning a dismissive eye on the value of family like our professor "colleagues" and the law firms but actually and brazenly (and apparently lawfully) discriminating against single women with a family. According to the Pittsburgh Post-Gazette, Pennsylvania state law allows employers to inquire into one's maternal status and use that openly to make an adverse hiring decision.

The presidential candidates are crisscrossing the keystone kingdom, and while sometimes they are accused of floating at levels of generality that exceed my vagueness in the classroom, on this topic, they stand amidst tangible opportunities to bring worthwhile change to the lives of, apparently, one of Pennsylvania's most suspect classes (presently without the benefit of strict scrutiny, of course): single moms.

Not Just Women's Work

Sen. Clinton may or may not be the next Democratic nominee for president. But her candidacy represents to many voters a positive statement in favor of gender equality.

I've cast my lot with Sen. Obama, but if he fails to cross the finish line, I bet it will have less to do with the overheated statements of his pastor or his bowling than with the fact that—however much the Clintons together generate suspicion or should be eliminated on the democratic (small “d”) “no second rides” theory—Mrs. Clinton is still, well, a woman and more than a few citizens (myself included) think having a woman president long overdue. 

Why overdue? 

Because, frankly, I have three daughters among my five children and it would be salutary if they would be less subject than my wife’s generation to arbitrary gender-based impediments as they reach toward their aspirations. For more than 30 years now, I’ve watched highly talented women law graduates face the same overly rigid law-firm and corporate structure that somehow pretends not to know that many (not all) women have a desire to both practice their chosen profession and parent. I’m all for the free market, but the market has been treating families as if they were a free good, and just as “the tragedy of the commons” despoils the commonly held air and water, corporate elevation of its bottom line over family well-being shortchanges the family—and us all.

Men, of course, too often silently shrug this off as if it were none of their business, perhaps even thinking again silently (since openly would yield a cold stare or litigation) that gender-based distinctions are not arbitrary impediments at all but simply the rational economic calculus applied. Of course, we men know it's darn hard to do parenting and professional work at the same time, which is, of course, why most of us don’t attempt it. So it came as no surprise when, lo and behold, a recent Canadian study by Jean E. Wallace and Marisa C. Young proved the obvious that women with children are less “productive” than women without children.

As I indicate in additional commentary on this study, and as Emily Bazelon has noted, “productive” is in scare quotes because the study measured productivity in accordance with the dreaded billable hour, which persists in making law practice a modern form of well-paid slavery, rather than service—which, digressing just for a moment, the practice might have a chance of becoming yet again were flat or contingent fees the more standard means of law-firm accounting. In any event, apart from the severe damage the billable hour does to the sheer enjoyment of legal work, it is not a perfect measure of productivity, since obviously some people can get a lot more done in a small amount of time than others, and women are often superb multi-taskers.

Confirming as it does that we men are not particularly helpful when it comes to making the family-work balance possible, it’s tempting to hide the Canadian study under the rug. That's not to say that husbands don't lend moral support to our personal spouse's effort at not forgetting those grueling years of law, business or medical training as she is singing the alphabet song for the 15th time or is driven to the edge by the "see and say" machine. Some men—especially guests on Oprah—do this and more. It's just that—if we're honest—kicking doors open for women generally at the office has not been high on our to-do list—what with foreign outsourcing and all. In fact, according to the Canadians, men may be giving family-friendly benefits a bad name. Things like flexible hours were found to have a negative impact on a man's productivity while working at odd hours didn't affect a woman's productivity one whit. Men, it seems, tend to use these flexible hours to goof off, while women use them to finish drafting the merger agreement while waiting interminably in the doctor's waiting room.  Second, men with babies at home work overtime. Go figure. Third, even when men attempt to do more of the parenting, they're not that very good at it. The study found that men who have a stay-at-home partner get a lot done, whereas women who have stay-at-home husbands don't receive any particular advantage from it.

None of this is particularly encouraging for those of us who believe the workplace—still dominated by men, of course—has a special obligation to accommodate the needs of the family as an irreplaceable cultural building block. Indeed, one “unexpected”—though perhaps not surprising—finding given the above pattern is that women without children work the hardest of all, including men. It's bad enough that men are seemingly misusing the flex benefits; just think what the male senior partners will rationally deduce when the word gets out that the hardest worker bee in the hive is the childless queen. To quote the researchers themselves, the obvious way for women “to balance work and family is to reduce their family commitments, which may be accomplished by having fewer or no children.” Yes, that's one way, but it is also a prescription for cultural suicide.

We like to think work is for the benefit of men and women and not the other way around. At least, the last time I checked this was the right order of things. The reverse proposition—that we live to rack up billable hours—would be bleak indeed, though that is pretty much the life of a young associate at any major law firm in the United States. To have a chance at getting our priorities straight, I suggest some changes in employment practices, nondiscrimination, and tax law, but would being family-friendly violate Equal Protection? 

Possibly to a justice who doesn’t think child-rearing an important or compelling state interest. But who’s in that group? Surely Justices Ginsburg and liberal-thinkers like John Paul Stevens and David Souter wouldn’t want the law to be construed in a way that narrows a woman’s choices. Since under existing law pregnancy (or “pre-birth child care”) cannot be a basis of discrimination against women, why should care delivered “post-birth”?  It would make no sense for either Justice Thomas, who flirts with natural law, or Justice Kennedy, who is often its modern source—worrying as he does about the ability of folks to “define their own place in the universe”—to object to giving a public tax subsidy or telling public employers not to discriminate against working mothers. If the limitation extended to private employers, Justice Thomas might drop a footnote telling us again how much he misses the original understanding of the commerce clause, but he has let similar measures go through biting his stare decisis tongue. Those in the law-as-umpire (“just callin’ em as we see ‘em”) group, the chief justice and Justices Scalia and Alito, might raise a judicially-restrained eyebrow at these innovations, but it would be perverse if those who oppose an unfettered abortion right were to go out of their way not to understand the relevant customs and traditions that underlie the “liberty” of the Fifth and 14th Amendments as family-friendly. And if these measures promote a more “active liberty”—and expanding opportunities for women does, one would think (though I confess the whole “active liberty” concept still is a tad elusive)—Justice Breyer should also be satisfied. In any event, any law is certain to be drafted gender-neutrally, using terminology like "primary caregiver" (though everyone will know that category will still mostly be women).

The presidential candidates like to talk about change. It is time we explore new employment relationships that don’t reflect 19th-century attitudes that undervalue home and family to the detriment of us all.

Law Firm Work and Family-Friendly Policies

The study mentioned by Emily can be found here (though you might have to pay to see it).  Several of its conclusions are puzzling.

1. "[C]hildless women may be more productive than women with children and their male colleagues (with or without children)."  Childless women billed almost 1600 hours, while fathers billed 1541 hours, childless men billed 1491 hours, and mothers billed 1387 hours.

However, the data also show that childless women are less experienced, with an average of 7.13 years of legal experience, compared to 15.3 for fathers, 13.44 for childless men, and 11.06 for mothers.  You should picture these firms as employing young childless women, and older men, and older women with children.  Are the childless women billing more just because they are younger, that is, your average overworked associate competing for partnership?  (In the regressions, the authors control for legal experience, but if mothers tend to be partners, childless women tend to be associates, and partners work less than associates, I don't think that their legal experience control will do the trick.)

2. "[F]amily-friendly benefits appear more advantageous to men than women, even though women with young children would likely gain more from them in balancing work and family." The three variables that measure family-friendly benefits do not actually refer to specific programs such as paid maternity leave; they refer to survey respondents' perceptions of family-friendliness (including such things as whether people at work frown on discussions about child care). The study finds that being in a family-friendly firm does not increase a woman's productivity, but reduces a man's productivity.

The first result is more surprising than the second. To see why, note that one of the measures of family-friendliness is "reasonable workload." It is straightforward that if you are in a firm with a "reasonable workload" you are going to bill fewer hours.  The two variables—billable hours and reasonable workload—ought to measure the same thing.  So why the different results for women?  The only thing I can think of is that maybe women are given more tasks that are not billable, perhaps because they have less legal experience, and it is those tasks that they forgo if they have children while in a family-friendly firm.  The authors note that billable hours account for only 2/3 of the time spent by the lawyers at work, so if non-billable hours decline, this will not show up in the regressions and yet may account for a great deal of the underling variation.

But the larger point is that we can't say whether these benefits are more "advantageous" to men or to women without knowing more about how employees are compensated. People don't care only about how many hours they work; they also care about pay. But pay is not in the data set. This leads to a third concern.

3.  "[W]e found very little support for ... the costs of working in a family-friendly firm for women's productivity." Emily interprets this statement as follows.  "The happy spin from the authors is that the family-friendly policies aren't hurting the firms vis-à-vis their women employees, which makes the policies seem less costly. (Their original hypothesis was that the family-friendly firms would find that mothers were less productive, since these policies are often seen as the path to mommy tracking.)"

Assuming Emily's interpretation is correct (I'm not sure I understand the statement I quoted from the paper), the paper doesn't really provide much support for this idea, or have any normative implications, as far as I can tell.  Some firms have family-friendly policies and other firms do not.  Women work about the same amount in both firms. But it may be they are paid less in the family-friendly firms, which would suggest that they are being less productive  (producing lower-quality work, or producing less work given a fixed investment of the firm's other resources). Or they could be equally productive but receiving some of their compensation in the form of flexibility rather than cash. We just don't know because the study doesn't include salary data or other information (such as the quality of the work) we would need to measure productivity.  Also the omitted non-billable hours are troubling.

Law Firm Work: Less Is More