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Work/Life Balance

Billings First, Babies Later

Some forty years ago, I knew a young lawyer in her third year of practice. My acquaintance had just given birth to her first child.  She took what was then considered to be a lengthy maternity leave of 6 months (3 months being standard) before returning to work at a mid-sized downtown Toronto law firm, where she was the only female associate in her department and one of only three female lawyers in the firm.  Having taken such a long maternity leave, the firm looked at her as a slacker.

Despite having a full-time nanny, she struggled to cope with a lengthy commute, the demands of being a new mother and the ridiculous hours required of associates in law firms. 

One day very soon after her return to work, all of the associates in her department were called to a meeting, the purpose of which was to impress upon them that their billable hours were not high enough.  The partner conducting the meeting said “Some of you seem to think that working until 7 pm every day is sufficient.  Well, it’s not.”

The young mother waited for the partner to take her aside and say something like “Obviously we will cut you some slack for a while, but we did not want to say that in front of the other associates.”  But of course, he did not do that. 

He did, however, remark negatively on her billable hours each month.

The young mother worked as hard as she could and scrupulously docketed every hour worked. The partner then complained that her write-offs were too high. 

She changed her docketing practices to only record the hours that she was confident could be billed.  Her write-off numbers improved, and the partner resumed his criticism that her hours were too low. 

The associate asked the firm to allow her to work part-time while her child was very young. By part-time, she meant 40 hours per week.   The partner said that it was ‘impossible to conduct an active practice on a part-time basis.’  However, since the firm thought that she had excellent drafting skills, it did give her the choice of working as a ‘precedent lawyer’ on a reduced hour basis.  She understood that this would be a path to nowhere.

Less than a year after returning to work, the young mother left private practice for academia.

Of course, the firm in question was quite proud that they had treated the male and female associates in their firm equally and did not discriminate against or in favour of lawyers of either gender on the basis of whether or not they had child-care responsibilities.  (Note that I refer to ‘either gender’ only because most of us thought that there were only two genders back then.)

I had forgotten all about this story until a few weeks ago when a friend of mind told me about a female lawyer she knew who was nearing the end of her maternity leave just a few years ago and planning to return to her Toronto firm.  This young lawyer had expressed concern about how the male department head at her firm might react the first time she had to leave the office early to take care of her child or was otherwise unable to make the practice of law her first priority.  My friend recognized this as being a valid concern and shared her own story of trying to cope in similar circumstances in the legal industry.

Obviously, no one in a position of authority at the firm where this new mother worked had communicated anything to her that would reassure her that the firm understood that ‘equal’ is not always the same as ‘fair’ and that the firm’s expectations of her might be tempered in view of her changed circumstances.

As it turned out, her fears were justified. Sometime after returning from her maternity leave, the lawyer was called away on an urgent basis to take care of her young child who was running a very high fever and was crying uncontrollably.  She stayed up for 24 hours, holding the sick child in her lap.   A senior member of her department had asked her to do some research just before she left to take care of her child.  When she called him shortly afterwards to explain that she could not do the work that day, he expressed somewhat contemptuously that while he understood that ‘she wanted to stay home and play with her baby,’ her absence was unacceptable. By the way, this was not a small firm with only one person available to handle an emergency.  Assuming that it was really an emergency at all.

My reaction was one of shock.  Really.  I thought that we were all past that type of thing now.   With all of the attention given to the issue of women leaving private practice in recent years, I had thought that the experience of my friend all of those years ago was a thing of the past. 

Surely, by now law firms have figured out that it is nonsense to treat all of their associates equally by applying the same rules to everyone and basing those rules on the model of someone, male or female, who does not have any significant child-care responsibilities.

And yes, I do know that sometimes men take on the primary child-care responsibilities or share them equally with women, and that sometimes men raise children by themselves.  And I also know about all of the other permutations and combinations in our modern, complex society.  But no, that is not a reason to argue that law firms have to have one standard and treat everyone ‘equally,’ especially when that one standard is a person who is in a position to put career above all else.

The results are clear as day.  In the 2020 Ontario Law Society Annual Report, male associates made up 10.58% of the members, while female associates made up 10.15% of the members.   Pretty equal.  But, in the same year, male partners made up 11.5% of the members while female partners made up only 4.14% of the members.  That is a lot of women who are not hanging around long enough to be partners in law firms or who for some other reason choose not to do so.

It is trite to say that ‘equal’ and ‘fair’ are not the same thing.  We lawyers know very well how to apply that concept in various ways in the course of our practice.  No so much in the way that we run our businesses.

We are pretty good, however, at wringing our hands about gender inequality in the profession and running seminars on work/life balance and equity initiatives.   Lots of noise.  Not so much action. 

Not much has changed in 40 years. Longer maternity leaves, though.  Legislation saw to that.  Not law firm partners.

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