Family Responsibilities Discrimination in Law Firms

While overall the filing of employment discrimination cases has declined in recent years, FRD lawsuits have increased by 400% in the last decade; and FRD cases
have a 50% success rate, compared with a 20% success rate for other employment discrimination cases. Mary C. Still, Litigating the Maternal Wall (Center for WorkLife Law, U.C. Hastings College of the Law 2006). The Center for WorkLife Law, a nonprofit research and advocacy organization, has identified at least 33 cases since 1990, including the three cases above, in which employees have sued law firms and other legal employers for FRD. Joan C. Williams, Stephanie Bornstein, Diana Reddy & Betsy A. Williams, Balancing Career and Family: A Work/Life Symposium, 34 Pepp. L. Rev. 393 (2007). Law firm employers who ignore FRD, then, do so at their own peril and to the detriment of their employees.

What Is Family Responsibilities Discrimination?

Family responsibilities discrimination is discrimination based on employees' care-giving responsibilities for their children, elderly parents, or ill spouses or partners. For instance, like Sigmon, Trezza, and Gallina, mothers often face the perception that they are less competent or less devoted to their work than male co-workers with children or female co-workers without children. At the same time, employers often presume a lack of family responsibilities for male caregivers. When employers allow these stereotypes to dictate or influence their actions or attitudes towards their employees, they may run afoul of the law.

While no federal law directly prohibits discrimination against individuals with family responsibilities, as the EEOC's recently issued Enforcement Guidance: Unlawful Disparate Treat-ment of Workers with Caregiving Responsibilities, 2 E.E.O.C. Comp- liance Manual '615 (May 23, 2007) ('EEOC Guidance'), explains, employers who stereotype or discriminate against caregivers may violate federal, state, or local laws, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. '2000e et seq. ('Title VII'); the Americans with Disabilities Act of 1990, 42 U.S.C. ”12101 et seq. ('ADA') the Family and Medical Leave Act of 1993, 29 U.S.C. ”2601 et seq. ('FMLA'); The Equal Pay Act of 1963, 29 U.S.C '206(d); and the Employee Retirement and Income Security Act of 1974, 29 U.S.C. ”1001 et seq. For instance, FRD cases are brought under the FMLA for discrimination, retaliation, or interference with leave entitlements and under the ADA for violation of the association clause. Most FRD claims, however, are brought under Title VII by asserting gender stereotyping, pregnancy discrimination, hostile work environment, retaliation, disparate treatment, and disparate impact.

In 1971, in Phillips v. Martin Marietta Corp., 400 U.S. 542, generally considered to be the first FRD case, the Supreme Court found that treating men with children and women without children the same did not excuse discrimination against women with children. The Supreme Court's subsequent decisions in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), provided further guidance for framing FRD claims. In Price Waterhouse, a female employee was passed over for promotion based on what the court found to be an 'impermissibly cabinized view of the proper behavior of women.' In Hibbs, a male employee was terminated after taking FMLA leave to care for his wife, prompting Justice Rehnquist to write:

Because employers continued to regard the family as the woman's domain, they often den[y] men similar accommodations or discourage[] them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that force[] women to continue to assume the role of primary family caregiver.

Since Phillips was decided in 1971, there has been significant progress in raising awareness of sex discrimination and remedying gender inequality in the workplace, but FRD cases demonstrate that many employers still openly harbor and act on stereotypes regarding how a working mother, father, or other caregiver will or should behave. Not surprisingly then, in many FRD cases, like Sigmon, Trezza, and Gallina's, comments from the 'loose lips' of bosses or managers are offered as direct evidence of FRD. For example, in a successful FMLA discrimination claim, a male police officer was told that he would only qualify for FMLA leave to care for his child only if his wife was 'in a coma or dead.' Knussman v. Maryland, 272 F.3d 625 (4th Cir. 2001). Another women received damages for a hostile work environment claim when she showed that she was subjected to comments such as 'you better not be pregnant again.' Walsh v. Nat'l Computer Sys., Inc., 332 F.3d 1150 (8th Cir. 2003).

Several courts have found that direct evidence, like the gender-based 'loose lips' comments, is enough to prove a prima facie case of discrimination, even without evidence of a comparator from outside the protected class. In the 2004 case of Back v. Hastings on Hudson Union Free School District, 365 F.3d 107, the Second Circuit held that 'stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.' In Back, a school psychologist claimed that she had been denied tenure after returning from maternity leave, despite having received excellent performance evaluations throughout her career. She presented evidence that her supervisors had made comments such as 'it was not possible for [her] to be a good mother and have this job,' and 'please do not get pregnant until I retire.' The Second Circuit vacated the district court's grant of summary judgment, holding that stereotyping of women with children was gender discrimination and allowing the claim to go forward without comparator evidence.

Following Back, courts in other circuits also have allowed claims to go forward without evidence of a comparator, which is a trend that is likely to continue. See Lust v. Sealy, Inc., 383 F.3d 580 (7th Cir. 2004); Plaetzer v. Borton Auto, Inc., 2004 U.S. Dist. LEXIS 19095 (D. Minn. Aug. 13, 2004). In fact, the EEOC Guidance adopted the non-comparator approach, stating that 'comments evincing sex-based stereotypical views of women with children may support an inference of discrimination even absent comparative evidence about the treatment of men with children.'

Family Responsibilities Discrimination in Law Firms

As the EEOC Guidance explains, the emergence of FRD corresponds in part to changes in the workforce since the passage of Title VII in 1964. Mothers of young children are almost twice as likely to be employed today as 30 years ago; and even though women constitute nearly half of the workforce, they represent a much smaller proportion of managers and officials. The overall change in workforce demographics is reflected in law firms as well. The percentage of women in the legal profession rose from 3% in the early 1960s to 30% in 2001. The percentage of entering female law students rose from 8.5% in 1970 to 50% in 2001. By 2003, more than 50% of law school students and 41% of new associates at large law firms were women. Williams, Balancing Career & Family, at 399-400.

Law firms are particularly susceptible to FRD claims for several reasons. First, most law firms are traditionally male-dominated institutions, as demonstrated by the lack of female partners. In a 2008 report, the Project for Attorney Retention found that several large law firms continue to advance male-dominated partner classes. Reviewing statistics from 77 law firms from around the country, the Project found that, while at least 50% of new partners were women at a dozen firms, several firms were 'seriously lagging behind,' as only a very small percentage of the new partners were women. The majority of the law firms studied had partnership classes comprised of less than 50% women. See Law Firms' New Partners Still Mostly Male, available at http://www.pardc.org/Publications/New%20Law%20Firm%20Partners%202005-08.pdf.

Second, billable hour requirements have increased without consideration for changing workplace demographics or associate expectations. In 1962, the average billable hour requirement at law firms was approximately 1300 hours. Today, the average stated minimum billable hours requirement is between 1800 and 2000 hours with an important caveat: in many firms, working less than the stated minimum may have you labeled a 'time deviant,' and it is expected that one seeking to advance in the firm will put in significantly more hours. See Williams, Balancing Career and Family. Many law firms cling to what Joan Williams describes as the traditional standard for the 'ideal worker' ' one who works unlimited hours and takes no time off for childbearing or childrearing.

Finally, while several firms have implemented flexible work arrangements in an effort to address these issues, the Project for Attorney Retention has shown that many attorneys experience drawbacks when working part-time, such as being given dull work assignments, having promotional opportunities minimized, and experiencing schedule creep, in which one ends up working full-time for part-time pay. Project for Attorney Retention, A Business Case for a Balanced Hours Programs for Attorneys (Center for WorkLife Law 2007), available at http://www.pardc.org/LawFirm/Business_Case.htm.

Conclusion

As law firms consider the growing trend of FRD litigation, they should view FRD not only as a risk-management issue, but as a profitability issue. Men and women now place greater emphasis on achieving a balance between work and life when choosing jobs out of law school. Modifying policies to reflect this change not only helps firms avoid unlawful discrimination, but also allows firms to become more competitive in recruitment. Further, workplace policies that adapt to the competing demands of work and family responsibilities save law firms money through lower attrition, turnover reduction, and retention based on talent, rather than schedule. The Project for Attorney Retention estimates that it costs from $200,000 to $500,000 to replace a second-year associate; and many associates are leaving before their work becomes profitable. Additionally, successful part-time programs help improve client satisfaction, since a balanced schedule can make part-time attorneys 'more accessible and, therefore, more valuable to clients.' A Business Case for a Balanced Hours Programs for Attorneys. Finally, employees in workplaces that support both job and family responsibilities are more likely to have higher levels of job satisfaction, more commitment to their company's success, and greater loyalty to their employers. See James T. Bond, Ellen Galinsky, and Jennifer E. Swanberg, The 1997 National Study of the Changing Workforce (Families and Work Institute) (1998).

As Justice Rehnquist wrote in Hibbs, 'the fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest.' Law firms must be aware of how their policies and practices affect caregivers and be certain that they are not relying on stereotypical views of traditional gender roles in making employment decisions. Doing so is not only good business, it is the law.

At another law firm, when management discovered that Dawn Gallina, an associate, had a small child, a managing partner spoke to her about how women lawyers have extra work demands that are difficult to balance with a family. After she complained about being treated differently, the firm told Gallina to decide whether she wanted to be a 'successful mommy or a successful lawyer.'

Joann Trezza worked for over ten years in the legal department at a multinational company, moving from staff attorney to senior staff attorney. Nevertheless, when a managing attorney position became available, the company did not consider her for the position because her supervisors assumed that, because she had a family, she would not want to travel. An executive at the company told her that he did not see how working mothers could be both good workers and good mothers.

Sigmon, Gallina, and Trezza found out that sex-based stereotypes still play a role in workplace decisions and they responded by filing lawsuits in what has become one of the fastest growing areas of employment discrimination law: Family Responsibilities Discrimination ('FRD'). See Sigmon v. Parker Chapin Flattau & Klimpl , 901 F. Supp. 667 (S.D.N.Y. 1995); Gallina v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. , 123 F. App'x 558 (4th Cir. 2005); Trezza v. The Hartford, Inc., 1998 U.S. Dist. LEXIS 20206 (S.D.N.Y. Dec. 30, 1998).

While overall the filing of employment discrimination cases has declined in recent years, FRD lawsuits have increased by 400% in the last decade; and FRD cases
have a 50% success rate, compared with a 20% success rate for other employment discrimination cases. Mary C. Still, Litigating the Maternal Wall (Center for WorkLife Law, U.C. Hastings College of the Law 2006). The Center for WorkLife Law, a nonprofit research and advocacy organization, has identified at least 33 cases since 1990, including the three cases above, in which employees have sued law firms and other legal employers for FRD. Joan C. Williams, Stephanie Bornstein, Diana Reddy & Betsy A. Williams, Balancing Career and Family: A Work/Life Symposium, 34 Pepp. L. Rev. 393 (2007). Law firm employers who ignore FRD, then, do so at their own peril and to the detriment of their employees.

What Is Family Responsibilities Discrimination?

Family responsibilities discrimination is discrimination based on employees' care-giving responsibilities for their children, elderly parents, or ill spouses or partners. For instance, like Sigmon, Trezza, and Gallina, mothers often face the perception that they are less competent or less devoted to their work than male co-workers with children or female co-workers without children. At the same time, employers often presume a lack of family responsibilities for male caregivers. When employers allow these stereotypes to dictate or influence their actions or attitudes towards their employees, they may run afoul of the law.

While no federal law directly prohibits discrimination against individuals with family responsibilities, as the EEOC's recently issued Enforcement Guidance: Unlawful Disparate Treat-ment of Workers with Caregiving Responsibilities, 2 E.E.O.C. Comp- liance Manual '615 (May 23, 2007) ('EEOC Guidance'), explains, employers who stereotype or discriminate against caregivers may violate federal, state, or local laws, including Title VII of the Civil Rights Act of 1964, 42 U.S.C. '2000e et seq. ('Title VII'); the Americans with Disabilities Act of 1990, 42 U.S.C. ”12101 et seq. ('ADA') the Family and Medical Leave Act of 1993, 29 U.S.C. ”2601 et seq. ('FMLA'); The Equal Pay Act of 1963, 29 U.S.C '206(d); and the Employee Retirement and Income Security Act of 1974, 29 U.S.C. ”1001 et seq. For instance, FRD cases are brought under the FMLA for discrimination, retaliation, or interference with leave entitlements and under the ADA for violation of the association clause. Most FRD claims, however, are brought under Title VII by asserting gender stereotyping, pregnancy discrimination, hostile work environment, retaliation, disparate treatment, and disparate impact.

In 1971, in Phillips v. Martin Marietta Corp. , 400 U.S. 542, generally considered to be the first FRD case, the Supreme Court found that treating men with children and women without children the same did not excuse discrimination against women with children. The Supreme Court's subsequent decisions in Price Waterhouse v. Hopkins , 490 U.S. 228 (1989), and Nevada Department of Human Resources v. Hibbs , 538 U.S. 721 (2003), provided further guidance for framing FRD claims. In Price Waterhouse, a female employee was passed over for promotion based on what the court found to be an 'impermissibly cabinized view of the proper behavior of women.' In Hibbs, a male employee was terminated after taking FMLA leave to care for his wife, prompting Justice Rehnquist to write:

Because employers continued to regard the family as the woman's domain, they often den[y] men similar accommodations or discourage[] them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that force[] women to continue to assume the role of primary family caregiver.

Since Phillips was decided in 1971, there has been significant progress in raising awareness of sex discrimination and remedying gender inequality in the workplace, but FRD cases demonstrate that many employers still openly harbor and act on stereotypes regarding how a working mother, father, or other caregiver will or should behave. Not surprisingly then, in many FRD cases, like Sigmon, Trezza, and Gallina's, comments from the 'loose lips' of bosses or managers are offered as direct evidence of FRD. For example, in a successful FMLA discrimination claim, a male police officer was told that he would only qualify for FMLA leave to care for his child only if his wife was 'in a coma or dead.' Knussman v. Maryland , 272 F.3d 625 (4th Cir. 2001). Another women received damages for a hostile work environment claim when she showed that she was subjected to comments such as 'you better not be pregnant again.' Walsh v. Nat'l Computer Sys., Inc. , 332 F.3d 1150 (8th Cir. 2003).

Several courts have found that direct evidence, like the gender-based 'loose lips' comments, is enough to prove a prima facie case of discrimination, even without evidence of a comparator from outside the protected class. In the 2004 case of Back v. Hastings on Hudson Union Free School District , 365 F.3d 107, the Second Circuit held that 'stereotyping of women as caregivers can by itself and without more be evidence of an impermissible, sex-based motive.' In Back, a school psychologist claimed that she had been denied tenure after returning from maternity leave, despite having received excellent performance evaluations throughout her career. She presented evidence that her supervisors had made comments such as 'it was not possible for [her] to be a good mother and have this job,' and 'please do not get pregnant until I retire.' The Second Circuit vacated the district court's grant of summary judgment, holding that stereotyping of women with children was gender discrimination and allowing the claim to go forward without comparator evidence.

Following Back, courts in other circuits also have allowed claims to go forward without evidence of a comparator, which is a trend that is likely to continue. See Lust v. Sealy, Inc. , 383 F.3d 580 (7th Cir. 2004); Plaetzer v. Borton Auto, Inc., 2004 U.S. Dist. LEXIS 19095 (D. Minn. Aug. 13, 2004). In fact, the EEOC Guidance adopted the non-comparator approach, stating that 'comments evincing sex-based stereotypical views of women with children may support an inference of discrimination even absent comparative evidence about the treatment of men with children.'

Family Responsibilities Discrimination in Law Firms

As the EEOC Guidance explains, the emergence of FRD corresponds in part to changes in the workforce since the passage of Title VII in 1964. Mothers of young children are almost twice as likely to be employed today as 30 years ago; and even though women constitute nearly half of the workforce, they represent a much smaller proportion of managers and officials. The overall change in workforce demographics is reflected in law firms as well. The percentage of women in the legal profession rose from 3% in the early 1960s to 30% in 2001. The percentage of entering female law students rose from 8.5% in 1970 to 50% in 2001. By 2003, more than 50% of law school students and 41% of new associates at large law firms were women. Williams, Balancing Career & Family, at 399-400.

Law firms are particularly susceptible to FRD claims for several reasons. First, most law firms are traditionally male-dominated institutions, as demonstrated by the lack of female partners. In a 2008 report, the Project for Attorney Retention found that several large law firms continue to advance male-dominated partner classes. Reviewing statistics from 77 law firms from around the country, the Project found that, while at least 50% of new partners were women at a dozen firms, several firms were 'seriously lagging behind,' as only a very small percentage of the new partners were women. The majority of the law firms studied had partnership classes comprised of less than 50% women. See Law Firms' New Partners Still Mostly Male, available at http://www.pardc.org/Publications/New%20Law%20Firm%20Partners%202005-08.pdf.

Second, billable hour requirements have increased without consideration for changing workplace demographics or associate expectations. In 1962, the average billable hour requirement at law firms was approximately 1300 hours. Today, the average stated minimum billable hours requirement is between 1800 and 2000 hours with an important caveat: in many firms, working less than the stated minimum may have you labeled a 'time deviant,' and it is expected that one seeking to advance in the firm will put in significantly more hours. See Williams, Balancing Career and Family. Many law firms cling to what Joan Williams describes as the traditional standard for the 'ideal worker' ' one who works unlimited hours and takes no time off for childbearing or childrearing.

Finally, while several firms have implemented flexible work arrangements in an effort to address these issues, the Project for Attorney Retention has shown that many attorneys experience drawbacks when working part-time, such as being given dull work assignments, having promotional opportunities minimized, and experiencing schedule creep, in which one ends up working full-time for part-time pay. Project for Attorney Retention, A Business Case for a Balanced Hours Programs for Attorneys (Center for WorkLife Law 2007), available at http://www.pardc.org/LawFirm/Business_Case.htm.

Conclusion

As law firms consider the growing trend of FRD litigation, they should view FRD not only as a risk-management issue, but as a profitability issue. Men and women now place greater emphasis on achieving a balance between work and life when choosing jobs out of law school. Modifying policies to reflect this change not only helps firms avoid unlawful discrimination, but also allows firms to become more competitive in recruitment. Further, workplace policies that adapt to the competing demands of work and family responsibilities save law firms money through lower attrition, turnover reduction, and retention based on talent, rather than schedule. The Project for Attorney Retention estimates that it costs from $200,000 to $500,000 to replace a second-year associate; and many associates are leaving before their work becomes profitable. Additionally, successful part-time programs help improve client satisfaction, since a balanced schedule can make part-time attorneys 'more accessible and, therefore, more valuable to clients.' A Business Case for a Balanced Hours Programs for Attorneys. Finally, employees in workplaces that support both job and family responsibilities are more likely to have higher levels of job satisfaction, more commitment to their company's success, and greater loyalty to their employers. See James T. Bond, Ellen Galinsky, and Jennifer E. Swanberg, The 1997 National Study of the Changing Workforce (Families and Work Institute) (1998).

As Justice Rehnquist wrote in Hibbs, 'the fault line between work and family [is] precisely where sex-based overgeneralization has been and remains strongest.' Law firms must be aware of how their policies and practices affect caregivers and be certain that they are not relying on stereotypical views of traditional gender roles in making employment decisions. Doing so is not only good business, it is the law.