By Michelle Browing Coughlin
For the past three years, I have had the wonderful privilege of serving as one of twelve members of the American Bar Association’s Commission on Women (the “CWP”) in the Profession. The mission of the CWP is to secure full and equal participation of women in the ABA, the profession and the justice system. In order to achieve that mission, the CWP has throughout its history, conducted research and drafted reports on the conditions that women face in the legal profession, and provided toolkits and other resources intended to help the profession ameliorate some of the issues highlighted in the CWP’s research.
Studying the “Motherhood Penalty”
Throughout law school and my legal career, I have been keenly interested in a particular bias that impacts the vast majority of women at some point throughout their career – the “motherhood penalty.” The motherhood penalty, sometimes also referred to as “maternal wall bias,” is an unconscious (or even sometimes conscious) bias directed at women in the workforce who either are mothers or who others think are likely to become mothers. This bias harms women in their jobs because others make assumptions that mothers are not only less committed to their work, but also less competent in their work. Mothers are often overlooked for career enhancement opportunities because of assumptions made about their schedules or their willingness to travel. Mothers are offered lower starting salaries than fathers, as well as men and women who do not have children. This lower starting pay is compounded by a lower likelihood to promote mothers and lesser pay increases over their careers, resulting in a snowball impact on their lifetime earnings.
In my first year on the CWP, I proposed that we study the issue of motherhood penalty in the legal profession specifically to see if the data within the profession was consistent with the national data, or if we could glean any specific ways in which the requirements of parenting and child caregiving impact lawyers’ careers. The CWP enthusiastically took on my proposed study, and in March 2021 we solicited proposals for researchers to conduct the study. The survey developed by the researchers went out in September 2021 and by the closing of the survey, we had collected responses from more than 8,000 lawyers across the country. In addition, the research team conducted ten focus groups soliciting input from lawyers in different sectors of the profession and living in different geographic areas in order to gain additional insight into the topic.
Initial Findings from the Study
In May of 2023, the CWP received the draft report, entitled “Legal Careers of Parents and Child Caregivers: Where we are now and how to move forward.” The report found significant overall consistency with the national data on motherhood penalty in the legal profession. While the study itself sought information from all parents with the intent of understanding whether the challenges of practicing with children affected all parents and caregivers, or if it impacted some caregivers more than others. While, naturally, individual circumstances vary and some single fathers with primary caregiving roles also reported experiencing a stigma within the profession due to their caregiving role, the aggregate findings still show a significantly higher bias directed at mothers, as well as a more significant burden on mothers’ careers overall. Many of the same flawed belief systems regarding mothers’ “lack of commitment” to their work were found, as well as similar patterns of the “double shift” phenomenon, wherein mothers tend to do a highly disproportionate amount of the work necessary to caregiving for children.
Policies of employers tend to reinforce this disproportionate workload by giving little flexibility to all workers, providing lesser actual leave and flexibility for fathers to engage in caregiving (as well as a lack of cultural/social support for this leave even when allowed), and by engaging in pay inequity wherein mothers’ work has less value. Pay inequity for mothers compared to fathers, as well as those who do not have children, not only leaves mothers feeling demoralized in the workplace, but can have the dual impact of making her work “secondary” to a higher earning spouse when and if they make conscious allocations of who will carry the greater caregiving responsibility load.
Policy Changes Recommended at the ABA Annual Meeting
In August 2023, at the annual meeting of the American Bar Association, the researchers and my co-chair on this project and I all presented an initial preview of the data to attendees at the Annual Meeting. We discussed some of these key findings that had been shared with the CWP in the preliminary report, along with recommended policy changes for legal employers to help reduce the impact of the motherhood penalty and support all caregiving lawyers. The most important policy change we recommend is for employers to provide more flexibility in schedules for all employees, especially caregivers of any gender. Additional policy recommendations include ensuring that legal employers are tracking metrics of mothers around issues like hiring, promotions, salary, bonuses, and work assignments so as to be able to determine—and then address—any areas where stigmas against mothers are reducing their work opportunities. Similarly, ensuring that mentoring and sponsorship opportunities are available for mothers is a key policy to help mothers advance in the legal profession. Other practical policies included lactation rooms, equitable gender-neutral parental (maternity/paternity) leave policies, and implicit bias training to make leaders and supervisors more conscious of potential biases towards mothers.
The full report is due to be released on the CWP website in September, after which additional work with the study will be done by the CWP, including the development of a toolkit to help those who wish to use the study report data and recommendations to improve the conditions of their workplaces for mothers and other child caregivers. Although my term as a Commissioner is over, I have been appointed as a liaison to the CWP for the upcoming ABA year to continue to assist with developing the toolkit and in sharing the information to legal employers and lawyers throughout the country. Like with other studies in the past, the CWP is dedicated to not only highlighting important issues affecting women in the profession, but also working to effectuate change. The CWP and I thus welcome requests for groups and firms who would like to have someone come present on this critically important topic
For more information and to read the full report when it releases in September, please see the CWP website, where you can also find the numerous other studies conducted by the CWP as well as toolkits created by the CWP and other resources on on many topics intended to further advance women in the legal profession.