The Legal Profession’s Child Care Problem

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It’s no secret that the hardships associated with the COVID-19 pandemic have not dispersed evenly throughout our society.

Small businesses bore the brunt of the economic fallout caused by drastic changes in consumer behavior and government-mandated public health restrictions imposed in early 2020. Within the legal profession, solo practitioners were hit harder by COVID-19 than larger firms, according to reporting in the ABA Journal.

The country’s working poor, who make up the majority of employees in the service industries, faced much greater risks of contracting — and succumbing to — COVID-19 than workers in other parts of the economy. The COVID-19 pandemic widened income and health gaps across a number of demographic factors, including race, education, and geography.

And then there is the case of women in the workforce, particularly those in demanding and stressful occupations including women in the legal profession. The rapid transformation to remote work in response to COVID-19 coupled with the presence of children no longer in school buildings or child-care settings has severely and negatively impacted female lawyers.

Many surveys conducted during the COVID-19 pandemic demonstrate that women are primarily responsible for the care of children at home, even when both spouses are employed. Women forced to balance work and family responsibilities are more likely than men to be working under significant stress, working fewer hours (and consequently suffering the associated diminished prospects for career advancement), and leaving the workforce entirely. Notably, these themes, while exacerbated due to the pandemic, are not new and have plagued lawyers and law firms for decades.

According to a recent study conducted by the University of Southern California’s Center for Economic and Social Research, 44% of working women reported being the only household member providing care, compared to 14% of similarly situated men. Among college-educated mothers, 64% said they had reduced their working hours in order to care for their families. Just 36% of college-educated fathers reported reducing work hours due to child-care responsibilities.

ABA: Legal Profession Must Do Better

The American Bar Association’s House of Delegates recently resolved to act to address this challenge. On Feb. 22, the ABA’s policymaking body approved a resolution (PDF) calling on law firms, bar associations, law schools, and others in the legal community to develop policies that encourage the availability of high-quality child care for all persons working in the legal profession. The resolution also encourages federal, state, and local governments to enact legislation that would promote access to “fair, affordable, and high-quality child care and family care” for all workers.

The vote aligns with the other groups’ efforts to support both legislation and private-sector initiatives to improve access to child care and family care. Earlier this year, the U.S. Chamber of Commerce surprised public policy watchers by explicitly linking access to child care with business competitiveness and by throwing its lobbying weight in support of federal legislation to improve employee access to quality child care. 

In a January 2021 report, Essential Care for Essential Workers (PDF), the U.S. Chamber of Commerce Foundation observes that businesses are already paying the price of inadequate child-care options in the form of high turnover, diminished job performance and related negative impacts on business growth, diminished community standing, and other reputational harms. According to the U.S. Chamber, 75% of working parents have children at home, and 50% of those parents cite lack of child-care options as the leading reason they have not fully returned to work.

The U.S. Chamber’s March 5 International Women’s Day Forum features a pair of sessions explicitly linking business growth with child-care and family-care issues.

Lack of Child Care Derails Women’s Careers 

Speaking in support of the ABA resolution, Laura Farber, a partner at Hahn & Hahn in Pasadena, Calif., and chair of the ABA Coordinating Group on Practice Forward, said that data collected by the group indicates that the shift to remote work has had a disproportionate impact upon women lawyers.

According to the report, which will be publicly released in March, more than half of all lawyers surveyed worked from home full-time during the pandemic. Although these lawyers believe they have been productive, many feel overwhelmed and worry about job security. The largest negative impacts of remote work have been on lawyers with young children, especially women.

“The Practice Forward study only confirms what is already known,” Farber said. “Women lawyers bear a disproportionate brunt of the responsibility for child care. The impact of this responsibility on the progression of women’s legal careers and subsequently on gender equity in the profession is significant.” Farber said she anticipates that federal legislation addressing child-care and family-care needs will be introduced in Congress this year.

Maureen Mulligan, a partner at Peabody & Arnold in Boston and chair of the ABA Commission on Women in the Profession, offered additional statistical support for the resolution.

She mentioned the recent finding that all 140,000 of the net jobs lost in December 2020 were jobs held by women (PDF), noted in a report from the National Women’s Law Center highlighting recent federal employment data. Women lost 156,000 jobs in December 2020 while men gained 16,000 jobs, a statistic that Mulligan attributed to the lack of high-quality child-care and family-care options. “Women lawyers remain first in line for most care-giving responsibilities,” Mulligan said. “Access to child care is crucial to keeping women lawyers in the profession.”

The lack of access to quality child care is an acute problem for women of color, Mulligan added, because these lawyers tend to be managing many challenges not faced by other female lawyers, including the responsibility of caring for multigenerational families in their homes. The ABA’s 2020 report, Left Out and Left Behind: The Hurdles, Hassles, and Headaches of Achieving Long-Term Legal Careers for Women of Color (PDF) found that women of color were, for a variety of reasons, less likely to have reliable child care compared to white women and men.

Mulligan pointed to recent ABA data indicated that while 54% of law students are women, just 37% of lawyers are women. She attributed these statistics, in part, to the lack of quality child-care and family care-options for women in the profession. “The legal profession cannot afford the brain drain of women lawyers,” she said. “It’s not good for our profession, it’s not good for working families, it’s not good for women, and it’s certainly not good for our children.”

Next Steps for the Legal Profession

The ABA’s House of Delegates passes dozens of resolutions annually on a wide range of social justice topics. At its just-concluded 2021 Midyear Meeting, the House of Delegates passed resolutions declaring policy positions on immigration, bar admissions standards, border searches, fair housing, and the possession of firearms in and around public buildings, among other topics. 

Although these resolutions do not appear to be tremendously influential with legislative bodies, they are influential within the legal profession. An ABA resolution in support of better child-care options for lawyers and staff will lead to additional ABA resources for studies and educational programming on the topic. Lawyers from firms across the country will become involved in drafting and building support for best practices documents to be adopted — hopefully — by law firms across the country. All of this policy development work is strong evidence of where the profession is heading, and it can be cited by anyone who desires to nudge his or her law firm to offer better child-care options. 

“The need to address access to fair, affordable and high quality child care and family care is one of the most important issues of the day,” Farber said. “Addressing these issues allows the ABA to address issues that face our society and lawyers in our profession. Importantly, it continues the ABA’s role in highlighting the barriers that women lawyers continue to face in the profession.”

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