Targeting Lawyer-Mothers: Rethinking the Unavoidable

Author: Meagan Dutchak Guest Blogger

At a recent talk at the University of Ottawa by Cynthia Petersen, the Law Society of Upper Canada Discrimination and Harassment Counsel, raised the idea that women who go on maternity leave are severely disadvantaged upon their return, unlike their male counterparts who take similarly long leaves for other personal or professional reasons. Are mothers or women who choose to go on maternity leave (“lawyer-mothers”) in consequence, viewed as less valuable lawyers? Like Ms. Petersen, I can readily acknowledge the immense progress in the legal profession towards gender equality. However, without sounding too severe on my own sex, I cannot reasonably predict that an indifferent attitude towards lawyer-mothers will ever be realized.

Recently I heard a story from a young female lawyer about her interview for the firm she was ultimately hired by. One of the lawyers sitting in on the interview was visibly pregnant. According to the young lawyer, the firm intentionally included a pregnant woman on the interview panel to project the image that the firm is supportive of women interested in starting a family.

On one hand, it is troubling that a law firm would consider doing this. Intentionally including a pregnant woman at an interview is akin to intentionally including the “token ethnic person” to show the interviewee that the firm is diverse. Their projected attitudes may not be sincere, but the aim was to rebut any presumption the interviewee had about the legal profession.

On the other hand, perhaps the firm’s intention was genuine. Perhaps they included the pregnant woman to legitimately win over this young lawyer who may eventually want children herself and would therefore be looking for an accommodating employer. As a woman with plans to enter both the legal profession as well as motherhood, I would be looking for such an employer. Regardless of the firm’s motivations, be they genuine or not, the same message is clear: that women in the legal profession who want to have children, or may already have children, have a target on their back. That target is regrettable, inevitable, but it may also be valuable.

One reason that targeting lawyer-mothers is regrettable, as Ms. Petersen discussed, is because it creates a lower, if not simply firmer, employment ceiling. Hiring a young woman is inherently risky. If she plans on having children, will she return? If so, after how long? Once she has children, will this affect her work? Can she still travel? Even at a law firm with amiable intentions and gender equality ideals, I cannot criticize them for having financial considerations. Unfortunately, these financial considerations come paired with an adverse affect: namely, prevention of advancement.

A second reason that singling out lawyer-mothers is regrettable is because it further segregates women, creating grounds for discrimination and harassment. This could create animosity between women in the workplace if there is discrimination, and this kind of scenario is a step backward for the legal profession. Regardless of how unconscious this segregation may be, it is undoubtedly problematic for all women.

Unfortunately, singling out lawyer-mothers is also inevitable. As mentioned above, it is possible that treating lawyer-mothers differently is entirely pragmatic or even unconscious, but that it nevertheless occurs is evidence of its ubiquity. It is unlikely that the target on their backs will ever become invisible, realistically. A viable alternative is that the legal profession as a whole aspires to ignoring it, especially when making human resource decisions.

Although the deleterious effects are numerous, there is at least one salutary effect of singling out lawyer-mothers, and it carries considerable weight. Since lawyer-mothers’ need for accommodation is inevitable it is important that their needs are recognized and acknowledged. By ignoring lawyer-mothers’ needs all together by failing to distinguish them from other members of the profession, it is less likely that such needs will be addressed appropriately and without some irritation. Instead, it is more efficient to predict the needs that might arise and have procedures in place to accommodate them.

In sum, it is obvious that lawyer-mothers are treated differently in the legal profession, not necessarily on purpose. Singling them out from other members of the legal profession creates barriers to employment advancement and welcomes discrimination. However, pragmatic concerns regarding lifestyle and economics make it severely unlikely that true indifference will ever be realized. Therefore, the legal profession should concentrate its efforts on anticipating needs and developing non-adverse ways to accommodate them.

Similar observations and conclusions could be made about many other work environments; however, it is particularly significant in the legal profession because of lawyers’ responsibility to project to the public that the administration of justice is rational. If it becomes clear that lawyers themselves are apt to treating women differently, consciously or unconsciously, based on their familial endeavors, then the public may view the entire justice system as discriminatory and retrograde.

Therefore, the legal profession as a whole should shift away from adverse treatment of lawyer-mothers not towards indifference or blindness, but rather towards efficient incorporation that will allow for both accommodation as well as upward mobility. Doing so would hopefully combat the barriers lawyer-mothers face while assuring the public that those who operate the justice system are doing so evenhandedly.

The author is a first year student at the University of Ottawa Faculty of Law and wrote the essay for Professor Dodek’s course on Legal Ethics.

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