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By Muliha A. Khan
Zupkus & Angell, P.C.
Denver, Colorado

It felt strange to be back in the office after my hiatus. Looking at my computer screen, I reviewed the upcoming deadlines for one of my cases. I needed to bring myself up to speed. This case was assigned to me while I was still pregnant. However, this case, like any other, had developed and progressed over time, oblivious to the fact that I had just taken a three-month maternity leave. Suddenly I heard a soft wail. I looked down towards my feet at the travel bassinet where my son lay. He was scrunching his face in displeasure. He needed to eat. I fed him and once he was done, he fell into a deep slumber. Time for me to get back to work.  I won’t sugarcoat it; it was not easy being back. But, at least I had my son with me for now.  It was this type of accommodation offered by my law firm that not only helped me transition back to work but also continue working after the birth of my son.

It is no secret that males outnumber females in the legal profession. According to the American Bar Association Commission on Women in the Profession, in 2013 women only represented 33.3% of the legal workforce. The number of women has only increased slightly over the past ten years. Yet, in 2013 women made up almost 50% of law school graduates.[i] So, where’s the disconnect? Why aren’t more women practicing law? Varying theories have been advanced to explain the lack of women in the legal profession. One such theory is unfavorable maternity leave policies.

Results from a 2008 survey indicate that law firms are truly all over the map when it comes to maternity leave policies. Some firms offer 18 weeks paid leave while other firms offer four weeks. Some firms opt for a hybrid structure, providing a portion of leave at full pay and the remainder at reduced pay. Some firms even use short-term disability policies to cover maternity leave.[ii] However, it is typically only the maternity leave policies that are considered “generous” that are generally publicized. Most likely, there are many law firms that either have an inadequate maternity leave policy or no policy whatsoever. Without availability of this information, it is difficult to ascertain whether the existing state of maternity leave policies has any correlation to the lack of women in the legal profession.

We must still attempt to answer the question of whether unfavorable maternity leave policies really contribute to the lack of women in the legal field. The answer is not straightforward. First, maternity leave policies may only relate to retention of females in the legal profession rather than recruitment. Second, lack of women in the legal field could be attributed to a failure to accommodate mothers rather than a temporary factor such as maternity leave.

There are surely plenty of female attorneys who are not mothers when they first begin practicing. For this reason perhaps these women are not as concerned with the maternity leave policy of potential employers and such policies play no role in their selection of an employer. In other words, maybe unfavorable maternity leave policies aren’t actually deterring female attorneys from entering the legal workforce. The issue may lie instead with retention of such female lawyers. According to a 2012 study, the first of its kind, women who take longer maternity leaves are less likely to develop postpartum depression.[iii] Taking the study one step further, perhaps women who aren’t offered adequate maternity leave will likely be unhappy when they do return to work. These same women will end up leaving the work force. This may be what’s occurring in the legal profession, and this could explain why unfavorable maternity leave policies are an issue of retention versus recruitment.

The fact that women only make up one-third of the legal work force has been attributed to numerous factors, including: failure to provide female attorneys with meaningful work; unequal compensation; absence of mentoring; and refusal to accommodate mothers. However, maternity leave, unlike these factors, is temporary. Thus, it may be the permanent factors such as absence of accommodations following maternity leave that really explain why there aren’t more women who stay in the legal field.

The introductory narrative was about me. At the time, I was an associate at my current law firm and I had just returned to work after maternity leave. Transitioning back to work was no easy feat. However, I was able to do it because my law firm was willing to accommodate my new needs as a mother in conjunction with being a practicing attorney. For example, screens were placed on the office doors of all mothers to allow us to pump in privacy; part-time schedules were offered; and, as described in the narrative, we had the option of bringing our babies to work (a changing table was even placed in our restroom). It was these types of accommodations that not only helped me ease back into work but also motivated me to continue working at my law firm. Other law firms have also appreciated the importance of accommodating mothers in a variety of ways such as: onsite childcare; employee sabbaticals; creation of parenting groups; ability to work remotely; return-to-work ramp ups; allowing attorneys to leave for several years while still maintaining ties to the firm; and annualizing billable hours over a longer period for those who do take maternity leave.

Deborah Epstein Henry, an internationally recognized expert, consultant and public speaker on workplace restructuring, talent management, work/life balance, and the retention and promotion of lawyers with a focus on women, believes that “nearly one third of women lawyers continue to leave the legal workforce, independent of maternity leave.” Ms. Henry, a licensed attorney herself, argues that “[i]f more . . . ‘early leavers’ are encouraged to remain in the workforce or are welcomed back after leaving, the pipeline of midlevel women lawyers and managers will fill with leadership candidates.” [iv]

I agree with Ms. Henry to a certain extent. It was very important for me to take a maternity leave. I needed that time with my child. Most importantly because I had that time with my child, I felt a certain sense of satisfaction when I did return to work. However, my law firm was willing to look beyond just maternity leave and also make accommodations for my new role as a mother. This is why, three years later, I’m still at the firm. To me, both the maternity leave and what happened after that influenced my decision to continue practicing law. The legal profession has unique features such as billable hours, compensation structure and the unpredictable nature and demand of cases to name a few. The accommodations discussed above are one of the ways to ensure success of mothers in this rigid structure.

Ultimately, how maternity leave policy relates to the lack of women in the legal profession is unclear. What we can be fairly certain of is that failure to accommodate mothers, beyond just maternity leave, is most likely creating attrition of female attorneys. I believe maternity leave policies are necessary and an unfavorable maternity leave policy may be the reason why a female attorney eventually leaves the profession all together. Failure to adopt continuing measures, such as accommodations of mothers, also contributes to attrition. Thus, it is crucial that law firms pay attention to both maternity leave and accommodations following leave. It will take time, but perhaps embracing this type of change will gradually increase the number of women in the legal profession.

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[i] American Bar Association - Commission on Women in the Profession, A Current Glance at Women in the Law (Feb. 2013), available at http://www.americanbar.org/content/dam/aba/marketing/women/current_glance_statistics_feb2013.authcheckdam.pdf.

[ii] Justin Bernold, Featured Survey Results: Maternity Leave, Above the Law, (Feb. 19, 2008, 2:25 PM), http://abovethelaw.com/2008/02/featured-survey-results-maternity-leave/.

[iii] Longer Maternity Leave Lowers Risk of Postpartum Depression, UMD Right Now (Dec. 12, 2013), http://www.umdrightnow.umd.edu/news/longer-maternity-leave-lowers-risk-postpartum-depression.

[iv] Deborah Epstein Henry, Why Work Life Still Matters, Working Mother, http://www.workingmother.com/bestcompanies/why-work-life-still-matters.

Muliha A. Khan is a partner at the law firm of Zupkus & Angell, P.C. in Denver, Colorado where she primarily practices in the areas of insurance defense and employment law. Muliha Khan can be reached at 720-208-2750 or mkhan@zalaw.com.

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