CHILDBIRTH AND PARENTING LEAVE:
A REPORT AND MODEL POLICY
New York State Bar Association Committee on Women in the Law
A. Summary of Recommendations
Many of the large number of women attorneys who have entered the legal profession since 1970 now find themselves facing a problem as serious as the entry level gender-based discrimination that once existed: these women are living and working through their childbearing years in a workplace that fails to provide fair, predictable, and consistent treatment for parents’ needs to take leave from employment to care for newly born and adopted children. This failure can create as much hardship for men attorneys as women. Many men now wish to spend increased amounts of time with new children and male and female attorneys both need to be able to plan for leave taken by co-employees. The New York State Bar Association’s Committee on Women in the Law (the "Committee") recognizes the gravity of this problem and has prepared this report to publicize the problem, recommend action to address it, and set forth a model policy for childbirth and parenting leave to be used as a guideline for law firms.
A summary of the Committee’s recommendations is as follows:
First, the Association should reaffirm its prior commitment to encourage legal employers to review existing practices and policies concerning childbirth and parenting leave for attorneys and to adopt fair policies. Second, the Association should endorse, publicize, and distribute the Committee’s Model Policy for Childbirth and Parenting Leave as a guideline for law firms.
The Committee’s proposed Model Policy is discussed in this report (and annexed as Appendix A) following a description of this Committee and its study of the need for the proposed Model Policy.
B. History of the Committee on Women in the Law
In 1984 the Chief Judge of the State of New York appointed a Task Force on Women in the Courts (the "Task Force"). In the course of its investigation of the role of gender and the treatment of women in New York, the Task Force held public hearings, reviewed numerous articles, held regional meetings with judges and attorneys, and held informal meetings with residents of several upstate counties. A survey was made of the perceptions and experiences of attorneys in the State with regard to gender bias and a questionnaire was distributed to attorneys throughout the State. The New York State Bar Association (the "Association") actively cooperated with the survey process and the questionnaire was included as an insert in the State Bar News.
The Report of the Task Force, which was issued on March 31, 1986, concluded that:
gender bias against women litigants, attorneys, and court employees is a pervasive problem with grave consequences. Women are often denied equal justice, equal treatment, and equal opportunity.
With leadership there will be change. Ultimately reform depends on the willingness of bench and bar to engage in intense self-examination and on the public’s resolve to demand a justice system more fully committed to fairness and equality.
The Task Force Report recommended action to eliminate gender bias and promote equal treatment and opportunity, including action by the organized bar. In July of 1986, the president of the Association, Charles Heming, appointed this Committee to report on the Task Force Report, with particular emphasis on its recommendations for action by bar associations. The Committee, chaired at that time by Ruth G. Schapiro of New York City, met monthly and studied the findings and conclusions of the Task Force Report against the background of the members’ own widely varied experiences and in conjunction with a review of materials produced by other Task Forces on Women.
In the spring of 1987, the Committee issued a report that recommended that the Association take action to eliminate gender bias, support legislative reform of laws concerning domestic violence and matrimonial matters, and engage in efforts to promote equal opportunity for women attorneys and court employees in employment and equal opportunity and participation by women lawyers in the Association. The report, as approved by the House of Delegates, concluded that the Association was "able to, and should, supply [the] leadership" vital to eliminating gender bias. That report included recommendations to enhance the status of women lawyers, including the following:
The Association should encourage its members to review their own personnel policies and procedures to promote equality of professional opportunity. Consideration should be given to equal employment opportunity in promoting associates to partners and to policies regarding employees who are primarily responsible for child care. Policies regarding child care leave, part-time employment, flex time, on-site child care facilities, and child care subsidies should also be reviewed.
Since approval of the original report, the Committee has continued to meet monthly to monitor and promote efforts to eliminate gender bias and to ensure equal opportunity. After completion of Ms. Schapiro’s three year term as the Committee Chair, former Association president Maryann Saccomando Freedman of Buffalo served as the Chair. The Committee is now chaired by Kay C. Murray of New York City. Recent projects have included presentation of recommendations to the House of Delegates concerning domestic violence and discriminatory clubs, and sponsorship of educational programs to address the current status of women attorneys and the conflicts between the demands of career and family life for all attorneys.
C. The Committee’s Study and Conclusions
The recognition and discussion of such conflicts, especially with respect to leave from employment for childbirth and parenting purposes, led to the Committee’s study and investigation of the practices and policies of legal employer concerning maternity and parental leave. In the course of its study, the Committee has reviewed existing and proposed laws governing leave from employment for purposes of childbirth, adoption and parenting as well as existing practices and policies of law firms, corporations and governmental entities. In addition, the Committee has compiled and analyzed studies and recommendations concerning maternity and parenting leave made by other bar associations. As was the case with the 1987 Report of the Committee, the Committee’s study has been conducted against the background of its members’ diverse experiences and has taken into account the different types of practice, sizes of the firms and other factors.
The Committee has concluded from its study that existing practices vary widely and that this area currently is in a state of flux. Although some legal employers have consistent policies concerning leave for disability related to pregnancy and childbirth, very few have policies concerning "parenting leave." Decisions are often made by legal employers on an ad hoc basis and legal minimum leave requirements are insufficient. As a result, parents, and particularly are insufficient. As a result, parents, and particularly women, are often denied treatment and equal opportunity in employment as a result of becoming a parent.
The Association can, and once again should, supply the leadership vital to ensuring the promotion of equal opportunity by the adoption of fair employment policies concerning childbirth and parenting leave for attorneys. Accordingly, the Committee has drafted a Model Policy for childbirth and parenting leave and urges the Association to endorse this policy as guideline for law firms and to approve the recommendations set forth below.
II. Recommendation 1: The Association Should Reaffirm Its Commitment To Encourage Legal Employers To Review Existing Practices and Policies Concerning Childbirth and Parenting Leave for Attorney and To Adopt Fair Policies.
A. Current Legal Treatment of
Childbirth and Parenting Leave
The Pregnancy Discrimination Act of 1978, which amended Title VII of the Civil Rights Act of 1964, provides in pertinent part:
The terms "because of sex" or on the "basis of sex" include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment related purposes, including receipt of benefits ... as other persons not so affected but similar in their ability or inability to work ...
42 U.S.C. § 2000e(k) (1978). The amendment makes it clear that discrimination based on pregnancy is discrimination based on sex and that employees disabled by pregnancy must be treated the same as other disabled employees.
Some state laws provide pregnant employees with more protection than that provided by the Pregnancy Discrimination Act. In California Federal Savings and Loan Association v. Guerra, 479 U. S. 272 (1987), the United State Supreme Court was faced with a claim that a California statute that required employers to provide leave and reinstatement to employees disabled by pregnancy was preempted by Title VII as amended by the Pregnancy Discrimination Act. The Court found no preemption. Further, it held that disability based upon pregnancy may be accorded more favorable treatment than other disabilities.
Because there is currently no federal requirement for mandatory childbirth and parenting leave, the extent to which such leave is available depends largely upon the state in which parents work and the employers for which they work. In New York, the Workers’ Compensation Law mandates minimum benefits for disabled workers. The Human Rights Law requires that disability based upon pregnancy be treated the same as other disabilities. In New York, therefore, statutory minimum disability benefits must be provided for disability based upon pregnancy. Further, section 201-c of the New York Labor Law requires that if employers accord parent a leave of absence for child care upon the birth of a child, adoptive parents must be afforded the same leave following the commencement of the parent-child relationship.
The statutory minimum benefits for disability caused by pregnancy are available for the period of disability as certified by a physician, for a maximum of 26 weeks in any one year or for any one disability. The amount of disability payments for disabilities commencing on or after May 1, 1989 is one-half of the disabled worker’s weekly wage up to a maximum of $170 per week. New York does not currently have any statutory provisions concerning parenting leave, although such statutes have been enacted in Minnesota, Oregon, Connecticut, and most recently, New Jersey.
New Jersey, for example, enacted a "Family Leave Act" effective May 4, 1990. Family Leave Act, N.J. Stat. Ann. § 34:11B-1 to 34:11B-16 (L.1989, ch. 261). Under the Act, employers of 100 or more employers must provide care made necessary by the birth or adoption of a child or the serious health condition of an immediate family member. To be eligible for the leave, the employee must provide the employer with advance notice and must have been employed for a certain minimum period in the 12 months immediately preceding the leave. Although the leave is unpaid, the Act specifically provides that the family leave is in addition to and shall not abridge or conflict with any disability leave. Moreover, the Act requires covered employers to maintain health insurance and other benefits. Upon expiration of the leave, the employee is entitled to be restored to the position previously held.
B. Proposed Legislation
Legislation similar to New Jersey’s Family Leave Act has been proposed in the New York State Legislature. One proposal is an amendment to the Labor Law which would require that employees working for employers of 100 or more employees be given parenting leave after the birth or adoption of a child. Medical leave to care for injured or ill children is also provided by the proposed statute. (The new statute would be added as section 200-b of the Labor Law.) The maximum parenting leave available would be 26 work weeks, which would be in addition to any leave taken by reason of disability resulting from pregnancy. Another bill would apply to employers of 15 or more employees. It would grant employees the right to unpaid leave of up to 18 weeks over a 24 month period upon the birth, adoption, or serious illness of a child or the serious illness of a spouse or parent. It would also require a mandatory minimum unpaid leave for the employee’s own medical condition. Both proposals would provide job security upon return from leave and the continuation of employee benefits during the period of leave. Similar legislation has been proposed in the New York State Senate (S. 2077, 113th Leg., 1990 N. Y. Laws) and in 14 other states.
C. The Need for Written Policies
While federal and state laws do prohibit discrimination on the basis of pregnancy and require equal treatment of adoptive parents, they do not require an employer to provide specific types of benefits, guarantee reinstatement to the same or a comparable job, or ensure that attorneys actively involved with child-rearing can remain o the partnership track. Current statutes do not affirmatively require that benefits be provided for men in connection with the birth of a child or to adoptive parents upon the adoption of a child.
Thus, current statutory protections are inadequate. For the reasons discussed in this report, the Committee believe that additional benefits should be offered to both men and women attorneys in connection with the birth or adoption of a child.
In the 1950s, 75% of American families consisted of a father who worked and a mother who stayed at home with the children. Today, less than 10% of the American working population conforms to the traditional family model or a male breadwinner married to a female housewife. As the structure of families has changed, the tensions between the obligations of family life and professional life have increased.
These tensions are intensified for many attorneys, whose professional commitments are unusually demanding. Attorneys’ personal lives and family responsibilities often conflict with the pressing demands of clients, judges, and adversaries. With long hours and inflexible deadlines the mainstay of the profession, more and more attorneys are expressing concern about how to accommodate the competing interests of career and family.
The pressures of career and family extend well beyond the needs of a new mother during the disability period following childbirth. The attorney mother may request -- and need -- alternative work arrangements for periods ranging from several months to several years. Attorney fathers may also be interested in active and involved parenting; recent studies show that men are increasingly committed to achieving a balance between professional and family responsibilities. They, too, increasingly are seeking temporary leaves or non-traditional work schedules. Employers who have not yet had requests for parenting leave can expect to face requests for such leave in the near future, from men as well as women. In response to these concerns, legal employers must seek methods to allow their attorneys to find the appropriate balance between the home and the office.
The Committee reviewed written policies concerning childbirth and parenting leaves from numerous private law firms, corporations, and public interest legal employers nationwide and reviewed studies and recommendations by other bar associations and legislatures grappling with the same issues.
The Committee’s inquiry revealed that the absence of policies is the rule rather than the exception and that legal employers tend to respond to requests for childbirth and parenting leave on an ad hoc basis. as a result, attorneys cannot adequately plan for raising a family, are often afraid to request childbirth or parenting leave, may feel uncomfortable when they do so, and run the risk of losing their status within the professional environment after requesting or taking leave. Likewise, legal employers are often unsure how to respond to such requests and therefore may respond inconsistently or negatively. The result is confusion, unpredictability, and frustration for all concerned.
Pregnancy, childbirth and child-rearing are an integral part of human existence; they should not be considered voluntary and optional undertakings by the affected attorney for which they must sacrifice their careers. Therefore, the Committee believes that written policies are necessary to ensure that legal employers adopt appropriate childbirth and parenting policies that will enable attorneys to balance their commitments to the profession and to their families.