"Women's Work": Why the Law Should Intervene to Protect Families, By Protecting Those Who Choose to Both Work and Parent

By DOUGLAS KMIEC

Tuesday, Apr. 08, 2008

The reality is that it's extremely hard to do hands-on parenting and professional work at the same time - and that women, very disproportionately, are the ones who attempt it.

Thus, it came as little surprise when a recent Canadian study by Jean E. Wallace and Marisa C. Young proved, among other things, that women attorneys with children rack up fewer billable hours than women attorneys without children.

From a policy perspective, what should we make of this finding, and others that the study's authors made?

The Study: Its Potential Flaw and Its Fascinating Findings

Importantly, the study may be somewhat flawed in equating billable hours with productivity. Some people can get a lot more done in a small amount of time than others. Potentially, the employee who knows that she or he must pick a child up from daycare later in the day will fit more work into the hours before that time.

Yet the empirical gender differences the study found cannot be ignored.

First, as noted above, women with children bill fewer hours. Second, flexible hours were found to have a negative impact on a man's productivity, but not on a woman's. Third, men with babies at home still work overtime; women generally do not. Fourth, men who have a stay-at-home partner get a lot done, whereas women who have stay-at-home partners don't receive any particular advantage from it.

Fifth, women without children work the hardest of all - harder than men with or without children.

What Action Should Be Taken Based on the Study's Findings?

In light of these findings, is there a way to create a fairer, more equal workplace - one that actually supports, rather than undermines or competes with, families? We like to think work is for the benefit of men and women, not the other way around. Moreover, I believe the workplace has a special obligation to accommodate the needs of the family as an irreplaceable cultural building block.

Yet, relying on earlier research, the study notes that the obvious way for women "to balance work and family is to reduce their family commitments, which may be accomplished by having fewer or no children." But this sacrifice is not reasonable to require.

Rather than asking still more sacrifice from working parents, we should instead consider changing the law to make their situation easier. For instance, a tax code amendment could allow workers who are also primary caregivers for children (a description that - enlightened attitudes aside - still overwhelmingly applies to women) to keep more of their income. Moreover, discrimination law could be altered: Under existing law, pregnancy - which we might view as "pre-birth child care" -- cannot be a basis of discrimination against women. Why, then, should care delivered post-birth be a valid basis for discrimination?

In this area, employment practices in the United States still reflect 19th-century attitudes. It is time we explore new employment relationships, conceived in extendedterms.At a minimum, we should better facilitate the entry and exit and reentry of women into the marketplace. The partner track for women with young children can be longer. Universities can rethink hiring practices in order to open the doors to mothers with J.D.s and Ph.D.s returning to the classroom to teach.

Billable hours or equivalent productivity expectations can also be lessened while children are young, andincreasedas they children reach middle and high school. The study foundwomen tend to work longer hours with teenage childrenin any event --speculating that adolescents are more self-reliantorare contributingto the running of the household. One wonders whether these researchersactually know any teenagers. Still, the findings stand - even if it is really amplified music and the latest YouTube-driven anxiety that are convincing parents to spend more time at work.

The Next President Has the Chance to Make a Strong Statement in Support of Working Families

I'm not a Hillary Clinton advocate for reasons of democracy (as I see it, the presidency is too rare an office to be awarded to closely related kin more than once - apologies to the Bushes and Adamses, too), but I agree with those who think that America is long overdue to have a woman president.

In supporting this view, some cite Senator Clinton's claims, during the debates, that women possess unique qualities that aid in resolving intractable problems. For me, however, the reason is simpler and more personal: I have three daughters -- all pursuing professional goals -- and a high-profile role model might mean they would be less subject than the women of my wife's generation to arbitrary gender-based impediments as they reach toward their aspirations.

Regardless of the gender of the next president, she or he ought to pierce the unreality of existing expectations imposed upon mothers (and other primary caregivers) working in the marketplace. Perpetuating these ossified habits undervalues home and family, to the detriment of us all.


Douglas Kmiec is Chair & Professor of Constitutional Law, Pepperdine University. Previously, he was constitutional legal counsel to Presidents Reagan and George H.W. Bush. He recently endorsed Barack Obama for President. The citation for the study Professor Kmiec discusses is Jean E. Wallace and Marisa C. Young, Parenthood and Productivity: A Study of Demands, Resources and Family-Friendly Firms, 72 Journal of Vocational Behavior 110-122 (2008).

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