Editor’s Note: This story is adapted from ALM’s Mid-Market Report. For more business of law coverage exclusively geared toward midsize firms, sign up for a free trial subscription to ALM’s weekly newsletter, The Mid-Market Report.
Managers of law firms should have a better understanding of employment law than most small and midsize business leaders, but that doesn’t mean they always follow the advice they would give.
Law firms have been far from immune to claims of pregnancy discrimination over the years. And experts say women are becoming more aware of their rights than ever, so employers of all kinds should be more vigilant about providing a workplace in line with federal and local employment laws.
“I have a sense that we are in a cultural moment where women are feeling very fed up,” said Katherine Kimpel of KK Advising, who has represented women in discrimination cases against law firms. “We’re fed up with things that are happening on so many fronts, but particularly fed up with the ways in which… our rights have been overlooked.”
Two recent examples of alleged discrimination involve a small and a midsize law firm.
In September, Denver-based Bendinelli Law Firm settled with a former employee who claimed the firm accused her of hiding her pregnancy during the interview process. She was fired 10 days after the law firm hired her, when she was eight months pregnant, according to the Equal Employment Opportunity Commission.
The small, personal injury firm ended up paying $30,000 to plaintiff Jennifer Rodriguez. According to the EEOC, she was fired for failing to disclose during her interview that she was pregnant. The firm also asked if she was “keeping the baby” or just acting as a surrogate, the EEOC said.
And in an ongoing federal case in Pennsylvania, midsize firm Stevens & Lee was sued after firing a legal assistant just weeks after she returned from maternity leave.
The plaintiff, Alicia Drees, said in her complaint that she had several medical issues during and after her maternity leave. She called out sick because of a sinus infection a few days after returning from leave, and requested a day and a half off because of an upcoming surgery later that month.
On the day of her surgery, Drees was fired. In her complaint, she alleges that the firm’s human resources representatives told her she was unreliable, that she abused her 30-minute lactation breaks, and that the supervising attorneys had decided one legal assistant was enough to handle their work.
Stevens & Lee, in defending the claims, has argued that HR did not give Drees “shifting reasons” for her termination. The firm said unreliability and “absenteeism” during times not protected by the Family Medical Leave Act were factors, and said Drees was not always at her desk when she was clocked in. The firm admitted that HR told Drees “that time spent washing her hands should have occurred during her unpaid break and should not have occurred after she had clocked back into work following her unpaid break.”
Cynthia Calvert, a lawyer and president of Workforce 21C, has tracked family responsibilities discrimination cases against law firms and other employers over the years. She said she knew of about 30 such cases filed against law firms since 2007, but that number doesn’t include claims that were handled in arbitration or settled out of court following an employee complaint or charge from the EEOC.
“I’m always amazed at how many of these claims are brought,” Calvert said.
A ‘BLIND SPOT’
Of course it’s not just law firms facing such claims.
Cosmetic company Avon is facing allegations of pregnancy discrimination in a recently filed case in U.S. District Court for the Southern District of New York. A New York City police officer sued the department claiming she was not allowed proper break time to pump breast milk while nursing, and was transferred as retaliation. And Forbes reported last week that food and beverage business The Wonderful Company is dealing with allegations of pregnancy discrimination and wrongful termination in a private arbitration.
Kimpel said pregnancy and breastfeeding accommodations are “a big blind spot” for many organizations. And for smaller businesses, those accommodations may seem “onerous,” she said.
But law firms in particular, she said, often “don’t have an investment in professionalized management.” She said a lot of firms go against the same advice they would give a client business.
“Essentially law firms are modeling ‘do as we say, not what we do,’” Kimpel said. “It is completely illogical the way the legal profession treats this issue, this loss of legal talent, as something they can’t do anything about, or something that’s not a big deal.”
Calvert, who also serves as a senior advisor to the Center for WorkLife Law, said law firms are “looking for trouble” if they don’t have a well-managed human resources function.
“Having worked at medium and small firms, when lawyers start doing HR work on their own, they have to be very careful because lawyers get very busy, and HR work takes a lot of attention to detail and deadlines,” she said.
A lot of law firm leaders think they don’t need to worry about pregnancy discrimination at their firms, Calvert said, because they have few employees. But states and local jurisdictions may have lower thresholds than federal law provides, allowing employees to sue for wrongful termination even if the Pregnancy Discrimination Act does not apply under federal law.
She noted that law firms need to be particularly cautious, because plaintiffs can argue that they know the law better than a typical employer, and therefore should be assessed punitive damages. The U.S. Court of Appeals for the Fourth Circuit made that clear in a 2005 opinion in Gallina v. Mintz Levin, stating, “A reasonable jury could have found that members of a prominent law firm, and especially a law firm with an employment law section in the relevant office, perceived the risk of violating federal law in retaliating against an employee.”
MAKING THE INVESTMENT
It makes good business sense to treat lawyers and staff with children fairly, Calvert noted, given the turnover associated with family-unfriendly policies.
“Just because you’ve avoided liability doesn’t mean you’ve acted in a way that’s consistent with the big picture,” she said. “It’s really expensive to constantly be hiring people and training people… there are a lot of hidden costs to that.”
But there are some law firms taking a proactive approach to women’s and mothers’ issues.
Texas-based boutique Susman Godfrey recently enacted an unlimited parental leave policy for associates, both men and women. They can take whatever amount of time they see fit, and their billable hours will be annualized for bonus purposes, up to 18 weeks for lawyers who give birth, and up to 12 weeks for any other new associate parent.
“The more I thought about it, the more it seemed to me that what we really should do is treat our associates as the professionals they are and trust them to make the choices that are appropriate for them and their situation,” managing partner Neal Manne said.
Manne said his firm does not disclose its policy for non-attorney staff, but, “in terms of the prevailing terms in the market, it’s a generous policy.”
The cost to the firm isn’t crippling, Manne said, given that associates at a midsize law firm “are relatively small in number.” And it’s a worthwhile investment, he said, because the firm’s brand is built on attracting and retaining lawyers from “an extremely tiny pool of the highest achievers.” He also noted that no client has ever complained about an attorney being on parental leave, crediting, in part, the fact that litigation teams work collaboratively across the firm.
“I think that’s just offered as an excuse, not just by law firms, but by businesses that don’t want to have a policy that’s so generous,” Manne said.