(Photo: Sean O’Riordan/iStockPhoto)

For Fox Rothschild associate Danielle Ryan, who gave birth to her first child, Teddy, last October, a new leave policy at the firm is already having a dramatic effect on her family.

In May 2018, Philadelphia-based Fox Rothschild erased gender distinctions in granting leave, instead offering eight weeks of paid leave for attorneys and staff that covers birth, birth via surrogacy, adoption and placement of a foster child. Birthing mothers are eligible for an additional 12 weeks of short-term disability leave, for a total of 20 weeks paid leave.

“We do intend to have more kids,” Ryan said, “and my wife will be carrying the next one—thank god.”

The impact goes beyond family planning, Ryan said. Before the new policy, she would have been required to ask the firm’s human resources department and management to take “paternity” leave. Now, she can simply take the eight weeks without discussing those details with her management team.

“It sounds kind of trivial, but I think that when you’re already seen as ‘an other,’ not having to have those awkward conversations and trying to explain to somebody why you’re asking for paternity leave and get into the details of your family situation is just a huge relief,” Ryan said.

The number of partners in Big Law who identify as LGBT has increased 23 percent since 2014, and the number of associates increased by 49 percent. And thanks in part to change in the legal landscape, including the recognition of same-sex marriage, more and more LGBT couples are forming families.

As families change, law firms are also changing their leave policies to match.

In 2016, Winston & Strawn was one of the first law firms to announce a gender-neutral parental leave policy that provided its attorneys with 20 weeks of paid parental leave, with no distinction between primary and secondary status. 

Dechert did away with primary and secondary caregiver status in its new parental leave policy in October, announcing a policy that provides at least 12 weeks of paid leave to its U.S. attorneys and staff. Earlier this month, Fenwick & West announced it would provide 16 weeks of paid leave to its attorneys and staff, again without distinction between gender or caregiver status.

But even as more law firms adopt such measures, many others have stuck with traditional designations.

A 2016 report by the Diversity & Flexibility Alliance surveyed 28 Am Law 200 firms and found that nearly 89 percent of law firms had a gender-neutral leave policy. But only 12.5 percent of them removed primary and secondary caregiver designations that determine available leave.

“Primary and secondary, I think, is really an outdated designation,” said Manar Morales, the group’s president and CEO. And, oftentimes, women are the ones pushed into the primary caregiver role.

“It’s creating hierarchy where there shouldn’t be,” Morales said. “Couples are not referring to themselves as primary or secondary, whether it’s same sex families or otherwise.”

Morales said she has seen the momentum shift, with more and more law firms looking to move in a gender-neutral direction despite a financial cost. Her group works with firms to help change their mindset with respect to parental leave policies.

“For us, it’s getting firms to understand the business case behind it and to understand why this is an important part of diversity and inclusion,” Morales said.

New Era

Camilla Taylor, director of constitutional litigation for Lambda Legal, noted that the changes are taking place in a new legal and cultural landscape. 

There’s something called the “Gayby Boom,” which is a phenomenon that we’ve seen over the last decade,” Taylor said. “Same-sex couples are now acknowledged as having the freedom to marry, and we’re seeing all sorts of discriminatory laws struck down as unconstitutional.” As a result, the number of same-sex couples forming families and having and raising children in different ways has markedly increased.

“All of these factors are combining to mean that employers everywhere are much more likely to have to deal with families seeking leave who are nontraditional, including LGBT families in particular,” Taylor said.

In adopting its new gender-neutral policy, Fox Rothschild’s diversity committee explicitly considered the impact of on certain populations, especially lesbian, gay and bisexual attorneys and staff.

“It wasn’t really catching those understandings of who has the rights or where those rights might be limited because of where that person is actually located,” JT Schuweiler, an associate at Fox Rothschild in Minneapolis who also sits on the firm’s LGBTQ & Allies subcommittee, said of the firm’s previous parental leave policy. 

Schuweiler said the updated policy not only protects the firm’s employees, but also their partners, who could be forced to disclose their sexuality to an employer in a jurisdiction where their rights aren’t protected.

In the U.S., nine states and Washington, D.C., grant workers leave to care for a child whom the worker is parenting, even if the employee lacks a legal or biological connection to the child. Seven states provide for leave only if the worker has a legal or biological relationship to the child. Thirty-four states lack any leave protections for LGBT families.

Read More:

Another Big Law Firm Goes Gender-Neutral, Boosts Paid Leave for New Parents

Can New Leave Policies Help Big Law Escape the Parent Trap?