Tuesday, May 1, 2018

No one should ever have to choose between their children and their job

Three female associates at Morrison & Foerster have filed an alleged $100 million class-action sex discrimination lawsuit against the firm. They claim that their employer “mommy tracks” lawyer moms working at the firm by denying them opportunities for advancement and higher pay.

According to the lawsuit [pdf] (care of the ABA Journal):
Morrison & Foerster discriminates against Plaintiffs and other female attorneys, especially pregnant attorneys and women with children, with respect to compensation and promotions through the use of common policies and procedures. When a female attorney at MoFo is pregnant, has children, or takes maternity leave, the Firm’s standard operating procedure is to hold her back from advancement with her peers, denying her opportunities for greater pay and limiting her progression. This Firm practice reinforces stereotypes that mothers are worse at and less committed to their jobs, and sets in motion a chain of events that leads to the dead end of the mommy track: when female attorneys become mothers, the Firm demands they prove their commitment by working more hours; when they seek additional work, they are denied assignments because of stereotype-driven perceptions that they lack commitment to their jobs. 

No employee should ever face the Hobson’s choice of their career or their family. As long as these employees were performing up to firm standards, the firm’s rules, policies, or stereotypes should not punish them or otherwise prevent them from advancing, period.

But here’s the key: were they performing according to firm standards, or, if not, why not?

Are these employees being held back because they are choosing to work less because of their new families, or because of stereotypes about moms?

Businesses are allowed to apply performance standards (such as billable hour requirements), as long as they are equally applied across protected classes. Thus, for example, if MoFo’s policies say, “To be considered for partner, you must bill 2,000 per year,” and these plaintiffs are falling short because they are choosing to work less to spend time with their families, then they probably have no claim.

If, however, the firm is applying stereotypes about the level of commitment of new parents to deny these moms the opportunity to meet its expectations, then they have something to litigate.

No employee should ever have to choose between their family and their job. But, if an employee voluntarily makes that choice, and fails to meet their employer’s expectations as a result, it is unreasonable to scream discrimination. We all make choices. As long as the employer’s choice is motivated by legitimate non-discriminatory performance standards, and not discriminatory stereotypes, then its treatment of these employees is likely legal.