Maternal bias and the legal workplace

From the point of view of women lawyers seeking a change in job or wanting to move their careers in a different direction, motherhood is often quoted as the top reason for doing so.

One of the first organizations I worked with was an American multinational conglomerate. They had a great work culture and wonderful, employee-friendly initiatives. Being one of the first people to join the process, I was doing well for myself and my clients were happy. But despite the fact that it was and continues to be a wonderful organization, there is one unpleasant instance that has stuck in my mind.

During my first pregnancy, I was advised immediate bed rest due to some medical complications. Since, it was only my mobility that was restricted, I requested for permission to work from home. Although this arrangement was not a norm for my team, it wasn’t something that was unheard of. This was denied to me stating that it would set a bad precedent and I was promptly advised to go on leave instead.

Bear in mind that I was one of the team’s top performers, had been in the system long enough and our work didn’t require a physical presence in the office. I was forced to go on leave, returning to work just 3 months after delivery as I feared my career advancement would get impacted. The worst part was that a colleague was allowed to work from home for more than 2 months because she was suffering from tonsillitis!

I was not convinced by the reason my manager gave for refusing my request. I also felt that the entire incident could have been better handled. If any kind of precedent had been set it would probably have been in the right direction. In hindsight, I wonder if I was subjected to Maternal Bias, however minor or unconscious it may have been.

A bias is defined as a particular tendency, inclination, feeling or opinion, especially one that is preconceived or unreasoned. When such a bias is carried over to the workplace the result is unfair employment practices- be it with respect to hiring, promotions, remuneration or termination. Most of the time a person displaying a bias is unaware that he/ she is doing so as the thought or action is well ingrained into the person’s reasoning process. Biases (implicit or explicit) at the workspace today, are one of the main reasons for discontent and demotivation among employees.

The troubling part is that most of the time we are not even aware how these biases impact our decision-making and attitude towards others. One such bias is Maternal Bias. Simply put, it is the bias that is triggered by motherhood.

Maternal bias is a lesser spoken of but equally prevalent issue women face today and the legal fraternity is no exception to this. Considering that women constitute a major portion of the workforce today, a bias that specifically impacts them is bound to, in turn, impact the society, at large. Working mothers are present in large numbers at various levels and in every possible sector. Their contribution towards the growth of organizations can neither be denied nor be ignored.

Most organizations today are growing up to the need to be more accommodative to their women employees. Women comprise a considerable chunk of the workforce and decision makers and HR kingpins are busy churning out policies and practices that are favorable to women. Working mothers are often put under this general bucket but their needs are different when compared to non-mothers. The result being that these women often face an insensitive or mechanical approach from their colleagues and managers.

In today’s era when time is money, employers don’t hesitate to equate a woman employee’s value add, to the number of hours they put in. There tends to be a natural assumption that a mother who (may) put in lesser number of hours of work is less productive. This further means that she is paid, recognized and appreciated accordingly.

From the point of view of women lawyers seeking a change in job or wanting to move their careers in a different direction, motherhood is often quoted as the top reason for doing so. This is more particularly seen in segments like litigation and law firms where work hours are erratic and where work life balance is almost non-existent. In law firms, for instance, there is almost a 50: 50 ratio of men against women. But the number who makes it to partnership is significantly lesser (some reports have pegged it at 15%).

The concept of billable hours often works against women lawyers. It tends to negate effectiveness and efficiency and encourage potentially wasteful unrelated work. Valuable work, which may be easily accomplished in less time, is not favoured. Women tend to bear the brunt of this as they are forced to choose between spending time with family and putting in longer hours to advance their careers. It is not surprising then, that for many of them, careers tend to take a back seat – they either opt to take a break or settle in for a lesser pay which affords them the flexibility they require.

We conducted a survey on working mothers in the legal profession. The respondents ranged from mid to senior level professionals working under independent litigators, in the legal teams of corporations as well as those working in various positions in law firms.

The findings are as below.

Vahura’s study on the Indian legal workplace

We also analyzed recruiting trends in the past year, with respect to in-house movements of lawyers, to see if data points matched. The findings were interesting.

• Out of the total successful hires, women professionals comprised 47%.

• Out of this number, 35% comprised married women professionals (non mothers) and 12% comprised mothers.

• The average hike earned by mothers was 19% as compared to a 36% hike earned by male professionals and 26% hike earned by non-mothers.

• Married women professionals earned an average hike of 21% in comparison to single women professionals who earned an average hike of 28%.

A corporate lawyer, who was on a career break, recalls how her employer- a well-known telecommunications MNC, created an environment that influenced her decision to quit. She had to take frequent leave early on in her pregnancy due to serious health complications. This didn’t go well with her employers who insisted on her undergoing a health check up, which would in effect confirm her pregnancy! Even after she delivered her baby pre-term, she was asked to report to work at the earliest, failing which she would be forcibly asked to take a sabbatical. This was apart from the fact that she was a top performer who had received good ratings in her previous reviews. In the end, she decided that quitting was the best thing to do, as she didn’t have the time and energy to pursue a legal course of action.

There is a necessity to change the way law firms and legal departments view their women workforce. For starters, they can learn to develop measures or practices, which are more sensitive or accommodative to the needs of working mothers. It would help to start with a simple exercise of self-evaluation or self-awareness to dig deeper to unearth the biases they may be subjecting there working mothers to. A senior in-house lawyer working for an automotive MNC feels that companies overlook the good performance a woman has displayed in the past as soon as they feel that her absence from work impacts the business. “Be flexible, plan ahead, support diversity in the true sense. When you employ a woman, be prepared for what follows naturally”, she says.

There are exceptions – A law firm Partner and litigation head told us that she never had to face any instance of maternal bias throughout her career. She adds that it probably all depends on the position a woman is in and the authority that she wields.

 An IT lawyer with a global IT Consulting firm for more than a decade now, says that the organisation has very favourable policies for its women employees like a good creche, flexi hours, option to work from home etc; She mentions that her performance matrix was reduced keeping in mind her situation which made things so much more easy for her as this ensured her performance doesn’t get impacted.

A contracts lawyer working with an MNC told us that  in her organisation there are many instances of women lawyers being promoted right after or even during the period of their maternity break because they have performed really well previously.

A mid level professional who worked with a Big4 consulting firm, mentions that the firm evaluates performance for the work done while the person was there and links variable pay to the same as well. So in effect the performance rating for a person remains unaffected.

So what steps can an organization take to counter Maternal Bias?

• Making policies that not only appear to be conducive to women but also ensure this in practise is very essential. Regular feedback from women impacted by these policies will ensure a reality check.
• Proper planning should be incorporated right from the time of hiring. If managers and HR staff foresee absence (for whatever reason), measures can be taken to ensure her absence doesn’t impact the business.
• Building a culture that supports and fosters well-being of women employees is very important. Every organization has it’s own unique culture and so the measures to achieve this will have to be unique and creative as well.
• Training women professionals on leadership aspects will help enhance their capabilities and explore their potential optimally so that they don’t feel ignored.

Mahatma Gandhi said, “Be the change you want to see in the world”. We at Vahura constantly try to live up to that. Earlier, our Maternity Policy did not address the issue of how maternity break impacts a lady member’s progression within the organisation. When I got back to work after my second born, my career advancement was put off by a year. This was because I had missed a review cycle (6 months period), which in turn meant that I had no rating for that period. We quickly realised that we needed to address this issue, and I am happy to say we now have a new improved policy, which ensures that the period of absence due to maternity leave is not discounted for increment and promotions purposes.

Realization and acceptance would be the key to eradicating Maternal Bias in our legal workspaces. According to the ‘Women in the Workplace 2015 Study’ conducted by LeanIn.Org and McKinsey & Company, organizations need to make a significant and sustained investment to change company practices and culture so women can achieve their full potential.

The study makes an interesting point about parental leave- it’s not enough to offer it piecemeal. Companies should also ensure that they adjust their annual review process in such a way that it is clear that employees who take the leave are not penalised. It is important to create a culture that encourages women to exercise a perk or an option that is afforded to them.

By Trupti Kulkarni

Trupti Kulkarni is a Senior Consultant at Vahura and presently leads Internal Systems. She is also the first woman Director for Vahura (and proudly admits that she was made a Director after she returned from her Maternity break). And yes, she is also a doting mother to two munchkins!

This article was originally published by Bar & Bench, India's leading legal journalism magazine.