From Findlaw comes an article about the British study discussed in this prior post. In it, Douglas Kmiec discusses what he believes are a number of flaws in the study, including, as previously discussed, equating productivity with billable hours.
From the article:
First, (the study concluded that) 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...
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.
I agree 100% with Kmiec's conclusions, but am not at all convinced that our government or the legal profession is ready, willing or able to embrace the changes that he proposes.
The sexist assumptions of our culture are so ingrained that it will be difficult, if not impossible, to change the attitudes of those at the top of the ladder who are responsible for implementing policies and setting the tone for the country, the profession and the individual workplace.
Call me a pessimist if you'd like. I prefer the to call my perspective that of a reluctantly resigned realist.