Out of Sight, Out of Mind: Are Flexible Work Policies Boon or a Bane for Working Parents?

Following in the footsteps of Big Four firm PwC and tech companies including Square and Zillow, Quinn Emanuel Urquhart & Sullivan announced in December 2021 that all its U.S. lawyers are free to work from any geography, regardless of whether the firm has a physical location in said area. Quinn Emanuel becomes the first Am Law 100 firm to implement such a policy. In an interview with The American Lawyer, firm chair and founder John Quinn says “We’re very excited about it. There are opportunities from a recruiting standpoint, and also on quality of life for our lawyers … People have the option of being able to come into an office if they want to. If they want to live somewhere where they can have lunch with their grandmother or make a relationship that’s long distance no longer long distance, they’re going to have that optionality.”

In the same article, Quinn does not suggest doing away with the in-office experience entirely. In fact, the firm opened two new physical locations in Austin and Atlanta in the last year. Going forward, attorneys will have the option to work remotely or in office, and firm initiatives are to be implemented to ensure new attorneys are integrated into the firm’s culture regardless of remote status. As the pandemic drags on, this decision is indicative of a larger push for businesses and law firms to to decide on more permanent flexible and/or remote options. But optionality is the key word here: as years of maternity policies and actualities have shown, just because there are a variety of options for an attorney to choose from does not mean some options are “right” and others “wrong” for long-term career success. While it is difficult to say now if attorneys who opt into a flexible or remote option will have equal long-term careers outcomes as compared to those who select the in-person option, cynics may have a right to cast a suspicious eye until proven otherwise.

The question is, how do law firms ensure equity in remote or flexible work policies, particularly as women are most likely to take full advantage of said policies? Although the concept of the “second shift”—the inordinate amount of household and caregiving duties performed by women after they’ve finished their paid labor—has been well-known in feminist scholarship for decades, the concept received widespread popular coverage as the COVID-19 economy revealed that working parents must choose between a child or a job, but not both. Even with the advent of boosters, services such asschools, childcare, and elder care remain underfunded and understaffed, leaving working parents to juggle caretaking and employment. Women are most affected by this juggling act: although men and women have both worked from home during this pandemic, employed women are three times more likely than men to be their child’s primary caregiver.

While the disruptions caused by the pandemic impairs the ability of all women to juggle a career and a household, it is worth noting that these disruptions are occurring on top of existing inequities that have long undermined the economic status of women of color. In families with children, many women of color who are mothers are also the breadwinner, meaning that they are the sole or primary earner for their family. Even so, we have known women of color consistently earn less than their white and male counterparts. Data obtained by the Center for American Progress in 2020 reveals, among full-time, year-round workers, for every dollar earned by white men, Hispanic women earn 54 cents, Native women earn 57 cents, Black women earn 62 cents, white women earn 79 cents, and Asian women earn 90 cents. While some may point to lockstep compensation as proof that such inequality does not exist in law firms, the reality is that the legal profession has the largest gender pay gap of any occupation. Women earn 54.7% of what their male counterparts make for the same work, and, even in the largest U.S. law firms, female partners’ total compensation is 53% lower than that of their male colleagues according to Above the Law.

These social and economic stressors make women most inclined to take advantage of flexible or remote policies that allow them to support their families at work and at home. At the same time, policies that are poorly thought out, or that do not consider the pitfalls women (and, specifically, women of color) face stand to do more harm than good in the long-term. Although HR and recruiters may dangle the prospective of work-life balance in the faces of young attorneys, the party line of Big Law has been “if you want to be the best one day, you put your head down and do the work.” After all, there are only so many hours in a day: if one attorney spends 40 hours a week and another spends 60, one will acquire more knowledge, experience, and relationships than the other over time. However, this juggling act is unsustainable, and attorneys will eventually have to choose which ball to drop: is it the aging parents who are no longer able to work? The high-risk toddler who cannot go to daycare? The attorney’s own mental, emotional, and/or physical health? Or the 60-hour work week?

Sometimes, the 60-hour work week doesn’t even include all the social and professional hoops a young attorney must jump through in order to secure their dream job. For years, partner-track associates at top law firms have been encouraged to network externally and internally through personal and professional engagement with more senior individuals, rather than just being reactive to attorneys who staff them on cases. Throughout 2021, with remote work as the norm, the advice to young attorneys remained the same, but shifted to one-on-one Zoom meetings. However, as law firms adopt flexible work policies with some attorneys choosing to stay home while others choose to return to a more traditional in office environment, how can law firms ensure that the attorneys who physically inhabit office space aren’t “fast-tracked” or otherwise receive preferential treatment? And how does a firm ensure equitable treatment in a way that doesn’t heap more hours onto partners’ and associates’ already full plates?

One suggestion is to keep virtual networking the norm for all attorneys, not just those who take advantage of remote or flexible policies. This arrangement may even be preferable for some: a 15-minute call to catch up, then close the Zoom window and go back to work, as opposed to having a coffee during lunch or drink after work downtown. As remote work seems here to stay, the opportunities for these types of conversations must remain accessible and free of stigma, especially for attorneys who belong to marginalized populations. Moreover, law firms need to make space for these types of conversation, as well as provide incentives to senior attorneys. A radical option would make these interactions count as a billable, although this is highly unlikely. More realistically, these connections between senior and junior attorneys could check off a firm-wide requirement or be rewarded through the common practice of a generous dinner or lunch stipend.

A more drastic recommendation is to reexamine the open-market system itself. We know that the system of allowing partners to staff their own cases has various pros and cons, one of which includes the trading of competency for personality. Partners in these systems may be more inclined to include the associate they sit next to in the office or the one who always brings them coffee first thing in the morning. Disproportionately obtaining these opportunities, or missing out on them entirely, directly impacts an associate’s billable hour requirement (which is directly linked to salary and bonus) and, implicitly, their ability to get partnership. While partners as well as associates will surely opt in to flexible or remote policies, cultural attitudes related to face-to-face interaction as superior will be slow to change. Therefore, it is of the utmost importance that any flexible or remote policy accounts for the benefits conferred by even the most quotidian interaction, or of being the person whose face everyone knows.

Are any of the above problems unique to law firms? No. Is the law firm the sole battleground for structural inequality? Of course not. However, long-standing structural inequities—fueled by racism, sexism, ethnic stereotypes, and other forms of bias—have created an uneven landscape that makes it difficult for many people of color to secure jobs with solid wages and opportunity for advancement across all sectors. We know that women and minorities make fewer partnership gains in the traditional law firm environment. Moreover, women of color have the highest rate of attrition from law firms, according to a 2021 report from the American Bar Foundation in conjunction with the ABA Commission on Women in the Legal Profession. According to the National Association for Law Placement, women comprised of only 25.1% of partners at major firms in 2020, and less than 4% of all partners are women of color. As of 2020, Black attorneys make up only 2% of partners. We have no idea what these numbers will look like with these new flexible policies, but law firms cannot afford to create an additional barrier to success for women and people of color. Paying lip service to flexible or remote opportunities is useless without also providing significant opportunities and support for the people who can’t or don’t show up in-person.