How pandemic practice left lawyer-moms facing burnout
It is a law of physics that two objects cannot occupy the same space at the same time. Otherwise, matter can collapse in on itself like a black hole. If ever there was a moment when the principles of quantum mechanics applied to American households, this is it. After protracted stay-at-home measures with family members confined together—working, studying, struggling—the bottom fell out, exposing a void where a net was supposed to be.
As the world ground to a halt and parents scrambled for solutions, an uncomfortable truth emerged: Women are America’s default social safety net. It’s a regressive construct that has entrapped and hobbled working mothers across the spectrum—including lawyer-moms. The pandemic simply tightened the screws.
Nothing to do, nowhere to go, no one to help
In the United States, schools are the default child care system for many working parents, and when teachers disappeared, parents became instructors, social outlets and full-time caregivers. And mothers were often the ones left in charge.
Over the past year, countless studies on the subject have shown women have taken on the lion’s share of pandemic parenting, and even with both mom and dad home, mothers are usually the default parent.
Indiana University sociology professor Jessica Calarco ran an online survey of 2,000 parents in December.
“One of the big top-line findings was that 90% of mothers said they were tired, compared to 30% of dads,” Calarco says. Moms “were staying up until midnight or waking up at 4 or 5 in the morning to try to work while their kids were sleeping and then spending the whole day caring for their kids. It just became untenable—they’re exhausted, not sleeping, sometimes drinking more heavily, eating foods that help them cope with the stress. It’s taking a real toll.”
Corin Swift, a partner at Sidley Austin’s New York City office, found herself in a role reversal when COVID-19 hit. Previously, her husband had been the primary caretaker, shuttling the kids to appointments and activities and handling the day-to-day. But when the pandemic began, Swift says, for a variety of reasons the responsibilities shifted, and she became the caretaker parent.
Swift says she is more savvy with technology, so it was up to her to assist her youngest son, who has special needs, with getting on the computer and with remote school while juggling work as a partner in Sidley’s security enforcement and regulatory defense group. It’s a scenario many women find themselves in—shouldering responsibilities simply because that’s what moms do. But because of the growing disparity in child care responsibilities, men have been able to devote significantly more time to their careers, a gap that grew during the pandemic.
University of California at Berkeley-based family researchers Phil and Carolyn Cowan attribute the family management default dynamic to a phenomenon they call “unentitlement.” Almost subconsciously, women fall into traditional gender roles and fail to put their needs, comforts or ambitions first, believing they should do most of the work—simply based on being female. And men largely fall in line with this expectation.
“I think for a lot of my peers, the burdens have fallen much more on women in their caregiving relationships, whether it’s taking care of children or parents or other family members,” Swift says. “The social support structure just went away in the pandemic. Professional women had built up these really strong relationships to help us be successful in the workplace. The pandemic took that away, and we’ll have to start building that back up again.”
For most working-mom lawyers, the most crucial support is child care. When the pandemic closed schools and day care centers and curtailed the use of sitters, nannies and au pairs, moms often ended up doing double duty with half the time.
“I think more firms have started to think about child care in particular as a structural issue,” Swift says. “In my own town, I really saw people trying to keep the schools open and in-person because they needed it for child care. I definitely want the schools to be open myself, but they shouldn’t be there so I can go to work. I hope that people are seeing that we need real child care that is affordable.”
It’s 12 p.m. on Saturday, and Sisavanh Baker has set up her folding chair on the lawn near a baseball diamond in suburban Chicago, opening her laptop at her 10-year-old son’s Little League game to catch up on some legal work. This is her new normal, as the pandemic has further blurred the line between work and personal time.
In the Before Times, Baker and her airline pilot husband relied on au pairs to help bridge the child care gap. Because of her husband’s unpredictable flight schedules, Baker has always had live-in help. But at the start of the pandemic, the family’s au pair flew home to Germany, the kids were suddenly home from school, and Baker was in the same position as many other working-mom lawyers.
“It was a struggle,” says Baker, who is the director of the Department of Human Rights and Ethics for Cook County, Illinois.
She acknowledges her struggle is on the privileged side of the socioeconomic scale. But on a macro level, Baker’s situation mirrors that of other working moms who can’t effectively function in a career without child care—whether that’s day care, a nanny or schools.
“I needed to have a live-in person so I could show people at work. I wanted people to know, ‘You can rely on me!’ Nothing’s going to interfere; that’s the American spirit. But it took another human being living in my home,” Baker admits. “It’s privilege.”
But the fact that a working parent considers child care a privilege exposes society’s neglect for the often crushing burden of caretaking in America—a function overwhelmingly performed through female labor, paid and unpaid. Whether it’s elder care or child care, women are often hired at below living wages for this work, or they shoulder the responsibility at home. The lack of universally available, quality, affordable child care of the sort provided in most other Western industrialized nations is an ongoing, unaddressed crisis that perpetuates women’s economic and professional inequality. And this crisis has a domino effect on the financial freedom, upward mobility, retirement security and rates of women in poverty.
In its 2020 Women in the Workplace report, management consulting firm McKinsey & Co. found that professional mothers are 1.5 times more likely than fathers to spend at least three hours each day on housework. And government data shows women spend approximately twice the amount of time on child care that men do. In early data on the pandemic, one study found that while dads did increase their child care roles during the pandemic, mothers spent significantly more hours every week caring for children.
“I think, generally, even though your husband believes in equity and equality, a lot of it, at least in my experience, just laid on my lap,” Baker says. “A lot of it was just the relationship with the kids—they needed something, they come to you. And especially for me—[my husband’s] not home half the time. Instinctually—in their brain—‘Oh, I’ve got to go to Mom.’ I could be in the middle of doing something totally online, and he’s off work, right in the next room. But it’s like, ‘Mommy, can you just do this one thing?’”
Depending on your practice area and where you work, being a lawyer can take a brutal toll on work-life balance. Lawyering can be all-consuming, 24/7, customer service-driven work without traditional start and stop points.
From the very beginning, law students are taught to burn the midnight oil and compete for top honors. That mentality is carried into legal careers and, at least in BigLaw, a first-in-last-out mentality that has led to mental health crises and burnout in the profession.
Asking for help has historically been perceived as a sign of weakness. And admitting you’re having trouble handling your workload goes against the superlawyer and supermom tropes.
“Mothers are supposed to sacrifice themselves for their children in every possible way,” Calarco observes. “We have this idealized version of intensive motherhood. Research has shown that this is a norm that all mothers are held to. It creates this standard where women are expected to sacrifice their careers, their well-being, their sleep, their mental health for the good of their children.”
Calarco says this “glorification of motherhood” is even more insidious in high-performing careers like law, where there is an expectation of total commitment or the perception of failure.
“During the pandemic, especially moms working in elite professions—they face not only this ideal motherhood norm but also this ideal worker norm that says you’re also supposed to sacrifice everything for your job,” Calarco says.
Marcella, who asked that her real name not be used, is a government lawyer. As the pandemic wore on, she struggled with mental health challenges, a compounding sense of isolation and a lack of career fulfillment. As a single mother with an intense and political legal job, Marcella says at first she was happy to get off the “hamster wheel” and spend more time with her young son, even staying with family in the Caribbean for several months. But remote schooling and a heavy workload were grueling.
“I really, really struggled with my mental health and having to take responsibility for that,” admits Marcella, who says she and her doctor have finally found a medication that’s helping her depression. “I think it surprised some people [at work]. That was one of the challenges that I faced. I had several breakdowns. It definitely affected my work, my ability to stay focused and stay motivated and be creative and be a team player—all that stuff was compromised.”
Many female lawyers—already stretched too thin—have reached a snapping point. A survey of nearly 3,000 attorneys in California and Washington, D.C., found that women’s drinking spiked during the pandemic, significantly outpacing that of their male counterparts. In the study, Stress, Drink, Leave, 55.9% of the women screened positive for risky drinking, compared with 46.4% of male respondents. Alcohol consumption during COVID-19 rose across the board among the lawyers surveyed, with 34.6% of women and 29.2% of men reporting their intake increased. These results are the opposite of a 2016 study conducted by the Hazelden Betty Ford Foundation and the ABA Commission on Lawyer Assistance Programs, which found men drank more, with 25.1% of men screening positive for “problematic drinking” compared with 15.5% of women.
Equally disturbing: Two-thirds of female lawyers surveyed said they suffered from moderate to severe stress, compared with less than half of men. And 25% said they were considering leaving the law because of mental health issues, burnout or stress, versus 17% of the men.
“We really need a cultural shift. People have to learn the lessons from this data,” says Roberta Liebenberg, a principal at legal consultancy the Red Bee Group and a senior partner at Fine, Kaplan and Black in Philadelphia. “Burnout will not disappear. Burnout is not an individual issue. Burnout is a reflection of a workplace and a team that is dysfunctional.”
One step forward, two steps back
The pandemic precipitated the worst economic slump for women in U.S. history with mothers of young children and women of color hit the hardest. Right before COVID-19, the participation gap in the labor market between women and men ages 25-54 had shrunk to its narrowest point. Now those hard-won gains are disappearing, and the gap is widening. This female-skewing “shecession” has erased labor force gains, with the worst occurring early on in the pandemic when about 32% of women ages 25-44 dropped out of the workforce because of child care responsibilities, compared with 12.1% of men in the same demographic, according to the U.S. Census Bureau.
The pandemic has disproportionately affected women and minority attorneys, with female lawyers of color feeling increased isolation and stress. A study commissioned by the ABA’s Coordinating Group on Practice Forward to understand the impact of the pandemic on lawyers’ lives found about 34% of Black attorneys felt anxiety based on race, compared with 12% of Asian attorneys and 5% of Hispanic attorneys. Fifty-four percent of women of color said they sometimes felt stress at work because of their race or ethnicity, which remote work has not helped, according to the report, Practicing Law in the Pandemic and Moving Forward, which surveyed 4,200 ABA members in fall 2020.
“I think what happens is that for women of color, if you’re an associate, whether at a small personal injury firm or an associate at a big law firm, to the extent that you are reliant on someone sharing business with you so you can make your hours, you’re impacted in that way because they are less likely to give you that work,” explains Nina Fain, general counsel for the JSS Family Trust and co-chair of the Chicago Bar Association COVID-19 Member Support Committee. “They may not have given it to you before, but now it’s really more of a struggle. Those are the women whom I’ve observed that are more eager to do something else and maybe to get out of the profession.”
One of the starkest findings from the Practice Forward study, which was conducted by the Red Bee Group: The pandemic influenced many female lawyers to consider stepping back or even leaving the profession. While about 80% of male and female respondents continued to work full time or close to full time during the pandemic, workloads largely increased. Given their home-life conditions, the report notes that 35% of female lawyers were thinking far more often in 2020 than previously about transitioning to part-time work, including 53% of women with children under age 5. “Despite knowing people did have these extra obligations—especially women with young children, billable hours were not reduced,” Liebenberg says. “And there was sort of a culture of working 24/7 … And our data showed that people felt they were on all the time.”
Experts predict the pandemic’s ripple effects will be felt in the legal industry for years to come, warning of a possible talent exodus or a pandemic stall. At the very least, the percentage of female equity partners, already stagnating at near 20% for years, could take a further hit as women step back from full-time law practice. As one participant in a Chicago Bar Association member survey titled Challenges During the Pandemic for Women Lawyers put it: “Women are going to leave the profession, and it’s going to take years to get back to where we were.”
“The profession as we know it will never be the same,” Fain predicts. “One of the things I think will happen is that people will do more work remotely—hopefully, that agility and flexibility will be there, and it will benefit women to the extent it gives them more flexibility in their schedules to raise their families. But if you’re being penalized on the compensation end for that, then it’s not a good thing.”
Reduced schedules can mean the same amount of stress for less money. And flexibility can come at a cost. Being remote versus being in the room can be a particularly damaging trade-off for women or lawyers of color who already struggle to make inroads and get work. About 22% of female lawyers in the Practice Forward survey said they were “very” or “extremely” concerned that continued remote work would be viewed as being uncommitted to the firm.
Women who feel they are already on a long path to partnership worry their careers will be defined by their performance during the pandemic and that flextime options will still be considered “mommy track,” as was often the case in the past.
Their concerns are justified. According to Harvard University labor economist Claudia Goldin, workers in higher-paid professions such as law are disproportionately rewarded for long hours and round-the-clock attention, conditions many working mothers are less willing to accept. Working 80 hours a week versus 40 means billing a lot more for the firm, along with status gains that can lead to partnership or acknowledgment and career advancement at an organization.
“I’m already hearing anecdotes where there is a push to start being in the office more, that more men are showing up in the office than women,” Swift says of the widespread reopening of law firms across the country. “To me, that’s going to be a big problem in terms of developing, retaining and promoting women if it’s men in the office getting that face time with each other. Women are really at risk of being left behind.
“Navigating that is going to be tricky,” Swift admits. “The people able to go back into the office are the ones with the least responsibilities at home. It’s going to impact women.”
Unique point in time
At the ABA Midyear Meeting in February, the House of Delegates passed Resolution 300B, urging Congress and local governments to pass legislation that provides for adequate funding to ensure access to “fair, affordable and high-quality child care and family care.” But congressional action alone will be insufficient to roll back centuries of gendered expectations.
“It just begs the question, ‘OK, now that you’ve seen it, what are you going to do to fix it?’ And fixing it requires a commitment to institutional change,” Marcella says. “What I’d really like to see as we recover from the pandemic is recognizing that family has a value, households have a value and people have a value outside the workplace.” According to the Practice Forward report, 67% of female respondents want employers to have more comprehensive plans for family and sick leave. Other important resources that would help ease the burden for women attorneys include flextime options, on-site child care and subsidies for tutoring and elder care.
The pandemic offers a crossroads opportunity: Firms can take what they’ve learned from the COVID-19 work experience and adjust practices to accommodate working mothers, or they can revert to the status quo that continues to threaten retention rates and their bottom lines. “It’s challenging, and it’s also disappointing because I don’t think there has been the kind of forward movement or progress that women who stepped in early in the game thought would be achieved,” Fain says. “Women are still being marginalized, and they don’t always have the power base to fight back.”
Liebenberg emphasizes the importance of tracking bias in the workplace to ensure diversity goals are “baked in” to firm culture. As GCs increasingly demand more diversity throughout the law firm pipeline and on legal teams, leadership support for women and lawyers of color is crucial to prevent more attrition. But these efforts can’t be cursory and must be regularly measured.
“This isn’t a light switch you turn on and off—it is a process,” adds Stephanie Scharf, a partner at Scharf Banks Marmor in Chicago and a principal at the Red Bee Group. “And I believe if people want to change and if leaders want change, they can get it done. It won’t get done all in one day. You have to take a long view with the expectation that you will end up stronger and have better work and have better business results.”
ABAJournal.com: “How should the legal profession navigate a post-COVID-19 world? ABA group has recommendations”
This story was originally published in the August/September 2021 issue of the ABA Journal under the headline: “Bearing the Brunt: How pandemic practice left lawyer-moms on the verge.”