Summary

I. The Historical Limitations on Women in the Legal Profession

II. Perceptions: What Women Lawyers Think About Having Children in a Large Firm Legal Practice

III. The Reality: Are Motherhood and Partnership Really at Odds?

A.  Partner Differential Between Women and Men in Private Practice

B.  The Wage Differential Between Women and Men in Private Practice

A.  Federal Protection Against Gender Discrimination

B.  Federal Protections for Pregnancy and Families

1.  The Pregnancy Discrimination Act

2.  The Family and Medical Leave Act

C. The Void in Between: Mother Falling Through the Cracks in Federal Anti-Discrimination Law

A.  Restructuring of the Work Environment and Flexible Work Schedules

B.  Changing Partnership Criterion

C.  Telecommuting as an Alternative to Office Practice

D. Federal Legislation Protecting Parents

E. Forcing Women Out of the Big Firm Market

A. Prerequisites to the Formation of an Attorney Union

B.  Formation of an Attorney Union

C. The Impact of Attorney Unionization

ENDNOTES

Although women have long since been admitted to the practice of law, they still face substantial economic inequities in that practice.  These inequities come in two forms: partnership denial and wage disparity.  The overall consensus among women associates is that becoming a mother takes them off the partnership track.  As a result, mothers also suffer a severe wage differential when compared to their male counterparts.  Scholars and authors have offered many solutions, including changing the working environment in law firms, changing partnership criterion, telecommuting and implementing federal legislation to protect mothers.  These solutions, however, are not adequate to solve the mother discrimination problem in large law firms.  Attorney unionization would adequately rectify the partnership and wage disparities among women attorneys who are also mothers.  Organization of attorneys would be protected by the National Labor Relations Act and would allow attorneys to bargain for contracts with provisions that change partnership criterion and protect mothers from discrimination in partnership decisions.

For years, women attorneys in the United States have been marginalized, particularly in their opportunity to practice law.2  In the late 1800's and early 1900's, most state and federal courts simply prohibited women from admission to the bar and therefore, from appearing in court.3  Women faced "the significant obstacle of obtaining formal recognition as practicing attorneys" without benefit of support and protection from state and federal courts.4

Such court opinions as there were attempting to justify this discrimination cited the unique timidity and sensitivity of women, as the child-bearing sex, which precluded them from becoming practicing attorneys.  For example, in Bradwell v. Illinois, the plaintiff, Myra Bradwell, was denied admission to the Illinois State Bar solely because of her gender.5  When the Supreme Court of Illinois denied her application, Ms. Bradwell petitioned the United States Supreme Court, claiming that her Fourteenth Amendment rights had been violated.6  The U.S. Supreme Court affirmed, stating that "[m]an is, or should be, woman's protector and defender" and that "[t]he natural and proper timidity and delicacy which belongs to the female sex evidently unfits it" for the legal profession.7

 Similarly, in In re Goodell, the Supreme Court of Wisconsin denied the admission of a woman attorney to the bar, stating that "[t]here are many employments in life not unfit for female character.  The profession of the law is surely not one of these."8  The Court went on to describe the vulgarities and ugliness of the profession that made it simply improper for women to deal with on a daily basis.9  The U.S. Supreme Court echoed these concerns in 1908.  That year, it again denied women their right to practice law and be admitted to state bars because of their inherent differences and revered roles as mothers.10

It was the state of Iowa that became the first state to admit women to the bar.11  Federal admission of lawyers to the bat was "just as difficult and frustrating for women lawyers as their state experiences had been."12  Eventually, the United States Senate secured a place for women lawyers when it passed the Lockwood bill,13 which finally recognized the right of women attorneys to be admitted to the bar.

Despite these persistent stereotypes which kept women from obtaining licenses to practice law for decades, women were eventually admitted to the practice of law.14  Although women lawyers have made strides in the legal profession since the turn of the century, inequities between men and women in that profession still persist.  Women in the Baby Boomer generation15 were raised believing they could do anything men could do, including juggling both a family and a career.16 These women attended college, and in many cases even post-graduate educational institutions such as law schools, and entered into the labor force in large numbers.17   However, when these women chose to start families they discovered that their equality at work was only as deep as their commitment to the unencumbered life.18  Those who had children soon found out that trying to compete in a race designed for the unattached was like running in a marathon with a ten-pound weight strapped to each leg.19

Women lawyers were no exception. Like their counterparts in other professions, women lawyers entered the work force in large numbers.  They, too, believed that they could have a high- powered career as a partner in a prestigious law firm and also raise a family.20  The reality of such an arrangement however, was quite different from the belief that women attorneys could have it all.21  In fact, it appears that partnership is directly at odds with a woman's ability to have, and certainly to raise, children.

As an example, consider the story of Manhatten attorney Natalie Judelson:

As a corporate attorney . . . Judelson was at the high point of her career.  She thrived in the excitement of doing corporate law, closing deals and managing a group of lawyers.  'I was driven by my career and I was finally at the point that I had worked so hard to get to' she says.  'And then my daughter was born.'  Judelson tried to balance her roles as a new mother and corporate attorney.  She returned to work after three months, received a promotion and then decided to work part time.  'I thought I could handle everything and be super woman, but I soon realized I wasn't doing a good job at either place,' she says.  'I left my job for good after my daughter's first birthday.'22

In the book Presumed Equal, Suzanne Nossel and Elizabeth Westfall25 studied and talked to hundreds of women attorneys employed at some of the largest and most prestigious law firms in the United States.26  Presumed Equal investigated many of the issues that women face in the private practice of law, including their opportunity to make partner while balancing family and work obligations.  The book poignantly illustrates that women lawyers in private practice feel they are penalized for having children and dealing with the family and childcare obligations that arise.

In fact, Presumed Equal concludes that "attrition continues to be perceived as a widespread problem among women associates, with ramifications . . .  in terms of the number of women making partner."27   This attrition, or the phenomenon of women leaving private law practice in large numbers, is, in large part, a result of women being forced to chose between the grueling hours required to make partner in private law practice and having children.  Those who chose to have children seem to be inevitably punished by being denied the upper echelons of partnership, or at least reaching those ranks significantly later and at a much greater cost than their male counterparts.28

Women who practice law confront a road "split into two paths, one for the career-primary woman and another for the career-and-family women."29  This is often called the "mommy track."30    When a woman is put on the mommy track, she is automatically "perceived as being less committed to [her] job and the quality of [her] work.  Career advancement slows down . . . as does salary advancement . . . and [she] may start getting less desirable assignments and fewer opportunities to grow in [her] job."31

Women who stay on the career-primary track are "promoted much more and receive higher pay" than women on the mommy track.32  Women whom make the choice to have children while simultaneously attempting to work in large firms clearly do not succeed at the same level as those women who "forego motherhood, or place their infants quickly into daycare and keep up the brutal hours firms demand."33  Women who are willing and able to go childless, or who chose not to stay home for extended periods of time "get rewarded with partnerships quicker than those who don't."34  As one New York lawyer posited, "If you were trying to decide who to elect to the partnership, would you choose the person who is always there and successfully takes on all the assignments, or the person who is successful but not going to be there 24/7 if necessary?"35  Unfortunately, it seems that the contemporary structure of many large firms requires choosing the former.

The impact of the partnership-motherhood dichotomy is well illustrated by the stories offered to the authors of Presumed Equal.  They come from women associates and partners in some of the nations largest and most prestigious law firms.  The consensus is alarming.  Women in these firms clearly believe that having children significantly decreases, and may even eliminate, their chance for partnership.

Illustrative of this general feeling, a litigator at Fulbright & Jaworski in Houston, Texas, commented that "[w]omen attorneys . . . are still viewed as either single or 'mommy track.'"36  When asked about partnership opportunities at Shearman & Sterling in New York City, one woman attorney stated that being a woman 'probably does not negatively affect one's chances for partnership,' but having a child 'changes everything! Once children enter the picture, all bets are off.  No matter how highly the associate had been regarded, once she announces she is pregnant, the associate is no longer considered a serious player and her chances for partnership drop geometrically.'37

When surveyed about the issues of motherhood and partnership at Faegre & Benson in Minneapolis, Minnesota, a partner posited that "single women and women without children 'have every opportunity to advance to partnership as men do.'  Married women with children, she added, may be in the same position if they 'do not take substantial leave, work part-time, or have a lot of childcare issues."38  At Hughes Hubbard & Reed in New York, a senior associate commented that "[a]lthough women do enjoy equal chances at partnership. . . 'once children come into the picture, it becomes more difficult.'"39

Echoing these sentiments, an associate from Jenner & Block in Chicago, Illinois, stated that "[d]ecisions to have children during the associate years [may] result in the receipt of lower quality assignments and career derailment."40  According to a midlevel associate at Jones, Day, Reavis & Pogue in Cleveland, Ohio:

'Extremely low numbers of women' are still around for partnership consideration, with most others having either left because of, in part, family pressures or to go on the 'mommy track.'  Remaining at the firm [is] an unappealing choice for most women. . . [the] major drawback to the advancement of women is that there are no part-time partners, so many women feel it is impossible to have family and succeed through traditional channels.41

As these numerous examples and commentaries illustrate, women associates and partners at big firms clearly perceive that having children directly and substantially damages their ability to rise into the partnership ranks.  To an alarming degree, young women lawyers view the birth of children as the death of their professional careers.44

The economic inequities that result from the tension between motherhood and partnership are clear.  Economists sum up, rather simplistically, the impact of children on a professional woman's career:  "As a woman does not work during certain periods, less working experience is accumulated.  [Moreover] during periods of non-participation, the human capital stock suffers from additional depreciation due to lack of maintenance.  This effect is known as atrophy."45

Women who become mothers generally spend less time in the office, and in the workforce, than their male counterparts.  Therefore, so the theory goes, these women gain less work experience and less prestige while accumulating fewer client contacts and forming less stable attorney-client relationships.46  Women who are childless are perceived as putting much more work into the firm, and are rewarded with higher wages and a higher likelihood of partnership.47  Because of this system where women are "burdened" not only with child bearing,48 but in many cases, with child-rearing, "loss in income . . . produces a bigger wage gap between mothers and childless women than the wage gap between young men and women."49  "It is estimated that this difference exceeds $1 million dollars for a woman who has been college-educated in the United States"50 over the course of her lifetime.

In fact, it has been asserted, and from the staggering numbers seems to be true, that a woman's success in the professional world, including the practice of law, is "directly correlated with whether or not she had children."51  Women who are childless have been "twice as successful in achieving a career as women with children.  Fully half of the women who had attained a career by midlife were childless." 52  This phenomenon, penalizing women financially and promotionally for having children, is known as the "mommy tax."53  It has been argued that motherhood is "the single greatest obstacle left in the path to economic equality for women."54

These inequitable penalties for having children are not unique to the legal profession.  Women in many professional occupations face the same types of pressures and suffer severe deflation in career opportunities when they make the decision to become mothers.55

1. Accounting:  Between the years of 1982 and 1992 the percentage of women employees in accounting firms who reached the level of partner was only 5 percent.  Admittedly, this figure rose to 10 percent at several firms by 1997.56  Still, many women CPA's are as apprehensive about having children as women lawyers are because of the career and economic consequences that motherhood inevitably brings.  A survey of 1,450 female CPA's revealed that many wanted to have children, but "were afraid that motherhood would damage their chances for promotion" within their accounting firm.57

2. Science:  In scientific professions where the end goal is a tenured professorship with a college or university, the number of women who actually achieve this prestigious tract is alarmingly small.  One woman employed in professional science commented that "she never met a woman who left science to take four or five years out for child-rearing who subsequently returned to a tenure track."58  As in other fields, motherhood serves as a looming obstacle standing between women and professional success.

3. Medicine:  Similarly, in the medical profession, women who decide to have children are penalized in their professional careers.  Studies in the medical profession revealed that "[t]he wage gap . . . has virtually disappeared among physicians under age forty-five-provided that they work the same hours, pick the same specialties, and work in the same practice arrangement" as their male counterparts.59  Women who choose to have children are unwilling or unable to make similar commitments, and therefore, earn lower income and fail to rise to the upper echelons of their profession.60
Although this "mommy tax" plagues women across many professions, it is uniquely present in the legal profession where women partners in prestigious law firms are few and far between, especially if they have children.  Specifically, there are two particular areas in which women attorneys in large firms suffer economic inequities: (1) the denial of partnership, and (2) the inequities in pay between women and men attorneys as a result of partnership exclusion.  These two areas are inexplicably intertwined with each other in that denial of partnership contributes significantly to the widening wage differential between women and men attorneys in private practice.

A. Partner Differential Between Women and Men in Private Practice

The first area in which women lawyers suffer from inequality is in the selection and promotion of partners in private law firms. The American Bar Association (ABA) Council on Women recently compiled statistics comparing male and female attorneys and the level of success they have achieved in law firms.61  The ABA reported on the number of associates and partners in national private practice firms. The ABA first looked at women's presence in private practice.  According to the figures, 46.26% of women in private practice firms were summer associates.62  Approximately 42% were associates.63

That number drops dramatically, however, when it comes to women partners.  Only 15.63% of women in private practice are partners.64  According to this figure, a little more than 1/3 of women associates in private practice firms make it to the level of partner.65  These figures are illustrated in the following bar graph reproduced by the ABA:66

In accordance with these figures, the National Association of Law Placement (NALP) reported that "87% of law firm partners are still men."67  Linda Bray Chanow explains that legal work generally requires lawyers to work overtime.  Those women who work only 40 hours a week "must either quit or seek out part-time status."68  This part-time status takes women off of the partnership track and results in "less desirable assignments and office space, and reduced opportunities for business and professional development."69

The issue here is clear.  Fewer women partners in law firms are not a result of fewer women entering into the practice of law.  In fact, "for two decades, law schools have been graduating larger and larger numbers of women, and since the mid-1980's, about 40% of law school graduating classes have been women."70  In fact, women will comprise the majority of law students in the coming years.71  In 1998, women actually made up 28.6% of practicing lawyers, but continue to "face substantial and unique challenges, especially in attaining partnership."72

The lower numbers of women who are admitted to the higher echelons of law practice are a direct result of the fact that they "continue to have primary responsibility for family work."73  In fact, "the decision to have children has a tremendous impact on a woman's partnership prospects."74  This is because the partnership track, usually lasting between seven and ten years, collides with the child-bearing years of a woman who graduates from law school between the ages of twenty-four and twenty-six.75  Having children while practicing law in a large firm has proven to "temporarily remove an associate from the partnership track, and may even remove the associate from consideration all together."76  This is generally because "women's commitment is questioned because they may not be available for work at night or on the weekends, or because they are not treating partnership as the be-all-and-end-all of existence."77  Associates usually refer to this phenomenon as "being caught 'between the brass ring and the biological clock.'"78  These family commitments directly contribute to women being passed over for law firm partnership, and consequently, being passed up for the substantial salaries that accompany that partnership status.79

B. The Wage Differential Between Women and Men in Private Practice

The second critical area in which the economic inequity between men and women lawyers becomes apparent is in the wage disparities that exist between the sexes.  This is a direct result of women failing to make partner as frequently as men.  It is estimated that women without children earn up to 90% of men's salaries, but "mothers earn a mere 60%."80  This figure makes it quite clear that in addition to being penalized in terms of upward career mobility, women are also financially penalized for having children.81

A study of 1974 graduates from the University of Michigan School of Law found that although both male and female graduates had received identical training in the law, women were earning only 61% of what men from that same class earned.82  One conclusion reached in this study was that the motherhood responsibilities placed on women "were certainly the most important single cause of sex differences in earnings."83

Similarly, the ABA reported on the wage differences between men and women in the legal profession using the United States Department of Labor, Bureau of Labor Statistics for the year 2000.84  According to these statistics, women lawyers who were working full time earned a weekly median average salary of $1,054.85  This figure was compared to male attorneys who earned a weekly median average salary of $1,448.86  Women lawyers earned only 73% of male attorney's median weekly salaries.87  These statistics have been reproduced by the ABA in graph form:
 

The state of Arizona breaks these figures down further.  The Arizona Bar Association estimates that by the time women reach their sixth year in practice, they are earning $35,000 less than their male counterparts, also in their sixth year.88  These disparities in Arizona, and around the country, are based on the fact that women are placed on the mommy track, ensuring that they do not reach the same levels of success as their male counterparts.89

Also contributing to lower wages for mothers is "schedule creep."90  Joan C. Williams, a Professor of Law at American University, Washington College of Law, describes schedule creep as occurring:

when part-time lawyers find their schedules creeping back up towards full time-a common problem.  In many firms, schedule creep results in a lower per-hour wage, given that many firms do not have a "look-back" provision, which allows lawyers who have worked more than their part-time hours to be paid retroactively for the number of hours they actually worked . . . .91

Based on this evidence, it is clear that women attorneys who choose to have children do, in fact, forfeit their place on the partnership track.  As a result, they also forfeit salaries equal to those earned by their male counterparts.  Equally clear is the fact that the law in the United States fails to protect women lawyers from discrimination in partnership decisions based on their status as mothers.

Given the clarity of the problem discussed above, the next logical question concerns the protections offered by federal law for mothers who are denied partnership opportunities.  Very few cases concerning partnership decisions and discrimination have reached the Supreme Court.  Those that have are not on point when the issue is denial of partnership as a result of motherhood, rather than denial based solely on sex.  The protections offered by Title VII to rectify gender discrimination and the protections offered by the Pregnancy Discrimination Act and the Family and Medical Leave Act to rectify discrimination against women due to their pregnancy and family medical emergencies do not address the problems presented in this paper.  In fact, denial of partnership status as a result of motherhood falls somewhere in between the protections afforded to pregnant women and the protections afforded to women based on their gender.

A. Federal Protection Against Gender Discrimination

In Hishon v. King & Spalding, the United States Supreme Court announced that a female associate who is denied partnership "as a result of employment discrimination" has a cause of action under Title VII of the Civil Rights Act of 1964.92  The Court ultimately held that partnership was a privilege of employment, and that Title VII protections therefore applied.93

 Elizabeth Anderson Hishon was employed as an associate at the large Atlanta law firm of King & Spalding.94  Hishon filed suit alleging employment discrimination in violation of Title VII eight years after her employment at King & Spalding began.95  At that time there were not, and never had been, any women partners at the firm.96  Hishon took employment at King & Spalding with the "prospect of partnership" being a critical factor in that decision.97  Hishon was considered for partnership in 1978 and was denied that status.98  She was again denied partnership status one year later.99  According to firm policy, "[o]nce an associate is passed over for partnership . . . the associate is notified to begin seeking employment elsewhere."100  As a result, Hishon was fired from King & Spalding in late 1979.101  Hishon's petition, filed with the Equal Employment Opportunity Commission, alleged that King & Spalding "had discriminated against her on the basis of her sex in violation of Title VII of the Civil Rights Act of 1964."102  The respondent claimed that Hishon's complaint did not state a claim under Title VII and, due to the unique nature of law practice and partnership decisions, Title VII's prohibitions simply did not apply.103

 In answering these arguments, the Supreme Court found that partnership advancement was, in fact, a term or condition of employment to which Title VII protections applied.104  The Court indicated that "nothing in the change in status that advancement to partnership might entail means that partnership consideration falls outside the terms of the statute."105  The Court further found that Congress did not exempt partnership decisions or law firms from Title VII's protections, and therefore, that these decisions could not be made based on sex.106  The Supreme Court ultimately concluded that:
in admission decisions made by law firms, it is now widely recognized-as it should be-that on face neither race nor sex is relevant.  The qualities of mind, capacity to reason logically, ability to work under pressure, leadership, and the like are unrelated to race or sex.107

The Hishon case allowed women lawyers to bring a viable cause of action against their respective law firms for sex discrimination in partnership decisions.  Following Hishon, the Supreme Court again addressed the issue of discrimination in partnership decisions in Price Waterhouse v. Hopkins.  This case involved Ann Hopkins, an associate at Price Waterhouse in Washington, D.C.108  After five years with the company, Hopkins was nominated for partnership and was eventually "'held' for reconsideration the following year."109

The partners refused to re-nominate her for partnership consideration the following year.110  Evidence presented at trial indicated that many partners at Price Waterhouse objected to Hopkin's personality, asserting that she was "macho", unladylike, and masculine in her dealings with co-workers.111  Apparently, women were rated favorably in the partnership evaluation process at Price Waterhouse "if partners believed they maintained their femin[in]ity while becoming effective professional managers."112

 Hopkins alleged that Price Waterhouse engaged in disparate treatment discrimination, based on sex, in violation of Title VII.113  The U.S. Supreme Court indicated that "[t]he critical inquiry, the one commanded by the words of § 703(a)(1), is whether gender was a factor in the employment decision at the moment it was made."114  The Supreme Court ultimately remanded the case so that Price Waterhouse could have the opportunity to prove by a preponderance of the evidence that it would have made the same employment decision even if Hopkins had not been a woman.115  Hopkins eventually prevailed in her claim and was awarded partnership at Price Waterhouse.116

 Hishon and Hopkins clearly stand for the proposition that women attorneys and professionals can not be denied partnership status based on their sex.  In fact, under Title VII, when "an employer considers both gender and legitimate factors at the time of making a [partnership] decision, that decision was 'because of' sex and the other, legitimate considerations" are not enough to make the partnership decision nondiscriminatory.117  The problem identified previously in this paper, however, is one of discrimination based on motherhood rather than one based on sex.  Unfortunately, Title VII does not "allow for any special accommodation for the needs of mothers and children."118  Therefore, women who are penalized, not because of their sex, but because of their decision to be mothers, fall outside the protections offered under the Title VII framework.  The question then becomes whether federal law affords any protections for women in regards to their decisions to become mothers and still remain viable partnership candidates.

B. Federal Protections for Pregnancy and Families

1. The Pregnancy Discrimination Act

Title VII did not originally include protections for women,
or men, based on pregnancy.  The Supreme Court found that discrimination on the basis of pregnancy was not considered illegal sex discrimination under the provisions of Title VII.119  Congress responded to the Supreme Court's prior rulings by amending Title VII with the Pregnancy Discrimination Act (PDA),120 which "requires that employers provide for women only the same disability policy that they already provide for men."121  The amendment to Title VII clarifies that "because of sex" includes discrimination because of or on the basis of pregnancy.122

 The Pregnancy Discrimination Act, however, does not protect mothers from discrimination in partnership decisions.  As one author clearly points out, the PDA only recognizes and protects "the mother's ability or inability to work [when pregnant] . . . protects only the medical aspects of pregnancy . . . [and] requires no accommodation for pregnancy and childbearing unless such accommodations are made for other medical conditions."123  Because of its narrow framework, the PDA "rejects the notion that the act of bringing children into the world is an activity for which a greater level of protection or support should be required than for medical conditions that lead to similar levels of ability or disability to work."124  Under the PDA, employers are "not compelled to afford preferential treatment" to women based on their pregnancy.125  For these reasons, the PDA simply does not afford protection to women who are discriminated against in partnership decisions because they are mothers.

2. The Family and Medical Leave Act

The only other federal legislation that may protect
women against discrimination in the workplace is the Family and Medical Leave Act (FMLA).  The FMLA entitles employees "to up to twelve weeks of aggregated annual leave, after which their jobs are guaranteed back to them."126  The FMLA, however, does not require that employers compensate employees for the wages they lose when they take those twelve weeks off.  Furthermore, the Act only applies in situations including "leave relating to the birth of a child . . . [or] to care for a seriously ill child . . . ."127  Although this legislation does protect women lawyers from discrimination based on the twelve weeks they can take off to bear or be with their children, the twelve weeks "constitutes only a fraction of the time necessary to raise sound children."128  Furthermore, the FMLA guarantees that a woman lawyer would retain her job after she has a child, but it does not guarantee that she will not be penalized in terms of partnership decisions for making that choice.

C. The Void in Between: Mothers Falling Through the Cracks in Federal Anti-Discrimination Law

The problem with these federal regulations is that they do not extend protection to women who are denied partnership opportunities, not because of their gender or because they are pregnant, but because they are mothers.  As one historian noted, "in the U.S. we have no way to address women's economic disadvantages except through the concept of gender.  We see the problem as discrimination on the basis of gender.  But what's really going on is a disadvantaging of mothers in the workforce."129  Federal case law also lacks protections for mothers.  In fact, "[e]xcept for the issues of pregnancy discrimination and maternity leave, the concept of motherhood, or even the words children or family, are very rarely, if ever, mentioned in judicial opinions or legislation relating to the workplace."130  In general, these laws are simply not "responsive to the needs of mothers and children" and leave mothers no protection from discrimination in partnership decisions.131

As evidenced above, the economic inequalities associated with being a mother persist despite the meager efforts made by federal law to eliminate their existence.  Various political action groups, scholars and authors have offered suggestions and solutions for rectifying these problems.  Unfortunately, many of these solutions have proven to be unworkable or ineffective in solving the partnership and wage disparity women lawyers suffer.  This is primarily because law firms have little incentive to implement them.  Because large law firms are not forced to adopt more humane working schedules and alternative partnership criterion, those types of changes, at present, remain only ideological.

A. Restructuring of the Work Environment and Flexible Work Schedules

Many scholars and writers argue that in order to curb the economic inequities suffered by women as a result of discrimination in partnership decisions, a fundamental ideological change in the way in which society views the dual roles of work and motherhood is required. Proponents of such changes argue that, rather than the dreaded 'mommy-track,' men and women should be placed on the "'family-track'-a balanced lifestyle devoted to both home and career."132  Proponents urge that corporations, including large law firms, need to restructure the working environment so that they "'focus intently on flexible arrangements and opening doors for women and children.'"133  Proponents of a change in the working environment argue that "a change in law firms' perception of work commitment, whether forced or naturally accepted, is the only hope for adequate women representation in the future."134

Unfortunately, flexible work schedules seem to be part of the problem, rather than the solution.  Flexible work schedules are often another word for the "mommy track."  As previously mentioned, schedule creep infringes on the primary purpose of more flexile work schedules.135  Additionally, stigma associated with a slower schedule results in the perception that mothers are less committed.  Mothers are treated differently from other full time lawyers, and are frequently removed from the partnership track all together.136  Also, even when firms offer part-time status, women who fear that it will result in their immediate removal from the partnership track often turn down such accommodations.137  In fact, the ABA's Commission on Women in the Profession notes that "attorneys hesitate to use flexible work schedules, because they fear serious professional repercussions."138

Additionally, feminist scholars suggest that these flexible schedules "acknowledge that women need special consideration to handle motherhood" and make women "second-string players, not likely to reach the top of their profession."139  For these reasons, more flexible work schedules serve separate women associates with children from childless female associates and male associates.  This results in a perceived lack of dedication and delay, or eventual denial, of partnership status.

B. Changing Partnership Criterion

Throughout the course of this paper, it has become clear that billing hours is one of the most important duties required to make partner.  The almighty billable hour becomes very difficult when a lawyer takes time off for maternity leave, or alternatively, decreases the number of hours per week that she works.  One of the most frequent solutions posited for this particular problem is that the criterion used by large law firms to make partnership decisions should be changed. This proposed solution suggests that "the measure of a good lawyer shouldn't be how many hours you fill yourself at the office."140  As one author suggested:

The most obvious answer to this dilemma is for firms to adopt another criterion to measure an associate's success and commitment; perhaps by taking a quality not quantity approach.  For instance, the firm could judge an associate on how well she represents her clients than on how many clients she has.   However, firms are not jumping on this concept.  [F]irms have little incentive to employ a part-timer when the can find  full-timers to fill the

 Reaction to the CBA's proposal has been mixed.  Many critics argue that this system rewards women with equal pay and promotion for less work.  Others contend that women choose to be mothers, and therefore choose the economic consequences of doing so.  Therefore, women lawyers "should not choose the benefits of motherhood, and then demand that their legal colleagues-many of whom have themselves decided to forgo those benefits-compensate them for their losses."144  Regardless of the questionable validity of these arguments, the changing of partnership criterion is unlikely to happen in large law firms unless such a change is legislatively or ethically mandated.  Unless a change in partnership criterion is forced on large law firms, they are unlikely to adopt it freely or without significant pressure to do so.

 On the other hand, there is merit in these arguments to some extent.  This paper certainly does not advocate that mothers be paid precisely the same salary and promoted at exactly the same rate as those individuals who do, in fact, bill 2000 (or more) hours a year.  This would clearly be equal pay and promotion for less work.  Law firms are justified in requiring that associates "pay their dues" to the firm before they are promoted to partner.  The CBA proposal does, however, highlight the difficulty inherent in the current billable hour requirements that form the primary basis for partnership decisions in large law firms.  It is precisely those requirements that form a barrier between mothers and partnership.

C. Telecommuting as an Alternative to Office Practice

In order to allow women to bill the hours required by large large firms, while still allowing them to attend to family obligations, many firms have allowed their lawyers to telecommute.  Telecommuting involves using phones, computers and related equipment to work outside the traditional office space. . . [and allows] lawyers to bring their offices anywhere their cell phones and laptop computers can go, including hotels, home offices, airports and sidelines at children's soccer practices.145

Telecommuting allows lawyers, particularly women with children, to attend to those family obligations while still putting in the hours required to attain partnership at a large law firm.  Telecommuting is on the rise among American lawyers, with "nearly 900,000 lawyers and judges . . . performing at least some work from home."146

 Unfortunately, there are many disadvantages to telecommuting as an option for mothers. First and foremost, there seems to be a decrease in status when one begins telecommuting.147  In fact, one female lawyer indicated that when she began to telecommute, "[she] really d[id] step off the fast track."148  In addition, women who choose to telecommute are faced with the same misperceptions about the level of work they are actually completing.  One attorney noted that "it was an uphill battle trying to make people understand that I was working at home just as hard as, if not harder than, those attorneys who were putting in face time downtown."149  Finally, it seems unlikely that law firms will fully accept telecommuting as a solution to the work-family problem.  As one telecommuting consultant stated:

Law firms today want to be seen as with-it organizations and want to shed the image of being stodgy and having walnut-paneled offices . . . . Moving toward telecommuting is a step in that direction, but law firms' need for a physical presence probably won't ever go away.  Some things still need to be done face to face.  The challenge will be to find the right mixture.150

Apparently, several states recognize the protection of parents against employment discrimination.  However, there is currently no comprehensive federal legislation dealing with these issues.151  The Ending Discrimination Against Parents Act (EDPA), the "basic framework" of which "parallels Title VII," was signed by President Clinton in 2000.  The Act, however, only covers federal government employees and contains no protections for women who are privately employed.152

There have also been proposals that motherhood or parenthood be added as a protected class in Title VII legislation.153  Some advocates have suggested that anti-discrimination provisions be added to Title VII to prevent disparate treatment of parents or mothers.154  Opponents to this solution have argued, however, that "treating parents as a protected class lack[s] transformative power" and "also raises concerns about the scope of anti-discrimination doctrine."155  In the University of Michigan Journal of Law Reform, Peggie Smith argues that adding parents as a protected class simply does not fit into the Title VII scheme.156  For example, parenthood is not an immutable characteristic like the other classes protected by Title VII; there is no meaningful history of discrimination against parents; and there is no significant lack of political power held by parents.157  For these reasons, motherhood or parenthood simply does not fit into the Title VII schema, making Title VII's remedies rather ineffective for rectifying the discrimination against mothers in today's law firms.

E. Forcing Women Out of the Big Firm Market

 Another solution surely to be raised in response to the partnership-motherhood problem is that women should not accept job offers or have expectations of making partner in a large law firm if they also intend to have children.  Proponents of these types of arguments will contend that there are many different types of jobs that one can do with a legal degree.  For example, women with children may be more suited for in-house corporate work, public interest work or government work.  Although this argument does have some merit, and it is true that women do have alternatives to large firm practice, they should not categorically be excluded from success at these large firms simply because of their decision to have children.

An innovative and effective solution to the tension between motherhood and partnership in large law firms is the unionization of lawyers.  Unionization would allow lawyers to collectively bargain for better working conditions, including a decrease in minimum billing requirements and more flexible schedules that do not impact partnership decisions.  Attorney unions would also have the ability to bargain for different partnership criterion that would accommodate mothers more effectively.  Attorney unions would tip the scales of power in favor of attorneys rather than the law firms for which they work.  Unionization would also allow change within the law firm structure to be forced absent a legislative mandate.

A.  Prerequisites to the Formation of an Attorney Union

The organization of lawyers into labor unions would be guided by the National Labor Relations Act (NLRA).  The NLRA gives employees protection when they choose to form or join an organized labor organization.  The Act allows employees to  "collectively bargain with employers for competitive wage earnings and good working conditions."158  The NLRA has several requirements that must be met before the NLRA and the National Labor Relations Board (NLRB) will protect the activities of a union.

First and foremost, there must be a labor dispute, or "any controversy concerning the terms, tenure, or conditions of employment."159  Certainly there are controversies concerning the terms, tenure and conditions of employment between attorneys and the law firms.  These controversies include, but are not limited to, billable hour rates, parental leave and partnership decision criteria.  Meeting this particular requirement is rather simple, however, given that the meaning of labor dispute under the NLRA is quite expansive.160   In simple terms, organized attorneys must have a discrepancy over the terms and conditions of their employment.  Alternatively, law firms would have to be unwilling to negotiate about these terms and conditions.  The conditions, as described previously in this paper, seem to be ripe for such a labor dispute.  Law firms are generally unwilling to change partnership criteria or stop discriminating against mothers in partnership decisions.  In addition, labor disputes over minimum billable hour requirements and flexible work schedules are also ripe at this time.

Secondly, the business activity in which the employer participates must be one that "affects commerce" as defined by the NLRA section 2(7).161  The term commerce is defined in the NLRA as "trade, traffic, commerce, transportation, or communication among the several States . . . ."162  Affecting commerce "means in commerce, or burdening or obstructing commerce or the free flow of commerce, or having led or tending to lead to a labor dispute burdening or obstructing commerce or the free flow of commerce."163  The NLRB previously found that law firms were not "engaged in the production, distribution, or sale of goods in commerce" and only "render advice and services directly related to the law rather than to commerce."164  The NLRB re-addressed the issue of whether law firms were engaged in or affected interstate commerce in NLRB v. Foley, Hoag & Eliot.  In Foley, the NLRB concluded that "law firms, as a class, do have a substantial impact on interstate commerce" and are therefore, under the jurisdiction of the NLRA and the NLRB.165

Finally, the NLRB must have jurisdiction over both the employer and the employees.166  The Act covers and includes most employers, with only government and union employers, companies with municipal functions, any employer covered by the Railway Labor Act, and religious schools being exempted.167  Law firms, therefore, would clearly constitute employers under the terms of the National Labor Relations Act.

The problem that attorneys face under the NLRA is that the Act "only protects the rights of employees as defined under the Act."168  The Act does not adequately define what constitutes an employee, but it does clearly lay out those individuals who are not considered to be employees.  Section 2(3) states that the term employee shall not include:
 

any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act . . . or by any other person who is not an employer as herein defined.169

As this definition makes clear, independent contractors are exempted from the protections of the NLRA.170  Perhaps the greatest obstacle to the formation of attorney unions is the question of whether lawyers fall into the category of employees, or qualify as independent contractors.  According to a recent article published in the Hofstra Labor and Employment Law Journal, "independent contractors work and get paid on a job by job basis as opposed to employees who work for a set hourly wage or annual salary."171  The NLRB currently uses the "right of control" test in order to determine if an individual is an independent contractor.  Under this test, "a person is an independent contractor if the hiring party only has control over the end result.  If the Board finds that the worker in question does not have any control 'over the manner and means by which the result is accomplished' that worker is an employee."172

 Attorneys may not constitute employees per se, but the Taft-Hartley Act, which amended the NLRA, does provide for the unionization of "professional employees."173  Although lawyers employed by insurance companies have been considered professional employees and have been protected by the Act,174 "the Board has considerable latitude in deciding whether employees are professionals or not."175  The Taft-Hartley amendments specifically define a professional employee as:
(a) any employee engaged in work (i)predominantly intellectual and varied in character as opposed to routine mental, manual, mechanical, or physical work; (ii) involving the consistent exercise of discretion and judgment in its performance; (iii) of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time; (iv) requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study in an institution of higher learning . . . as distinguished from a general academic education or from an apprenticeship or from training in the performance of routine mental, manual, or physical processes.176

Lawyers certainly are involved in intellectual work that isn't routine and mechanical, as manual labor would be.  Furthermore, lawyers are charged with a high degree of professional discretion and judgment while serving the needs of their clients and working on various matters.

Additionally, in many ways, the work of a lawyer can not be standardized.  Although it is true that forms and templates can be used for many kinds of legal documents, the analytical reasoning and legal arguments that an attorney develops and uses are not of the type that can easily be standardized.  Finally, lawyers engage in a prolonged study of the law when they attend law school, where they receive advanced, specialized knowledge about the law.  Lawyers have also been cited as an example of a professional employee, along with nurses, pharmacists, doctors, engineers and accountants.177  For these reasons, it seems likely that lawyers would be considered professional employees and entitled to organize under the NLRA and the Taft-Hartley Amendments to that Act.

One caveat to note, however, is that partners in law firms are probably not considered employees, and may not be entitled to protection under the NLRA.  The NLRA does not include supervisors in its definition of employee.  Supervisors are described as:

any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility to direct them, or to adjust their grievances, or effectively to recommend such action . . . [if such decisions] require the use of independent judgment.178

B.  Formation of an Attorney Union179

 Professional employees who chose to form unions are regulated by "special rules" when it comes to enforcing their collective bargaining rights under the NLRA.180  The process would begin in one of two ways.  Either one or more lawyers would contact a particular union and ask for their help in organizing, or the union would approach a number of lawyers.181  Union organizers would first have to engage in an educational campaign, garnering support for the union and informing attorneys about the benefits of unionization.182  This is quite a lengthy process in which communication between attorneys and union organizers is crucial.183

 After the preliminary organizational and informational work is completed, the "actual attainment of recognition and bargaining rights" is paramount.184  Before a union can "be recognized as the exclusive bargaining agent" for attorneys, it must first "represent a majority of employees in an appropriate bargaining unit."185  The union must first establish an appropriate unit186 in order to identify "eligible voters" for an official union election.187  Professional employees are considered an appropriate bargaining unit, as long as they are not grouped in with unprofessional employees "unless a majority [of the professionals] vote for industrial union representation."188  Since lawyers seem to fall within the definition of professional employees, they constitute an appropriate bargaining unit.  The union would then distribute authorization cards which would be used to "designate the union as the[] bargaining representative."189

If a majority of employees appointed the union as their bargaining representative on the authorization cards, official recognition would subsequently take place in one of two ways.  First, union representatives would send notification to the law firm employers indicating that a majority of employees support and recognize the union.190  The employer would then accept the authorization card result and voluntarily bargain with the union.191  This phenomenon is highly irregular, however, and employers generally will not accept the union without a formal election.192  The more likely scenario is where the law firm employer requests a NLRB organized election.193  In an organized election, attorneys within the unit would "vote by ballot, first on whether they wish to be included in an overall unit, and second on whether they wish to be represented by the petitioning union."194  If the union wins a majority, either by authorization cards or a Board ordered election, the employer has a duty to collectively bargain in good faith with the union or will face penalties under the NLRA.195

C. The Impact of Attorney Unionization

 Although attorney unionization would have far-reaching benefits for both female and male lawyers, the potential benefits for mothers are stunning.196  Unionization can be particularly beneficial for women.  In fact, "women . . . need the strength through unified support that only a union contract can provide."197  Unions can bargain for contracts concerning the terms and conditions of firm employment.198  These contracts can include provisions for lower billable hour requirements so that women with children are not marginalized in the manner previously described in this paper.

Furthermore, unions can bargain for alternative partnership criteria that do not penalize women who are mothers.  Unions can fight for paid leave for women who have children and need to take that leave either for child birth, or to care for children after their birth.  Unions would also give women a voice through a recognized and organized association.  Women lawyers could have a significant say in negotiating their employment contracts so that the terms and conditions of these contracts would benefit them.  Unionization could provide collective action for all attorneys, particularly women attorneys, who feel that the current model of law firm management discriminates against them as mothers and parents.

 There certainly are barriers to the formation of an attorney union, the major one being law firm opposition to unionization.  Attorneys, especially at large firms, tend to be "conservative and staid by reputation and history" and tend to harbor anti-union sentiments.199  Many of these firms spend significant time defending employers against the actions of unions.200  It seems illogical that associates working for these firms would organize into labor unions.  This hesitation primarily results from fear concerning the repercussions that organization could have on the career of an attorney who made such a choice.

Attorney unionization, however, would protect associates from the anti-union sentiments that may permeate the large law firm environment.  The NLRA would protect the right of associates to "engage in concerted activity."201 Furthermore, the Act also "prohibits discrimination regarding hiring, tenure of employment, or condition of employment with the intent to . . . discourage membership in a labor organization."202  This means that a law firm could not fire, deny promotion or benefits, or give less favorable work to an associate because of his or her union affiliation.203  NLRA protections ensure that law firm employers would not be able to discriminate further against associates who choose to join a union.  Therefore, although law firms will most likely be strongly opposed to the formation of an attorney union, union members will be protected from further discrimination by those firms.

VII. Conclusion

The economic inequities visited upon mothers, in the form of foregone partnership opportunities and unequal pay, are quite clear.  Women lawyers are heavily penalized for having children.  They are denied partnership opportunities in large law firms and they are forced onto the mommy track.  When put on this track, they are essentially sabotaged when it comes to partnership and as a result, receive lower wages.

Current federal law regarding discrimination in partnership decisions suffers from an inescapable void.  Federal law, through Title VII, protects women from discrimination in partnership decisions based on their sex.  It also protects pregnant women and new mothers from discrimination based on their status as being pregnant.  The law does not, however, provide a remedy for women who are mothers.  It seems, therefore, that the problem is one of mother discrimination.

Writers and scholars have offered many solutions to this problem.  These suggestions, however, are simply not viable solutions to the problem.  In many cases, they only work to stigmatize women further in law firm practice.  The ultimate solution to this problem may be the unionization of lawyers in the United States.  Unions would generally provide lawyers with a more humane working environment and would ensure partnership decisions that are not based on the decision to have, or not to have, children.  Although unionization is a daunting task for lawyers, the implications of organization and collective bargaining would fundamentally change the structure of current law firm life not only for women attorneys who are mothers, but also for childless women and men associates.

1  J.D. Candidate, University of Iowa College of Law.  This paper was completed as part of the Economics of Law Practice Seminar at the University of Iowa and under the direction of Professor Nicholas Johnson.  I would like to thank Professor Johnson for his help in developing this paper, especially in developing the recommendation section.

2 See Carrie Menkel-Meadow, Culture Clash in the Quality of Life in the Law: Changes in the Economics, Diversification and Organization of Lawyering, 44 CASE W. RES. L. REV. 621, 627 (1994) (stating that women faced entry barriers to the practice of law early in the century, and that women "were formally excluded from legal education and form licensure.").
3  See generally Bradwell v. Illinois, 83 U.S. 130 (1872); In re Goodell, 1875 WL 3615, 1 (S.Ct. Wis 1875); Muller v. Oregon, 208 U.S. 412 (1908).  In each of these cases, the respective courts (the Wisconsin Supreme Court and the Supreme Court of the United States) reasoned that because of the gender differences between women and men, and in particular women's role of bearing children and carrying on the human race, women were properly excluded from the practice of law.
4  Nancy L. Farrer, Of Ivory Columns and Glass Ceilings: The Impact of the Supreme Court of the United States on the Practice of Women Attorneys in Law Firms, 28 ST. MARY'S L.J. 529, 533 (1997).
5  Bradwell, 83 U.S. at 131.
6  Id. at 133.  Bradwell primarily argued that when the state bar of Illinois denied her application for admission, it violated her constitutional rights under the Fourteenth Amendment by abridging the privileges and immunities clause.
7  Id. at 141 (Bradley, J. concurring).
8  Goodell, 1875 WL 3615, at 8.
9  Id.
10  See Muller v. Oregon, 208 U.S. 412, 422 (1908) (stating that women are "properly placed in a class by [themselves], and legislation designed for [their] protection may be sustained.") (noting also that "The two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long-continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence.  This difference justifies a difference in legislation and upholds that which is designed to compensate for some of the burdens which rest upon her.").
11 KAREN BERGER MORELLO, THE INVISIBLE BAR: THE WOMAN LAWYER IN AMERICA 1638 TO THE PRESENT 11 (1986); See also  Farrer supra note 4, at 533-34. Arabella A. Mansfield was the first woman admitted to the practice of law in 1869 despite Iowa admissions statutes that only allowed white males to be admitted.  Id. at 534.
12  MORELLO, supra note 11, at 31.
13  See id. at 35 (noting that the Lockwood bill stated that:
Some excellent lady lawyers in the United States are now practicing at the Bar, behaving themselves with propriety, acceptably received before courts and juries; and when they have conducted their cases to a successful issue, or to an unsuccessful one in any court below, why should the United States Courts, to which an appeal may be taken, and where their adversary of the male sex may follow the case up, why should they be debarred from appearing before those tribunals.).

14  See supra note 10 (detailing some of the legally recognized and supported justifications which precluded women from practicing law at the beginning of the century).
15  The Baby Boomer Generation is comprised of "the 76 million people born between 1946 and 1964."  U.S. Boomers: A Resource for our Generation, available at http://www.usboomers.com (last visited Nov. 4, 2002).  These particular years, in the aftermath of World War II, "saw a marked increase in the number of births in North America."  The Baby Boomer Memory Bank, available at http://www.octanecreative.fcom/boomerbaby/#factoid/Anchor (last visited Nov. 4, 2002).  For a general discussion on the Baby Boomer generation, see Howard Smead, The Baby Boomer: A History, available at http://www.Howardsmead.com/boom/htm (last visited Nov. 4, 2002); Robert Friedman, The Whole World is Watching, available at http://www.Life.com/Life/boomers/essay01.html (last visited Nov. 4, 2002).
16  ANN CRITTENDEN, THE PRICE OF MOTHERHOOD 29-30 (2001).
17  Id.
18  Id.
19  Id.
20  Id.
21  You Thought You Could Have it All-Think Again, available at http://www.diablomag.com/0205/feature1.htm (last visited Oct. 21, 2002) (stating that "a lot of women realize they can't do it all-it's not humanly possible.") (also noting that "[t]he underlying problem is a workaholic culture that still operated on the assumption that one spouse works, one stays at home.  The dual-income family . . . still does not compute in corporate suites.  The result: extraordinary stress and a choice that is stacked towards to mother, not the father, opting out of work.").
22   Gail Johnson, Trading the Fast Track for the Mommy Track: Is it Right for You? available at http://babiestoday.com/resources/
articles/choosetrack.htm (last visited Oct. 21, 2002).
23   THE N.Y. LAWYER, Apr. 1, 2002 available at http://www.
nylawyer.com/lawlorn/02/ad040102.html (last visited Oct. 21, 2002).
24  Id.
25  Elizabeth Westfall works as an associate at Wilmer, Cutler & Pickering in Washington, D.C.  Suzanne Nossel currently practices law on behalf of disabled children in New York City.  Both authors graduated from Harvard Law School in 1996 and 1991 respectively.
26  SUZANNE NOSSEL & ELIZABETH WESTFALL, PRESUMED EQUAL: WHAT AMERICA'S TOP WOMEN LAWYERS REALLY THINK ABOUT THEIR FIRMS xxv (1998) [hereinafter PRESUMED EQUAL].  Nossel and Westfall mailed surveys and cover letters to women attorneys located in Atlanta, Boston, Chicago, Houston, Los Angeles, New York, San Francisco, and Washington, D.C.  Surveys were also sent to women attorneys in other cities.  The surveys were sent to women at 105 firms in total.  Id. at xxv.
27  Id. at xix.
28  Id.
29  Jeremy Purola, The "Mommy Track" Role: Traditional Gender Roles Manifest in the Mommy Track", Feb. 2001, available at
http://www.ashtabulaart.com/jp/Papers/Mommy/Track.htm (last visited Oct. 21, 2002).
30  Id.
31  The Career Track v. the Parent Track, available at http://www.worknwoman.com/worknmom/perspectives/parent_track.
Html (last visited Oct. 21, 2002).
32  Purola, supra note 29 (noting that this dichotomy between the carrer and mommy tracks "is based on the fact that many corporations still retain outdated traditional gender role stereotypes of women taking care of the child and the working man receiving more promotions and pay based on work put into the corporation.").
33  Karen Selick, Dispatch: Equal Pay for Less Work, THE WOMEN'S QUARTERLY, 2000, available at http://www.iwf.org/pubs/twq/wi95c.
shtml (last visited Oct. 21, 2002).
34  Id.
35  THE N.Y. LAWYER, supra note 23.
36  PRESUMED EQUAL, supra note 26, at 128.
37  Id. at 293.
38  Id. at 113.
39  Id. at 159.
40  Id. at 172.
41  Id. at 178.
42  PRESUMED EQUAL, supra note 26, at 203.
43  Id. at 233.
44  See Laura Padin, Women Lawyers: Has Their Situation Improved? available at http://www.rso.cornell.edu/prelaw/ womenlaw.htm (last visited Oct. 21, 2002) (stating that "Women associates and partners often believe that working fewer annual hours at their firm [as a result of having children] will be 'the death to my career.'").
45  CRITTENDEN, supra note 16, at 4.
46  Id.
47  See Purola, supra note 29 (stating that "more work put into the [firm] will enable higher pay and because the career-family woman is obviously not able to put in as much work as the career-primary woman, there already is an inequality in this concept.").
48  See id. (noting that "the Mommy-track seems to be a uniquely female experience.").  It seems true that only women seem to suffer the "stigma" that child-bearing results in less commitment to work.  As one author notes, "no one assumes that a businessman who becomes a father for the first time will AUTOMATICALLY be less interested in his career.  In fact, often these fellows are perceived as being more career oriented . . . after all, they now have a family to support."  Id.
49  CRITTENDEN, supra note 16, at 4-5.
50  Id. at 5.
51  Id. at 32.
52  Id. at 32.
53  Id. at 88 (explaining that "[t]he reduced earnings of mothers are, in effect, a heavy personal tax levied on people who care for children, or for any other dependent family members.  This levy, a 'mommy tax' is easily greater than $1 million in the case of a college educated woman.").
54  Id. at 87.
55  CRITTENDEN, supra note 16, at 36.
56  Id. at 36.
57  Id. at 36
58  Id. at 40
59  Id. at 43.
60  CRITTENDEN, supra note 16, at 43.  Women in medical school remain shut out of positions of power, in part because of their decision to have children.  For example:
The best appointments in medical schools go to those who can put in sixty- to seventy -hour weeks in their thirties and forties, something most women with children can't or won't do.  Of the 125 medical schools in the United States, only four had female deans in 1994.  Fewer than 5 percent of department heads were women.  And fewer than 10 percent of full professors were female-the same percentage as in 1980.  Buried in these numbers are a lot of abandoned dreams.  Id. at 43.

61  Current Glance of Women in the Law, AMERICAN BAR ASSOCIATION COMMISSION ON WOMEN IN THE PROFESSION, available at www.abanet.org/ women/glance.pdf (last visited Oct. 21, 2002) [Hereinafter Current Glance]. This data was derived from the National Association of Law Placement research division.
62  Id.
63  Id.
64  Id.
65  Id.
66  Current Glance, supra note 61.
67  Linda Bray Chanow, Where Are All the Women Partners, available at www.womenlawyers.com/partners.htm (last visited Oct. 21, 2002).
68  Id.
69  Id.
70  Id.
71 See Joan C. Williams, Canaries in the Mine: Work/Family Conflict and the Law, 70 FORDHAM L. REV. 2221, 2222 (2002) (discussing Johnathan D. Galter, Women are Close to Being Majority of Law Students, N.Y. TIMES, Mar. 26, 2001, at A1; Joan Williams, Letter to the Editor, As More Women Become Lawyers, N.Y. TIMES, Mar. 28, 2001, at A20).
72  Steve French, Of Problems, Pitfalls and Possibilities: A Comprehensive Look at Female Attorneys and Law Firm Partnership, 21 WOMEN'S RTS. L. REP. 189, 189 (2000).
73  Chanow, supra note 67.
74  See French, supra note 72, at 2223 (noting that the "maternal wall" means that most women lawyers are "stopped dead" long before ever reaching the point where partnership decisions are actually made).
75  Chanow, supra note 67.
76  French, supra note 72, at 197 (discussing Joan Williams, Unbending Gender: Why Family and Work Conflict and What to Do About It 25-30 (2000); Judy Mann, Blessed, and Undervalued, Are the Caregivers, WASH. POST, May 11, 2001, at C9).
77  Mona D. Miller, Breaking Through the Glass Ceiling: Some Personal Reflections on Women's Climb Toward Partnership, 693 PRAC. L. INST. 135, 140 (1994).
78  French, supra note 72, at 197.
79  Id. at 197.
80  Chanow, supra note 67.
81  Id.
82  CRITTENDEN, supra note 16, at 94.
83  Id.
84  Current Glance, supra note 61.  The American Bar Association took this from the Bureau of Labor statistics concerning salaries of legal professionals.
85  Id.
86  Id.
87  Id.
88  Mike Fimea, ARIZ. BUS. GAZETTE, Apr. 11, 2002, Female Lawyers in State Still Face Glass Ceiling, available at http://www. abgnews.com/law/0411salaries.shtml (last visited Oct. 21, 2002).
89  Id.
90  Williams, supra note 71, at 2222.
91  Id. at 2224.
92  French, supra note 72, at 204.  See 42 U.S.C. § 2000e-2(a)(1)(1994). Title VII of the Civil Rights Act of 1964 states, in pertinent part:
(a) Employer practices.  It shall be an unlawful employment practice for an employer-(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.

93  French, supra note 72, at 204. (discussing Hishon).
94  Hishon v. King & Spalding, 467 U.S. 69, 71 (1984).
95  Id.
96  Id.
97  Id.
98  Id. at 72.
99  Id.
100 Hishon, 467 U.S. at 72.
101 Id.
102 Id.
103 Id. at 79-80.
104 Id. at 77.
105 Id.
106 Hishon, 467 U.S. at 77-78.
107 Id. at 81.
108 Price Waterhouse v. Hopkins, 490 U.S. 228, 233 (1989).
109 Id.
110 Id. at 231-32.
111 Id. at 235.
112 Id. at 236.
113 Id. at 231-32.
114 Price Waterhouse, 490 U.S. at 241.
115 Id. at 258.
116 Hopkins v. Price Waterhouse, 920 F.2d 967, 969 (D.C. Cir. 1990).
117 Price Waterhouse, 490 U.S. at 241.
118 Mary Ann Mason, Motherhood v. Equal Treatment, 29 J. FAM. L. 1, 23 (1990-91).
119 General Electric Co. v. Gilbert, 429 U.S. 125 (1976).
120 The Pregnancy Discrimination Act is codified at 42 U.S.C. § 2000e(k) (1988).
121 Mason, supra note 118, at 22.
122 42 U.S.C. § 2000e(k)(1988).
123 Maxine Eichner, Square Peg in a Round Hole: Parenting Policies and Liberal Theory, 50 OHIO ST. L.J. 133, 140-41 (1998).
124 Id.
125 Wimberly v. Labor and Industrial Relations Commission, 479 U.S. 511 (1987).
126 Eichner, supra note 123, at 148.
127 Id. at 148-49.
128 Id. at 148.
129 CRITTENDEN, supra note 16, at 87.
130 Mason, supra note 118, at 14.
131 Id. at 23.
132  Pamela Lawton Wilson, The Lawyers Club Turns 25, available at http://www.sandiegometro.com/1997/may/legally.html (last visited Oct. 21, 2002).
133 Purola, supra note 29 (stating also that firms and companies need to be "more flexible in their job structures").
134 Padin, supra note 44.
135 See Williams, supra note 71, at 2224 (describing schedule creep and its impact); see also notes 90-91 and accompanying text.
136 Williams, supra note 71, at 2225.
137 French, supra note 72, at 198.
138 Id. at 199.
139 Mason, supra note 118, at 20-21.
140   Id.
141 Padin, supra note 44.
142 Selick, supra note 33.
143 Id.
144 Id.
145 Kathryn Tongue, Telecommuting: It's a Tossup, 8 PRAC. L. INST., 16, 16 (Nov.-Dec. 1998).
146 Id. at 17.
147 Id. at 19.
148 Id.
149 Id.
150 Tongue, supra note 145, at 20.
151 Peggie R. Smith, Parental-Status Employment Discrimination: A Wrong in Need of a Right?, 35 U. MICH. J. L. REFORM 569, 585-86 (2002).
152 Id. at 587-88.
153 Id. at 585 & FN 91.
154 P.K. Runkles-Pearson, The Changing Relations of Family and the Workplace: Extending Antidiscrimination Laws to Parents and Nonparents Alike, 77 N.Y.U. L. REV. 833, 863 (2002).
155 Smith, supra note 151, at 573.
156 See generally Smith, supra note 151 (discussing how protections for parents do not fit into the Title VII schema and suggesting that new legislation protecting parents would solve such problems).
157 Id. at 602-611.
158 Angel M. Aton & Heidi S. Connolly, The Debate Over the Unionization and Collective Bargaining of Private Physicians, 18 HOFSTRA LAB. & EMP. L.J. 659, 678 (2001).
159 WILLIAM B. GOULD IV, A PRIMER ON AMERICAN LABOR LAW 32 (3d. ed. 1993).
160 Liner v. Jafco, Inc., 375 U.S. 301 (1964) (noting that a single picket at a particular job site is enough to be considered a labor dispute).
161 GOULD, supra note 159, at 33.
162 National Labor Relations Act, 29 U.S.C. §§ 151-69, at 2(6) (1988) [hereinafter NLRA].
163 NLRA, 29 U.S.C. §§ 151-69, at 2(7).
164 Foley, Hoag & Eliot, 229 NLRB 261 (1959).
165 Id.
166 GOULD, supra note 159, at 34-35.
167 NLRA, 29 U.S.C. §§ 151-69, at 2(2).
168 Aton & Connolly, supra note 158, at 678.
169 NLRA, 29 U.S.C. §§ 151-69, at 2(3).
170 Aton & Connolly, supra note 158, at 678.
171 Id.
172 Id. at 678-79 (quoting Theodore J. St. Antoine et al., Labor Relations Law: Cases and Materials 265-66 (10th ed. 1999)).
173  FRED WITNEY & BENJAMIN J. TAYLOR, LABOR RELATIONS LAW 119 (7th ed. 1996) [hereinafter LABOR RELATIONS LAW].
174 Id. at 120 (stating that "lawyers employed by an insurance company were also classified as professional workers.").
175 Id. at 121.
176 NLRA, 29 U.S.C. §§ 151-69, as amended by Taft-Hartley, at 2(12).
177  STEPHEN I. SCHLOSSBERG & JUDITH A. SCOTT, ORGANIZING AND THE LAW 6 (4th ed. 1991).
178 Aton & Connolly, supra note 158, at 678 (quoting 29 U.S.C. § 152(11)).
179 Many peripheral issues are involved when forming a union.  These issues are simply too expansive to discuss in this paper.  For an overview on all of the issues regarding the formation of unions, including summaries of the law involved, see SCHLOSSBERG & SCOTT, supra note 177; BRUCE FELDACKER, LABOR GUIDE TO LABOR LAW (3d. ed. 1990); JULIUS G. GETMAN, et.al., LABOR MANAGEMENT RELATIONS AND THE LAW (2nd ed. 1999).
180 FELDECKER, supra note 179, at 48.
181 SCHLOSSBERG & SCOTT, supra note 177, at 45.
182 Id. at 45 (stating that the "purpose [of this campaign] . . . is to convince unorganized workers to 'join' the union and to get the shop organized.").
183 Id.  For a more detailed description of union organization campaigns, see GETMAN, et.al, supra note 179, at 20-21.
184 SCHLOSSBERG & SCOTT, supra note 177, at 173.
185 Id.
186 LABOR RELATIONS LAW, supra note 173, at 105-06 (noting that appropriate bargaining units must be established and that "the appropriate unit in each case must be determined in the light of the circumstances in the particular case.").
187 Id. at 129.
188 Id. at 119.
189 GETMAN, et.al , supra note 179, at 21.
190 Id.
191 SCHLOSSBERG & SCOTT, supra note 177, at 175.
192 Id. at 173.
193 Id. at 179.
194 FELDECKER, supra note 179, at 48.
195 NLRA, 29 U.S.C. §§ 151-69, at 8(a)(5).  The requirement to bargain in good faith was further defined by Congress in 1947.  Section 8(d) was added to the NLRA.  ARCHIBALD COX ET AL., LABOR LAW: CASES AND MATERIALS 384 (Foundation Press 13th ed. 2001).  It stated that:
to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonably times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession.  Id.

 This provision has been interpreted by the NLRB to mean that the employer must meet with the union to "meet and confer with respect to wages, hours and terms and condition of employment."  COX, supra note 195, at 385.  This "includes the obligation to bargain 'in good faith.'"  Id.  Good faith has been interpreted to include "an obligation . . . to participate actively in the deliberations so as to indicate a present intention to find a basis for agreement."  Id.  The employer is required to have "an open mind and a sincere desire to reach an agreement" and must also make "a sincere effort . . . to reach common ground."  Id.
196 It should be noted here that I am advocating the unionization of all attorneys, not just women.  Although I believe that it is in the best interests of women and men to unionize in order to increase bargaining power, I believe that many of the benefits that will come from collective bargaining will uniquely benefit women.  These benefits will be especially powerful for women with children who are paid less than their counterparts and are not considered for partnership.
197 SCHLOSSBERG & SCOTT, supra note 177, at 154.
198 Attorneys Unionize-Support Them!, available at http://www. onecom.net/clnews2/_disc2/ 00000060.htm (last visited Nov. 9, 2002) [hereinafter Attorneys Unionize].
199 X Lawyers Mark New Spot: Understanding the Post-Baby-Boomer Attorney, 61 OR. ST. BAR BULLITEN 33, 33 (June 2001); Michael M. Boone & Terry W. Conner, Change, Change, Change: The Challenge Facing Law Firms, TX. BAR BULLITEN 18, 18 (noting that "As we enter the new millennium, many lawyers can readily identify with the old adage that 'nobody likes change except a wet baby.'").
200 See Tim Lally, Spotlight on the Union-Busters, available at
http://www.corporatecapaign.org/bust1.htm (last visited Nov. 9, 2002) (noting that Jackson, Lewis, Schnitzler & Krupman, a New York based firm, actually wrote a book on counseling clients to avoid unionization in their company); Attorneys Unionize, supra note 198 (discussing the struggle of attorneys to unionize where large law firms have "anti-union animus.").
201 FELDECKER, supra note 179, at 110 (discussing section 7 rights under the National Labor Relations Act).
202 Id.  at 118 (discussing section 8(a)(3) of the National Labor Relations Act).
203 Id.