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Opting Out? (December 2003)

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Opting Out?

Issue # 30

December 2003


"There may be times when we are powerless to prevent injustice,
but there must never be a time when we fail to protest."
~Elie Wiesel

Many of you are probably aware of the article by Lisa Belkin, entitled "The Opt-Out Revolution," which appeared in the October 26, 2003 "New York Times Magazine." Ms. Belkin's assertion that "women are rejecting the workplace," elicited a storm of controversy. Particularly noteworthy are the responses of Professor Joan Williams, author of "Unbending Gender," which appeared in the "New York Times Forum;" Joan Walsh's column in "Salon;" and Kathy Pollitt's article in "The Nation." Many of you no doubt wrote letters to the editor and hotly debated the merits of Ms. Belkin's arguments.

The issue seems of sufficient importance for "Beyond the Billable Hour" to weigh in. When the article first appeared, I received many calls and email from women attorneys who were reacting to comments they heard from male partners who responded not only to the article but to the provocative cover, which depicted a young woman with a toddler next to a ladder she is no longer climbing. "See!" some men attorneys said to their women counterparts, "why should we bother even trying reduced-hours schedules when we know you'll just leave?"


Opting out indicates the presence of real choice, which Webster's New World Dictionary defines as the chance, right or power to choose by the free exercise of one's judgment, or to pick out from what is available.

Using the second definition, one could say that many women lawyers "opt out" after they become mothers. But this speaks largely to the paucity of choices available to women lawyers. In today's law firms, lawyers can be so overworked that they can't fully participate in family life, face demands so stressful that the rate of depression among lawyers is the highest of all professionals, and have the opportunity to earn extraordinary financial remuneration and status as a substitute for what must be sacrificed: lost interpersonal connections, time for real relaxation and disengagement from work, and involvement in the kind of service which gives life meaning.

Belkin raises this issue finally, at the end of her article. " 'Among women I know [writes Belkin quoting an interviewee], quitting is driven as much as from the job-dissatisfaction side as from the pull-to- motherhood side. That is the gift biology gives women? It provides pauses, in the form of pregnancy and childbirth, that men do not have. As the workplace becomes more stressful and all-consuming, the exit door is more attractive. Women get to look around every few years and say, Is this still what I want to be doing?...When a man gets that dissatisfied with his job, he just has to stick it out.' "

The problem with Belkin's article is that it reinforces the biased perception, all-too-common in the legal community, that women, especially mothers, are simply not committed to their careers. Although most firms today have reduced-hours policies, lawyers who avail themselves of these plans are, in large part, effectively relinquishing their hopes of career success or advancement. Certainly, there are notable exceptions. But attorneys in many firms that tout their "flexibility" in the press know that if they reduce their hours, they will become stigmatized: They are unlikely to become partners, unlikely to receive good work assignments, unlikely to have real choices. Often, senior law firm partners have commented to me that women who reduce their hours "feel entitled to get whatever they want - to make partner on schedule, even if they haven't put in the time." In my experience, this is rarely, if ever, the case. They just want to be considered "real lawyers." As I've pointed out before (, the absence of real "options" is not just a women's issue. Men who publicly claim their desire to actively participate in their children's lives risk even more disgrace than their female counterparts. Because the legal ideal values toughness, competitiveness and individualism, such yearnings in a man suggest to some that he's not a "real lawyer."


The problem with defining a "real lawyer" as someone willing to sacrifice all of the rest of life for work is that it's bad for everyone: it hurts excellent attorneys who care for others and want to provide needed caretaking; it hurts children deprived of extended time with their parents; it allows ill relatives to languish in nursing homes because family members are too busy to visit; it creates levels of stress which significantly increase the risks of cardiovascular disease, depression and other mental health problems, and impaired reproductive functioning. It creates a pressure-cooker work environment that condones verbal abuse and motivates employees primarily by fear. It hurts communities that used to benefit from the largesse of citizen-lawyers. The private legal workplace can no longer offer the priceless gift of time. Any short-term profits this situation creates will be lost to the long-term costs.

Certainly, Ms.Belkin is correct that the feminist movement was about creating choice for women. And indeed, opportunities for entering the legal workplace have multiplied. But to suggest that it is merely the pull-to-motherhood (and worse, to assert that there is a biological basis to women stepping off the career ladder) which accounts for the attrition rates of women from law firms is to blame the victim and cloud the real issue. Genuine equality of opportunity requires more than merely allowing women in the door. As long as work and life are cast as competing priorities, lawyers who want to provide care for loved ones - and this usually means women - will not have equal opportunities to succeed in their careers. There will always be women who truly prefer to stay home with their children. This preference should be treated with the same respect as the decision to remain at work. But no one will really be making choices until men and women share work at home, and people who want healthy lives can be considered "real lawyers" throughout the legal profession. The adversarial system may work to solve legal disputes, but people, relationships, businesses and economies all do better when solutions are win-win and suffer when they are win-lose.

Let's all continue to work toward solutions from which everyone -- men and women, law firms and lawyers, families and businesses and communities benefit.

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