The COVID-19 pandemic has changed the environment of work for everyone. As lawyers and law students, we are now working from home or remote offices more than ever before. These changes are expected to have a lasting effect on what legal work looks like and to remain in place even when pandemic measures end.

The freedoms associated with innovations in technology and work-from-home options have been promoted as ideal for working women, and specifically working mothers, to manage the double labour of domestic and outside-of-the-home work. Technology advancements and inventions have long been marketed as a way to “liberate” women of their wifely and motherly duties. Scholars still point out the correlation between mass use of household appliances like the dishwasher and the increase of women working in the public sphere as evidence of how technology improved the lives of women.[1]

Similarly, work-from-home, job sharing, or other flexible work schedule options have historically and typically been offered to women and mothers more often than men and fathers. See, for example, the facts in the recent Supreme Court of Canada decision in Fraser v Canada[2] where nearly all those who participated in the job-sharing program with the RCMP were women and most limited their work schedules due to child-care responsibilities. Some professionals speculated that the widespread use of remote work in COVID may benefit women in law by normalizing remote work and adjusting expectations in a way that may level the playing field for women.[3] I am not as optimistic such changes on their own improve anything substantial for women in law.

Changes to how legal work is delivered or where it is conducted alone does not change broken dynamics of labour. Just as the invention of the dishwasher did nothing to challenge the notion of dish-washing being primarily the responsibility of women, the option to work from home does nothing to challenge the assumption that women in heteronormative partnerships will be the primary care-givers and carry the weight of domestic responsibilities – responsibilities that are exasperated during a pandemic.All it took was talking to one mother whose work-life moved home during this pandemic to understand that any delicate handle they had when it came to balancing their first and second shifts was entirely disrupted. Working from home does not mean mothers have more balance. Studies from the United States showed that in the first months of the pandemic, mothers’ work suffered while fathers’ time paid and work hours were relatively unchanged. This was the case even in dual-income households where both parents were able to work from home. Mothers working from home with preschool-aged children lost about 2.6 hours in their workday, but fathers’ work time remained unchanged.[4]

In different industries across the country, the remote work environment that COVID-19 brought does not translate to a more inclusive or equitable workforce. We are only beginning to see the lasting impacts of COVID-19 on the workforce but data so far is overwhelming indicating that work-from-home alone does not change the course of women’s careers. We continue to see women disproportionately losing jobs, quitting jobs or turning down promotions to focus on their families. A study by the Prosperity Project showed that one third of Canadian women have considered quitting their jobs to take care of home responsibilities during the COVID-19 pandemic.[5] This is of particularly concern for women in the legal field where women were already leaving the field at a rate much higher than men prior to COVID-19 and leadership roles in law firms are far from reaching gender parity. The number one cause for women’s income disparity and desertion of practice is child / family commitments.

The legal professions seems more resistant to social changes and pressures than most other occupations. The legal profession still values presenteeism and endorses unhealthy work-life balance as a badge of honour. The family values women cited as reason for stepping away from career during COVID-19 is consistent with the decisions lawyers make to take parental leave. It is much more likely that women in the legal field, when they become parents, will take parental leave. Men in the legal profession take advantage of parental leave at a much lower rate. Law practice is still a remaining stronghold of white-collar masculinity.

This is relevant because shared parenting is critical to gender parity. Stereotypical ‘masculine values’ do not necessarily reflect the values of men and the results of the profession upholding those values means that the field does not necessarily reflect the wishes of men today. We see more men in Gen Y and Gen Z taking a very active role in fatherhood. However, the existing arrangement for people who work in law firms is one in which when women lawyers take parental leave, they secure men’s superior position at the firm and within the profession. However, just like women are socially coerced into their roles, if men desire to take their parental leave, they are discouraged from doing so by such harmful standards of masculinity in the profession. As demonstrated by the studies mentioned, breaking this cycle is not as easy as providing work-from-home opportunities.

Women lawyers working at home will still eat lunch their desk to get make sure our billables are up, but now we get to make that lunch in our own kitchen (and make our kids’ lunch, and feed the kids, and clean up ect, etc). This is not the equitable and hospitable work environment I hope remains even after the pandemic. This is not innovation.

Innovation is often described as doing something in a new way – making a change through new methods and ideas. The COVID 19 work measures changed the way work life looks without changing anything about the social inequities or “norms” that made our conventional understanding of work possible – such as law being a “two-person career”. The methods are new but the ideas are old. In order to achieve equality in the profession, the profession must retain women in greater numbers. Doing so will require real innovation and will require legal leaders to actively confront social “norms” and provide creative, alternative ideas for how to support women and parents in the profession.

Larissa Donovan

Sources:

[1] University of Montreal, “Fridges And Washing Machines Liberated Women, Study Suggests.” ScienceDaily, 13 March 2009. <www.sciencedaily.com/releases/2009/03/090312150735.htm>.

[2] Fraser v Canada (Attorney General), 2020 SCC 28 <https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/18510/index.do>.

[3] Jessica Woodhouse, “Working From Home An Opportunity for Improving Gender Equality” New York Law Journal, 1 September 2020 <https://www.law.com/newyorklawjournal/2020/09/01/working-from-home-an-opportunity-for-improving-gender-equality/?slreturn=20201008181039>

[4] Caitlin Collins, Leah Ruppaner, William Scarborough, “COVID-19 is a disaster for mothers’ employment. And no, working from home is not the solution” The Conversation, 20 July, 2020 <https://theconversation.com/covid-19-is-a-disaster-for-mothers-employment-and-no-working-from-home-is-not-the-solution-142650>.

[5] The Prosperity Project,  <https://canadianprosperityproject.ca>.