San Diego Business Journal

Like many of you, my daily routine has been dramatically and potentially permanently changed by COVID-19. Working from home in the midst of a global pandemic is fraught with many unknowns about when, how, and for some, if we will return to working in an office. I’ve traded in my daily commute for virtual and telephonic meetings, and even more email. Children are not yet back to classroom learning, and most have had their typical summer activities canceled. Government guidance still encourages maximizing teleworking where possible. And, some law firms and other legal employers may determine that for them, remote work is the future.

Given these shifts, I’ve been considering whether there is an uneven impact — or “gender tax” — in how COVID-19 has shaped our new reality. And, what does this mean for women lawyers in the quest for more equal footing in the legal profession?

As I travel from virtual meeting to virtual meeting, I see and hear the fatigue setting in for many of my colleagues, clients, and friends.

But where I see it most is in women, especially working moms. Though all of us have been sheltering in place, the stark reality remains that the vast majority of caretaking for children and others, coupled with day-to-day household responsibilities, has historically fallen and continues to fall on women.

Emerging research highlights that there remains a “grotesque” imbalance in sharing childcare and home responsibilities. Women do twice the housework and childcare — even when working full-time and even when they are the breadwinners. “Women are still considered the primary parent, the lead parent, responsible for the day-to-day tasks, responsible for thinking, planning, and managing.” That results in a lot of “invisible labor.” To make meaningful shifts in culture, change must occur rapidly. That may seem counterintuitive — but if it takes a long time to shift culture and if the work is done only incrementally, this signals a lack of commitment and priority. It will feel insincere and is bound to fail. To create an enduring path toward greater equities for women in the workplace and in the practice of law, we must embrace this time of rapid change. I challenge you to consider two key questions:

• Can we, as a profession, use COVID-19 as a catalyst to rethink long-standing practices that perpetuate significant gender inequality in the profession?

• What can you do to raise your own consciousness to resist this implicit, and sometimes even explicit, gender bias?

Here are some concrete ideas and strategies to consider in tackling these issues.

Incorporate Flexibility, Including Continuing Teleworking, Into Employees’ Work Regardless of Gender

Economists already have started exploring how a pandemic of this magnitude will affect society, including resulting gender disparities. A recent study reveals that even where men and women work in professions where telecommuting opportunity is similar, prior to COVID-19, women more frequently opted for telework.

When remote work first came into vogue, it was stigmatized as an accommodation. We must disavow that notion.

Instead, the pandemic forced employers to go “remote” almost overnight, and demonstrated how we can reshape work to give employees control, flexibility, and responsibility. But, expectations must not continue to bake in old gender norms about who “needs” the flexibility. Treat employees evenly on this ground, and don’t make gender-based assumptions.

Take care not to perpetuate gender stereotypes because of how you treat men

Studies show that men anticipate needing time off from work to give care at the same levels women do, but they don’t take it. This is “because our policies and our workplace cultures don’t support that.”

So, to effectuate change in your workplace, leaders must create the policies, cultures, and shift in attitudes to enable more equitable treatment. Several of San Diego’s chambers of commerce have been focused on childcare issues in recent years as a policy issue vital to leveling gender and socioeconomic gaps in our local economy, and I applaud those efforts. To make meaningful change in the legal profession, it is imperative that as a leader, your organization thinks, plans, and develops strategies around a return to work that does not exacerbate gender imbalances on this front.

Resist the Urge to Hoard Credit, Billable Work, or Scarce Opportunities to Build Experience

Having lived through the 2008-09 economic downturn while a senior associate at a Big Law firm, which conducted a 0% layoff of the most junior associates, I then witnessed the impacts on the junior associates who “survived” the layoffs. They were demoralized because work was hoarded at the top, and young attorneys who were smart, driven, and ambitious had little opportunity to grow and learn. Those most disaffected were women and attorneys of color, who either were driven out or left large law firms because of the lack of opportunities.

The challenges of this current environment will be different, yet present the same potential for those at the top to keep all the work and visible responsibilities for themselves. If you are in a position to affect the assignments of other attorneys, share the work. Make conscious decisions about who briefs and argues the motion or appeal, or who handles an important transaction or investigation. And when we get back into the courtroom, be even more conscious to ensure broad access and opportunity to first chair experience. And, if you are truly committed to the advancement of women attorneys, bring women into the client development process earlier and in a meaningful way. Be the leader your clients want.

Take a Hard Look at How Any Reductions are Handled

If reductions in staff, hours, pay, or promotion tracks occur, closely examine your approach and factor non- COVID-19 times into your evaluation of performance, progress, and merit.

Also, as you dole out “credit,” be conscious of time that was devoted to the invisible labor of your office. Who set up the remote working situation?

Who is planning your office reopening? Who has been responsible for liaising with your staff? Often, oversight of this type of non-billable work is tasked to women lawyers, and then there are fewer hours in the day for client work. Though these are not billable activities, they should be considered and factored in as an essential contribution to your business.

Look to Women to Lead - the Evidence Shows You’ll be Better for It

This also is a time to step back and elevate female leaders. In this crisis, female-led countries have had better responses and better outcomes in addressing the pandemic. Companies with more women in leadership also are more profitable along a number of financial metrics, though the key is to have women in multiple leadership positions throughout companies - not just at the top.

Over the past few months, necessity has required us to become more adaptable. As I wrote in my March / April President’s Column, a key factor in leading through crisis is clear, direct, and thoughtful communication. A vital component is explaining the why. Also key are being decisive but adaptable, and showing authentic empathy and compassion. Women leaders often bring these talents to the table in their everyday lives - as we navigate a legal world and broader world still largely dominated by men.

Leaders in law would be wise to take note and elevate more women to powerful decision-making and leadership positions. The steady hands running successful responses to crisis and to our new reality can and should reflect our community.

Now is the time to effect real change. I call on leaders in the law and beyond to reexamine your practices with these key issues in mind and to resist allowing a COVID-19 gender tax to settle into our new normal.

This article originally appeared in the May/June edition of the San Diego Lawyer, The Journal of the San Diego County Bar Association. It is reprinted here with permission.

Johanna Shiavoni (johanna.schiavoni@calapplaw.com) is a certified specialist in appellate law, and her practice at California Appellate Law Group LLP focuses on civil appeals in state and federal courts.