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Join the Conversation:  When Will Law Firms Drop the “Primary Caregiver” Distinction?

In April 2015, Johnson & Johnson announced that to better support “the modern-day family,” all new parents – regardless of primary caregiver status – would get eight weeks of paid parental leave.  Birth mothers would receive an additional nine weeks of paid disability leave. 

A few months later, Netflix and Microsoft also rolled out parental leave programs that did not distinguish between “primary” and “secondary” caregivers.  Netflix parents would get unlimited paid leave in the first year of their child’s birth or adoption.  Microsoft parents would get twelve weeks of paid parental leave, in addition to eight weeks of paid disability leave for birth mothers. 

These announcements set off a chain reaction.  In November 2015, Spotify began to offer all employees six months of parental leave with 100% pay, highlighting value of “gender equality and the ability for every parent to spend quality time with the people that matter most in their lives” (emphasis added). 

In January 2016, Facebook began to offer four months of paid parental leave to “all new parents.”  In a Facebook post, the company announced that it would scratch the primary caregiver distinction from its parental leave policy:  “Starting on January 1, 2016, all new dads and same-sex partners at Facebook will receive four months of paid leave to bond with a new baby, whether they are the primary caregiver or not,” (emphasis added) citing to a Pew Research study that “almost half of fathers are worried that they don’t spend enough time with their children.” 

In March 2016, Etsy announced that it would offer all employees 26 weeks of fully paid leave regardless of gender or primary caregiver status.  Etsy explained that it designed its policy to be “gender-blind and to counteract unconscious bias.”  What a novel idea!  Etsy wrote, “We want to support and enable parents, regardless of gender, to play equal roles in building successful companies and nurturing their families” (emphasis added). 

In April 2016, Twitter, Bank of America, and Ernst & Young all unraveled primary caregiver-less parental leave policies.  Twitter would give any parent up to twenty weeks of fully paid time off.  In an interview, Twitter’s Vice President of Inclusion and Diversity pointed out that “Primary caregiving is something that’s hard to define” and explained why Twitter removed the primary caregiver distinction.  Bank of America and Ernst & Young would offer sixteen paid weeks of parental leave, so that “all of our parents” – not just one parent per household – could take advantage of bonding time with their new child.    

That same month, New York state and San Francisco approved paid parental leave programs for private-sector employees, regardless of primary caregiver status.  New York will phase in twelve weeks of paid parental leave for private-sector workers – women and men – by 2021.  San Francisco now requires all businesses with at least twenty employees to help cover up to six weeks of paid leave for mothers and fathers.  And note that the City and County of San Francisco has been offering its 30,000 employees – regardless of primary caregiver or not – twelve weeks of fully paid parental leave and four additional weeks of pregnancy disability leave since 2002

From Fortune 500 companies to tech startups to local government, the trend is clear:  employers are moving toward parental leave policies that empower a couple to share parenting responsibilities more evenly and play an equally large role in raising their new child.  Primary caregiver-based policies seem to do the opposite.  They not only assume but also impose a family structure in which one partner takes on more caregiving duties than the other, which also translates to one partner taking on more missed career opportunities than the other.  Primary caregiver-based policies stand as a hurdle not only to equal co-parenting but also to equal professional opportunity. 

Yet of top large law firms, Winston & Strawn LLP is to my knowledge the only one that provides equal parental leave to parents regardless of gender and primary caregiver status.  In May 2016, Winston & Strawn announced that it would give associates twenty weeks of paid parental leave regardless of gender and primary caregiver status, reasoning that the primary caregiver distinction “may not reflect the needs and experience of individuals in two-career households” and may perpetuate unconscious bias against female attorneys when supervisors staff important matters.  

For couples who crave equal caregiving responsibilities, but also for couples who value equal opportunities to pursue their careers, the across-the-board 20-week policy at Winston & Strawn lends itself to that equality.  By effectively increasing the amount of time given to so-called "secondary" caregivers, the policy helps couples take a more equal amount of time off, play a more equal role in parenting, and return to work with more equal bandwidths to pursue their careers.  Unlike primary caregiver-based policies, this policy does not inherently empower one partner to take the backseat on caregiving and more quickly advance his/her (but what are the odds) career.  

For instance, if my husband and I are both associates and we have a child, working at Winston & Strawn makes it financially sensible for us to take an equal amount of time off rather than one more than the other and tees us up to co-parent as equals rather than as primary and secondary parents.  In so doing, the policy also helps us come back to work as equals.  It is no secret that when fathers take more parental leave, maternal earnings and odds of returning to work full-time are increased:  one study shows that each month a father stays on parental leave increases maternal earnings by more than 6%.  But we shouldn't all have to work at Winston & Strawn to get these equal opportunities.  

Why haven’t more law firms caught on to removing the primary caregiver distinction?  Our clients are getting rid of it.  The media is mocking us.  An Atlantic article called the distinction “startlingly outdated.”  A Harvard Business Review article called it “old-fashioned.”  Companies are getting sued over primary caregiver policies gone wrong.  Is removing the primary caregiver distinction cost prohibitive?  Probably not.  Is holding onto it somehow taking the moral high road?  Not that I can tell.  For these reasons, I don’t think that dropping the primary caregiver distinction is a matter of “whether.”  It’s a matter of when.  Any bets on how soon?    

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