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WER June 2020 Feature 4
Volume LXX, Issue IV

Published June 11, 2020

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Combatting the Caregiver Penalty

By: Sonia Miller-Van Oort & Demetria Dyer

Sonia Miller-Van Oort and Demetria Dyer both practice law at Sapientia Law Group. Sonia is the President & Founding Member of Sapientia Law Group. Demetria practices business and commercial litigation with Sapientia Law Group. 

 Sonia Miller-Van Oort

 Demetria Dyer

The United States Census Bureau reported that this year’s Equal Pay Day for women was March 31, 2020, and last year’s was April 2, 2020.[1]  Equal Pay Day is how far into a year the average women must work to earn what her average male counterpart already earned in the previous year.[2]   Notably, this day is much later in the year for women of color (e.g., the 2019 Equal Pay Day for African and Black women was in late August, for Native American women it was in late September, and for Latinas it extended to late November).[3]  

The group of women who account for most of the gender wage gap are mothers.[4]  Sociologists have dubbed this disparity the “motherhood penalty” or the “caregiver penalty.”[5]  In essence, mothers who often carry significant responsibility in the area of caregiving for children or elderly parents suffer a penalty relative to non-mothers and men; the penalty shows up in the form of lower perceived competence and commitment, higher professional expectations, lower hireability and promotion rates, and lower salaries.[6]  The penalty remains even after statistically controlling for education, work experience, race, and other occupational variables.[7]  The penalty for mothers who are lawyers or are in executive business professions is substantially larger than for mothers in professions with a linear wage structure.[8]

Studies consistently show that women bear the brunt of this penalty, because they are more likely to assume caregiving responsibilities for children and aging parents.  Statistics show that, on average, women get a 4% pay cut for each child they have; while men get a 6% pay increase for each child they have.[9]  The impact of this inconsistency is even more poignant in view of the Bureau of Labor Statistics’ findings that 71% of mothers with children in the home work and that women are the primary breadwinners in 41% of households with children (closer to 44% in Minnesota).[10]  As a result, the caregiver penalty does not just penalize working mothers, but their families as well.

Although this persistent problem may seem insurmountable, it is not.  There are several ways in which law firm managers and attorneys can make progress in reducing and eliminating the caregiver penalty in their organizations. 

First and foremost, it is imperative  law firm managers acknowledge  the caregiver penalty exists and that there is a nimiety of data to demonstrate it.  

But knowledge alone is not enough; law firm managers have the ability to shape culture, expectations, and norms within their organizations to combat the caregiver penalty.  One step in doing so is to lead by example. Talking openly about children, aging parents, and needs to leave the office for issues relating to these aspects of our lives creates a culture that recognizes balanced living, instead of a culture that encourages made-up excuses for leaving the office or pretending these things don’t impact our work life.  They do impact our time; they don’t impact our competence.  If individuals in influential positions are transparent about these competing time commitments, the tendency for others in the firm to penalize others for these same issues is dramatically reduced.  

To reduce the caregiver penalty, law firms should shift their compensation models away from billable hour metrics to other clearly-defined results-based metrics.  Objective data is the most direct way to dismantle implicit bias and negate the caregiver penalty in the compensation arena. This means, that to the extent that law firms say they base promotion or compensation decisions on factors other than dollars generated (e.g., serving as primary responsible attorneys on files, eliciting positive client feedback, raising the profile of the firm through community involvement, pro bono service accomplishments), there should be specific objective data identified to measure the results in these areas.  No gut instincts or vague feelings about whether someone deserves a promotion or certain compensation.  Whether someone had to regularly leave work in the afternoon to tend to family members becomes irrelevant when specific results and targets have been set and then met. 

Altering the hiring and any compensation decision-making processes to include a step in which decision-makers explain their rationale and the data support for their decisions to a third person also

mitigates the caregiver penalty.  Research has shown that when an individual is unsure of a third party's views, and when the third party is viewed as legitimate, knowledgeable, process oriented, and valuing accuracy, then an individual is more likely to engage in complex cognitive reasoning and is less likely to allow impressions to distort their assessments.[11]  It is not incumbent that the third person have the ability to change the decision; however, by empowering a third person to listen and ask for support for the decisions, application of the caregiver penalty is diminished, and unbiased, consistent decisions are made.

At the core of the caregiver penalty lies the faulty assumption that caregivers care less about their careers and are less devoted to the legal enterprise.  These assumptions ignore the real strengths that caregiving attorneys contribute to a law firm. Caregivers tend to be multi-taskers, problem-solvers, better collaborators, respectful of other’s time, and more connected with their co-workers.[12]   Emphasizing and identifying these powerful business attributes in job descriptions of management and leadership positions, as well as strategic business plans, will change how mothers and caregivers are valued and viewed within an organization.  It may also encourage women (who typically look at stated job prerequisites as mandatory as opposed to optional as their male counterparts often do) to see themselves as qualified for leadership positions and seek them out.      

Instituting family-friendly policies addressing flextime, telecommuting, part-time schedules, and childcare assistance in the workplace are helpful in creating welcoming workplace environments for attorneys with caregiving responsibilities.  But law firms have to take affirmative steps beyond policy implementation to diffuse the pervasive caregiver penalty that exists. Leading by example, changing compensation structures and decision-making processes, and identifying inherent skill sets of caregiving attorneys as leadership attributes can move the needle on this issue and effectively arm a law firm to combat the caregiver penalty and dissipate its effect.


[1] United States Census Bureau, Release No. CB20-SFS.35, (March 31, 2020). Equal Pay Day is a symbolic date originated by the National Committee on Pay Equity to bring awareness to the gender pay gap beginning in 1996.

[2] Id.

[3] Id.

[4] Shelley Correll, Stephen Benard, In Pail, Getting a Job: Is There a Motherhood Penalty, American Journal of Psychology, Vol. 112, No. 5 (March 2007).

[5] Id.

[6] Id.

[7] Stephen Benard et. al., Cognitive Bias and the Motherhood Penalty, 59 Hastings L.J. 1359 (2008).

[8] Aline Bütikofer, Sissel Jensen and Kjell G. Salvanes, The Role of Parenthood on the Gender Gap Among Top Earners, European Economic Review (May 27, 2018).

[9] Claire Cain Miller, “The Motherhood Penalty vs. the Fatherhood Bonus,” New York Times (Sept. 6, 2014); see also Shelley Zalis, “The Motherhood Penalty: Why We’re Losing Our Best Talent to Caregiving,” Forbes (February 22, 2019).

[10] Glynn, Sarah Jane, “Breadwinning Mothers Continue to be the U.S. Norm,” Center for American Progress (May 10, 2019); Miller, “The Motherhood Penalty vs. the Fatherhood Bonus,” New York Times (Sept. 6, 2014).

[11] Id.

[12] Shelley Zalis, “The Power of Caregiving in the Workplace No One Talks About,” Forbes (May 14, 2019).


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