UPDATED Tuesday, June 26, 2:52PM.
Generating enormous discussion through her piece in the Atlantic published last week, former director of policy planning for the US State Department Anne-Marie Slaughter writes movingly about challenges women face in achieving work-life balance. Slaughter’s piece discusses the emotional need she felt to be present for her children despite how illustrious the position made her already outstanding career as a tenured Princeton professor.
Yet beyond the emotional pull of which Slaughter’s article reminds us, real legal and policy barriers persist that make work-life balance, or career ascendancy, genuinely challenging for mothers. Pregnancy itself is a source of major constraints.
Case in point: applying to law school. The process typically involves a fair amount of agonizing over personal statements and securing strong references, but above all else, it requires an LSAT score that will impress admissions deans. I took the Law School Admissions Test (LSAT) in 2003, and if I recall correctly the exam took a little over four hours. I was a young, single woman without a care in the world, but the LSAT was about as fun as stabbing myself in the eye repeatedly.
Sex. Abortion. Parenthood. Power.
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Just imagine the stress and discomfort felt by a new mother still nursing her baby: zipping through LSAT logic and reading comprehension questions while simultaneously figuring out when she can pump her breast milk or nurse. Until just a few weeks ago, new mothers who were applying to law school were in a pretty unforgiving situation while taking the LSAT: they were not allowed any extra breaks during the lengthy exam so that they could pump breast milk or nurse their babies.
The Law School Admissions Council (LSAC), the committee that administers the LSAT, had a longstanding policy of not allowing test-taking modifications for lactating mothers because, as the ACLU points out, lactating mothers were not considered “disabled.”
Happily, on June 1, the Law School Admissions Council (LSAC) approved a new policy that will let mothers take necessary breaks to nurse their babies or pump breast milk. For up to a year following the birth of their child, mothers can request a modification in test taking procedure such as extended breaks to pump or nurse.
The ACLU, along with Law Students for Reproductive Justice and other organizations, worked to achieve this policy turnaround after being contacted by MomsRising. One of MomsRising’s members was denied a lactation-related modification in her test taking procedure and MomsRising reached out to the ACLU on her behalf.
Kudos to LSAC for coming around — and extra kudos for MomsRising, ACLU, and LSRJ for their effective advocacy — but it’s an unfortunate policy LSAC had in the first place, especially given the number of women vying to get into law school. Nearly fifty percent of law school graduatestoday are women. True, not all of these women are mothers — but the evolving gender demographics of law school applicants surely should have been a sign that the policy ought to evolve as well.
Even though there are more women working outside the home than ever in U.S. history, sitting for the LSAT is far from the only time breastfeeding women have faced unfriendly policies. In fact, longstanding federal law still does not adequately protect pregnant or breastfeeding women.
Barry University law professor Heather Kolinsky points out the limitations of the Pregnancy Discrimination Act (PDA) of 1978 and the Americans with Disabilities Act (ADA) of 1990 in her article, “Respecting Working Mothers with Infant Children: The Need for Increased Federal Intervention to Develop, Protect and Support a Breastfeeding Culture in the United States.”
Kolinsky explains that neither the PDA nor the ADA have been consistently interpreted to protect discrimination women face when breastfeeding. The PDA is narrowly interpreted to cover women who are pregnant or experiencing some pregnancy-related condition but are fully capable of performing any job or function, thus leaving out women who face discrimination professionally because their pregnancy or pregnancy-related condition prevents them from performing all of their expected duties.
With respect to the ADA, courts have found that breastfeeding mothers are simply not within the definition of “disabled” — mirroring LSAC’s former policy.
Glimmers of reform exist with a new bill introduced in Congress in May called the Pregnant Workers Fairness Act (PWFA) that could potentially provide breastfeeding women with a cause of action. The PWFA could also fill in a number of other gaps that the PDA and ADA have been unable to address for pregnant women, such as access to light-duty work assignments for pregnant women in physically rigorous positions.
The emotional challenges Slaughter discusses are probably toughest to address, and it will take many more generations to really crack the old “work-life balance” question. But in the meantime, lurking policy limitations should be reformed, nipped or reversed — just the way LSAC has demonstrated is possible.