The Legal Beat
The COVID-19 Fears Of 2020 Were Realized
Posted on Thursday February 18, 2021
Ed. note: This is the latest installment in a series of posts on motherhood in the legal profession, in partnership with our friends at MothersEsquire. Welcome Professor Cyra Akila Choudhury back to our pages. Click here if you’d like to donate to MothersEsquire.
A year into the pandemic, our worst fears about the effects on women in the workforce have been confirmed. In December, all of the 140,000 jobs lost were lost by women of color, while white men and women made gains. The pandemic has revealed the acute face of a chronic problem: the lack of support and social safety net for families with caregiving responsibilities. Women are the social safety net stepping in to provide care when needed. As the National Bureau of Economic Research notes, “[E]ven among married parents who both work full time, women spend more than 40 percent more time on childcare than men do. This lopsided division of labor has been sustained in the crisis: women have taken on a larger share of the extra childcare duties during the lockdown than men. As a result, more women than men have been unable to work either full time or at all during the crisis.”
In the COVID Care Crisis symposium organized by Professor Meera Deo, Dean Shruti Rana, and me, we repeatedly heard how women faculty were taking on a third shift in order to meet work obligations, sacrificing sleep, and shouldering added student care burdens. While the situation is not as grave as job loss as yet, women law professors, like other women, are suffering. The pendulum of on-again-off-again schooling, the lack of childcare, and the increased burdens in the home have resulted in less time to do research and produce scholarship. Most are trying to teach well while juggling homeschooling their children or caring for family members.
What we feared in August as the school year started, has come to pass and will continue as long as the pandemic does. Even with vaccines now being administered, we remain at the mercy of a now fast-mutating virus. The effects of the pandemic in the academy may be long term even after we return to campus.
In response to the pressures on faculty caregivers, a number of law reviews have taken steps to open submissions later, keep their submissions open, and to hold places in their fall volumes for scholars struggling to complete articles. We were specific about the impacts on women faculty in our letter to journals last year. But it should be underscored that these measures will not be of much help in preserving the invaluable voices of women scholars if editors are not sensitive to the gendered negative effects of the pandemic.
Law schools have also made some accommodations in adjusting tenure clocks. But these concessions come with costs for faculty caregivers who take advantage of them. Forgoing tenure or promotion means forgoing power in the faculty and remuneration as was noted by presenters in the symposium. While there is little to be done about such hard choices immediately, law schools must consider how the delay in tenure effects women’s seniority and pay compared to men.
In addition to these costs, some routine practices such as scholarship bonuses may exacerbate the gender pay gaps while rewarding those who have had the good fortune to find themselves with time to write during the pandemic.
For all faculty, particularly clinical and writing faculty with high student interaction, merit raises tied to student evaluations is another means of exacerbating inequality. Complaints about classes and even equipment have appeared on faculty evaluations. Faculty are expected to maintain a façade of normalcy and stability while the world is anything but normal. We need to recognize the utter collapse of private and public spheres where the home and the workplace overlap to occupy the same space. We have not seen private homes conscripted into workplaces with directives about how to use that space coming from employers in this way before. To make it work, faculty have been required to internalize the added costs of working from home — paying for better internet, cameras, microphones, rearranging home spaces into the “classroom” and such. All this to try to create a sense of calm as children and family members wander into the frame and family life intrudes to disrupt the illusion. Expectations that faculty and students will perform as they have done in radically different contexts — as they do in their in-person classes — is unreasonable.
Now that we know that the pandemic’s effects are deeply gendered, what is to be done?
First, the health and well-being of faculty, staff, and students must be foremost. Schools rushing to repopulate campuses as the virus mutates and infection rates climb are doing so without proper regard to public health. Forcing people to return to campus under these conditions while childcare and eldercare remain unavailable, when families with vulnerable members continue to be at risk, adds pressure on caregivers who are already at breaking point. What little time there is for teaching preparation, research, and writing may be further diminished by having to plan and prepare for returning to campus and contact with larger bodies of people.
Second, law schools must be flexible with not only students but faculty and staff as well. Rigid attendance rules, creating conflict between students and professors by fostering an atmosphere of surveillance and reporting on faculty, and retaining expectations better suited to pre-COVID times are sure to create resentment and undermine the mission of providing a good education.
With regard to merit pay and bonuses based on scholarship or teaching, the third recommendation is that these should be suspended until the playing field is once again more even. In some institutions negative evaluations can have an effect on merit pay unless administrators are vigilant and take steps to mitigate the potential harm. Faculty who are lucky enough to publish this year might recognize that some colleagues have simply been unable to do so because their situations differ significantly. Compassion and an understanding that our personal experience is not universal is not only collegial but humane.
Fourth, this is a good moment to slow down. For years, senior scholars have noted that they would not have gotten tenure under the requirements of scholarship now prevalent. The demand that faculty churn out scholarship yearly has resulted in a culture of toxic productivity in which taking time to research and to think are discouraged. Even before the pandemic, some professors have called for slowing down. Hyper-productivity and the drive to publish more rather than better should not be celebrated as a goal but recognized as a cultural problem to be addressed. In addition, during the pandemic, noncritical service work including meetings should be suspended for all faculty to free up time.
Fifth, for law journals, a proactive effort to include women’s scholarship — shorter essays, co-authored articles, articles without 300 footnotes — may be one way of ensuring that women are represented in their volumes. Delaying submission dates to give faculty more time is a good step, but diversifying the types of writing considered for publication as scholarship, as Professor Lua Yuille of University of Kansas Law suggested in our symposium would also be helpful. Without such proactive measures we risk losing critical voices, particularly those of women of color.
The final recommendation focuses on family. Women in heterosexual partnerships need to negotiate a better deal. In 2021, the fact that men continue to do far less care work in general while women partners subsidize their leisure and careers is unacceptable. Men need to join in the conversation, recognize the unfair division of labor within their own families, and do their share of the house and care work as equal partners and as a matter of duty not exception.
The pandemic has demonstrated that women of color particularly and all women continue to be vulnerable in the workforce. These problems cannot be solved individuals or by families alone. Lacking paid leave mandated by the state and family friendly work policies, many women have no option but to leave jobs when care responsibilities become impossible to manage. As Vice President Kamala Harris notes, this loss of women from the labor force hurts society. Public support for families, reforms in paid family leave, and flexible work policies are long overdue. Without this critical recalibration, families, as well as work, will remain places of subordination for women. The chronic problem of women’s inequality in both public and private realms that has become acute in the pandemic will persist until we address it once and for all.
Cyra Akila Choudhury is Professor of Law at Florida International University College of Law.