• 1 Deborah Swiss and Judith Walker, Women and the Work/Family Dilemma: How Today’s Professional Women (...)
• 2 Joan C. Williams, “Hitting the Maternal Wall”, Academe 90.6 (2004), p. 18.
• 3 See the maternal wall definition provided by the Work and Family Researchers Network, at https://wo (...)
• 4 Justine F. Andronici and Debra S. Katz, “Scaling the Maternal Wall”, Ms Magazine, Winter 2007.

1The concept of a “maternal wall”, developed by law professor Joan Williams in the United-States in the 1990s,¹ refers to a form of discrimination based on family responsibilities. It is a pattern of bias and stereotyping that affects mothers as opposed to women in general.² This approach looks at the pay gap and other short- and long-term impacts of pregnancy, maternity and motherhood in terms of career and discrimination. The concept may be seen as a pendant to the more well-known glass ceiling. In the United-States, the concept quickly gained traction in the press³ and since the early 2000s court cases have tended to show that this form of discrimination was finally becoming recognized as illegal. 4

• 5 Ann Taylor Allen, Feminism and Motherhood in Western Europe, 1890–1970. The Maternal Dilemma (New Y (...)
• 6 Françoise Héritier, Masculin/Féminin II. Dissoudre la hiérarchie (Paris, Odile Jacob, 2012).

3The aim of such a focus is not to exalt motherhood as women’s most important condition in the spirit of what historians have called ‘maternalism’.⁵ It is, however, to take seriously the fact that women remain the expected primary carers for children in spite of feminist struggles for gender equality in the domestic sphere. Indeed, reproductive power has been claimed by some as the main, if not the only factor leading to male domination and patriarchy. Anthropologist Françoise Héritier sees it as central in what she calls the “differential valence of the sexes”. ⁶

• 7 Ann Berrington, “Childlessness in the UK”, in Michaela Kreyenfeld and Dirk Konietzka (eds.), Childl (...)
• 8 Pew Research Center 2010 figures, http://www.pewsocialtrends.org/2010/06/25/childlessness-up-among- (...)
• 9 Ann Berrington, “Childlessness in the UK”, p. 70.
• 10 Office for National Statistics, Women in the labour market: 2013. See full report at https://www.on (...)

5That being said, not all women are mothers: in the UK, it is estimated that around 20% of women remain child-free (a level which is not historically unprecedented).⁷ Furthermore, the most educated women are among the most likely never to have a child. Unlike in some other European countries (such as the Netherlands or Norway) or in the United-States,⁸ educational differentials in childlessness are not narrowing over time; they are even increasing slightly. Today in the UK, for a wide range of reasons (not wanting children, postponing, not meeting the right person, health reasons and so on) tertiary-educated women are approximately twice as likely as women with low levels of education to remain child-free. ⁹ In the light of these figures, and in order to focus on gender equality issues in the law, specific attention needs to be explicitly given to the hurdles faced by women because of their maternal status – yet without identifying all women with mothers. For instance, in their latest study of women in the labour market (2013), the Office for National Statistics have identified that in the younger age groups of 16-24 and 25-29, the top 10% of earners were relatively evenly split between men and women, but that “the greatest fall in the percentage of the top 10% of earners that were women was between the 25-29 and 30-34 age groups, coinciding with women having children in their late twenties. Therefore, the percentage of women in the highest paid reduces after the average age that women tend to give birth to their first child”.¹⁰ Thus, assimilating these forms of discrimination to sex discrimination or, in other words, those forms of inequality to sex inequalities would not be true to the experiences lived either by women who have children or by those who do not.

• 11 The fieldwork this article partly relies on included 19 sociological, semi-conducted interviews wit (...)
• 12 These patterns apply across the board, as is shown by the EHRC, Research on the experiences of empl (...)

6In the legal profession, the hours, the specific timetable constraints (linked to court hearings), the role of clerks in chambers, etc., all contribute to making women lawyers subordinates. The prominence of maternity and motherhood, playing a key part in this subordination, was seen to be flagrant in interviews carried out in 2007-08 for the author’s PhD fieldwork¹¹ with women lawyers and judges, research which aimed at testing a number of hypotheses and gaining further insight into the dynamics of identity and discrimination. Recent studies on the legal profession corroborate these findings and underline the resilience of these patterns. ¹²

• 13 Kimberlé Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of (...)
• 14 See Sirma Bilge, « Théorisations féministes de l'intersectionnalité », Diogène 225.1 (2009), pp (...)

7In its first part, the article presents an overview of the legislative framework and practices in the profession. Then, by relying on examples derived from the fieldwork as well as the literature, it insists on juggling family and work in the legal profession as illustrations of the maternal wall. It aims at showing that discrimination on the grounds of maternity should be constructed as a form of intersectional discrimination. Intersectionality primarily stems from African-American feminist research, as a reaction to the fact that the interaction of sexism and racism was neither acknowledged by equality legislation nor identified by scholars. First coined by law professor Kimberlé Crenshaw, ¹³ the concept has received a tremendous amount of attention over the past ten years.¹⁴ In the present article, intersectionality is predominantly deployed in its relation to multifaceted identities but the author also draws on its ability to refer to systemic structural forces that shape societies.

• 15 Although essentialism should not be rejected outright, as may be linked to the very process of thou (...)
• 16 See the Bar barometer 2014, https://www.barstandardsboard.org.uk/media/1599997/bsb_barometer_report (...)
• 17 Clare McGlynn, “The Status of Women Lawyers in the United Kingdom”, in Ulrike Schultz and Gisela Sh (...)
• 18 For instance, in the barrister’s branch of the profession, women made up 48% of those called to the (...)

8Indeed, even though it is intricately tied to sex and gender, to reduce discrimination on the grounds of maternity to a form of sex discrimination might easily amount to an essentialist analysis.¹⁵ This form of discrimination partly explains the slower progression of women on the professional ladder, their relative confinement to certain areas of law and, consequently, the small proportion they account for in the senior judiciary, in spite of the fact that women now outnumber men among law students,¹⁶ achieve better academic results on the whole,¹⁷ and have made up around 50% of the profession at entry level for about twenty years.¹⁸ This situation undermines the trickle-up argument that is often put forward when trying to justify the lack of women in the upper echelons.

• 19 http://www.legislation.gov.uk/ukpga/2010/15/section/18, last consulted 26 May 2017.
• 20 For more detail on the comparator issue, see Sandra Fredman, Discrimination Law (Oxford, Oxford Uni (...)

10In the UK, The Sex Discrimination Act 1975 specifically prohibited discrimination on the grounds of pregnancy or maternity leave. Since October 2010, this type of pregnancy and maternity discrimination has been unlawful under the Equality Act;¹⁹ it qualifies as automatic discrimination without the need to provide a male comparator, whereas such a comparator (actual or hypothetical) is used in other sex discrimination cases involving women, to test whether a man would have been treated more favourably in similar circumstances.²⁰ The current protection exists from conception to the end of statutory maternity leave (the ‘protected period’). The Equality Act’s provisions for pregnancy and maternity cover all areas of employment, including, but not limited to, recruitment, promotion, training and redundancy selection. The Employment Rights Act 1996 and the Maternity and Parental Leave Regulations 1999 give employees (but not other workers) additional protection. This legislation makes dismissal automatically unfair if it is due to an employee’s pregnancy or maternity leave. Subjecting a woman to any other detriment due to her pregnancy or maternity leave (or because of illness suffered by her as a result of her pregnancy) is also unlawful.

• 21 https://www.gov.uk/maternity-pay-leave/overview, last consulted 26 May 2017.
• 22 Edmund Phelps, “The Statistical Theory of Sexism and Racism”, American Economic Review 62.4 (1972), (...)

11Statutory maternity leave in the UK is 52 weeks, made up of 26 weeks of “Ordinary Maternity Leave” and 26 weeks of “Additional Maternity Leave”.²¹ Women must take at least two weeks’ leave after their baby is born. In addition, occupational pension schemes are now all deemed to include a maternity equality rule so that women are not treated unfavourably. There are differences depending on the collective agreements and specific measures taken by employers. Despite this framework however, discrimination based on the potential to become pregnant was reported a number of times in the interviews carried out by the author. This is linked to statistical discrimination, as theorised by Edmund Phelps: ²²

• 23 2014 Bar Council Guidance. http://www.barcouncil.org.uk/for-the-bar/professional-practice-and-ethic (...)
• 24 2016 version of the pack at http://www.barcouncil.org.uk/media/404121/bar_council_tips__advice_and_ (...)
• 25 The BSB carried out research among women at the Bar in 2016 to improve their knowledge of the imple (...)
• 26 As mentioned in the survey undertaken by the Commercial Bar Association (COMBAR), “Pupillage, Mater (...)

12In terms of the regulations that apply to the legal profession more specifically, the Bar Council, which is the representative body for barristers, encourages chambers to have a written policy addressing maternity, paternity and parental leave, providing definitions and including provisions on pre-departure and pre-return questions. They offer guidance with a detailed checklist mentioning for instance “What facilities does Chambers offer for maternity returners i.e. refrigeration for expressed milk, information on the nearest childcare providers, can Chambers obtain a discount for members, etc.”.²³ The Bar Council has also produced a “Family Career Breaks Advice Pack”²⁴ and holds “Family Career Breaks” events annually. The role played by the Bar Council and Bar Standards Board (the regulatory body of the branch) is key, as most barristers are self-employed (those who work in sets of chambers), and remain outside the scope of the legislation regarding these issues. They have, for example, standardized the practice of allowing women six months free of rent for maternity leave since 2004 and produced Equality Rules that came into force in 2012, accompanied by regular monitoring.²⁵ Such policies greatly contribute to retaining women in the profession²⁶ but they can still generate tensions in chambers. One of the interviewees thus explained:

• 27 Law Society, “Obstacles and Barriers to the career development of woman solicitors”, Report Prepare (...)

15The Law Society, which represents the solicitors’ branch of the profession, does not seem to have developed specific policies concerning maternity leave. Nevertheless, they have set up a Diversity and Inclusion Charter accompanied by a set of protocols that includes a “flexible working protocol” which “presents a clear business case for flexible working, guidelines, checklists, case studies and practical tools to help law practices embed flexible working in the workplace”. In spite of the fact that maternity is not mentioned explicitly, there is no doubt such a protocol has been designed with mothers in mind, as the number of female dropouts remains high. Indeed, a 2010 report drew from a series of interviews the conclusion that flexible working becomes a necessity for many women around the middle phase of their career. This phase typically coincides with children, and legal firms, by not offering true flexibility, remove a significant proportion of the legal talent available to them for key areas of law.²⁷

• 28 Emanuela Lombardo, Petra Meier, Mieke Verloo, The Discursive Politics of Gender Equality: Stretchin (...)
• 29 Hilary Sommerlad, “Women Solicitors in a Fractured Profession: Intersections of Gender and Professi (...)
• 30 Daniel Muzio, David M. Brock and Roy Suddaby, “Professions and Institutional Change: Towards an Ins (...)

16The rhetoric of the business case – which may be seen as an indicator of how neoliberalism, defined as an ideology and policy model instituting market-based norms of practice and characterized by logics of financialisation, has pervaded equality and diversity issues²⁸ – is a constant feature of the Law Society’s research into diversity issues, in accordance with the concerns of the profession, especially in the corporate or finance sectors. As Sommerlad’s interviewees highlight, this sector is a multi-million-pound business, and making money is the only worthy consideration. According to them, the ethos has nothing to do with gender equality, the key concerns are money and getting and keeping the clients.²⁹ Muzio, Brock and Suddaby have also identified professional identities as increasingly framed around the logic of efficiency and commerce that have displaced the traditional philosophy of ethics and public service.³⁰

• 31 Law Society, “Obstacles and Barriers to the career development of woman solicitors”, p. 8.
• 32 See in particular “‘A pit to put women in’: professionalism, work intensification, sexualisation an (...)

17Sommerlad noted in the early 2000s that some lawyers’ comments were indicative of the emerging contestation of these working patterns and the 2010 Law Society report confirmed this trend. It underlined a very marked difference in the views, perceptions and expectations of younger participants from Generation Y (born after 1980). The report emphasized the high exit rate from city firms of talented men and women who found the profession at that level incompatible with their expectations of work/life balance. However, in spite of almost universal rhetorical commitment to diversity and inclusion across the legal profession in England and Wales, the recession has impacted equality and diversity and makes it more difficult to ask for flexible working as women often contort in order to keep their jobs.³¹ Sommerlad’s latest articles evidence a deepening of those trends (intensification of work and heightened significance of client care in particular), which appear to be having a particularly adverse impact on women’s working conditions. ³²

• 33 Margaret Thornton, “Work/life or work/work? Corporate legal practice in the twenty-first century” I (...)

18Indeed, the issue of flexible working is of great importance for women in the profession. Recent research carried out by Margaret Thornton in Australian law firms hints at the stigmatisation of those seeking to work flexibly, which, among other drawbacks, entrenches the masculinist identity of the ideal lawyer.³³ The way she theorises the subsequent pathologisation of mothers ties in with the concept of maternal wall, illustrated below.

• 34 Linda Tiedje, 2004, “Processes of Change in Work/Home Incompatibilities: Employed Mothers 1986–1999 (...)

19As has been widely identified by prior research, juggling a career and family life is far from easy and may be even harder for professional women, who tend to see their work as a primary role. ³⁴ Indeed, the professions involve a long period of studying and a high level of commitment to work. This section therefore aims at highlighting some of the social expectations around motherhood that often conflict with the work practices of the legal profession, notably in terms of hours. Combined with the confinement of women to some areas of the law, these frictions lead to numerous dropouts.

• 35 Cecilia Ridgeway and Shelley Correll, “Motherhood as a Status Characteristic”, Journal of Social Is (...)
• 36 The importance of applying an intersectional perspective to gender studies is put forward in a very (...)
• 37 The theory was introduced in the 1970s by Joseph Berger et al. (“Status characteristics and social (...)
• 38 Cecilia Ridgeway, “Gender, Status, and the Social Psychology of Expectations” in Paula England (ed. (...)
• 39 Cecilia Ridgeway and Shelley Correll, “Motherhood as a Status Characteristic”, p. 697.

21Whether or not children want their mother or whether the interviewee had absorbed this social norm and made it hers, in the vast majority of cases, it is still the mother, and not the father, who deals with childcare issues, because of the specific status conferred on mothers as primary caretakers. Most interestingly, this specific status has been conceptualised by Cecilia Ridgeway and Shelley Correll, as analytically distinct from the female gender,³⁵ and this is particularly relevant in an intersectional perspective as it refrains from equating women and mothers, without denying the intermingled dimensions of womanhood and motherhood.³⁶ The two sociologists use expectation states theory,³⁷ to try and account for inequalities. According to them, gender and motherhood are external status characteristics that are imposed by social beliefs and that come together with performance expectations.³⁸ They conclude that motherhood is a specific status that has a direct negative impact in the workplace because the normative imperatives linked to motherhood conflict with those that apply to a committed, ideal-type worker. This conflict leads to the build-up of an imperceptible maternal wall. ³⁹ Such conclusions echo the life experiences reported by interviewees, for instance a solicitor who showed how motherhood had modified her managers’ expectations:

• 40 Hilary Sommerlad, “‘What Are You Doing Here? You Should Be Working in a Hair Salon or Something’: O (...)
• 41 Alexandrine Guyard-Nedelec, “Ageism, Solicitors and Female Mature Entrants: An Awkward Combination” (...)

23Sommerlad also underlined the discrepancy between women’s different roles in a study on outsider status and professional socialization in the solicitors’ profession. A woman who wanted to qualify as a solicitor as a mature student noted that older women – who have often had children – have become used to doing caring work and that it is more difficult for them to cultivate the kind of arrogance that’s expected from a lawyer, to give their voice and body language the self-confidence and the certainty that are essential to the authority of the profession.⁴⁰ The gap between the opposing imperative normatives is such that it generates further hurdles for women who want to join the profession later in life.⁴¹ Another interviewee, who was heading a department in a law firm, observed that this gap could be deconstructed as superficial, if motherhood stopped being so undervalued. Drawing on a long-standing feminist insight, she listed a whole “personal skills-set that maternity brings”, including “a capacity to plan, to organize, to look ahead, to manage their resources, to manage a project” that could be valued in the workplace but is often disregarded [Interview 13].

• 42 Hilary Sommerlad, “Women Solicitors in a Fractured Profession: Intersections of Gender and Professi (...)

24If expectations and social roles play a major part in structuring behaviour and career patterns, other day-to-day constraints also contribute to the existence of the maternal wall. In the legal profession, one of these constraints is the hours. The situation differs for solicitors and for barristers. As far as solicitors are concerned, much of the problem, as identified notably by Sommerlad, derives from the macho glorification of workaholism and long hours, which contribute to placing women on the side of deviance and weakness because of their responsibilities as caretakers.⁴² The situation of barristers is different, as their timetable is very much linked to the court’s, which generates further complication when asking for flexible working. One of the difficulties in juggling a barrister’s work with family life is the unpredictability: when they are instructed by a solicitor, they do not know how long the case is going to be, whether it is going to come in early, late, or be rescheduled at a different time. Besides, at a certain level of seniority, cases may often be listed for five days in a row (Monday to Friday). If a barrister has their Friday off as a flexible working arrangement, they cannot take up these cases and will only be able “to pick up the rubbish small ones” [Interview 4]. Another solution is doing a paperwork practice and being in chambers most of the time, but in both situations the barrister’s practice will suffer. The fee structure also impacts the actual possibility of working part time, as barristers give a percentage of their earnings to chambers. Those working part time do not earn as much and thus do not give as much percentage, thereby reducing the incentive to arrange for flexible working:

• 43 Statistics from the Institute of Barrister’s Clerks website, http://www.ibc.org.uk/about/, last con (...)

26The role of clerks, hinted at by the interviewee cited above, is linked to the timetable but expands much further. Clerks are the legal assistants who interact with solicitors, distribute the caseload to the different barristers in chambers, manage their diaries, and often keep the accounts. A number of practices inherited from past generations of clerks still operate and a chambers’ manager interviewed in London gave insights into the role they can play for women’s career in particular [Interview 6]. In spite of the existence of an Institute of Barrister’s Clerks providing training, co-optation often prevails (from father to son or uncle to nephew) and it has remained a very male-dominated branch. As of May 2000 (latest available figures), 74% of IBC members were men and 26% women.⁴³ Sexism long prevailed in the traditional way clerks used to work, sometimes aiming more at improving their own situation (financially or other) than that of others. And it was not always advantageous to favour female barristers rather than male, as the latter’s career suffered fewer interruptions. Fixed salaries have been introduced in most sets, but clerks used to earn a percentage of the barrister’s fees and the power relationship was often very complex. Younger clerks are better trained, familiarised with sales techniques and, perhaps even more importantly, with diversity and equality issues; their renewal can only be good for women, and for mothers in particular, as is suggested by the following comment:

• 44 Lisa Webley and Liz Duff, “Women Solicitors as a Barometer for Problems within the Legal Profession (...)
• 45 “The law of motherhood”, The Guardian, 28 April 2011.

27Several studies have tried to understand the reason behind dropouts, and they highlight the key role of maternity and motherhood: family responsibilities are the most frequent reason why women do not renew their practising certificate, whereas for men it is generally due to anticipated retirement.⁴⁴ Indeed, the difficulties experienced with part-time work, with juggling family and work often lead to career changes – from a mere change of specialism to the decision to work in a completely different sector or sometimes, to stop working altogether.⁴⁵

• 46 All quotes and figures from Siân Heard & Fellows v Sinclair Roche & Temperley. Cases 2201499/02 & 2 (...)
• 47 Interview 18. A similar remark was made concerning LGB lawyers: when they felt discriminated agains (...)

28This pessimistic view of a patriarchal profession is further supported by a 2004 lawsuit, Siân Heard & Fellows v Sinclair Roche & Temperley.⁴⁶ Lawsuits opposing lawyers to their employers on the grounds of discrimination are uncommon or at least seldom go public. Law firms and chambers are well aware of the risks at stake, both in legal terms and for their reputation, thus these cases often settle out of court.⁴⁷ In this case, Ms Heard and Ms Fellows, the claimants, decided to sue their employers because of their lack of progression in the law firm and the unfavourable treatment they had been subjected to (linked to maternity leave and requests to work part time, in particular). The Employment Tribunal openly described the culture of the firm as “discriminatory” and held that the claimants had never been given the same opportunities as their male counterparts to achieve the level of billings that was necessary to achieve full equity partnership. The tribunal’s decision sheds light on the long-term effects of maternity leave when no form of compensation is introduced, and illustrates the vertical segregation which is one aspect of the maternal wall – especially for mothers who work part time, as well as their confinement to certain types of cases. Both claimants were awarded between £400,000 and £500,000, a large sum of money, which shows the courts and tribunals do take these cases seriously.

• 48 Metaphor borrowed from Julia Jordan-Zachery, “Am I a Black Woman or a Woman Who Is Black? A Few Tho (...)

29The details of the case deliver an interesting perspective on the difficulty of separating sex discrimination and maternity and pregnancy discrimination, and help us to understand how their combination amounts to intersectional discrimination. Indeed, what defines intersectional discrimination is the impossibility of separating the different grounds, which are intermingled in the manner of a “marble cake”.⁴⁸

• 49 Joan C. Williams, “Hitting the Maternal Wall”, p. 17.
• 50 Michelle J. Budig and Paula England, “The Wage Penalty for Motherhood”, American Sociological Revie (...)
• 51 Michelle J. Budig, Joya Misra and Irene Boeckmann, “The Motherhood Penalty in Cross-National Perspe (...)
• 52 Kristin, Rowe-Kinkbeiner, “Breaking Through the Maternal Wall: The Time is Now”, The Shriver Report(...)
• 53 Ibid.

30Resorting to the concept of maternal wall to describe these situations of discrimination highlights the long-term negative effects of motherhood on women’s careers in the legal profession. Sadly, the bias faced by mothers in this specific trade may be replicated throughout society at large. In the words of Joan Williams, “many women never get near the glass ceiling because of the ‘maternal wall’”.⁴⁹ A study published in 2012 on the wage penalty for motherhood⁵⁰ calculated a wage penalty exceeding 50 per cent in the UK, which places the country in the group where penalties are highest.⁵¹ In this respect, parallels can also be drawn between the situation in the UK and that in the US. As underlined by The Shriver Report, “Motherhood is now a greater predictor of inequality than gender in the United States of America”.⁵² This ties in with the analysis of the situation in the English legal profession; the domino effect of the maternal wall and motherhood wage penalty ripples through the economy and society. Their intersectional dimension is made even clearer if we think that, still in the US, “while most women without children make 90 cents to a man’s dollar, mothers make only 73 cents, single mothers make about 60 cents and mothers of color earn as little as 54 cents to a man’s dollar”.⁵³

• 54 Ernest Urtasun (Rapporteur), Committee on Women’s Rights and Gender Equality, ‘Report on equality b (...)

32These questions should be openly addressed by political leaders, who often leave them to equality bodies such as the EHRC in the UK, without instilling the necessary political will. In times of austerity, those bodies are often underfunded and the budgetary cuts impact women and gender equality sharply, as was recently underlined in a report on equality between women and men in the European Union.⁵⁴ According to the report, austerity policies often evolve into a reprivatisation of care and a return to traditional gender roles. For working mothers, this frequently translates into trivial day-to-day compromises: “I think on the whole, it’s not only the social pressure on women [...]. It’s other things, and the ‘Who comes home from the office early if the children are ill?’ and things like that.” [Interview 15]. The words of this interviewee express in simple terms how these complex loaded questions transfer into private lives, reminding us of the validity of the famous second wave feminist slogan “the personal is political”: plus ça change …?