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 Laura Sexton back to our pages. Click here if you’d like to donate to MothersEsquire.
I did not enjoy the bar exam. Like many others, I was saddled with $250,000-plus in student loans and worried about what would happen if I failed. I worked part-time to support myself and spent the rest of the summer buried in bar prep books and feeling perpetually behind. And then my computer malfunctioned on the day of the test, causing me to lose half of my essays and finish out the test with paper and pen. Needless to say, it was stressful!
But, it could’ve been a lot worse. I wasn’t up all night nursing a newborn while I was studying. And I didn’t have to worry about pumping breast milk during the exam. I also didn’t have to fill out any forms to request accommodations, play phone tag with the bar examiners’ office, or wait months for a decision about whether my request would be granted.
Yet, this is the reality that many women face every year. In 2015, the ACLU and the Law Students for Reproductive Justice did a 50-state survey of bar examination procedures for breastfeeding examinees. The results were eye-opening:
- 45 state bar examiner websites suggested that only individuals with documented “disabilities” were eligible for accommodations. (“Since breastfeeding is not a disability,” the ACLU explained, “many candidates may not even bother seeking accommodations.”)
- Two states — Alabama and Louisiana — had explicit policies making breastfeeding examinees ineligible for accommodations.
- Several states ostensibly reviewed applications for breastfeeding accommodations on a case-by-case basis, but experience suggested that those accommodations were “only available in theory” in some states.
- Only 12 states confirmed that breastfeeding examinees were eligible to receive additional time.
This survey prompted some progress. Ten states have since revised their policies for lactation accommodations, and another six states have committed to conducting a review of their current policies and procedures.
But work still needs to be done. In May 2021, MothersEsquire conducted a follow-up survey as part of its PumpUpTheBar project. Whereas the ACLU-LSRJ survey relied on written responses from each state, MothersEsquire focused on the information published on each jurisdiction’s website. This was strategic because, in order to be helpful to examinees, lactation policies must be both clearly explained and publicly available. MothersEsquire determined:
- 19 states still only published accommodations for ADA disabilities, of which lactation does not qualify, or simply no accommodation information at all.
- Six states provided lactation accommodations, but did not include adequate details regarding what accommodations may be available or how to request those accommodations.
- 16 states had an administrative or courtesy accommodation policy published, but not including any additional break time for breastfeeding or pumping.
- Nine states had published comprehensive breastfeeding accommodation policies which included extra “stop-the-clock” break time to pump or breastfeed.
- Of the states that did offer lactation accommodations, those accommodations were most often granted on a case-by-case basis, meaning that some mothers could end up being denied accommodations and that accommodations were potentially subject to unconscious bias and/or inequitable administration.
While these results show that some progress has been made, it is still far too difficult for breastfeeding applicants to obtain basic accommodations in many states.
The ABA has recently recognized these significant gaps in accommodations for breastfeeding examinees. In February 2022, the ABA adopted Resolution 501, after a presentation that included the MothersEsquire 2021 survey results. This resolution “urges” all bar admissions authorities to “provide reasonable and accessible accommodations to lactating individuals,” such as designated spaces for pumping, written policies that are publicly available online, and “off-the-clock break time” so that examinees are provided the same amount of time to take the exam.
The regulatory climate has also become increasingly supportive of breastfeeding accommodations. In December 2022, two laws were enacted: the PUMP Act and the Pregnant Workers Fairness Act (PWFA). The Pump Act expands the right to receive pumping breaks and a private space to nearly 9 million more workers. Likewise, the PWFA requires covered employers to provide “reasonable accommodations” for conditions related to pregnancy, even if they do not rise to the level of a “disability” under the ADA.
Unfortunately, bar examination policies are still lagging behind. Many states still only have vague policies available online or policies that only discuss accommodations for “disabilities.” Now, more than ever, these bar examination policies need to be updated.
The author would like to give special recognition to E. Sloan Masden for conducting the research for the 2021 MothersEsquire survey; Kelly Blount for her supervision of the work; Michelle Browning Coughlin, who presented the results to the ABA House of Delegates in February 2022; and Lindsay Kennedy, Debra Barclay, Jamie Szal, Laura Landenwich, and everyone else at MothersEsquire who has contributed to the PumpUpTheBar campaign.
Laura Sexton has three children and loves being a mother and a lawyer. She is a partner at Goldman Ismail Tomaselli Brennan & Baum LLP, where she represents Fortune 500 companies in matters involving products liability, antitrust, and other complex commercial disputes.