Gender discrimination has been illegal for barely 50 years. Soon after the nondiscrimination law was passed, companies had to figure out how to address the gender gap and remedy the dearth of women in the workforce—especially in high-level career positions. Providing liberal leave benefits, on-site child care, women’s mentoring programs, and expanded recruitment channels were all typical steps advanced companies would take. 
A constant question has been whether a woman can lead both a business and a family. Would she have to choose between a promotional schedule and a biological clock? Or would she opt for a part-time “mommy track”—taking time off to have a child and a reduced schedule to raise it while being relegated to a lower rung on the corporate ladder?
One observation over the past few decades is that even if a company makes it easier for women to fight the corporate executive war, a larger percentage of women opt out of the fight as a matter of personal preference. Believe it or not, more women than men prefer family time or leisure time or self-improvement time to working at the office from dawn to midnight. Go figure. There isn’t a single reported case of a deathbed lament, “My one regret is that I did not spend more time in the office.”
Even so, while the gender gap in the traditional economy hasn’t disappeared, it continues to shrink. In 1971, less than five percent of lawyers and judges were women—today, they make up more than a third of the bench and bar and a majority of the entering classes of our elite law schools. In 1971, less than 10 percent of medical school graduates were women, while they have numbered 48 percent throughout the past decade.
The gap in the Valley
As noted previously in these pages, the gender (and, parenthetically, race) gap in the non-brick-and-mortar companies is vast. Some of my clients in this field argue passionately that there simply are no great female engineers to be found. That explanation won’t fly with the predominantly female jury that defendants in California jury trials are most likely to encounter.
So giant companies, including Apple and Facebook, are launching a new solution to the conundrum of raising a family or fulfilling your career. As a new perk, the two companies will pay female employees up to $20,000 to have their eggs frozen—to be retrieved and fertilized at a more convenient time in their careers. Take the biological clock out of the equation.
As Business Week’s Emma Rosenblum puts it, “If a 25-year-old banks her eggs and, at 35, is up for a huge promotion, she can go for it wholeheartedly, without worrying about missing out on having a baby.” On the other hand, Alice Crisci of Ovum Medical counters, “Those companies are sending the wrong message to women; we value you as an employee without kids so we will help you delay your childbearing years.”
As a litigator, I worry that a terminated employee will argue, “I froze my eggs to invest my future with this company.” A new wrinkle on the implied promise of future employment. Moreover, while the younger the employee, the greater the chance that egg fertilization is successful, the odds at best are less than 50/50, so this deferment process isn’t nearly a sure thing. Finally, will women feel pressure to go the frozen-egg route to fit into this new corporate culture?
This is just the latest in cutting-edge perks, which always seem to cut both ways. Google employees reportedly never sit more than 100 yards from a stash of snack food; are we creating a cadre of overweight diabetics? Companies bring top-name talent onto the campus, entertaining employees who never see their homes. Are these perks really designed to attract the best and brightest, or are they the latest tool to get extra work out of employees? This gives birth to a great deal of thought.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco. He may be contacted at schickman@freelandlaw.com.