JONATHAN COHN AUGUST 18, 2011
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[Guest post by Chloë Schama]
Although I did not follow the case very closely, I’m of mixed minds about the dismissal yesterday of the class action case filed by Bloomberg LP employees, claiming discrimination against women who took maternity leave. On the surface, it seems to be of a piece with the Supreme Court’s recent dismissal of class action suit against Wal-Mart—and a further blow to efforts at addressing gender-based workplace discrimination. In the Wal-Mart decision, since there was no explicit policy of discrimination, the Court majority ruled, patterns of pay discrimination didn’t matter. (The size of the class was a factor in the decision as well; as one of my colleagues put it, the Justices made Wal-Mart sound “too big to sue.”)
In this case, however, the dismissal seems more legitimate. For one thing, there really doesn’t seem to have been enough evidence. “‘J’accuse!’ is not enough in court,” Judge Loretta A. Preska wrote. “Evidence is required.” In addition, the plaintiffs—in the Judge’s assessment—asked the court to do more than the plaintiffs in the Wal-Mart case were asking—to prescribe a better work-life balance, rather than simply guarantee equal treatment in the workplace. (Preska quotes former GE CEO Jack Welch: “There’s no such thing as work-life balance. There are work-life choices.”) Because Bloomberg is a place that, says Preska, “explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences.” This is the way the “the free-market employment system we embrace in the United States,” works, she says. In other words, as long as a company treats employees who take leave to have a baby and employees who take leave to sail to Tahiti the same when they return, there’s no problem, the company is satisfying the legal requirements for equal protection.
Of course, both society’s expectations and biology mean that women bear a greater burden of child-bearing, and any system that penalized workers from taking extended time off will put women at a comparative disadvantage. Maybe the courts can’t help that. But somebody should.
9 comments
Preska quotes former GE CEO Jack Welch: “There’s no such thing as work-life balance. There are work-life choices.” This is crack pot thinking. Of course there is work life balance, unless we go back to slavery where life is nothing but work till you die. I thank God I have not been so stupid as people who would work at a place that requires all out dedication to making a billionaire even richer. These people want to be slaves, that is ok by me, but setting up our society on the presumption that we all can, hell should, be treated like slaves by our employers is one I refuse to part of. Now pardon me while I go take my afternoon swim at the nearby tropical beach, I might be poor compared to these people but damn am I happy.
- blackton
August 18, 2011 at 1:55pm
AMEN and mazel tov. We really need to rethink our values. In our short time on this planet do we really, truly want to be enslaved? By the same token when did slavery once again become virtually legal?
- Sophia
August 18, 2011 at 7:09pm
In the long run, it's shortsighted for our society to be encouraging some of our most productive and hardworking people to skip child-rearing...
- Curran1
August 18, 2011 at 8:55pm
This is tough because I deeply admire Bloomberg as a mayor, brilliant administrator and perfect leader for New York - but I've also been a professional woman in Manhattan for many years and on a personal level, there is no denying it: he has a terrible, hair-raising reputation as a sexist.
- WandreyCer
August 18, 2011 at 9:48pm
Life is not fair. Sue God.
- skahn
August 19, 2011 at 12:23pm
There is of course such a thing as a work life balance; and people who want that balance should get those kinds of jobs and seek those kinds of offering employers. So Welch's statement is too categorical. Short of that he's right. There are places like Bloomberg LP and many other high pressure places where it's understood that if one wants to work there and succeed one has to make, as Welch said, a "work life choice." That's entirely legitimate so long as one knows what one is getting into and accepts that. I'd make no judgments about driven people who put their work, careers and career success ahead ahead of personal life and family within limits. I'd respect their choice. Some people go to the office and stay there long hours; others go swimming--fair enough all the way around. When I was younger, I told my wife that I was going to work very hard and work came first within limits. She agreed and it worked out. Older, I backed off that and that was good too. So let's, I suggest, understand Welch's point as just qualified, and dispense with the piety.
- basman
August 19, 2011 at 7:00pm
Sophia writes: "We really need to rethink our values." There's nothing to re-think. Some companies value employees that are there 24x7 for the company. If you can live with that, then great, they'll pay you well. If you can't, then there's a less intense job someplace that doesn't pay as much. But you have more time to do what you want. There's a reason the post office pays $42 an hour. Hold it, that's not a good example. Never mind. But you know what I mean. The rules are quite simple. And quite fair. What is unfair is the author of this short piece didn't tell you explicitly: Bloomberg INCREASED the pay of pregnant women more than those who took leave for other reasons, and they did not reduce the responsibility for women returning from maternity leave any more than those of those who took similar leaves for other reasons. In fact, evidence in the case showed over the 12 months before the baby, and 12 months after the baby, the women received on average almost a $6000 increase in wages. Not bad. Bloomberg offers 12 weeks of paid materinity leave for the mom, and 4 weeks unpaid leave for the dad. Pretty generous if you ask me. So, actually, Bloomberg treats women (and men) here very well. And during this time in which your body and life are changing rapidly, they in fact increased your pay substantially. Whether it be a baby, a personal illness, dealing with sick parents, troubled children...everyone will probably need a few weeks off in their life from time to time. There is nothing exceptional about women here. Bias is all about what you leave out.
- seattleeng
August 20, 2011 at 1:11pm
Cute.
- mlottman
August 21, 2011 at 10:00pm
God, how I HATE agreeing with Seattle! Might want to check that Postal Worker salary number, though. That's probably for a top manager, not a rank-and-file worker. Sophia....slavery became legal when the Bush Depression hit full-force. It is, sadly, a buyers market for labor right now. They will do whatever they want to because they can. Even government employment (which should have a somewhat higher standard a la the U.S. Constitution) sucks as bad as the private sector. I know because I was on the receiving end of an unfair, unjustified layoff after 28 years of service so upper management could further expand its ranks and protect its salaries and perks. At the expense of the rank-and-file worker bees. Too bad, too sad. And the public sector unions can't do a damn thing to stop it. Things will only change for the better when the scale tilts back more toward the employee and we hold a few cards at the table, again. If that ever happens.
- desertdog
August 22, 2011 at 6:20pm