JONATHAN COHN AUGUST 18, 2011
[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.