« The Meanie Advantage | Main | The Nanny Firm »

Bloomberg Judge Hostile to Work/Life Balance?

Vivia Chen

August 24, 2011

Preska_Loretta If you are a woman who works in a pressure-cooker profession like law or finance, you must read New York district court judge Loretta Preska's opinion in the Bloomberg L.P. discrimination case. Whether you agree with the decision or not (the judge dismissed charges by the EEOC that Bloomberg had systematically discriminated against pregnant women or those who recently returned to work from maternity leave), it's a fascinating read.

Calling the evidence against Bloomberg "insufficient," Preska goes to town on what she thinks is the real subtext of the lawsuit. She writes:

At bottom, the EEOC's theory of this case is about so-called work/life balance. Absent evidence of a pattern of discriminatory conduct . . . the EEOC’s pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide work/life balance.

And the law, she reminds us, "does not mandate work/life balance." Preska essentially says that "balance" is a personal matter--not a corporate obligation.

In the decision, Preska quotes Jack Welch, General Electric's legendary CEO: "There’s no such thing as work/life balance.  There are work/life choices, and you make them, and they have consequences." A company like Bloomberg, she adds, explicitly states that it expects "all-out dedication" from its employees in return for a hefty paycheck. Thus, "making a decision that preferences family over work comes with consequences."

No surprise that Preska's opinion is upsetting a lot of women. "By Judge Preska’s logic, even the most dedicated, career-driven mother is going to be penalized for taking time away from work to have a baby," says Michelle Gerdes in The Wall Street Journal.  “She hardly hides her contempt for women with kids who have ambition and want top-paying jobs,” Sonia Ossorio, the executive director of National Organization for Women, told The New York Times. “If you read her comments, she says that basically if a workplace culture is work 24/7, then they have a right to have that type of culture.”

And Ms. magazine says:

Did she say “Jack Welch”? Yes, he was a business icon at one time. His leadership was heralded at Harvard Business School in the early ’80s. But his rein in the world of influential ideas was then and this is now. . . . We can no longer afford to dismiss half of our human resource capital because it happens to be female and sometimes bears children . . . the Bloomberg case’s reasoning and citing of a business dinosaur reminds us that business culture still has far to develop.

Business culture does have a long way to go on the work/life balance front, but is Preska making the problem worse? I don't think so. Nor do I find her unsympathetic to the plight of working mothers.

Like it or not, there's a lot of truth to what Preska says--though it seems uncomfortably retro to admit that high performers in the business arena often lack balance in their personal lives. That's certainly still the case in the world of big-firm practice, where time is still money.

How should we view Preska's remarks: a free-market homage to the status quo, or a needed shot of reality? You tell me.

Related post: Business Case for Work/Life Balance--Really?, Is Kagan Being Attacked by Work/Life Balancers?

Get The Careerist in your morning e-mail. Sign up today--see box on upper right corner.

Do you have topics you'd like to discuss or tips to share? E-mail The Careerist's chief blogger, Vivia Chen, at [email protected]

 

Comments

Feed You can follow this conversation by subscribing to the comment feed for this post.

Daleth,

Good point about the redressing of natural disparities. So, I assume you favor a law requiring women to pay 50% of the cost of dates.

12 years ago,with three women bosses, this sentiment was expressed.
Start early, watch out for the pot holes and get to know a few attorneys..."if it doesn't pass the sniff test..." the best advice I ever received...

A question which underlies the court's statement and is not addressed is whether the "complete dedication" required by an employer is also an expansive pretext which includes a wide range of intentional discrimination. I believe it likely is. Still no remedy.

Brett: The issue is that by biological imperative only women can get pregnant, give birth, and nurse babies. Therefore, they have a different set of issues with respect to child bearing than men. I do believe that men should have paternity leave, and bond with their children. And, of course, women should have maternity leave.

BUT, the issue here is that women must take time off, no choice, if they wish to have children. Is it valid to punish that?

Daleth,

A witch's (or warlock's) stew of conflation and fallacious logic.

I'll pass on commenting on your logic in creating your ostentatious analogies.

But as to your conflated definition of the law in play, the physiological difference itself is accounted for through the various family leave laws. This is not the law at issue in the case. The implications of the physiological difference, that a woman can not both be recovering/nursing/parenting/nurturing during the initial period of the child's life and accruing additional experience and providing value to an employer's clients (and the continuing similar, but less dramatic, choices that have to be made for the next 18 years), can only be managed through the suspension of the time-space continuum. I just wasn't aware we had become do grandiose in our prescriptions for anti-discrimination law. How well do people who go on leave perform in this alternate reality - average or better than those performing work in the real world? How about when they come back and chose to fulfill various familial obligations as opposed to putting in the extra hours of valuable work - do they perform at an average level or better than those performing work in the real world?

Yes, Brett, the physiological differences between men and women have practical implications--and that's precisely why we need laws to create parity where it does not exist naturally. If it existed naturally, we wouldn't need a law to make it happen.

The whole point of the law is to redress natural but undesirable disparities (for example, men are naturally stronger than women and children; doesn't your view of things mean that we shouldn't have laws against rape and child molestation but should just accept that those physical differences have practical consequences?).

What I couldn't tell from the story is what the allegations are. If the company punishes women in any way for taking off six weeks to have a baby, then that's absolutely wrong. If the complaint is the company expected the mother to work long hours after the six/eight week period--like everyone else--then the case was rightfully dismissed.

I could have made more money in the private sector, but took a government job because the 8-5 hours let me coach my son's little league teams. That was discrimination--that was my choice.

Just what we need, a finance sector entirely devoid of women with any plans to have families. I'm sure that will work out great.

If the law doesn't protect working mothers returning from pregnancy leave, then the problem is with the law, not the mothers (and you and your commenters are part of the problem for accepting that this is just how it is and there's nothing to be done about it).

I'm a proud feminist, but I have to say I think Preska is correct. And if a company does choose to have that type of culture, maybe it will be punished by talented women (and men) who choose to work at a different type of company (or, more likely, it won't). It may not be ideal, but it's not illegal.

If we're going to act like physiological differences between the sexes can have no practical implications, then why define this as a "working woman" issue? Maybe as a man with certain psychological needs for bonding, I need to take off three months every couple years to apporopriately address the psychological fragilities around my relationships with my children...why should this affect my career?

Why even limit this to kids...maybe the stressors associated with my (high paying) job are particularly trying for my constitution and a three month sabattical here and there will really get me back up to speed.

I think constraining this issue to "working women" is sexist and really unimaginative. This is the vanguard of sensitivity and diversity people --- come on!

But really, guess what...personal choices have consequences and the more this profession attempts to litigate them away, the more handicapped the citizenry becomes in being able to understand and evaluate the incentives provided in a capitalist society.

As usual, some Americans seem to confuse desirable cultural goals with things that should be illegal. Thank god judges like Preska actually remember that there is (and always should be) a difference.

Verify your Comment

Previewing your Comment

This is only a preview. Your comment has not yet been posted.

Working...
Your comment could not be posted. Error type:
Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

The letters and numbers you entered did not match the image. Please try again.

As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

Having trouble reading this image? View an alternate.

Working...

Post a comment

Comments are moderated, and will not appear until the author has approved them.

Subscribe to get The Careerist via e-mail

Enter your e-mail address:

Delivered by FeedBurner

About The Careerist

The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: [email protected]

To search across all ALM blogs, go to www.Lexis.com.