by Joan Williams (Reprinted from New Deal 2.0)

Judge Loretta Preska rolled back the clock on mothers seeking justice for straightforward discrimination.

When Sekiko Garrison told former boss Michael Bloomberg she was pregnant, his answer was simple: “Kill it.” Allowing mothers flexible work arrangements, he commented, was like allowing a man time off to practice his golf swing. The CEO who took over when Bloomberg left the company demanded that managers “get rid of these pregnant bitches” (referring to two women on maternity leave). The Head of Global Human Resources commented that mothers “belong at home” and that “women [do] not really [have] a place in the workforce.” The Head of News commented that “half these f**king people take the [maternity] leave and they don’t even come back. It’s like stealing money from Mike Bloomberg’s wallet. They should be arrested.” The Head of Global Data asked, “Who would want to work with an office full of women?” ((These quotes can be found in the EEOC brief.))

And yet Federal Judge Loretta Preska said last week there was so little evidence of discrimination that she would not allow the Equal Employment Opportunity Commission (EEOC) to proceed to trial to try to prove that Bloomberg had discriminated against mothers. Preska, a pro-business Bush appointee, ended her opinion with a severe scolding: “At bottom, the EEOC’s theory of this case is about so-called ‘work-life balance’… [T]he EEOC’s claim…amounts to a judgment that Bloomberg, as a company policy, does not provide its employee-mothers with a sufficient work-life balance.” Preska quotes (as binding authority?) former General Electric CEO Jack Welch: “There’s no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences.”

Where to start? The plaintiffs in this case were not asking for work-life balance. They were asking that their employer not discriminate against them because they were mothers. Recent social science suggests that motherhood is the strongest trigger for gender discrimination in today’s workplace. If you give people identical resumes, one a mother and the other not, the mother is 79% less likely to be hired, 100% less likely to be promoted, offered an average of $11,000 less in salary, and held to higher performance and punctuality standards, according to a study by Shelley Correll, Steve Benard, and In Paik. Note: identical resumes. This is not a measure of the desire for work-life balance. It’s evidence of extraordinarily strong discrimination against mothers. And, as the quotes from Bloomberg management demonstrate, discrimination against mothers is not only very strong. Often, it’s also very open.

Discrimination at Bloomberg appears to have been very open indeed. Yet through a series of procedural rulings, Judge Preska threw out most of the EEOC’s evidence and then held that it had so little evidence it could not take the case to trial. First, she rejected the EEOC’s statistical evidence. Then she threw out statements like those above. Those statements she could not throw out for technical reasons she simply ignored. (The comments about leave-takers stealing Mike’s money were not excludable for any of the reasons the judge identified. And by the way, it is illegal under the Family and Medical Leave Act to discourage people from taking FMLA leave. Would you be discouraged by these comments?)

I won’t go deeply into the technical problems with the court’s opinion. But the court got caught in a time warp. Ten years ago, suits against mothers were often stymied because courts could not find a suitable “comparator” — a similarly situated pregnant man. Courts eventually solved this problem by abandoning their search for a comparator, instead allowing plaintiffs to prove discrimination by introducing evidence of stereotyping (e.g., comments about how mothers belong at home). But Judge Preska turned back the clock. She not only insisted on comparator evidence, but rejected the obvious comparison between people who took maternity leave and those who did not. Instead, she insisted that the plaintiffs compare their salary growth to that of employees who took leaves of similar length. But healthy men don’t typically take long leaves, which means that plaintiffs’ salary growth was compared to that of employees who, one assumes, either were seriously ill, seriously disabled, or else had gone on an extended vacation to discover themselves in Aruba. Not surprisingly, under these circumstances the significant salary disparity found by the plaintiff’s expert magically disappeared.

But the most troubling thing about this case is Judge Preska’s confusion about the difference between work-life balance and discrimination against mothers. “The law does not mandate ‘work-life balance.’ It does not require companies to ignore employees’ work-family tradeoffs — and they are tradeoffs — when deciding about employee pay and promotions.” True that.

What employers are not allowed to do is discriminate against mothers on the fast track because a different group of mothers decided to leave the fast track. If the judge doesn’t understand that, she needs a refresher course on the basics of anti-discrimination law, set down in the 1970s. You can’t penalize women who don’t conform to stereotypes just because other women do conform to them.

If we abandon these basic principles of anti-discrimination law, it’s open season on mothers. And that’s a really, really devastating setback for women. Studies show what dooms women economically in the United States is not being a woman — it’s being a mother. If the courts refuse to protect mothers on the fast track simply because other mothers decided to leave, we are not going to have gender equality anytime soon. That’s for damn sure.

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Joan Williams is the author of Reshaping the Work-Family Debate: Why Men and Class Matter.