Is it Legal to Discriminate Against Employees Who Seek a Work-Life Balance?

In most places in this country, it is perfectly legal for a company to pay an employee less, or even fire her, if she made no secret about the fact that she planned to prioritize her family and work fewer hours.
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There has been a spirited debate in this country about the role of women in the workplace. Whether it's Sheryl Sandberg's best-selling book, "Lean In," or the uproar over Yahoo's decision to end telecommuting, the balance between family and work remains a hot-button topic.

But it is important to remember that these debates are, in large part, not legal ones. To the contrary, in most places in this country, it is perfectly legal for a company to pay an employee less, or even fire her, if she made no secret about the fact that she planned to prioritize her family and work fewer hours. The catch? They have to apply that same policy equally to both men and women regardless of the reason for the leave.

For instance, it would be legal for a company to decline to promote Stan when he starts to take significant time off from work to take care of his two daughters, as long as the company did the same thing to Stacy, who chose to take significant time off to learn how to sail. However, it is important to note that it would likely be illegal for the company to continue to penalize Stan or Stacy after they return from leave based on a stereotypical assumption that employees who take extended leave are de facto less effective workers.

But assuming no stereotypes are in play, companies are allowed to reward those who prioritize work over family.

How This Plays Out in Court

There was a laudable effort by the Equal Employment Opportunity Commission (EEOC) to use sophisticated statistical analysis in a case against Bloomberg news and data service. The Commission claimed that Bloomberg had a "pattern and practice" of discriminating against pregnant women and those with children. The EEOC claimed that Bloomberg routinely discriminated against those taking extended leave by reducing their pay and responsibilities based on illegal stereotypes about productivity following leave.

The case was assigned to Judge Loretta Preska -- who herself climbed through the ranks of elite law firms that likely placed more emphasis on work than life -- before being appointed to the bench. As law professor Joan Williams, and national authority on work/life law, noted in her article, "Jumpstarting the Stalled Gender Revolution," Judge Preska dismissed the bulk of the EEOC's case after ruling inadmissible the EEOC's statistical evidence, while allowing the statistical evidence deployed by Bloomberg. Judge Preska also disallowed evidence of alleged statements by Bloomberg management. For instance, according the EEOC allegations, one senior executive demanded that managers "get rid of these pregnant bitches." Addressing a complaint about his statement, the executive exclaimed, "[W]ell, is every f---ing woman in the company having a baby or going to have a baby?" He also said that unless mother or child has a health issue, "there's absolutely no reason for someone to take paternity leave." Shorn of these telling statements and statistical evidence, there was little left of the EEOC's case.

Having set up a straw man to knock down, Judge Preska's opinion became a polemic on law and work-life balance. As Professor Williams rightly notes, it is a "sermon" not connected to the claims raised by the women in the Bloomberg. Still, the opinion is effective to the extent that it artfully expresses the view of many in upper management and the law, as evidenced by this heavily quoted passage:

There is considerable social debate and concern about this issue. Former General Electric CEO Jack Welch stated, "There's no such thing as work-life balance. There are work-life choices, and you make them, and they have consequences." Looking at it purely from a career- or compensation-focused point of view, Mr. Welch's view reflects the free-market employment system we embrace in the United States, particularly for competitive, highly paid managerial posts such as those at issue here. But it is not the Court's role to engage in policy debates or choose the outcome it thinks is best. It is to apply the law. 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. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be forward thinking. But they are not required by law. The law simply requires fair treatment of all employees. It requires holding employees to the same standards.

In a company like Bloomberg, which explicitly makes all-out dedication its expectation, making a decision that preferences family over work comes with consequences. But those consequences occur for anyone who takes significant time away from Bloomberg, not just for pregnant women and mothers. To be sure, women need to take leave to bear a child. And, perhaps unfortunately, women tend to choose to attend to family obligations over work obligations thereafter more often than men in our society. Work-related consequences follow. Likewise, men tend to choose work obligations over family obligations, and family consequences follow. Whether one thinks those consequences are intrinsically fair, whether one agrees with the roles traditionally assumed by the different genders in raising children in the United States, or whether one agrees with the monetary value society places on working versus childrearing is not at issue here. Neither is whether Bloomberg is the most "family-friendly" company. The fact remains that the law requires only equal treatment in the workplace.

Like this excerpt, the court's opinion is more important as commentary than as law. Judge Preska is a federal trial court judge. As a well known and experienced jurist, her opinions carry persuasive weight beyond that of most trial court opinions, but as a matter of law, this opinion is not binding on other courts.

That Judge Preska eviscerated the EEOC's case, and then used it as a platform to hold forth on issues of work-life balance was, in my view, unfair to the women bringing the lawsuit. They were not - as Judge Preska suggests - asking the court to mandate a family-friendly work environment. They wanted what Judge Preska herself notes was legally required - equal treatment at work.

Nevertheless, Judge Preska's opinion is correct - and something to keep in mind when thinking about the intersection between the law and the workplace - there is no legal requirement that companies enact family-friendly policies. To do so is good business, but it is not the law.

Tom Spiggle is author of "You're Pregnant? You're Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace" which will hit shelves later this spring. He is founder of the Spiggle Law Firm based in Arlington, Va., where he focuses on workplace law specializing in helping clients facing discrimination due to pregnancy or other family-care issues, such as caring for a sick child or elderly parent. This is Spiggle's first book. To learn more, visit:

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