Today, as we celebrate Women's Equality Day, commemorating the passage of the 19th Amendment guaranteeing women the right to vote, I find myself reflecting on a central lesson of the struggle for suffrage: the power to effect political change through collective action is critical to achieving equality. There have been some days recently when I feel like that lesson has been largely forgotten, particularly in the courts.
Women's equality and freedom from sex discrimination hardly seemed to be on the agenda for the courts when EEOC v. Bloomberg L.P. was decided earlier this month. The plaintiffs at Bloomberg had alleged that the company routinely penalized women by reducing their pay and responsibilities after they became pregnant or returned from maternity leave. The court threw out the plaintiffs' argument that there was a pattern and practice of sex discrimination across the company, leaving them to pursue their discrimination claims individually.
The ruling was not entirely unexpected: the deal was probably sealed when, earlier in the case, the judge excluded evidence demonstrating that women who took such leaves were paid less than employees who had not done so, instead finding that the appropriate comparison was other employees who had taken leaves of similar length. As legal scholar Joan Williams explains: "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." Having excluded their key evidence, the court in Bloomberg found that the plaintiffs had not offered enough proof to win their case.
The plaintiffs had also offered into evidence comments by top executives, including the following:
If these statements don't qualify as evidence of a pattern of pregnancy/sex discrimination, it's hard to imagine what would. But the judge systematically excluded almost all of this evidence, and what she could not keep out she simply ignored.
As if that was not enough, the decision ends with a diatribe against the notion of "work-life balance," stating, "the law does not require companies to ignore employees' work-family tradeoffs — and they are tradeoffs — when deciding about employee pay and promotions."
But this case was not about these women's personal choices to prioritize family over work, or even to seek "balance." It was about being able to work in an environment free from hostility toward and stereotypes about women — like the stereotype that having a child means you're automatically less dedicated to the job than your colleagues without children — a stereotype that men rarely, if ever, have to confront.
Courts tend to follow, not lead society. If we're going to win back some of the gains that have been eroded in recent years, we need to wake up from our collective denial and accept that sex discrimination is alive and well. We need to remember that it is often a systemic, rather than an individual, problem that requires a collective, rather than an individual, solution. Our foremothers, who chained themselves to the White House to gain us the basic right to vote, would expect no less.