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This editorial first appeared in Vermont Woman, April/May 2012 (Vol. 8 No. 5/6 ).

Loretta Preska, a Bush-appointed federal judge, will have a special place in hell. I speak of the place that former U.S. Secretary of State Madeleine Albright reserved for a woman who didn’t help other women.

Justice Preska in late 2011 ruled against “family work-life balance” in a class action suit against Bloomberg, L.P., the financial media giant owned by New York’s mayor. Nevermind plaintiffs weren’t asking for that; they just wanted fair pay for equal work. The Equal Employment Opportunity Commission  had found discrimination as pure and simple as Lilly Ledbetter’s case against Goodrich in 2007. Oh, but come to think of it,  Lilly lost her sex discrimination case, too, thanks to other Bush appointees on the U.S. Supreme Court.

The plaintiffs at Bloomberg deposed lots of evidence. The EEOC documented how Michael Bloomberg compared maternity leave to giving guys time off to practice their golf swing. When told by a female employee that she was pregnant, Bloomberg told her what to do: “Kill it,” he said. His Human Resources manager openly remarked that a mother’s place was at home, while another manager accused women, who took maternity leave and then chose not to come back, of stealing from Bloomberg’s wallet. “They ought to be arrested,” he exclaimed, while still another asked rhetorically, “Who would want to work in an office full of women?”

The charming details of women’s work life at Bloomberg didn’t get the same media play as Sandra Fluke’s treatment,  possibly because Justice Preska set aside the devil in those details—and don’t forget that in this case the devil owned a huge media company.

Instead Preska reframed the Bloomberg case in a way that reminds me of how women’s access to birth control through Obamacare somehow got recast as Catholic bishops’ freedom of conscience and the rights of individual conscience to reject government mandates like—you guessed it—Obamacare.  Perhaps those who feel strongly enough should have to the right to abstain from purchasing auto insurance to drive, too. Did Jesus ever buy insurance?  If the Occupy movement were arguing this stuff, Fox News would be screaming anarchy.

Reframing Bias

Judge Preska, like a Dr. Frankenstein, had to resuscitate a dead court rule to accomplish her ruling. A decade ago, discrimination lawsuits were stymied because of no suitable “comparator” to mothers—namely a pregnant man. Over time, courts sensibly gave up their search for a comparator in these cases, instead allowing plaintiffs to prove discrimination by introducing evidence of stereotyping—say, like comments about moms belonging at home.

But Preska not only insisted on comparator evidence as the basis of the case, but rejected the obvious comparison between those who took maternity leave and those who did not. Instead, she compared the women plaintiffs’ salary growth to that of other employees who took similarly long leaves; and voila! Compared to men who were seriously ill or disabled, the salary disparity found by the EEOC disappeared.

“The law does not mandate ‘work-life balance,’” Judge Preska wrote, and you can almost hear her self-righteousness lecturing us:  “It does not require companies to ignore employees’ work-family tradeoffs—and they are tradeoffs—when deciding about employee pay and promotions.”  In other words, because Bloomberg’s male employees hardly ever “decided” to get pregnant, it’s only natural they were paid more. See?

Joan Williams, in a blog on Moms-Rising, wrote about Preska’s abandonment of anti-discrimination law rooted in the 1970s, saying it’s “a really, really devastating setback for women. It’s open season on mothers….Studies show what dooms women economically in the United States is not being a woman—it’s being a mother.”

The latest such study appeared in  The Hastings Law Journal.  “The Motherhood Penalty” (Correll, Benard and Paik) opens this way: “If you give people identical resumes, one a mother and the other not, the mother is 79 percent less likely to be hired, 100 percent less likely to be promoted, offered an average of $11,000 less in salary, and held to higher performance and punctuality standards.”

An old mother like me says, Now you tell me! We should legally contest discrimination like that.  But I also argue for actively creating a wiser family-work balance, and Preska be damned. For that we need new laws to set policy for a saner, happier and reproductively sustainable world. For that we need a far more far-sighted vision of the world our progeny will inherit. That old vision the guys at Bloomberg want to carry to full term?  Kill it.

This issue of Vermont Woman is as full of pregnant and formerly pregnant women as the world is. There are women business owners with young children, women helping other women give birth, history-making moms at the statehouse and grandmothers passing the bar exam. Without women willing to be mothers, our economy would collapse. Not having a dependable supply of young, healthy, well-socialized workers would be bad for Mr. Bloomberg on Wall Street, and worse for our communities on Main Street.  It isn’t enough to demand American women pay for their own pills and aspirins. Mothers—and dads—both at home and at work—should expect something better of the economy in return.

Meanwhile population growth outstrips the world’s natural resources. You’d never know that to listen to U.S. political theater and mainstream media chatter this season. Nor do you hear of the penalty mothers suffer economically, whatever their decisions.

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