This past August a court dismissed an EEOC discrimination suit against Bloomberg contending that the company had systematically discriminated against pregnant women or those who recently returned to work from maternity leave. The judge, New York district court judge Loretta Preska, saw the EEOC’s essential charge to be that  Bloomberg, as a company policy, did not provide work/life balance for its employees, which policy disproportionately discriminated against women employees.

The judge found insufficient evidence of such discrimination, but went further: the law, she opined, "does not mandate work/life balance"–"balance" is not a corporate obligation. A company like Bloomberg, she adds, explicitly states that it expects "all-out dedication" from its employees in return for a hefty paycheck. Indeed, the company Code of Standards states that Bloomberg “is your livelihood and your first obligation.” And she noted that both men and women have complained about work-life balance there. Thus, "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.”

"The law does not require companies to ignore or stop valuing ultimate dedication, however unhealthy that might be for family life,” she wrote. “Whether an individual in any family wishes to make that commitment is an intensely personal decision that must account for the tradeoffs involved, and it is not the role of the courts to dictate a healthy balance for all.”

As may have been expected, a firestorm of controversy erupted over this decision, evidenced by the comments not only on the ABA Journal site above but also on the Careerist, NY Times, Wall Street Journal and Ms. sites.

And it didn’t help that Judge Preska quoted Jack Welch, the long-retired chairman of GE, on his take on work/life balance:  “There’s no such thing as work-life balance.” This is the same Jack Welch who in a book titled Winning, co-written with his third wife, gives this advice:

There’s lip service about work-life balance, and then there’s reality….  You need to understand that reality:  your boss’s top priority is competitiveness. Of course he wants you to be happy, but only inasmuch as it helps the company win.

An article in the Wall Street Journal today, noting that the number of women in corporate leadership positions in New York State has not appreciably increased over the last few years, brought this Bloomberg decision to mind. A report conducted by Columbia Business School and the Women’s Executive Circle of New York, the third in a series of biannual surveys tracking the number of women executives and board members at the state’s largest 100 publicly traded companies, found that women held 15.9% of high-level leadership positions in 2010, up from 14.7% in 2006–a little more than a 1% increase.

Back in 2006, our entry "Five New Studies on Diversity in Law" pointed out the disadvantages that women, particularly those trying to have families, experience in legal practice, effectively limiting the number of women partners to approximately 17% at that time, a number that is not much changed today.

Also in 2006, an article published in The New York Times entitled "Why Do So Few Women Reach the Top of Big Law Firms?" similarly elicited a barrage of comments.  But Karen M .Lockwood, a senior female partner in Howrey, a Washington D.C. firm, who was the president of the D.C. Women’s Bar Association, was quoted as making a distinction, saying that "Law firms are way beyond discrimination—this is about advancement and retention. Problems with advancement and retention are grounded in biases, not discrimination." 

Ms. Lockwood correctly identified a distinction. Discrimination is overt, explicit and legally actionable–not what Bloomberg is guilty of, while bias is implicit and often unconscious, covertly undermining the actions and opinions of some of the most overtly committed supporters of women. 

Most experts agree that the Bloomberg decision is correct on the law.  Everyone, women included, is entitled to trade leisure or family time for a bigger paycheck.  And this of course is particularly likely to happen in industries such as law where, still, time is considered the currency of value: the more time you spend on work, the more valuable you are.  Perhaps, in the end, that is the key to the "glass ceiling" problem that persists:  women are simply less willing to make that tradeoff. 

But there is another issue that the Bloomberg decision raises.  Few lawyers and law firms today would admit to outright discrimination against women, and even fewer could be convicted of it.  But unconscious bias is another matter.  Has the Bloomberg decision fueled unconscious bias against women? 

Ranier Kuchl, the concertmaster of the Vienna Philharmonic, expressed a commonly held opinion when he said that he could instantly tell the difference with his eyes closed between the sounds produced by male and female musicians, particularly those playing "male" instruments, such as tubas, trombones and French horns, which, the theory went, required the greater lung power of a man.

Nonetheless, over the past thirty years the use of screens and rules to assure anonymity have become standard in music auditioning. During the same time, the number of women in the top US orchestras has increased fivefold. The first time new audition rules were in place at the Metropolitan Opera in New York, all of the four new positions were awarded to women, more than doubling the number of women at that time in the entire orchestra.

What the classical music world thought was a pure experience—listening to someone play—was demonstrated in fact to be biased by conscious and unconscious gender cues. Another lawyer, Jennifer L. Bluestein, head of professional development for Baker & McKenzie, was quoted in the above New York Times article as saying that "Some of this is left over from the sexual harassment cases from the 90′s, but I think that it’s more because of the fact that we don’t look like men." The evidence from the classical music industry seems to support Ms. Bluestein’s comment–those visual cues can obviously undermine a purportedly unbiased person’s perceptions of actual performance.

Similarly, in identical speeches delivered by equally talented speakers, the male is invariably judged to be the more persuasive speaker, even by women in the audience.  And men who excuse themselves from work to go to a soccer game or relieve a babysitter are consistently viewed positively for being involved with their families, while women who do the same thing with the same regularity are viewed negatively, as being not fully committed to their work.  And so it goes.

What is evident is how important gender is in shaping our unconscious biases. Company policies that reinforce those traditional biases are likely to breed–even stronger biases.  And as a result even fewer women will be afforded the opportunity to turn over their lives to their work.  If women are the ones who are opting out of an industry’s or company’s workforce because of work/life balance concerns, it will be all women, whether they will also eventually make the same choice or not, who will suffer from the bias that those experiences reinforce. 

Today the number of lawyers, both men and women, and particularly those stalwarts of Gen X and Gen Y, who are adamant about the importance of work/life balance are greater than ever.  Which makes the likelihood of peopling with the best talent any business that devalues balance much more challenging. 

Plus, there are substantive advantages realized by a business that affords employees a healthy lifestyle–as a recent New York Times article on “decision fatigue” reports, those who’ve made too many judgment calls in a day “take illogical shortcuts and tend to favor short-term gains and delayed costs. … [T]hey become inclined to take the safer, easier option even when that option hurts someone else.”

Or as psychologist Roy F. Baumeister puts it: “Even the wisest people won’t make good choices when they’re not rested…”

A recent article on the Bloomberg decision concluded: "Allowing people to have full lives, in short, isn’t a favor to women—it’s a better way to run a business."

Or as Jack Welch has also said: “If there was ever a case of ‘Do as I say, not as I did,’ this is it. No one, myself included, would ever call me an authority on work-life balance.”