Judge Rejects Claim Bloomberg Disfavors Pregnant Employees
NY Law Journal
LINK

Southern District Judge Loretta Preska granted summary judgment for the company yesterday, rejecting allegations by the EEOC and individual plaintiffs that Bloomberg engaged in a systematic practice of unfair treatment of pregnant employees and women who took maternity leave. Plaintiffs, she said, offered only anecdotal evidence, while Bloomberg presented a strong statistical case that discrimination was isolated at most.

Mark Hamblett

08-18-2011

Claims that Bloomberg L.P. engages in pattern or practice of discrimination against pregnant women have been thrown out by a federal judge.

Southern District Judge Loretta Preska granted summary judgment for the financial services and media company yesterday, rejecting allegations by the Equal Employment Opportunity Commission and individual plaintiffs that Bloomberg engaged in a systematic practice of decreasing the pay, responsibility and other terms of employment for pregnant employees and women who became pregnant and took maternity leave.

The judge said in her 64-page opinion in EEOC v. Bloomberg L.P., and Patricot v. Bloomberg L.P., 07 Civ. 8383, that the "heralded" accusations made against the media giant "are not enough."

"Evidence is required," Judge Preska said. "The evidence presented in this case is insufficient to demonstrate that discrimination was Bloomberg's standard operating procedure, even if there were several isolated instances of individual discrimination."

"As its standard operating procedure, Bloomberg increased compensation for women returning from maternity leave more than for those who took similarly lengthy leaves and did not reduce the responsibilities of women returning from maternity leave any more than those who took similarly lengthy leaves," Judge Preska said.

Her decision leaves remaining dozens of individual claims of discrimination that will have to be addressed on a case-by-case basis.

The class period covers Feb. 1, 2002 to March 31, 2009 and the EEOC identified a total of 78 women who had discrimination claims. Bloomberg countered by comparing that number with a total of 603 employees who were pregnant or took maternity leave during the class period.

In addition to presenting anecdotal evidence of less pay, demotions or diminution of responsibility for pregnant women working at Bloomberg, the judge said the EEOC "also presented many statements from (the mostly male) upper management the EEOC considers as evidence of Bloomberg's bias, negative stereotypes and disregard for women."

But the judge agreed with lawyers for Bloomberg that the statements "are at least two-layer hearsay" and are inadmissible.

Mayor Michael Bloomberg, who founded the company, was forced to testify in two days of depositions in the case, which was brought under Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978. Plaintiffs alleged that the mayor, while not a defendant, was responsible for a "top-down culture of discrimination" at the company.

Bloomberg LLP used statistical evidence to confront several forms of an alleged discriminatory pattern or practice: reduced compensation, demotions, the isolation of class members or their exclusion from management meetings, and the subjection of class members to stereotypes about female caregivers and an overall organizational bias against pregnant women and mothers.

That statistical evidence, the judge found, disproved the EEOC's pattern or practice claims, particularly on compensation, and was "highly probative and uncontroverted by any similar statistical evidence."

The judge said the EEOC failed to move beyond anecdotal evidence and therefore failed to make out a prima facie case of a pattern or practice of discrimination.

"The case law is weighty in favor of defendants in pattern or practice cases where plaintiffs present only anecdotal evidence and no statistical evidence," she said, calling the shortfall "severely damaging in this case."

The judge was struck by the fact that only 12.9 percent or 78 of the 603 female employees who became pregnant or took maternity leave, had a claim of any kind.

While the judge said there could be, in a minority of cases, pregnant women who experienced individual discrimination, "the fact that nearly 90 percent of Bloomberg's pregnant or mother employees had no claims is significant."

Nor does the EEOC evidence "compare the alleged experiences of Bloomberg's pregnant or mother employees with similarly situated employees."

The judge also said that the strength of the anecdotal evidence varied and, in many cases was weak.

For example, she said, claimant Jill Patricot was promoted when her supervisors were aware she was pregnant, "but she was then removed from that position when she insisted on leaving work at 4:45 p.m., before her peers in the group and after she was asked to stay until at least 5:30 p.m."

The judge also noted that the "EEOC's assemblage of evidence in support of its assertion that managers regularly questioned female employees' commitment to the job is unsupported by the record."

For example, she cited a class member who worked from home on Mondays to care for her children and was allegedly derided by a male manager's remark that she would not be at work because she was busy "growing her gardens" (meaning her children).

"While that single comment may have been rude or impolitic, the EEOC is not prosecuting a hostile work environment claim here," Judge Preska said.

In all, she said, the evidence the EEOC offered "is not the kind of high-quality and pervasive anecdotal evidence" courts "have relied on when faced with a complete lack of statistical evidence of discrimination."

The judge said some concluding remarks were called for.

"At bottom, the EEOC's theory of this case is about so-called 'work-life' balance," she said, because "absent a pattern of discriminatory conduct" the EEOC's theory "amounts to a judgment that Bloomberg, as a company policy, does not provide its employee- mothers with a sufficient work-life balance."

"The law does not mandate 'work-life balance,'" she said. "It does not require companies to ignore employees' work-family tradeoffs—and they are tradeoffs—when deciding about employee pay and promotions."

Raechel Adams is senior trial attorney with the EEOC.

Thomas H. Golden of Wilkie Farr & Gallagher represented Bloomberg.

A Bloomberg spokesperson released a statement saying "The U.S. District Court's ruling today confirms what we have known all along: that the evidence is squarely on our side and that this case is without merit."
|Mark Hamblett can be contacted at mhamblett@alm.com.

August 17, 2011
Judge Rules for Bloomberg L.P. in Class-Action Bias Lawsuit
By DAVID W. CHEN, NY TIMES
LINK

In a major victory for Bloomberg L.P., the financial and media services giant founded by Mayor Michael R. Bloomberg, a federal judge has dismissed claims that the company engaged in a pattern of discrimination against pregnant women who took maternity leaves.

Judge Loretta A. Preska of United States District Court in Manhattan ruled Wednesday that the plaintiffs had failed to present sufficient evidence that discrimination was Bloomberg L.P.’s “standard operating procedure, even if there were several isolated instances of individual discrimination.”

“ ‘J’accuse!’ is not enough in court,” she wrote. “Evidence is required.”

The Equal Employment Opportunity Commission filed a class-action lawsuit in September 2007 on behalf of more than 80 employees of Bloomberg L.P., asserting that the company systematically reduced the pay, demoted or excluded from meetings mothers and pregnant women.

Mr. Bloomberg, the majority shareholder of the company, was not a defendant, and the alleged discrimination was said to have taken place after Mr. Bloomberg departed to make a successful mayoral bid in 2001. But the suit was a political albatross for the mayor, since the plaintiffs asserted that “Michael Bloomberg is responsible for the creation of the systemic, top-down culture of discrimination.”

Mr. Bloomberg was also compelled to testify, for eight hours over two days, in a deposition in which he was testy and sarcastic but also confident that the company would be found to have acted appropriately.

The judge’s ruling still allows the individual plaintiffs to proceed with their claims, on their own, but legal experts said that such cases were generally much harder to win.

A spokeswoman for the E.E.O.C., Christine Saah Nazer, said, “We regret today’s decision, and look forward to proceeding with the individual claims and will assess our options.”

Stu Loeser, the mayor’s press secretary, referred inquiries about the ruling to the company. And in a statement, Bloomberg L.P. said, “The U.S. District Court’s ruling today confirms what we have known all along: that the evidence is squarely on our side and that this case is without merit.”