In 1974, the Supreme Court held in  Geduldig v. Aiella that it was not discriminatory to refuse disability benefits to pregnant women because pregnancy was not a protected classification.  The rationale was that not all women choose to be pregnant, thus dividing the lines by pregnant persons (who are only women) against non-pregnant persons (who are men and women).  We’ve come a ways since Potter Stewart wrote that decision.

Southern District of New York Chief Judge Loretta Preska, however, wasn’t prepared to accept the notion that pregnant women are entitled under law to work/life balance.  From Vivian Chen at the Careerist :

Calling the evidence against Bloomberg “insufficient,” Preska goes to town on what she thinks is the real subtext of the lawsuit. She writes:

At bottom, the EEOC’s theory of this case is about so-called work/life balance. Absent evidence of a pattern of discriminatory conduct . . . the EEOC’s pattern or practice claim does not demonstrate a policy of discrimination at Bloomberg. It amounts to a judgment that Bloomberg, as a company policy, does not provide work/life balance.

And the law, she reminds us, “does not mandate work/life balance.” Preska essentially says that “balance” is a personal matter–not a corporate obligation.

Cue Helen Reddy, as the outrage begins.

No surprise that Preska’s opinion is upsetting a lot of women. “By Judge Preska’s logic, even the most dedicated, career-driven mother is going to be penalized for taking time away from work to have a baby,” says Michelle Gerdes in The Wall Street Journal.  “She hardly hides her contempt for women with kids who have ambition and want top-paying jobs,” Sonia Ossorio, the executive director of National Organization for Women, told The New York Times. “If you read her comments, she says that basically if a workplace culture is work 24/7, then they have a right to have that type of culture.”

Or perhaps what Judge Preska is saying is that we all make choices, whether to dedicate our lives to one thing or another.  Want to leave the office at 4:45 every day?  No problem, but then you can’t be the Master (Mistress?) of the Universe.  It’s about choice.  Bloomberg, the company, has no problem with women, and in fact has a significant number of women in powerful positions.  But it needs them to work.

In the decision, Preska quotes Jack Welch, General Electric’s legendary CEO: “There’s no such thing as work/life balance.  There are work/life choices, and you make them, and they have consequences.” A company like Bloomberg, she adds, explicitly states that it expects “all-out dedication” from its employees in return for a hefty paycheck. Thus, “making a decision that preferences family over work comes with consequences.”

This not only flies in the face of those who really, really don’t want to face consequences for their choices, but who hate the philandering Jack Welch.

And Ms. magazine says:

Did she say “Jack Welch”? Yes, he was a business icon at one time. His leadership was heralded at Harvard Business School in the early ’80s. But his rein in the world of influential ideas was then and this is now. . . . We can no longer afford to dismiss half of our human resource capital because it happens to be female and sometimes bears children . . . the Bloomberg case’s reasoning and citing of a business dinosaur reminds us that business culture still has far to develop.

Imagine if Judge Preska quoted Aristotle.  Curiously, Chen tries to back both sides of the argument.

Business culture does have a long way to go on the work/life balance front, but is Preska making the problem worse? I don’t think so. Nor do I find her unsympathetic to the plight of working mothers.

Like it or not, there’s a lot of truth to what Preska says–though it seems uncomfortably retro to admit that high performers in the business arena often lack balance in their personal lives. That’s certainly still the case in the world of big-firm practice, where time is still money.

The problem with business culture, and that includes law culture, is that it gets in the way of doing what you want.  The Slackoisie assert that their work/life balance is more important to them than achievement at the office or fulfillment of responsibility toward clients.  Fair enough, but then the consequence is that you don’t get the corner office and the hefty paycheck.  Oh, you want that too?  Now we have a problem.

There are occupations, and jobs within those occupations, which will suit any work/life balance desires, but they may not be the ones you want.  Is that unfair?  Chen says business culture has “a long way to go,” and those who find hard work on their employer’s or client’s terms unpalatable are in complete agreement.  How do we change the culture to allow for business to proceed apace while some take off from work at mid-afternoon while others take up the slack?

The argument is that women are left to not only bear the children, but care for them, rear them, nurture them, while male executives and lawyers pound their desks and make important decisions.  If the men want “little me’s” to carry out their legacy and bear their name, they have to accommodate the very demands they place on women to make this happen.  As for the top female lawyers or executives, they can either pound on desks of their own or pick up the kids at the school bus.  Somebody has to do it, and the men surely won’t.

It’s a problem.  It’s unfair that the “burden” of children falls on one gender more so than the other, and lest we live in a fantasy, that gender would be female even though there are some men who wait at the bus stop too.  The problem isn’t business culture, which is properly focused on the needs of the business rather than the wants of the burdened gender.  The problem is that business can’t function when the big money executive isn’t doing her job.

This isn’t to blame women for their choices, or to relieve society of the sense that it’s just not fair that women carry an inordinate burden for children.  But life isn’t fair, and it’s not the fault of business or law that women are expected to bear the consequences of their decisions just like everyone else.