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Anecdotal evidence not enough; EEOC’s pattern or practice pregnancy discrimination claim against Bloomberg dismissed

August 17th, 2011  |  Lisa Milam-Perez

The EEOC failed to provide sufficient evidence to demonstrate that pregnancy discrimination was Bloomberg LP’s standard operating procedure, a federal district court in New York found, dismissing a landmark pregnancy discrimination pattern or practice case against the media and financial services company (EEOC v Bloomberg LP, SDNY, August 16, 2011, Preska, L). The suit, filed in 2007, was one of the EEOC’s most noteworthy family caregiver discrimination enforcement actions. “At bottom, the EEOC’s theory of this case is about so-called ‘work-life balance,’” the court acknowledged. However, it wrote, “it is not the role of the courts to dictate a healthy balance for all. Nor is it the role of the courts to tell businesses what attributes they must value in their employees as they make pay and promotion decisions.”

The EEOC alleged that pregnant women and new mothers were demoted at Bloomberg and their intended compensation reduced; they were excluded from management meetings and isolated; and they were subjected to stereotyping about their abilities to do their jobs because of their family and caregiver responsibilities. “However, ’J’accuse!’ is not enough in court. Evidence is required,” the court wrote. Here, the evidence suggested that Bloomberg in fact 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 it did other employees who took leaves of similar length. Thus, the court granted summary judgment in Bloomberg’s favor in the EEOC suit, filed on behalf of 78 female employees.

Anecdotal evidence. In its motion for summary judgment, Bloomberg stressed the EEOC’s lack of statistical evidence supporting its claims. Statistics are so central to pattern or practice cases, the court wrote, that statistics alone can make out a prima facie case if they reveal a gross disparity in treatment. Indeed, the EEOC’s own compliance manual states that statistical evidence is “extremely important” in a pattern or practice case, the court added. Anecdotal evidence may suffice to prove individual claims of discrimination, but “rarely, if ever, can such evidence show a systemic pattern of discrimination.” The EEOC argued that its lack of any statistical evidence was not fatal here because statistical evidence is not legally required to present a pattern or practice case. True, but “the singular fact that the EEOC has no statistical evidence in support of its case, while maybe not fatal in itself, is severely damaging in this case.” Given the dearth of statistical proof, the EEOC had to offer compelling anecdotal evidence in support of its allegations of pregnancy discrimination in order to make its case. Ultimately, the anecdotal evidence came up short.

The EEOC presented testimony from several claimants stating that they were discriminated against in terms of compensation. The agency also offered anecdotal evidence that 49 of the 78 claimants were demoted once they announced their pregnancy or when they returned from maternity leave. But these assertions, taken together, merely “boil down to the EEOC’s conclusion that ‘Bloomberg management is predominantly male, and has tended to follow Wall Street’s model of having few women in top management positions,’” the court concluded.

Even if its anecdotal evidence was assumed to be true, its quality was “at best a mixed bag,” the court found, and it was not enough to make out a prima facie case of a pattern or practice of discrimination. Rather, the evidence indicated that only a small portion of class members had any claim; it did not make a legally relevant comparison between the experiences of class members and similarly situated employees; and it was of low probative value or quality. In particular, the court found that the EEOC’s anecdotal evidence “did not support the EEOC’s assertions, amounts to ordinary business disagreements, or otherwise provides weak support for a pattern or practice, as opposed to individual, claim.” Thus, based on this evidence alone, a reasonable jury could not conclude that Bloomberg engaged in a pattern or practice of discrimination because of pregnancy.

Negative stereotypes. The EEOC also pointed to evidence of bias and negative stereotypes against women as a reflection of Bloomberg’s intent to perpetrate pervasive discrimination. The agency argued that the company’s decision-making process is centralized and discretionary and, in combination with this alleged bias on the part of upper management, is further evidence of a policy of discrimination at Bloomberg — even if the only evidence showed that a handful of individuals made discriminatory remarks. “After removing the hearsay and unsupported assertions, the EEOC is left with several statements from, at most, a handful of managers or executives,” the court found. Ultimately, the EEOC offered perhaps 10 admissible comments and supported assertions, from four or five individuals. “In a company of 10,000, with 603 women who took maternity leave, and during a class period of nearly six years, this type of evidence does not make out a pattern or practice claim.”

The EEOC claimed that because decision-making power was centralized among top business managers, the court should consider statements by “one or a handful of managers” as evidence of company policy. However, the evidence showed that lower-level managers made the actual decisions about promotions and compensation, and higher-level executives, whom the EEOC focused upon, only approved broader decisions to manage business units with a view toward the company’s financial performance — a reality that was “hardly surprising,” the court noted, in a company of over 10,000 individual employees. Furthermore, the court reasoned, if these biased managers in fact had the level of control that the EEOC suggests, and were “inspiring a culture of intimidation,” then “the results of their campaign to discriminate pervasively would appear in the statistics. Those results do not appear.”

The EEOC’s evidence of a pervasive bias and negative stereotypes consisted of “much inflammatory hearsay combined with a handful of isolated comments from a few managers over the course of nearly six years,” the court found. Even taken all together, the evidence was insufficient to support a pattern or practice claim. At most, it showed possible instances of individual discrimination, held the court.

Bloomberg’s evidence. Another nail in the lawsuit’s coffin was the unrebutted statistical evidence provided by Bloomberg, which showed that it did not engage in discrimination with respect to compensation or job responsibilities. The evidence presented by Bloomberg’s expert witnesses was highly probative and uncontroverted by any similar statistical evidence. Even if there were several potentially actionable complaints, the employer’s statistics affirmatively disproved any company policy or pattern of discrimination. Thus, Bloomberg met its burden to demonstrate that the EEOC’s proof was “either inaccurate or insignificant.” The EEOC’s assertion that the statistical analyses were irrelevant because its claim was really about Bloomberg’s animus toward pregnancy and mothers in general, and not about the treatment of maternity leave-takers, was not persuasive. The court also rejected the EEOC’s assertion that Bloomberg’s statistical evidence was unworthy of credence, and dismissed the agency’s effort to discredit the employer’s expert reports as “misguided.”

“Based on the objective data, not conjecture or the assertions of counsel,” the court was unable to hold that the EEOC offered sufficient evidence from which a fact finder could conclude that Bloomberg engaged in a systemized practice of decreasing the pay, responsibility, or other terms and conditions of employment for its pregnant employees and mothers because they became pregnant or took maternity leave. Thus, no reasonable jury could return a verdict in favor of the EEOC, the court reasoned. Consequently, Bloomberg was entitled to summary judgment on the EEOC’s pattern or practice claim.

“Work-life balance”? As the court saw it, the EEOC’s lawsuit amounted to “a judgment that Bloomberg, as a company policy, does not provide its employee mothers with a sufficient work-life balance.” However, the court noted in conclusion that it was not its role to engage in such policy debates, or to choose the outcome it finds most desirable. Rather, its role is to apply the law. And “the law does not mandate ‘work-life balance.’ It does not require companies to ignore employees’ work-family tradeoffs — and they are tradeoffs — when deciding about employee pay and promotions. It does not require that companies treat pregnant women and mothers better or more leniently than others. All of these things may be desirable, they may make business sense, and they may be ‘forward thinking.’ But they are not required by law.”

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