Bloomberg’s treatment of women, a closer look

I don’t know how much longer we’ll have Michael Bloomberg to “kick around” or, if he persists, whether he will remain worth writing about as a candidate. However, I want to say more about the attacks against him for his alleged behavior towards female employees.

I don’t want to discuss this from a political perspective, except to say that the allegations are extremely damaging politically. I want to talk about the merits.

Let’s begin with the non-disclosure agreements. Bloomberg is right not to authorize the disclosure of that which his accusers agreed not to disclose. The allegations made against Bloomberg were never tested in court because his accusers chose not to test them. That being the case, we have no way knowing whether they had a substantial basis in fact. And it should be obvious that they can’t fairly be “litigated” many years after the alleged events may have taken place, in the context of an election campaign.

The EEOC did litigate allegations of sex discrimination against Bloomberg’s company. Bloomberg prevailed in that litigation.

I did a very small amount of work in defense of Bloomberg before the attorney in charge of the litigation left for another firm. Obviously, I can’t discuss any impressions I formed about the case or any facts I learned about it that aren’t in the public record. I rely here only on the court’s decision.

A federal judge (Loretta Preska, who at the time of the litigation was the chief judge of the U.S. District Court for the Southern District of New York) found that Bloomberg’s company did not engage in sex discrimination on the basis of pregnancy. Note that claims about Bloomberg’s treatment of pregnant women seem to be at the heart of some of the negative reporting about his alleged sexism.

You can find Judge Preska’s decision here. It is published at 778 F. Supp. 2d 458 (S.D.N.Y. 2011). The opinion begins this way:

In a heralded complaint, the United States Equal Employment Opportunity Commission accused Bloomberg L.P. of engaging in a pattern or practice of discrimination against pregnant employees or those who have recently returned from maternity leave in violation of Title VII, 42 United States Code. However, “J’accuse!” is not enough in court. Evidence is required.

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 of those who took similarly lengthy leaves.

778 F. Supp. 2d at 461–62.

In other words, Bloomberg’s company actually favored women who took maternity leave. The statistical evidence established this.

The anecdotal evidence was to the same effect. Here are excerpts from Judge Preska’s opinion:

[S]ince 2001, when [this “class” member] announced her pregnancy, her total intended compensation was as follows: $219,534 in 2001, $221,529 in 2002, $244,677 in 2003, $292,240 in 2004, $294,318 in 2005, $284,626 in 2006, $318,760 in 2007, and $304,187 in 2008. 778 F. Supp. 2d at 474.

[This “class” member] said that Bloomberg has “been very good to me,” that she “had an amazing experience there,” and that she has “had excellent experiences as a working mother at Bloomberg.” Her total intended compensation increased every year between 2003 and 2008, moving from $173,135 to $463,980. 778 F. Supp. 2d at 475

[This “class” member] took maternity leave from September 2003 to February 2004, and her intended compensation was $173,228 in 2003, $222,086 in 2004, $242,926 in 2005, and $250,486 in 2006. 778 F. Supp. 2d at 475.

Intended compensation means the amount each employee was expected to earn. The actual numbers varied depending on how profitable the company was in a given year.

The EEOC’s case against Bloomberg was so weak that Judge Preska, without being asked to, invited Bloomberg to apply for attorney’s fees. The litigation ended when the EEOC agreed to drop its appeal.

My discussion of the litigation highlights how stupid (substantively, not politically) Elizabeth Warren’s response to Bloomberg’s defense was last night. The insufferable Massachusetts demagogue exclaimed, “I hope you heard what [Bloomberg’s] defense was: ‘I’ve been nice to some women.'”

No. Bloomberg’s defense is that he treats women fairly as a group. The statistics and the anecdotal evidence in the one case I know of that was tested in court confirm his defense.

I strongly suspect that, between his business and his philanthropy, Bloomberg has done considerably more to help women than Warren has. Posturing and saying “babies” a lot doesn’t help women.

I want to be clear, though, about what I’m saying and what I’m not saying. Bloomberg’s campaign has admitted that he made crude remarks and jokes about women during the 1980s and 1990s. And Judge Preska suggested that there might be “several isolated cases of individual discrimination” at Bloomberg’s company.

It’s not unreasonable for voters to hold this against him (nor is it unreasonable for them to forgive his conduct or overlook it). However, the following reality should not be lost in the shuffle: Bloomberg’s company paid most of its employees (and most of its women) well above the market rate, many women loved working for Bloomberg and his company, and the claim that he engaged in a practice of discriminating against women failed miserably in court.

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