Finding a healthy work-life balance is often difficult for today’s professionals, many of whom are forced to watch helplessly as family and leisure time drown in a roiling sea of career commitments.
But for some employers, it can be just as tricky to find a balance between asking for total dedication from their employees and acknowledging that they have lives outside of the office.
Tom Spiggle, author of You’re Pregnant? You’re Fired: Protecting Mothers, Fathers, and Other Caregivers in the Workplace, is well familiar with this terrain. As the founder of the Spiggle Law Firm, he focuses on workplace law and specializes in helping clients who face discrimination due to pregnancy or other family-care issues. But he also has plenty of good advice for employers.
In a recent article for Huffington Post, “Is It Legal to Discriminate Against Employees Who Seek a Work-Life Balance?” Spiggle examined some of the legal issues employers and employees are faced to confront when trying to figure out when it’s okay to put family ahead of career, or vice versa.
We caught up with Spiggle to get his take on some of the issues surrounding workers’ — and employers’ — perennial quest for work-life balance.
IB: Your recent book You’re Pregnant? You’re Fired! appears to be targeted toward employees who may be looking to protect themselves in the event of a pregnancy. What can employers glean from the book? Is it useful to them as well?
Spiggle: Absolutely. The laws regarding leave from work, which I discuss extensively in the book, are complicated. In the book I talk about them in a way that non-lawyers can understand. Also, I discuss the economics of litigation, a fact of life for employees and employers alike.
IB: In your recent Huffington Post article, you mention that the current national debate about work-life balance is not really a legal debate. Can you explain?
Spiggle: Much of the work-life balance debate is about a) whether it is a good idea and b) how to effectuate policies that work. For instance, should women lean in or not? Should companies work toward effective paternity leave policies or not? These are important questions, but courts have made it clear that it is not up to the judiciary to figure this out. Judges are judges, not HR professionals or boards of directors.
The law, in most cases, is relevant when these policies — whether forward thinking or retro — are applied in a discriminatory fashion. For instance, if a fictitious company said, “We believe more in work around here, and we reward everyone here that acts that way,” that’s not illegal, though one might argue that it’s bad business. But if the same company added, “We expect double from women because most of them will take a bunch of time off to care for kids,” that’s unlawful because it is based on a stereotype.
IB: If an employer wants to reward employees who prioritize work over other pursuits, how should he or she proceed? What are the dangers?
Spiggle: There is nothing wrong with a company doing that and making it an explicit policy. The company, however, should have policies making it clear that the policy applies to everyone equally. And the company will need to make sure that it walks the walk on this. The danger is that a manager takes this policy and starts to make assumptions about who can meet it. If he or she starts to promote a bunch of 25-year-old men without children, while passing over women with children with equally strong performance records, then this starts to look less like a policy than improper stereotyping.
IB: In your Huffington Post piece, you mention a high-profile case involving Bloomberg and the Equal Employment Opportunity Commission, wherein the agency tried to prove that Bloomberg had shown a pattern of discriminating against pregnant women. What conclusions can employers and employees draw from the outcome of this case?
Spiggle: Both employers and employees can conclude that courts have and will continue to take pains to stay out of the debate about what companies should do as a matter of good business or good policy when it comes to work-life balance. At the same time, employers should still take from this case that the line between what is bad policy and what is illegal is not always clear. While the EEOC lost the pattern-and-practice lawsuit brought on behalf of the class of women, a number of cases brought by the women alone moved ahead. One is currently scheduled for trial. In this case, the court moved beyond the statistical evidence to look, closely, at what was happening with this woman on and individual basis.
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IB: Work-life balance is a hot topic these days, and the United States is often compared favorably or unfavorably — depending on your perspective — to countries in Europe whose workers enjoy shorter workweeks, longer vacations, and longer maternity leaves. Do you see anything changing in the short or long term that would bring us closer to the European model?
Spiggle: On a national level, I don’t see much changing in the short term. A big fix would have to come from Congress. And that’s not going to happen given our current political climate. For instance, the Pregnant Workers Fairness Act is a common-sense bill with significant support in the U.S. House. It would, for instance, protect a pregnant woman who needed a simple change at work, like the ability to carry around a water bottle, from being fired for doing so. But I think the bill has little chance of making it into law.
We will, however, continue to see movement at the state and local levels. For instance, we’ve seen some significant legislation designed to protect pregnant women in New York and New Jersey. The District of Columbia recently beefed up its legislation requiring that employers provide paid sick leave. I expect that trend to continue.
IB: Is there anything else you’d like to add?
Spiggle: Only that it is unfortunate that there is so much confusion about the legal protections of pregnant woman and caregivers in the workplace. That hurts employees who don’t know what they can and can’t do. And it unnecessarily hurts employers who (often mistakenly) believe they cannot be proactive on the issue without being sued.
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