Suppose an employer decides to give workers the option of working on-site or remotely. Over the next year, the employer notices that some workers choose to come to the office more often than others. The employer begins to conclude that the first group of workers are more invested in their work and fit better into the company culture. When it comes to handing out promotions or other opportunities, workers in the first group come to the employer’s mind first.
As many companies across the country continually shift to hybrid working arrangements, the possibility of this scenario has become a growing concern for professionals in many fields. They worry that the two groups will be split along gender lines, as many women continue to shoulder the brunt of care work and therefore have to work remotely more often than their male colleagues.
To ensure that hybrid work does not inadvertently disadvantage female workers, employers must take action. But this forces them to balance two tasks: creating policies that support workers with care obligations, and doing so in a way that does not distinguish them from the rest of the workforce, which raises issues of discrimination.
“What’s so important with employment law is not to treat one group differently than another,” said Amory McAndrew, labor attorney at Hoguet Newman Regal & Kenney.
“Even though I’d like to say, ‘Let’s create more flexible working time for people with caring responsibilities or try to think of a way to make it easier for those carers… then you give a benefit or accommodation to a group of workers that you might not give to another group of workers,” potentially violated discrimination laws, McAndrew said.
Long before the pandemic began, women who used flexible work arrangements to balance work and care duties were often denied opportunities for advancement. Before Covid-19 ushered in the spread of remote working, flexible work arrangements typically came in the form of part-time or flexible hours, said Roberta Liebenberg, an attorney at Fine, Kaplan and Black, who has served as Chair of the American Bar Association (ABA) Commission on Women in the Profession twice since 2007.
Women have historically used these options more than men, but “they really haven’t provided a path to advancement,” Liebenberg said. In the legal industry, for example, “female lawyers who worked flexible hours or part-time were rarely promoted to associate, were often overlooked on important issues, and were mistakenly perceived as not being sufficiently engaged in the their firm and their career. ,” she says.
Liebenberg said his concern about hybrid work arrangements is, “Are we going to see a recurrence of that gender divide that we’ve seen with flextime and part-time? That more men are in office and that women, and especially women with children, are opting to work from home? And what will that mean in terms of advancement, compensation and the ability to achieve leadership positions?”
This concern is not unwarranted. Last year, Liebenberg co-wrote a report for the ABA which found that in the first year of the pandemic, female lawyers – many of whom worked remotely – experienced more disruption to their work than male lawyers due to family and domestic obligations. Compared to other groups of lawyers surveyed, female lawyers with children also feel they are more often overlooked for client opportunities or assignments, according to the report.
Caregivers are not a protected class under federal civil rights law, which means it is not technically illegal for employers to discriminate against workers on the basis that they are caregivers or they have caregiver functions. However, the United States Equal Employment Opportunity Commission (EEOC) has clarified that discrimination against caregivers can often overlap with discrimination based on gender, disability, age and race— categories that are protected by civil rights law.
Some of the examples provided by the EEOC demonstrate the fine line that employers must walk if they want to offer support to workers with caregiving duties. Employers technically discriminate against a female worker on the basis of her sex, for example, if they decide to stop giving her difficult tasks because she is a mother, even if the intention was to help her better reconcile professional and private life. Employers also cannot offer flexible work arrangements only to workers who are caregivers without potentially violating discrimination laws.
“It really is a very difficult place to live,” McAndrew said.
“There’s a risk if you said, ‘Well, caregivers may have more flexibility, or they may choose not to be assigned to heavier duties,'” McAndrew explained. “It can also be ripe for discrimination in itself, because then maybe everyone who is a carer will be diverted down that other path that a few decades ago would be called the ‘mom track’. And no one wants that. This is the wrong heading correction.
But that doesn’t mean employers’ hands are tied. Those who want to ensure that workers with care duties are not diverted to a path with fewer opportunities for advancement, McAndrew said, must think beyond policies that only affect this specific segment of workers. .
The best approach “is to have an overarching policy that can be more flexible for everyone,” she said.
“Some people have to take time off or make different career decisions to take care of their care. But maybe if we made it a more palatable option for the entire workforce, maybe that burden wouldn’t fall on just one segment of society, maybe it would not just women, maybe everyone would take advantage of that,” McAndrew mentioned. “It would create a fairer distribution of responsibility for care… It could also equalize all of these other elements of the workforce, such as pay and time off work.”
Policies Liebenberg said he hopes more employers adopt include flexible hours, childcare benefits and stronger sick and family leave plans.
In the legal context, she said, there have been “many articles about law firm executives pointing out that we need in-person work in order to preserve the culture of the firm. And for me, this justification raises the question: what is the culture that the company is trying to preserve? And will that culture be inclusive and in which female lawyers – and female lawyers with children – can truly grow and succeed?
“I think the bottom line is…the employer needs to develop policies that are truly inclusive of all lawyers,” Liebenberg said. “Whether they come into the office or work remotely.”
From: Corporate Counsel