As the economy has opened up, more employees have returned to some form of in-person employment, with one exception. Working mothers, who took on the bulk of caregiving responsibilities during the pandemic and scaled back or totally left the workforce in droves, are still plagued by a lack of childcare and in many cases unable to return to the workplace. The immediate impact is troublesome, but the long-term effect on women's advancement and gender diversity in the workplace could be irreparable.
In a recent Fulton County Daily Report article, Amanda Farahany, managing partner of Barrett & Farahany, and Elizabeth Sigler of Stanton Law discuss the potential for future sexual discrimination claims if employers start penalizing women based on stereotyped assumptions related to caregiving obligations. They also pose a challenge to businesses and the government to come up with a better solution in order to keep gender parity from becoming a COVID-19 casualty.
FAMILIAL STATUS NOT A PROTECTED CLASS
Most pandemic-related terminations have had nothing explicitly to do with gender but instead have been a result of an employee not being able to perform their job, write Farahany and Sigler. Even if the reason for poor attendance or performance is related to lack of childcare, employers are not required to retain employees who cannot make it to work or do their job, the authors note. Being a parent is not a protected class in Georgia and employers are not required to find accommodations.
POTENTIAL BASIS FOR TITLE VII SEX DISCRIMINATION CLAIMS
With no legal protections for caregivers, Farahany and Sigler contend that sex discrimination under Title VII is theoretically the likeliest basis for future claims. They give the example of an employer that exhibits gender bias against women under the assumption that female employees are caregivers and less committed to their jobs. If the employer subjects the women to negative performance reviews and adverse consequences under those assumptions, a female worker might have a Title VII sex discrimination claim.
Likewise, if an employer hires a man over a woman who they assume has potential caregiver obligations, the employer may have unwittingly offered up evidence for the woman to argue stereotyped assumptions, note Farahany and Sigler. Stereotypes hurt all women, not just mothers with caregiver responsibilities, note the authors.
SOLUTION REQUIRES PUBLIC AND PRIVATE COMMITMENT
The solution to the childcare problem is not an easy one. Continued flexible work situations and help paying for childcare are two options that could help, but these alone do not solve the problem, note Farahany and Sigler. They challenge businesses and the government to come together to create a solution, be it statewide childcare legislation, making familial status a protected class, or something else.
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If you suspect your employer is applying gender stereotypes in performance reviews, promotions, or hiring decisions, and thus negatively impacting you and other women, please contact us. The experienced team at Barrett & Farahany can help evaluate your situation and make sure you receive justice at work.