As a mother of a two-year-old and a four-month-old, one of the most challenging aspects of the pandemic has been navigating working from home while caring for loved ones and keeping our household running.  I, like many parents, am juggling work responsibilities along with my roles as parent, daughter, grand-daughter, teacher, nanny, and housekeeper – often, all at the same time.  As I hide in my car writing this (the only place I can find a little quiet), I know I am not alone.  As a large portion of this nation’s workforce shifted overnight to working from home while simultaneously losing access to caregivers and childcare, employees and employers alike have struggled with this new reality.

While an employer may have a concern about the productivity of its employees, employees may feel unsupported, and in some cases, discriminated against as a result of staffing decisions made during this time.  As employees and employers attempt to navigate these unchartered waters, it is important for everyone to understand the limitations of what is and is not acceptable.

Family responsibilities discrimination (FRD) or caregiver discrimination is when an employee is discriminated against based on his/her perceived family caregiving responsibilities.  Types of employees who face FRD include pregnant women, parents of young and/or disabled children, and those taking care of aging or sick parents or partners.  FRD is based on a stereotype that an employee is not as capable because he or she has (or is assumed to have) caregiving responsibilities.  Examples of FRD include passing over an employee with young children for promotions or offering better assignments to an employee without children because the childless employee is viewed as more dedicated; permitting flexible schedules for those employees without caregiving responsibilities, but refusing to be flexible for employees with young or sick loved ones; or firing someone who is pregnant because it is believed that as a new parent she will not be as committed to the position.

While there are no federal statutes that expressly protect against FRD, employees can find federal protections in Title VII of the Civil Rights Act of 1964 (“Title VII”), the Family and Medical Leave Act (“FMLA”), the Americans with Disabilities Act (“ADA”), Federal Executive Order 13152 (which prohibits employment discrimination against federal employees because of their status as a parent), and the Equal Pay Act.  Furthermore, several states, cities, and counties (like Alaska, the District of Columbia, Atlanta, Georgia, and Tampa, Florida) have adopted provisions prohibiting discrimination based on family responsibilities.  The Equal Employment Opportunity Commission has also adopted guidance on this topic.

During this time of uncertainty and chaos, it is important that employers permit flexibility whenever possible so that employees can better manage their caregiving responsibilities and workplace demands without feeling more overwhelmed than is necessary.  It is also extremely important that supervisors are properly trained on the employer’s policies (especially those pertaining to flex-work schedules, PTO, etc.), remain consistent in their implementation and continue to ensure that all evaluations (formal as well as informal) are tied to actual performance metrics and not stereotypes or assumptions.

The last few weeks have taught us many lessons – one of which is that working from home does not have to mean sacrificing productivity.  However, it is important to acknowledge the difficulties faced by both employers and employees and for both to feel supported and accommodated during this adjustment period.

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