Parental Discrimination: What Companies Should Be Considering During And After COVID-19

 Parental Discrimination: What Companies Should Be Considering During And After COVID-19

By H.V. MacArthur

As Governors discuss how to approach the coming months, in particularly how to lift and transition away from shelter at home requirements, companies will have to tackle another challenge that has cropped up during this Pandemic. The challenge of working parents, who have been left to care for their children with schools and daycare centers shut down, will need to be a major issue to tackle.

Jared Pope, is an HR attorney and founder of Work Shield, shared that one of their recent polls of over 100 top Chief Human Resource Officers showed that 61% have dealt with an internal complaint or issue related to workplace harassment or discrimination during the pandemic, while 31% agree that they may not have had an issue reported, they still believe there are issues that need addressing. 

The truth is, there is no current law that completely addresses protecting parents from discrimination when they are unable to work at all or as often due to the lack of access to childcare caused by the pandemic. But that doesn’t mean companies should assume that they have zero obligation or mandate to consider the needs of this population. Instead, they should discuss and look to apply the following tips.Today In: Careers

Brush up on the nuances to the federal law, Title VII of the Civil Rights Act of 1964. Based on the EEOC website, Title VII does not prohibit discrimination based solely on parental or other caregiver status. This means an employer does not generally violate Title VII’s disparate treatment proscription if, for example, it treats working mothers and working fathers in a similar unfavorable (or favorable) manner as compared to childless workers.

This means that if employers were to require all employees to return to work once the shelter at home requirement has been lifted, they wouldn’t be violating the letter of the law. However, if the organization’s cultural values don’t call upon them to consider the stress their staff may be feeling due to lack of childcare, the following nuances may push them to do so.

Consider Title VII’s protection of women and minorities. Something employers need to be clear about is how their work from home policies may impact women. Caregiving responsibilities still disproportionately affect working women in general. On top of that, their effects may be even more pronounced among some women of color, particularly African American women, who have a long history of working outside the home. This is covered under Title VII to prevent a hostile work environment for mothers.

Of course, addressing only the needs of mothers in the workplace would cause a disparate treatment of fathers in the workplace, which would in turn, put the company at legal risk, once again, under Title VII. This may enforce the need to just consider a more modern and inclusive approach to providing reasonable accommodations for those employees with children under 18 at home during this pandemic.

Be thoughtful about potential perceptions of age discrimination. The truth is that most people who have young kids at home are in a younger age demographic. While those in executive positions, therefore making policy decisions, are generally in an older age bracket. The senior leaders may not have as much empathy or desire to extend flexible work arrangements. If their older, their parenting responsibilities are generally over. They also may have more resistance to adapting to flexible work policies and remote operations. But that could lead towards perceptions of discrimination of a younger demographic. Though the protected age group is currently 40 and over that doesn’t mean that is where it will stay.

Get clear on what the EEOC considers employer retaliation. The EEOC covers forms of employer retaliation that includes lack of reasonable accommodations, penalizing performance assessments, formal or informal, and passing over of promotions due to a person’s inability to work as many hours or be as available as their counterparts.

Identify how the combination of legal requirements may increase liability for employers. Jared warns that, “although there is no Federal law expressly prohibiting caregiver discrimination, when you combine Title VII, ADA, Equal Pay Act and the FMLA, they can all come together to really protect those who have children at home. Remember, the EEOC does not intend to create a new protected category but rather to illustrate circumstances in which stereotyping or other forms of disparate treatment may violate Title VII or the prohibition under the ADA against discrimination based on a worker’s association with an individual with a disability or caregiver needs.”

Consider how the EEOC has responded towards organizations that have been found liable regarding parental discrimination. In May 2019, the EEOC obtained a five million dollar settlement from JP Morgan Chase due to their discriminatory parental leave policies by providing men less parental leave (caregiver leave) than it did with women. Estee Lauder also was fined $1.1 million in July 2018 under similar situations. 

Consider the state and local laws that may play a part, depending on the employer and their location. Some primary laws include but are not exclusive to: 

  • Federal Executive Order 13152 prohibits employment discrimination against a federal employee because they are a parent. 
  • D.C., Illinois, Georgia, Wisconsin and Florida have local rules against employment discrimination based on family responsibilities. 

Understand that as this situation unfolds, so will the legislation. As an organization, you’ll want to be on the right side of history. This should be to reduce the risk of liability, but also to protect the commitment of your employees, the strength of your brand’s reputation and your organization’s relationship with its clients and customers.

An example of new legislation directly relating to the pandemic includes the Families First Coronavirus Response Act (FFCRA). This requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s Wage and Hour Division administers and enforces the new law’s paid leave requirements. These provisions will apply from the effective date through December 31, 2020. Under this act, employers of covered employers are eligible for:

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State or local government order or advice of a healthcare provider), and / or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine, or to care for a child, under 18 years of age, whose school or childcare provider is closed or unavailable for reasons related to COVID-19
  • Up to an additional ten weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee, who has been employed for at least 30 calendar days, is unable to work due to a bona fide need for leave to care for a child whose school or childcare provider is closed or unavailable for reasons related to COVID-19.

Take time to review your current leave policies. Jared advises to consider integrating the following guidance into your current leave policies:

  • Provide an equal amount of caregiver and parental leave time to all parents
  • Clearly distinguish between pregnancy-related disability leave for birth mothers and general caregiver/parental leave available to all parents
  • Avoid gender-based terms in leave policies like “primary” or “secondary” caregiver or “mothers” and “fathers.”
  • Promote a workplace culture that encourages all parents, whether male or female, to provide care to their children during this pandemic and, if receiving discriminatory actions or harassment, to raise their voice to be heard with the employer. 

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Originally posted on Forbes

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