Childless Employees - the Next Employment Litigation Frontier?

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Obermayer Rebmann Maxwell & Hippel LLPThe COVID-19 pandemic has disrupted childcare and school and blurred the lines between home and work life. This, along with the dependent care leave provided by the CARES Act, has created new differences in the workplace—those with young children and those without; those with supportive spouses and/or grandparents and those without; and those who can afford childcare and those who cannot.

Differences in the workplace breed resentment. Especially with the new academic year and the advent of parents balancing homeschooling responsibilities, this author’s social media has shown two diametrically opposed reactions, many examples of which are combined and paraphrased as follows:

  • I have young children whom I have not returned to school or daycare because they are not old enough to exercise sanitation and social distancing and I don’t want to risk exposing myself and my elderly parents. I try to fit work in when my spouse is able to watch the kids or when they are taking a nap, but all of my waking hours are taken up by work or childcare. I have no time to relax or take care of myself. I hate asking for accommodations at work, but I am at my limit. I worry that I will be seen by my employer as a working parent, not as a dedicated employee.
  • I do not have children, for reasons that are private and personal. I understand that it is hard to be a parent during the pandemic and I truly feel for my peers in this situation. I did my best to pitch in during the early days of the pandemic. But as this drags on, it is hard not to notice that my co-workers with children are afforded accommodations while my bosses seem to have used the pandemic to erode my work-life balance. They think I should be available at any time of the day or week, and that I must not have anything important going on in my personal life simply because I don’t have kids. When it comes time for promotions, I’m concerned that I will be viewed as being less responsible, or perceived as not needing a raise because I don’t have children relying on me.

With the numbers of millennials in the workplace increasing, the percentage of employees who are childless by choice is also increasing. The blurring of the line between work life and home life created by the pandemic is likely to persist to a large degree even after the pandemic ends. The two perspectives above both exemplify the effects of old biases and stereotypes being exacerbated by the sudden erosion of boundaries between work and home life and rapidly changing social attitudes.

Federal law does not expressly prohibit family responsibility discrimination, but does prohibit discrimination on the basis of sex plus some immutable characteristic. For example, women with young children have brought sex discrimination claims under Title VII because they were treated less favorably than men with young children due to the operation of stereotypes. Because stereotypes about working mothers are real and pervasive, this has effectively created an implied cause of action for family responsibility discrimination.

Could this be reversed? Could a person without children claim that they were treated less favorably for not having children? While legal support for such claims are scant, they are still possible. Consider, for example, a man without children who claims that he was required to work significantly longer hours than a woman with children, in part because of gender-based assumptions.  On the other hand, a childless woman in the same scenario would likely not have a gender discrimination claim if she is claiming to be treated less favorably than another woman.

Where does this leave employers? As Yoda famously put it, “fear leads to anger, anger leads to hate, hate leads to suffering.” In the workplace, differential treatment leads to resentment, resentment leads to anger, and anger can lead to litigation. This dynamic is only going to grow in the present stressful environment. Thus, as a matter of both sound management and risk-avoidance, it behooves employers to find ways to accommodate working parents for the long term without making others bear the burden. Flexibility means providing employees with choices, regardless of whether they have children at home (or in their home office). For example, if a company offers its employees the option to reduce their hours in exchange for a commensurate reduction in pay, this choice should be offered to employees without regard to family status.

The COVID-19 pandemic has caused major shifts for the American workplace and will continue to require outside-the-box thinking. We have survived the immediate crisis. Employers should now begin to adjust to longer-term changes before these changes outpace them.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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