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Motherhood Penalty' May Fuel Workplace Lawsuits in Pandemic (1)

April 29, 2020, 10:21 AMUpdated: April 29, 2020, 8:41 PM

Stephanie Jones struggled to balance her day job for Eastern Airlines with new responsibilities after her 11-year-old son’s school closed in March as part of her Pennsylvania town’s response to the coronavirus.

The single mother, who served as the airline’s director of revenue management, said her repeated requests to have two hours a day off were met with the blunt response that it “was not in the interest of the company or yourself.” She was fired soon after, allegedly because she had “conflict” with co-workers.

Earlier this month, Jones filed one of the first federal lawsuits under the Families First Coronavirus Response Act, which requires paid sick leave for parents when schools or daycare centers close because of the virus. Eastern Airlines and its attorney didn’t respond to a request for comment.

Jones’ lawsuit is an early indicator of potential lawsuits from parents and caregivers—especially women—as a result of Covid-19, employment law attorneys and academics warn.

“We are at risk for a whole new round and increased interest in family responsibilities discrimination,” said Joan Williams, a law professor at the University of California Hastings and director of the Center for WorkLife Law. “You have a recipe for discrimination. Inevitably, there will be assumptions about who is valuable and who is performing up to snuff. That’s where the lawsuits start.”

The “motherhood penalty” has been oft-used to describe persistent gender disparities that working mothers can encounter, as documented by a surge in discrimination lawsuits related to caregiving in recent decades as more women enter the workforce.

It’s exacerbated during the pandemic, lawyers and professors say, and could lead to more claims of sex discrimination in hiring, firing, pay, and promotions; pregnancy bias from mothers who must choose between their safety and getting paid; and family leave law violations.

These issues are starker for low-wage workers, single mothers, and women of color, who generally have less access to paid leave and other job safety nets, advocates say. Women also make up a large percentage of essential workers, including grocery store cashiers, nurses, and home care workers. Overall, data show mothers are paid 71 cents on the dollar compared to fathers—and the gap is even larger for mothers of color.

“Going into the pandemic, moms, particularly those of color, were experiencing wage and hiring discrimination,” Kristin Rowe-Finkbeiner, CEO and executive director of Moms Rising, a group that advocates for women and families. “Being a mom is a high predictor of discrimination. What we are seeing in this pandemic is the cracks in our faulty system.”

‘Stereotyped Assumptions’

As employers cut their workforce during the pandemic, women with caregiving responsibilities could face severe consequences, said Alexandra Harwin, a Sanford Heisler Sharp partner in New York who co-chairs the firm’s Title VII practice group.

“One of the things we’ve seen over and over again is employers act on stereotyped assumptions that women in particular have primary caregiving responsibilities and marginalize them as a result of those stereotypes,” said Harwin, whose firm brings cases on behalf of workers and whose practice is dedicated to “family responsibilities discrimination.”

The U.S. Equal Employment Opportunity Commission, which enforces employment anti-bias laws, previously has highlighted the issue. It released guidance in 2007 on caregiver discrimination, signaling to employers that they could be liable for such implicit or unconscious biases. An EEOC spokesman said the agency assesses guidance regularly to determine when updates are appropriate. In recent years, the commission has brought discrimination cases on behalf of both mothers and fathers.

The number of employees with caregiving responsibilities has risen sharply, leading to a surge in family responsibilities discrimination, according to the most recent studyby the Center for Worklife Law from 2016. The number of cases rose 269% in 2016 over the previous decade. The study found that employees won 67% of cases between 2006 and 2015 that went to trial, a higher rate than other employment cases, and prevailed in more than half of the total cases filed.

The Center’s Williams said this trend has continued in recent years. The lawsuits encompass several different kinds of caregiving discrimination, including failure to provide pregnancy or lactation accommodations, male caregivers being treated differently than women, and Family and Medical Leave Act violations. Most of the cases are filed under Title VII of the 1964 Civil Rights Act.

Discrimination, Leave Litigation

Caregiver litigation stemming from the pandemic likely will include sex or pregnancy bias suits filed by women. But men who take on caregiving roles also can sue. Last week, for example, a male worker sued his employer under the new coronavirus response law after he allegedly was denied leave to care for his mother during the pandemic.

The Families First Coronavirus Response Act, which went into effect April 1, generally requires companies to pay up to 10 weeks of partially paid family and medical leave to workers who need to care for a child in the event of school or daycare closures because of the Covid-19 outbreak.

Labor and employment attorneys previously told Bloomberg Law that the law would likely be a source of major litigation due to uncertainty surrounding employer requirements and confusion over which workers are covered.

Being a parent isn’t a protected class under federal law and, outside of the temporary legislation, employers aren’t required to accommodate a parent for time off to care for a child, said Laura Jacobsen, a labor and employment partner with McDonald Carano in Nevada, who advises employers.

However, Jacobsen said she’s flagged caregiver discrimination to clients because of the new law. “School closures and at-home parenting could trigger unconscious bias,” she said.

Best Practices for ‘Crisis Work’

Williams, whose center operates a hotline for individuals to report family responsibility discrimination, says there are early signs that employers are being demanding and not acknowledging that the current dynamic is “crisis work,” not business as usual, for parents.

“If things go badly, people without kids will be overworked and people with kids will be discriminated against,” she said.

Attorneys say employers should avoid comments aimed at mothers that imply they aren’t as productive or capable as other workers. Other possible forms of discrimination can include company practices and norms such as last-minute travel, long hours, or frequent moves that would prevent a woman from working full-time.

Employers also may be more open to work-from-home policies for parents and should be flexible, attorneys said.

“When so many selection decisions are made, legal challenges always follow,” said Stephanie Adler-Paindiris, an attorney with Jackson Lewis in Florida, who represents employers.

“Just because we are in uncharted territories with respect to the way our workplace looks and how we do our work, we must remember best practices of management, now more than ever.”

(Updated to include a response from the EEOC in the 12th paragraph.)

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Jerome Ashton at jashton@bloomberglaw.com

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