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Working Moms Will Find Covid-19 Layoffs Hard to Fight in Court

July 29, 2020, 9:31 AM

Many working mothers—now balancing home school, snack breaks, and play time—carry a heavier child care burden than fathers during the coronavirus pandemic, leaving them increasingly vulnerable to layoffs and terminations that would be difficult to challenge in court.

New research suggests that the pandemic has worsened gender dynamics between working parents. Working moms’ hours fell four to five times as much as fathers’ in March and April, increasing the gender gap in work hours by 20% to 50%, according to a recent study from Washington University in St. Louis.

“We know working mothers are reducing their work hours. It will continue to be women who reduce their work hours to meet the demands of their families,” said Caitlyn Collins, assistant professor of sociology in arts and sciences and co-author of the study. “Over the long term, this has implications when employers look at who they are cutting from their payroll. It might sound like a minor shift but it signals trouble more broadly.”

Worker advocates say this drop in hours could lead some employers to deny promotions and raises to mothers, or target them for discharges or layoffs, based on unfair perceptions that mothers are unreliable workers. When it comes to challenging these decisions in court, the burden is high for working mothers to prove that unlawful discrimination is to blame, attorneys said.

“There is a danger when employers are making assumptions based on the fact that women have children at home,” said Christine Dinan, senior staff attorney at A Better Balance, which advocates for policies that support caregivers and women. “This is particularly true in an era where kids are at home. That could make them more vulnerable to stereotyped assumptions.”

Employers aren’t required to make accommodations for care giving responsibilities, attorneys and academics said. As offices slowly re-open, the issue of dwindling child care options for parents could become a reality for many working parents. Litigation is also expected to increase as these issues collide, giving rise to caregiver discrimination lawsuits.

Still, employers generally have to present a legitimate reason for a termination or other challenged job action, and can’t enforce policies differently between men and women, or caregivers versus non-caregivers. They would also have to defend policies that negatively affect certain groups more than others, such as demanding more work hours or limiting flexible work arrangements.

“We see a lot of family responsibility discrimination, period, before and after Covid,” said Melissa Pierre-Louis Washington, a partner at Outten & Golden, who represents employees in litigation and negotiation. “More employers are laying off employees, but at the same time they are laying them off because of financial reasons and are using the pandemic to target certain workers under the guise of a layoff.”

Early Evidence of Covid-19’s Impact

Between March and April, mothers scaled back their work hours about 5%, or two hours per week, while fathers’ work hours remained largely stable, according to the Washington University study. The impact was greatest among mothers of primary school-aged children or younger children, the study found.

Among telecommuting-capable parents with children aged 1 through 5, the study also found that the reduction in hours worked per week between February and April was nearly 4.5 times larger for mothers than fathers.

The report used data from the U.S. Current Population Survey to assess how dual-earner heterosexual married couples with children adjusted their work during the pandemic from February through April. The monthly labor statistics survey includes information from approximately 60,000 households across the U.S.

The study found fathers’ predicted work hours didn’t fall below 40 hours per week when both parents teleworked. Future merit-based promotions and pay raises may disproportionately benefit men whose work commitments remained high during the pandemic, the researchers suggest.

Early jobless numbers amid the pandemic show that certain industries have been hit harder than others. In the retail trade sector, women accounted for 62.5% of the total jobs lost between February and June 2020, according to a new analysis by the National Women’s Law Center. Women make up nearly half of all retail workers.

Faced with child care and school dilemmas, women could leave the workforce altogether or be targeted through termination or be passed over for promotions, said Emily Martin, the NWLC’s vice president for education and workplace justice. Leaving the workforce will have a long-term impact on women’s wages and jobs if they try to return.

“As caregiving becomes more visible, there is a real risk, that even in families where the work is equitably shared, employers are sensitive to the idea that moms aren’t pulling their weight in a way that doesn’t pull the same weight for dads,” she said.

Proving Discrimination

Five states, as well as the District of Columbia and New York City, have explicit protections against caregiver discrimination. Outside of that context, there are also protections against gender and sex stereotype discrimination under federal and state laws.

In such litigation, working mothers would need to show their employer intentionally discriminated against them because of their sex or had a neutral policy that negatively affected them more than fathers, for example. For intentional bias suits, the workers could prove their case through evidence that different workers received better treatment.

Generally speaking, employees don’t have rights to fight a layoff or termination, other than through voluntary policies adopted by the company or collective bargaining agreements, said Rachel Arnow-Richman, the incoming chair of labor and employment law at the University of Florida.

The burden is on the worker to demonstrate that at least part of the reason for a termination is gender, Arnow-Richman said. In a layoff situation, the employer facing economic strain already has a legitimate reason to reduce staff.

“You are walking into the case with facts stacked against you,” she said.

If an employer points out that a woman missed meetings or worked fewer hours, that could be used to defend a termination decision. The woman would have to overcome the employer’s stated justification and show that the decision was made because of a stereotype or bias, said Amy Bess, a partner at Vedder Price, who represents employers.

“It would be really hard for a woman to then say, ‘well, that’s not fair because in my household I have all the child care responsibilities,’” Bess said. “While that’s unfair, no doubt, that’s not the employer’s problem.”

Washington of Outten & Golden, however, said the employer will have to convince a court that a termination or a policy that hurts certain protected groups is a business necessity.

Bess said she has been encouraging flexibility and understanding from the clients she advises.

“It’s an unfortunate reality that this pandemic is having a disproportionate impact on women across the board,” she said. “Employers are trying hard to be understanding of the added burdens on child care and homeschooling.”

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; Karl Hardy at khardy@bloomberglaw.com

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