The world at large is learning how to work from home and do so efficiently. But for some, the struggle to maintain productive full-time employment from home is harder than for others. While you may think it’s a personal problem for the employee to resolve, thanks to a lesser-known discrimination theory, the headaches could soon belong to the employer.
Weighing Working Parents’ Productivity
Imagine the following schedule:
- 8:00-8:05 a.m: Make coffee.
- 8:05-8:20: Make breakfast for the kids. While cooking, tell Siri to read and draft responses to work e-mails.
- 8:20-8:25: Correct Siri dictation errors.
- 8:25-8:50: Begin typing work memo. Every four minutes, remind Child No. 1 not to sleep through Zoom class. Four sentences of memo completed.
- 8:50-9:45: Teach long division to child who slept through related Zoom class.
- 9:45-9:50: Reheat cold, unsipped coffee.
- 9:50-11:00: Return to work memo. First page now complete.
- 11:00-11:15: Realize Child No. 2 has been too quiet. Search for ensuing destruction.
- And so on.
As significant portions of the workforce have transitioned to long-term work-from-home arrangements, the morning depicted above isn’t a matter of imagination. It is a daily reality.
While businesses search for ways to keep employees productive during extended remote working arrangements, the struggle to succeed at work—during a national pandemic with no apparent end in sight—is undoubtedly harder for some than others. For example, many employees with school-aged children must now try to simultaneously work from home and supervise distance learning efforts. As a result, they may appear to be less productive than their counterparts, when in reality, the parent-employees are working around the clock.
Moreover, since many segments of society continue to apply gender stereotypes that have needed updating since the 1950s, in many households, the burden of trying to teach and work simultaneously may be borne more heavily by the working mother than the working father. Further still, if the employee (or a loved one) suffers from a mental disability (such as severe anxiety and/or learning disabilities, which raise the complexity of online learning), the challenges only increase.
Elevating Risks For Discrimination Lawsuits
With some protected groups being more burdened than others during the pandemic, the potential for discrimination lawsuits is rising, especially as many businesses are preparing to launch year-end performance reviews. Obviously, if an employer begins applying differing performance standards to only the female employees (or employees with disabilities, or those who are associated with disabled individuals), there can be grounds for an intentional discrimination claim.
Even without an intent to discriminate, however, the possibility for a bias lawsuit exists. Specifically, if a protected group can show an employer’s practice or policy, while facially neutral, has a disproportionately negative impact on a protected group, it might serve as the basis for what is known as a “disparate impact” discrimination claim.
Fairly Evaluating Job Performance During Pandemic
So, how do you effectively evaluate job performance during a pandemic if it’s the health crisis that’s making it harder for some (but not all) employees to get their jobs done? While each business is different, certain guiding principles ring true:
Check the numbers. Disparate impact claims are only actionable (or pursuable in court) if they have a substantial negative effect on a protected group. Ultimately, the answer comes down to statistics. Especially for larger businesses whose workforces may provide sufficient numbers for a valid statistical analysis to occur, companies should evaluate the statistical impact on each protected classification before implementing the policy or practice at issue.
Evaluate the business case for the policy or practice. Assuming the disadvantaged group can demonstrate a substantial disparate impact, the employer then has the burden to show the practice or policy at issue is job-related and justified by business necessity.
Further still, the employer must be prepared to explain why any less discriminatory alternative proposed by the employee wouldn’t satisfy the business necessity. If the employer hasn’t carefully analyzed alternative policies or practices before the lawsuit begins, the oversight may affect its defense at trial.
Consider the consequences. The remedies available to successful disparate impact litigants are narrower than those available in cases of intentional discrimination. Generally, equitable relief (such as injunctions) are available, but monetary damages are not. While the remedies are more limited, disparate impact claims can still create substantial disruption to a business, especially if a court issues an injunction to prohibit and/or reverse promotions, raises, or other actions that a company implements as a result of some groups exceling in their 2020 performance while other groups struggle, as noted above.
To help ensure your business isn’t put in the uncomfortable position of reversing raises and revoking promotions, you should consult with competent employment counsel about how to measure and reward performance during these trying times.
Bottom Line
With the world turned upside down, promotions, raises, performance reviews, and other management tools may not be “business as usual” for some employers this year. A thoughtful, planned approach to managing job performance amid the pandemic may help you to avoid or at least reduce potential exposure in litigation.
Shannon Pierce is an attorney with Fennemore Craig, P.C., in Reno, Nevada. You can reach her at spierce@fclaw.com.