Just this week, the limited Los Angeles schools that had been providing in-person education, primarily to special needs students in small group settings, were ordered to return to a fully virtual model. Orange County schools affected by fires have also transitioned temporarily to remote-only learning. Even parents with the option of sending their children to in-person schools face a dilemma as case counts rise and outbreaks hit elementary and high school campuses.
While some parents have already been juggling Zoom school with their own jobs, more parents are facing this challenge as additional schools close or they feel they have no choice but to educate their children at home to protect vulnerable family members.
Of course, there are only so many indoor activities for children or at-home learning activities. Inevitably, one parent or another will be required to take care of a child during working hours or while in a virtual meeting. This raises legal concerns given that some employers have apparently penalized employees when their child appears on a zoom call.
Discrimination on the basis of gender and childcare obligations
Employers are forbidden to discriminate against employees on the basis of gender, sex, pregnancy or marital status. Gov. Code § 12940. This includes discrimination based on motherhood and stereotypes about gender roles in childcare responsibilities. Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107 (2d Cir. 2004); Cal. Code of Regs. § 11030.
An employer does not need to intentionally discriminate against women to violate California and federal law on equal treatment of employees. An employer can violate the California Fair Employment and Housing Act (FEHA) when its policies result in a disparate impact on women, specifically women involved in caregiving. Raytheon Co. v. Hernandez, 540 U.S. 44 (2003). This can also take the form of "reverse discrimination," such as discriminating against fathers who violate gender norms by stepping back to take care of their children.
To prove a disparate impact claim, an employee must show (1) the existence of the employer's practice or policy; (2) that the policy has significant adverse effects on women; (3) that the policy negative impacts women’s employment; and (4) that the employee population in general is not affected by the policy to the same degree. Garcia v. Spun Steak Co., 998 F2d 1480 (9th Cir. 1993).
Employers Are Punishing Parents Who Work Remotely While Caring for Their Children
As employers continue to rely on virtual offices and ever more employees work remotely, issues of childcare are taking on paramount importance for working parents. Given that many of us do not have or cannot afford full-time childcare while children are not attending school, many parents—mothers especially—find themselves providing childcare while simultaneously attempting to work from home. The impact this shift has had on women in the workforce is likely to reverse years of progress unless employers stop discriminating and pushing women out of the workforce.
In addition to the many hardships this double-duty imposes, some employers have instituted policies that punish women for attending zoom or other remote meetings with their children in the background. Your employer may have implemented this kind of policy on the rationale that it is “gender neutral” because it applies to all employees. But while the policy may appear gender neutral, it isn't.
The reality of it is that women, especially women of color, are disproportionately likely to exercise primary caregiving responsibilities, according to Equal Employment Opportunity Commission data.
As such, policies that discipline or punish primary caregivers for tending to childcare responsibilities, whether planned or unplanned, are likely to break the law. If you are terminated or disciplined due to a policy the prohibits the presence of your children in a virtual meeting, you have legal rights.
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