By Andrew Horowitz

Law360 (October 9, 2020, 3:25 PM EDT )

Andrew Horowitz

The COVID-19 pandemic has disrupted child care and school and blurred the lines between home and work life.

This, along with the dependent care leave provided by the Coronavirus Aid, Relief and Economic Security Act, has created new disparities 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 child care and those who cannot.

Differences in the workplace breed resentment. Especially with the new academic year and the advent of parents balancing home schooling responsibilities, my social media feed 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. This has effectively created an implied cause of action for family responsibility discrimination.

The judge-made nature of this cause of action creates inconsistent results and effectively means that some persons are protected from family responsibility discrimination while others are not. This occurs because the plaintiff must prove disparate treatment between men and women in order to prevail.

Title VII protects a woman with children treated less favorably than a man without children, but a woman with children treated less favorably than a woman without children is left out in the cold.

For example, in Garza v. South Texas Rehabilitation Hospital,[1] the U.S. District Court for the Southern District of Texas explained last year that "the proper comparison is not between mothers and childless women; the proper comparison is between mothers and fathers." This works to some degree because stereotypes about working mothers are real and pervasive — having a child tends to have a much greater effect on a mother's career than a father's.

Could a person without children claim that they were treated less favorably for not having children? While there is a dearth of examples in reported cases, such a claim is theoretically possible in some circumstances.

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, the same childless man would probably not have a claim if the person who was allowed to work fewer hours was a man with children.

For example, in Maynard v. St. Stephen's Reformed Episcopal Church,[2] the U.S. District Court for the District of Maryland in 2017 granted the defendant's motion for summary judgment where the plaintiff explained her discrimination claim as follows:


There are additional theories of liability under Title VII that would likely apply if an employer harbored an active bias against childless adults instead of merely offering benefits and accommodations to employees with children but not childless employees.

For example, in Redpath v. City of Overland Park[3] in 1994, the supervisor harassed the plaintiff, saying that she and her husband were not "right with God" because they had no children. Where a childless employee has sufficient evidence to prove that the decision maker believed that adults should procreate and that this therefore justifies treating parents more favorably than nonparents, it may be possible to bring a Title VII claim under either or both of: religious discrimination or not conforming with a gender stereotype.

Where does this leave employers? As "Star Wars" character 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.

---

Andrew J. Horowitz is an associate at Obermayer Rebmann Maxwell & Hippel LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Garza v. South Texas Rehabilitation Hospital LP , No. 1:18-cv-168, 2019 U.S. Dist. LEXIS 227916, at *29 (S.D. Tex. Dec. 9, 2019).

[2] Maynard v. St. Stephen's Reformed Episcopal Church , Civil Action No. WMN-15-3532, 2017 U.S. Dist. LEXIS 103258, at *28 (D. Md. July 5, 2017).

[3] Redpath v. City of Overland Park , 857 F. Supp. 1448, 1453 (D. Kan. 1994).

For a reprint of this article, please contact reprints@law360.com.