Childcare: The Working Mom and Employer’s Conundrum 

As primary caregivers, many working women have been disproportionately affected by increased personal responsibilities resulting from the pandemic. As a result, they have scaled back or totally left the workforce in staggering numbers. 

While not yet a widely litigated issue, the potential employment hotspots created by this issue call for governments and businesses to come up with new policies and guidelines on childcare and retention of female workers wrote Elizabeth Sigler of Stanton Law and Amanda Farahany of Barrett & Farahany in a May 11, 2021, Fulton County Daily Report article. 

The co-authors agree that the immediate effects are worrisome, but the long-term impact on women’s career advancement and gender diversity in the workplace could be irreversible. What’s more, employers are losing valuable workers and our economy is bearing the brunt. 

Familial Status Protections

Because being a parent is not a protected class under federal or Georgia law, employers are not obligated to find accommodations or solutions to retain an employee with attendance and job performance issues stemming from a lack of childcare. Sigler and Farahany acknowledge that, in Georgia, if the job isn’t being done, the employee can be terminated.

While many businesses have offered flexible shifts, work-from-home options, and paid time off, that level of flexibility isn’t a solution in all cases. Physical presence during business hours is a requirement of many jobs, particularly entry-level and non-professional positions. In these circumstances, the attorneys advise employers to be earnest with employees about options, and when no flexible solutions workout, to be generous. Offer severance when possible and make sure the employee can collect unemployment.

Litigation Risk

Although many pandemic-related terminations have not been explicitly tied to the employee’s gender, the effect has not been fairly distributed between women and men. With no protection for caregivers, terminations for an employee’s inability to do their job due to caregiving responsibility is most likely to surface as claims of sex discrimination under Title VII. So far, this is largely untested in the courts. 

The attorneys warn that if employers hold women to a different performance standard than men, especially in light of the recent caregiving crisis, we might start seeing discrimination claims. For example, if a female worker receives a negative performance review and subsequent adverse consequences stemming from her employer’s assumptions that her status as a caregiver means she is less committed to her job. Such stereotyped assumptions amount to gender bias in support of the female employee’s claim of sex discrimination. 

Hiring is another area where the attorneys expect to see discrimination issues and claims arise. The next few months will be a good test for employer objectivity as the economy continues to open up and women seek to reenter the workforce. Will candidates who stepped back to serve as caregivers be treated the same as unaffected candidates? If an employer hires a man over a woman based on the assumption that the woman has potential caregiver obligations, that could also result in Title VII liability.

The Long-Term Impact 

Although caregivers face the steepest penalties, stereotypes hurt all women, even those who do not have caregiver responsibilities. The pay differentials, the limitations created by bonus structures, and the missed opportunities for promotion have an impact on all women, not just caregivers, based on the perception that personal conflicts are possible, if not now, then sometime in the near future. 

Continuing flexible work environments post-pandemic as well as helping to pay for childcare might alleviate some pressure and support women’s post-pandemic return to the workforce. A few others may include revised hiring practices that reevaluate the weight of career gaps in the candidate screening process, and offering positions that, when possible, require less than 40+ hour a week commitment. These are not total fixes, however. Ultimately, the co-authors agree, unless businesses and governments come together to craft sustainable solutions, the economy will continue to suffer and the issue of gender parity in the workplace is likely to wind up in courts across the country. As the pandemic has brought this issue into stark relief, it’s past time to engage in a meaningful, solutions-oriented, dialog towards ensuring greater gender parity in the workplace. 

You can read the entire article on the Fulton County Daily Report website (subscription required).