Does RTO Have A Discriminatory Impact?

Is Remote Work ‘Protected’?

by Daniel Burke and Tommy Rogers

at Bricker Graydon LLP

We’ve been discussing the various implications of the current ‘return to work’ push. Another implication is layoff decisions and the potential for disparate impact on remote workers, who tend to disproportionally be women and people of color.

What’s New?

Studies show remote workers are more likely to be women, people of color, and disabled individuals. All of these people are members of a protected class under federal law. Accordingly, any evidence that these factors contributed to an adverse employment decision could give rise to a claim under Title VII of the Civil Rights Act or the Americans with Disabilities Act.

Employers should be cognizant that the move back into the office disproportionately impacts women and people of color. It has been reported that some women and people of color tend to prefer hybrid or fully remote work at higher rates because they experience fewer implicit biases and microaggressions than when working in the office.

Remote work itself is not a protected classification under federal and state law. However, the reasons for remote work may be. For example, if an employee works remotely because of a disability and they are later passed over for a promotion due to their remote status, that may give rise to a discrimination claim.

What Should an Employer Do?

Title VII prohibits companies from making employment decisions based on race, religion, sex, pregnancy, or national origin. Bostock in 2020 expanded Title VII to include discrimination on the basis of sexual orientation and gender identity.

A disparate treatment, or intentional discrimination claim arises when an employer manages an employee or job applicant differently because of a protected characteristic. A policy may be neutral on its face, like denying promotions to remote workers, but may in actuality lead to a disparate impact claim if it has a discriminatory effect.

Employers should be up to date on the legal requirements of the jurisdictions where employees reside and work because local law may have even broader protections than Title VII.

For example, Cincinnati City Council passed its “Unlawful Discriminatory Practices” ordinance several years ago. It was among the first cities in the country to adopt a law to protect residents from various types of workplace discrimination. Throughout the years, Cincinnati has expanded and recently added protections based on a person’s sexual orientation, gender identity and expression, military status, and pregnant and breastfeeding individuals.

Employers should use objectively neutral criteria justified by business necessity when making layoff, promotion, and other employment decisions impacting remote and hybrid workers and generally avoid using remote/flexible work as a criterion for such decisions.