Out of Sight, Out of Mind… Bye Bye?

I struggled a bit with an appropriate song reference for this blog.   I’m going with “So Far Away,” written by Carole King and track 2 on Tapestry (1971).   In the post-pandemic world there’s been a seismic shift in the world of where you work.   Remote, hybrid, full-time in office… it’s all over the map (pun intended). 

As employers try to navigate this new work world order, it’s important to consider what can and cannot be done (or should and should not be done) when it comes time to make “workforce adjustments.”   Multiple times a week I get calls from clients on the nuances of remote work issues. 

And there are lots of them:   When is remote work an accommodation actually required by anti-discrimination laws?  When is it a better fit for an employee, with resulting heightened productivity?  When can an employer just say “no,” because the employer wants its employees to be work together, in-person.  There are a number of studies that suggest personal interaction is better and heathier for everyone.

Sure, there are jobs that cannot be done remotely (e.g., brain surgeon, truck driver, bank teller).  Put aside for the moment the legally required considerations for when remote work might be a reasonable accommodation for a qualified individual with a disability.  Beyond that, how much does an employer need to be concerned about employment decisions based on whether someone is working remotely?

There are some guardrails that need to be observed.   As reported by Live Data Technologies (and written about in the Wall Street Journal, New York Times and at Bloomberg), a January 2024 survey found that corporate managers favor employees who make an effort to come to the office over those who do not.  The same conclusion is reached in other surveys.

At the same time, it is reported those studies show remote workers are more likely to be persons of color, women, and those with disability accommodations.

That means an employer needs to be thoughtful about the effect a layoff might have on remote workers – even if there is no intent to discriminate.   Remember the concept of “adverse impact” discrimination?  That is where a neutral selection device has a significant disparate result on a particular protected class. 

The Supreme Court recognized this theory in Griggs v. Duke Power Co., 401 U.S. 424 (1971).  To simplify the facts of Griggs, Duke Power decided – the day after Title VII took effect – that to get a job or a promotion, an individual needed to have a high school diploma regardless of the job.  The rule applied to everyone.  But in North Carolina in the 1960’s, 33% of white males had a diploma while only 11% of African-American males had one.   The “neutral selection device” screened out three times as many Blacks as whites.

The Civil Rights Act of 1991 codified the adverse impact theory.  Title VII requires that, to defend against this sort of claim, an employer must prove that the selection device is “job related to the position in question and consistent with business necessity.”  42 U.S.C. §2000e-2(k)(1)(A)(i).

Now, there is no legal protection for remote work.  But, for example, if an employer needs to reduce its workforce and decides to lay off all remote workers, the employer should be cognizant of whether that decision will have a significant adverse impact on  workers of one or more protected classes.

And remember that there are protected classifications under state and local laws (“family responsibilities” for example) that are not protected under federal law, but which may also be the basis for a discrimination claim.

The takeaway here?   It is always the best practice to have individual assessments of performance based on objective criteria, and then use those assessments when making employment decisions.  Trying to short-cut that process nearly always will bring increased risk with it.


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