He ordered our small team back to work a few weeks ago. Two women, including me, are in our 50s or 60s and have grown children. The other two women have school-age children and are much younger. The owner allows the younger women to telework as needed, but not us older women, even though we can execute 100 percent of our duties from home. We expressed health concerns, and I confronted the owner about his discriminatory policy, but he says the only options are report to work, quit or be fired.
The office environment is toxic and I would like the same opportunity to telework as the younger women.
I don’t need the money but want to keep working. I’ve consulted an employment attorney, who thinks any legal action I bring would be settled out of court with the company paying me off. I really think the owner will continue mistreating subordinates unless someone stands up to him, but should I be the one?
Karla: For months, employers with remote workforces and their teleworking employees have been preparing their arguments for what the post-pandemic workplace should look like.
Employers who want everyone back at the workplace argue that employees are more engaged, more efficient and more collaborative in the office. But teleworking employees who have adapted to online collaboration, and who find they have more mental energy without office distractions and draining commutes, aren’t necessarily buying those reasons. And with coronavirus variants threatening another surge in infection rates, safety is still a major concern.
By the same token, anyone who’s pleading health concerns while resuming pre-pandemic social and vacation habits isn’t presenting a convincing argument for teleworking, either. I’m not saying that’s what you’re doing, but it sounds as though avoiding the preexisting toxic work environment is at least as much a motivating factor for you as avoiding the coronavirus.
That’s certainly understandable — but in an at-will employment arrangement, when employers generally have flexibility to set take-it-or-leave-it rules, you’ll need something more persuasive.
Ideally, employers and employees should be transparent and willing to compromise on what they want from each other. “I’m cautioning my clients … to be flexible,” says Amy Epstein Gluck, an employment law partner with FisherBroyles.
She advises employers to open discussions, rather than issue mandates — “We’re coming back to the office; if there’s a reason you can’t come back to the office, let’s discuss” — and to be especially mindful of individual worker situations entitled to accommodation or protection under the federal Americans With Disabilities Act or the Family and Medical Leave Act, as well as state laws. Are the employees caregivers to children or immunocompromised people? Are they pregnant or immunocompromised themselves? Do they have diagnosed anxiety, PTSD or other mental and emotional aftereffects from living through a pandemic?
A lot of employees’ personal situations have been affected by the pandemic, so employers may need to reset their expectations. And employees should be mindful that what they see as a new normal, their employers may see as emergency measures that were never meant to be permanent.
In any case, your owner’s like-it-or-lump-it stance doesn’t leave much room for discussion. Maybe he feels that allowing parents of minor children to telecommute is a reasonable line to draw; however, even if he doesn’t intend to target older workers for separate treatment, he needs to consider the effective impact of his decision.
“If you’re offering flexibility to other workers and you’re treating older workers, comparable workers, less favorably because of their age, that could be a problem,” says Epstein Gluck. Even if the boss isn’t explicitly basing his decision on your age, however, his policy could still have what’s known as a disparate impact on older workers. “Disparate impact is an unintended consequence of a neutral rule on an impacted group,” Epstein Gluck explains. “If this would inadvertently negatively impact another group, whether intentionally or not, then the employer could have some risk.”
I’m not saying you should seek to apply legal leverage, either through the EEOC or the lawyer you consulted. It’s stressful, with no guarantee that you’ll effect change. However, if you feel strongly enough that none of the outcomes your boss offers is acceptable for you or your colleagues, and you’re financially secure with or without this job, it’s certainly an option.