In February of 2020, shortly before the COVID-19 virus spread rapidly across America, women reached a significant and historic landmark: they accounted for more than half of the U.S. (non-farm) workforce. In fact, 2020 was the 100-year anniversary of the ratification of the 19th Amendment to the U.S. Constitution, which prohibited states and the federal government from denying citizens the right to vote on the basis of sex. Since 1920, women in the workforce have nearly tripled, greatly bolstering household incomes and expanding the American middle class. However, this significant progress saw a dramatic downturn coinciding with the pandemic.
Since the beginning of the pandemic, more than 2.3 million women have left the workforce, reaching the lowest level of women active in the labor force since 1988. Unfortunately, according to a recent United Nations policy brief, it didn’t take long for the pandemic to reveal discriminatory policies against women by employers. These policies were lurking just below the surface of historic and statistical gains. In its brief — The Impact of COVID-19 on Women — the United Nations warns that the pandemic is eroding decades of hard-fought progress for women in the workplace. “Emerging evidence on the impact of COVID-19,” the UN writes, “suggests that women’s economic and productive lives will be affected disproportionately and differently from men.” The UN goes on to report, “As women take on greater care demands at home, their jobs will also be disproportionately affected by cuts and lay-offs.” Many businesses are also using COVID-19 as an excuse to discriminate against women and as the basis for termination. The COVID pandemic could have a long-lasting impact. Despite the years of progress women achieved in the workforce, they are now seeing their jobs reduced or eliminated based on biases related to simply being a woman.
When this catastrophic pandemic hit and the lockdown began, an immediate fairness gap became readily apparent: women were significantly more responsible for providing childcare and in-home schooling than men. Studies consistently show that women are subjected to traditional gender roles and expected to carry a much heavier load providing education and household tasks, oftentimes between two and three times more than their male counterparts. According to the U.S. Bureau of Labor Statistics, the added weight of responsibility is currently forcing women to leave the workforce at almost four times the rate of men. Many dismissed the term “she-cession” citing it was an overstatement—but the stark reality of the statistics prove otherwise.
As a result of the pandemic, women have been forced to take on the caregiver role in a way that was unprecedented before the pandemic. This ignited an increase of the caregiver bias by employers. The caregiver bias stems from an American mindset that the preferred worker is an individual with maximum availability. Historically, this stereotype was viewed as a man (single or married, with or without children) versus a woman who was assumed to be needed in the home for childcare and household responsibilities. As noted, women made great strides in successfully occupying more than half the workforce prior to the pandemic. But this above mentioned mindset doesn’t account for the harsh reality of COVID-19 and how the pandemic has dramatically altered the ability for women to compete on a level playing field. In fact, women are now taking on more responsibilities than their male counterparts while many employers seeking to optimize their productivity will layoff or furlough women unjustifiably — and at a rate higher than their male co-workers. Employers making these decisions based on caregiver bias expose themselves to discrimination claims from women who are simultaneously taking care of families. As well, the U.S. Supreme Court ruled [Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)] that employers cannot discriminate against an employee based on gender stereotyping—for instance that women automatically qualify as the caregiver for family members at home. Claims against employers for wrongful termination as well as gender-discriminatory workplace practices have been filed in courts across the country.
In addition to the U.S. experiencing a reversal on the progress of eliminating caregiver bias, the pandemic is also revealing a turning back of the clock on advances made against discrimination of pregnant women in the workforce. The Pregnancy Discrimination Act of 1978 amended Title VII of the historic 1964 Civil Rights Act and prohibits sex discrimination on the basis of pregnancy. Regarding COVID-19, the Centers for Disease Control (CDC) issued guidelines advising that pregnant women could be at higher risk if exposed to the virus. In violation of their rights, pregnant women have been furloughed or laid off based on the misconception that they needed protection and/or were a liability. Even if an employer believes they’re being altruistic or caring, the employer—according to Title VII—cannot take negative employment action because of pregnancy. In fact, the U.S. Supreme Court ruled [Young v. United Parcel Service, 135 S. Ct. 1338, (2015)] that employers must offer pregnant employees equal accommodations that are offered to employees unable to work based on temporary medical conditions.
Relevant to COVID-19, but consistent with established precedence, the Equal Employment Opportunity Commission (EEOC) released guidelines to employers in June 2020 reinforcing the law that employers must offer alternatives such as flexible schedules and telework options for male and female employees with legally-protected circumstances. Notwithstanding these guidelines and the reminder to employers to put aside gender and sex biases, pregnant women have the right to perform their full-capacity job description should they so choose without employer-imposed limitations.
COVID-19 MAKES A DIFFICULT SITUATION EVEN HARDER
Beyond the discriminatory practices of employers directed at women, the workplace consequences of the virus have been especially damaging to women because the American economy has always been tough on women. The virus simply exasperated this reality. For example, the U.S. Bureau of Labor Statistics confirms that women hold the majority of low-wage employment, such as in the hospitality, childcare, and retail sales sector—jobs that require the interaction of workers and customers. Unlike higher-wage employment, these jobs cannot be converted to at-home telework. When the pandemic struck the U.S.—causing schools and childcare facilities to close—a mountain of low-wage jobs were eliminated. The impact on society in general was great and the disruption to the low-wage female workforce was enormous with many women immediately unemployed or forced to choose between working or staying home to supervise schooling and care for their children. Women have struggled for decades to gain equal economic footing in the U.S. Unfortunately, the pandemic has forced a regression of these gains.
EQUALITY AND THE SPIRIT OF THE LAW
The U.S. Constitution prohibits workplace discrimination based on gender, gender identity, or sexual orientation. Clearly, women’s rights are deeply embedded in this constitutional doctrine, one that underscores the principles of equality. Simply stated: employers cannot use the pandemic as an excuse to violate these fundamental constitutional rights; employers must treat women equal to men; employers should not assume that women will be the caregiver; nor should they assume that pregnant women are not capable of working during the pandemic.
If history proves anything it’s that change occurs when dedicated people join together in solidarity against injustice and the illegal application of the law. Lawyers for Employee & Consumer Rights stand with you, our clients, in this regard.