By Diana Chestnut • Business and employment law attorney
The “glass ceiling” and the “motherhood penalty” are nothing new to working women and mothers. We began making progress more than a century ago with the passage of the 19th Amendment, which gave women the right to vote.
Since then, the U.S. has enacted laws that provide women with the perception of protection from workplace discrimination: Title VII of The Civil Rights Act of 1964, The Florida Civil Rights Act of 1992, The Pregnancy Discrimination Act of 1978, The Equal Pay Act of 1963 together with its modern counterpart the Lilly Ledbetter Fair Pay Act of 2009, and the Family and Medical Leave Act.
More than 100 years of progress is now in peril because of the pandemic.
Before the pandemic, nearly 58% of women participated in the workforce. Now, workforce participation remains lower than at any point during the previous decade.
The numbers are even worse for working mothers, 1.6 million of whom left the workforce between January 2020 and January 2021.
With schools shutting down, women performing the bulk of the “child” work and employers being less than accommodating, many women “chose” to exit the workforce, relinquishing income that previously accounted for nearly half of average household income.
As COVID-19 becomes endemic and these women return to the workforce, the question becomes: Can these laws provide any protection in the post-pandemic workplace?
In a typical Title VII discrimination claim, an employee must prove her membership in a protected class, that she was qualified to do her job, that she suffered an adverse employment action and that a similarly qualified person outside her protected class received better treatment.
In Florida, a woman who quits her job because of the impossible choice between her children and her career has not suffered an “adverse employment action,” so she cannot prove her claim. Absent (unlikely) retroactive legislation, women who “decided” to quit their jobs do not have a claim.
With women returning to the workforce, the weaknesses of the support systems in place pre-pandemic are more obvious.
For instance, when a child stays home sick, often the mother must make last-minute arrangements or take off from work herself.
When a woman takes off from work for her children, absent diagnosis of a severe disease or a disability, her employer does not have to allow her to take that time off and that time off does not come with any protection.
The pandemic has set working women back an entire generation, working moms even further. Some countries responded by subsidizing child care, while other countries provided paid family leave time to parents.
The U.S. would benefit from increased support of working mothers.
Many companies, government agencies and courts have embraced telework, flexible hours, Zoom meetings and flexible deadlines, all of which lead to increased productivity and reduced turnover.
Simply stated, when a company invests in workers, the workers invest in the company.
Diana Chestnut practices business and employment law at The Law Office of Michelle Cohen Levy.
