Could Hybrid Work Arrangements Result in a ‘Mommy Track’?

Let’s say an employer decides to give workers the option of working either on site or remotely. Over the next year, the employer notices that certain workers are choosing to go into the office more often than others. The employer begins to reach the conclusion that the first group of workers is more invested in their work and fits better within the company culture. When it comes time to dole out promotions or other opportunities, workers in the first group come first to the employer’s mind. 

As many companies across the country move permanently towards hybrid work arrangements, the possibility of this scenario has become a growing concern for professionals in many fields. They fear the two groups will be split along gendered lines, as many women continue to shoulder the brunt of caregiving duties and consequently need to work remotely more often than their male colleagues. 

To ensure that hybrid work won’t inadvertently put female workers at a disadvantage, employers need to take action. But this requires them to reconcile two tasks: creating policies that support workers with caregiving obligations, and doing so in a way that doesn’t set them apart from the rest of the workforce—raising discrimination concerns. 

“What’s so important with employment law is not treating any group differently than another,” said Amory McAndrew, employment counsel at Hoguet Newman Regal & Kenney. 

“As much as I would like to say, ‘Let’s create more flexible work time for people with caregiver responsibilities or try to think of some way to make it easier for these caregivers … then you’re giving a benefit or an accommodation to one group of workers that you’re maybe not giving to another group of workers,” potentially breaking discrimination laws, McAndrew said. 

Long before the start of the pandemic, women who used flexible work arrangements to balance work with caretaking duties were often denied advancement opportunities. Before Covid-19 ushered in the spread of remote work, flexible work arrangements typically came in the form of part-time or flex-time schedules, said Roberta Liebenberg, an attorney at Fine, Kaplan, and Black, who has been chair of the American Bar Association’s (ABA’s) Commission on Women in the Profession twice since 2007. 

Women have historically used these options more than men, but “they really didn’t provide a pathway for advancement,” Liebenberg said. In the legal industry, for example, “female lawyers who worked on a flex-time or part-time basis were rarely promoted to partnership, were often overlooked for important matters, and were incorrectly perceived as not being sufficiently committed to their firms and careers,” she said. 

Liebenberg said her concern with hybrid work arrangements is: “Are we going to see a recurrence of this gender divide that we saw with flex-time and part-time—that more men are in the office and that women, and especially women with children, are opting to work remotely? And what is that going to mean in terms of their advancement, their compensation, and their ability to attain leadership positions?” 

This concern is not unwarranted. Last year, Liebenberg co-authored a report for the ABA finding that in the first year of the pandemic, female lawyers—many of whom worked remotely—experienced more disruptions to their work than male lawyers as a result of family and household obligations. Compared with other groups of surveyed attorneys, female lawyers with children also felt more often they were overlooked for client opportunities or assignments, the report said. 

Caregivers are not a protected class under federal civil rights law, meaning it is not technically illegal for employers to discriminate against workers on the basis of them being caregivers or having caregiver duties. The U.S. Equal Employment Opportunity Commission (EEOC) has nonetheless clarified that discrimination against caregivers can often overlap with discrimination based on sex, disabilities, age, and race—categories that are protected under civil rights law. 

Some of the examples the EEOC provided demonstrate the fine line employers have to tread if they want to offer support to workers with caregiving duties. Employers are technically discriminating against a female worker based on her sex, for instance, if they decide to stop giving her difficult work assignments because she is a mother—even if the intention was to help her achieve a better work/life balance. Employers also can’t offer flexible work arrangements only to workers who are caregivers without potentially violating discrimination laws. 

“It really is a very tricky place to be in,” McAndrew said. 

“There’s a risk if you were to say, ‘Well, caregivers can have more flexibility, or they can choose to not maybe be staffed to some more burdensome assignments,’” McAndrew explained. “That also can be ripe for discrimination in its own right, because then maybe everybody who’s a caregiver gets siphoned off to this other track that a couple of decades ago would be referred to as a ‘mommy track.’ And nobody wants that. That’s not the right course correction.” 

But that doesn’t mean employers’ hands are tied. Those that want to ensure workers with caregiving duties don’t get siphoned off to a path with fewer advancement opportunities, McAndrew said, need to think beyond policies that impact only that specific segment of workers. 

The best approach “is to have an overarching policy that may be more flexible for everyone,” she said. 

“Some people are having to take time off or make different decisions in their career to deal with their caregiving. But maybe if we make that a more acceptable option for the entire workforce, maybe that burden wouldn’t just fall to one segment of society, maybe it wouldn’t just fall to women, maybe everybody would take advantage of that benefit,” McAndrew said. “It would create a more equal distribution of caregiving responsibility … It might equalize all these other elements of the workforce as well, such as pay and time away from work.” 

Policies that Liebenberg said she hopes more employers will adopt include flexible hours, childcare stipends, and more robust sick and family leave plans. 

In the legal context, she said, there have been “a lot of articles about law firm leaders stressing that we needed in-person work in order to preserve firm culture. And to me, that justification begs the question: What is the culture the firm is trying to preserve? And will that culture be one that’s inclusive, and one in which female lawyers—and female lawyers with children—can truly advance and succeed?

“I think that the main thing is … the employer has to develop policies that are really inclusive of all lawyers,” Liebenberg said. “Whether they come into the office or they work remotely.” 

From: Corporate Counsel