Human Rights Brief Human Rights Brief
Volume 25 Issue 2 Article 6
2022
Gender Discrimination and Wrongful Termination During the Gender Discrimination and Wrongful Termination During the
COVID-19 Pandemic and the Age of the At-Home Workplace COVID-19 Pandemic and the Age of the At-Home Workplace
Lauren Saxe
American University Washington College of Law
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Recommended Citation Recommended Citation
Saxe, Lauren (2022) "Gender Discrimination and Wrongful Termination During the COVID-19 Pandemic
and the Age of the At-Home Workplace,"
Human Rights Brief
: Vol. 25: Iss. 2, Article 6.
Available at: https://digitalcommons.wcl.american.edu/hrbrief/vol25/iss2/6
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Introduction
In 2020, individuals placed more than 1,000 phone
calls in just six-months to the Center for WorkLife
Law, which oers free legal advice to parents,
pregnant employees, and other caregivers who want
help getting leave or believe they are being mistreated
at work.
1
Dozens of parents led lawsuits across
the country in just the last year, including Lauren
Martinez, who worked as an assistant oce manager
at a dentist’s oce in Florida.
2
Martinez requested to
work from home because she struggled with childcare
options and maternal duties throughout the workday,
LaurenSaxeisarst-yearlawstudentatA mericanUniversity
WashingtonCollegeofLawwheresheispursuingpublicinterest
law.LaurengraduatedfromIndianaUniversityBloomington
w ithabachelor’sdegreeinJournali smandasecondmajorin
Spanish.
Parents Say Employers Are Illegally
Firing Them During Pandemic
SeeThese Mothers Wanted to Care for
Their Kids and Keep Their Jobs. Now They’re Suing Aer Being
Fired
such as breastfeeding her newborn, but her employer
denied the request.
3
She had just returned from
maternity leave about a month earlier, and days aer
her request, she was red.
4
Now, Martinez, among
many other mothers and working parents who dealt
with unfair workplace policies across the country, are
currently ling lawsuits.
5
Throughout the COVID-19 pandemic, employers
in the United States have discriminated against
women by penalizing them in the workplace
based on their status as a parent and wrongfully
terminating or otherwise forcing them to leave
their job,
6
violating Title VII of the Civil Rights
Act of 1964.
7
During the pandemic, companies
have violated Title VII through discriminatory
policies that disproportionately aect parents
and specically target women. While this Article
focuses on women’s rights against discrimination
under domestic law, it is important to note that the
right against discrimination is an internationally
recognized human right codied through the
International Convention on the Elimination of All
Forms of Racial Discrimination (CEDAW), and
although the United States has yet to ratify CEDAW
to is a signatory of the CEDAW, and thus recognizes
this right on an international level.
8
This Article
discusses the protections for parents and women
granted in Title VII and applies them to companies
Nearly 3 Million U.S. Women Have Dropped
Out of the Labor Force in the Past Year
Id.
Id.
supra
§
see also Why
Ratifying the Convention on the Elimination of Discrimination
against Women (CEDAW) Is Good for America’s Domestic Pol-
icy
103Issue 2Vol. 25 Student Columns
Gender Discrimina-
tion and Wrongful
Termination During
the COVID-19
Pandemic and the Age
of the At-Home
Workplace
byLaurenSaxe
*
Saxe: Gender Discrimination and Wrongful Termination During the COVID-1
that employed discriminatory practices during the
pandemic. Finally, this Article recommends how the
U.S. government can and should hold companies
liable for these violations.
I. Background
Title VII is a federal law that prohibits employment
discrimination—including wrongful terminations—
based on race, color, religion, sex, and/or national
origin.
9
Title VII’s prohibition of dierent or
unfavorable treatment because of sex includes
pregnancy, sexual orientation, and gender identity.
10
Title VII also prohibits employment decisions based
on stereotypes, dened as unfair or untrue beliefs,
about abilities and traits associated with gender, such
as being a mother.
11
The pandemic has exacerbated
workplace gender discrimination and working
conditions to disproportionately aect U.S. women
and their employment status over the last year and a
half.
12
In 2020, more than three million American women
dropped out of the workforce.
13
For many, this was
directly due to hardships that working from home
during the pandemic required.
14
This created a
struggle to balance work-life expectations and form
a new accepted workplace environment.
15
Women
across industries and titles, including secretaries and
journalists, have been laid o or forced out of work
during the pandemic.
16
For years, the U.S. workplace
has failed women in maintaining a balance between
a successful career and a ourishing home life.
17
Id.
Bostock v. Clayton Cnty.
Price Waterhouse v. Hopkins
supra
supra
supra
supra
Id.
The Revolt of Working Parents
Between April 2020 to February 2021, employees
led at least y-eight lawsuits alleging that their
employer denied emergency parental leave, did not
inform employees of their right to take emergency
leave, or red employees for asking to work remotely
or take leave while schools and daycares were
closed.
18
Additional parental duties have fallen on
women during this time and due to some employers’
inexibility and view that women cannot keep up
with the workload as a result,
19
ring these women
directly violates Title VII. While most of these
plaintis have led suits under the Families First
Coronavirus Response Act (FFCRA),
20
they may also
bring suit under Title VII of the Civil Rights Act.
II. Legal Analysis
Several sex-discrimination cases over the years have
exemplied the legal challenges and thresholds that
working women and parents battled and in many
cases, won.
21
In International Union v. Johnson
Controls, Inc.,
22
workers brought a class action
suit against Johnson Controls for discriminatory
workplace policies under Title VII.
23
The company
enforced a policy that barred hiring all women,
except for those whose infertility was medically
documented, from jobs involving actual or potential
lead exposure exceeding the Occupational Safety and
Health Administration (OSHA) standard.
24
The U.S. Supreme Court ruled in favor of the
employees who led the class action, holding that the
employer’s policy was facially discriminatory and that
the employer did not establish that sex was a bona
de occupational qualication.
25
In its
Id.
Id.
See Int’l Union v. Johnson ControlsInc.
Kolstad v. Am. Dental Ass’nFord Motor
Co. v. E. E. O. C.
Id.
Id.
Id.
Issue 2Vol. 25104 Student Columns
Human Rights Brief, Vol. 25, Iss. 2 [2022], Art. 6
opinion, the Court stated that “the bias in Johnson
Controls’ policy is obvious.”
26
It further pointed
out that fertile men, but not fertile women, were
given the option as to whether they wanted to risk
their reproductive health to obtain a specic job.
27
Policies like this allow employers to decide what is
best for their employees, making it dicult for the
employees to have full autonomy over the decisions
about their professional life, family planning, and
their bodies.
28
Similarly, like in the case of Lauren
Martinez, companies throughout the pandemic
questioned the maternal obligations of women and
how it may detract from the workplace.
29
Several
companies made clear how they think women should
deal with their at-home duties, and accordingly made
the decision for women by dismissing them from the
workforce.
30
Johnson Controls specically targeted women
and did not allow them the opportunity to work
based on their status as potential mothers.
31
While,
ultimately, the U.S. Supreme Court ruled in favor of
the workers, the Court of Appeals for the Seventh
Circuit assumed that “the policy was facially neutral
because it had only a discriminatory eect on
women’s employment opportunities, and because it
asserted purpose, protecting women’s unconceived
ospring, was ostensibly benign.”
32
This displayed the
deep entrenchment of imbalanced gender views and
the obstacles women routinely face, even though the
Supreme Court ultimately reversed.
33
The Supreme
Court held that the policy was not neutral because it
did not apply to male employees in the same way it
did to female employees, even though the evidence
conrms that lead exposure results in harmful
physical eects on both male and female reproductive
systems.
34
It took our country’s highest legal authority
Id.
Id.
Id.
supra .
Id
Johnson Controls
Id.
Id.
Id.
to recognize a very clear violation of basic civil rights.
Similarly, while the pandemic has been harmful to
both men and women health-wise, we again saw
women stripped of economic choice.
Gender discrimination issues are still evident
in today’s workplace, and many U.S. legislatures
and courts continue to protect the liberties and
employment rights of men over women. Millions of
women and parents le the workforce throughout
the past year and a half due to inexible work
environments and/or wrongful termination.
35
The
United States is only one of seven countries today
that does not provide paid leave to new mothers.
36
The lack of policies and protections has a domino
eect on women’s autonomy to make choices for
their own lives. The weight of childcare and home
responsibilities are not equitably taken into account
in the workplace.
37
Historically, employers have both
intentionally and unintentionally made it extremely
dicult for women to maintain jobs or even obtain
work in the rst place.
38
Employers responsible
for these wrongful terminations and inadequate,
discriminatory, and sexist conditions must be held
accountable for discrimination and violation of Title
VII of the Civil Rights Act against women.
Nearly 2 in 3 Women Who Le the Work-
force During Covid Plan to Return—and Most Want to
Enter This Field
The World ‘Has Found a Way to Do
This’: The U.S. Lags on Paid Leave
_
__
_
Pandemic Makes Evident ‘Grotesque’ Gender
Inequality In Household Work
The History of Women’s Work and Wages and
How It Has Created Success for Us All
105Issue 2Vol. 25 Student Columns
Saxe: Gender Discrimination and Wrongful Termination During the COVID-1
III. Recommendations
Part of the solution moving forward must be to
continue to hold accountable those companies and
organizations that place inequitable barriers and
limitations on women and parents. One remedy may
be more severe legal consequences for companies
who do not comply with Title VII. A number of
courts in prior gender discrimination cases have
recognized the propriety of compensatory damages,
punitive damages, and/or backpay.
39
It is crucial
that plaintis recover for the nancial toll of lost
employment, but it is equally important that
corporations and organizations are disciplined when
they mistreat their employees. In Kolstad v. American
Dental Association,
40
a female employee alleged that
she was denied a promotion based on her sex, and the
Supreme Court held that punitive damages could be
awarded “without showing of egregious or outrageous
discrimination, independent of employer’s state
of mind.”
41
Essentially, regardless of how severe an
employer’s discriminatory acts are, the possibility to
sue for punitive damages is still an option.
42
Additionally, in Ford Motor Company v. Equal
Employment Opportunity Commission,
43
the Equal
Employment Opportunity Commission sued Ford
Motor Company for refusing to hire women at one
of its warehouse locations.
44
As a result, the Court
held that, absent special circumstances, the rejection
of an employer’s unconditional job oer ends the
accrual of potential backpay liability.
45
This case
put pressure on employers to immediately correct
their behavior by oering an employee a specic
Quinn v. Naa Traders, Inc.
40
Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999).
Id.
Id.
Ford Motor Co. v. EEOC.
Id.
Id.
performance remedy: the original role for which
they applied.
46
This was intended to avoid issues with
backpay based on discriminatory hiring policies.
47
The principles from both of these cases oer a strong
roadmap as a possible route for present and future
sex discrimination cases, like the cases that have been
relentlessly fought over the last year and a half.
48
Conclusion
Holding U.S. corporations accountable is a key step
to providing more equitable spaces for employees.
As the sex discrimination and wrongful termination
lawsuits that have stemmed from the pandemic
begin to unfold, those aected must look to Title VII
of the Civil Rights Act to uphold their employers
to a reasonable standard of fairness. Companies
across America displayed abhorrent ring processes
throughout the pandemic, in direct violation of Title
VII. U.S. courts need to bring justice to the many
women who experienced them.
Id.
Id.
supra
Issue 2Vol. 25106 Student Columns
Human Rights Brief, Vol. 25, Iss. 2 [2022], Art. 6
