Bosses Thought They Won the RTO War; Now They're Facing Legal Battles

After seemingly having won the return-to-office wars, employers may be walking into a legal storm by enforcing rigid return-to-office (RTO) mandates.

The post-pandemic era presents a unique challenge as employers grapple with shifting workforce dynamics. The insistence on a full return to the office, without considering individual circumstances, could lead to a surge in legal issues, particularly discrimination claims. This concern is not mere speculation–it's a reality backed by a significant uptick in workforce discrimination charges.

Rigid RTO policies are disproportionately impacting disabled employees, mothers, and older workers–and could even, in certain cases, breach the law.

The disability discrimination dilemma

One of the most pressing issues is disability discrimination. With many employees having worked remotely for over two years without a dip in productivity or performance, employers face a challenging legal landscape when justifying the need for in-person work.

Thomas Foley, executive director of the National Disability Institute, noted that he has “great concerns” over RTO for people with disabilities, including transportation to and from work, workplace accessibility, and the potential to encounter micro (or larger) aggressions. Brandalyn Bickner, a spokesperson for the EEOC, said in a statement that the ADA's reasonable accommodation obligation includes “modifying workplace policies” and “might require an employer to waive certain eligibility requirements or otherwise modify its telework program for someone with a disability who needs to work at home.”

In a notable legal settlement, a facility management company agreed to pay $47,500 to settle an Equal Employment Opportunity Commission (EEOC) lawsuit for violating the Americans with Disabilities Act (ADA). The case, EEOC v. ISSFacility Services, Inc., involved the company's refusal to allow a disabled employee at high risk for COVID-19 to work part-time from home, despite previously allowing a rotating schedule during the pandemic. The company's denial of the employee's request for accommodation, followed by her termination, was deemed a violation of the ADA. The settlement also required the company to permit EEOC monitoring of future accommodation requests. This case emphasizes the importance of ADA compliance and the need for employers to be flexible and consistent in accommodating employees, especially in changing work environments.

In a lawsuit against Electric Boat Corp., Zacchery Belval, a resident of Enfield, Conn., claimed discrimination for the company's failure to provide reasonable accommodations under the Americans with Disabilities Act and the Connecticut Fair Employment Practices Act. Belval, who has multiple health issues, including a heart defect and severe anxiety, argued he was at increased risk for COVID-19. He had worked from home during the pandemic, but faced challenges when the company encouraged a return to the office. The physical demands of returning and poor office conditions led him to seek continued remote work, which the company partially granted. However, Belval deemed this accommodation insufficient. When he did not return to work under these conditions, Electric Boat considered him resigned. This case underscores the complexities employers face in implementing return-to-office policies while also needing to provide ADA-compliant reasonable accommodations, particularly for employees with significant health risks.

Mental health issues have become increasingly prominent in the context of workplace accommodations. The pandemic has led to a 25 percent increase in cases of depression and anxiety in the U.S., underscoring the need for employers to consider remote work as a reasonable accommodation. Companies are facing a rise in mental health disability discrimination complaints from employees who view remote work as a reasonable accommodation. The EEOC has observed a 16 percent increase in such charges between 2021 and 2022, particularly for conditions like anxiety, depression and post-traumatic stress syndrome. This trend is indicative of a broader challenge where mental health disorders have become a prominent reason for disability complaints. Employers who fail to make an effort to accommodate such requests risk facing EEOC actions. In September, the agency filed a complaint against a Georgia company after it fired a marketing manager who requested to work remotely three days a week to accommodate anxiety.

Impact on older workers

Older workers are particularly impacted by RTO mandates. A recent survey from Carewell has illuminated this trend, revealing that as many as 25 percent of workers over the age of 50 are contemplating retirement more seriously in light of RTO mandates. This statistic is particularly striking when compared to the 43 percent who expressed a reduced likelihood of retiring if given the option to work remotely. Such figures not only highlight the preferences of older workers but also underscore the potential unintended consequences of inflexible RTO policies.

The resistance to RTO mandates among older workers isn't just a matter of preference; it brings to the forefront concerns about age discrimination. If RTO policies disproportionately affect older employees, either by forcing them into early retirement or by making their work conditions less favorable compared to their younger counterparts, employers could face age discrimination claims. These concerns are amplified by the fact that losing older workers en masse could mean a significant loss of experience, skills, and institutional knowledge for organizations.

Employers, therefore, need to carefully consider the impact of RTO mandates on their older workforce. Offering flexibility, whether through remote work options or hybrid models, could be crucial in retaining older employees. Additionally, engaging in dialogue with this segment of the workforce to understand their specific needs and concerns can help in formulating policies that are inclusive and considerate of all age groups.

Working parents and gender disparities

The legal risks associated with RTO policies are further highlighted by their impact on working parents, especially mothers. The transition from remote to office work brings into sharp focus the balancing act that working parents, especially mothers, must perform between their professional responsibilities and childcare obligations. The legal implications of these policies stem from the potential for indirect discrimination and unequal treatment of working parents.

Studies have consistently shown that working mothers are disproportionately affected by the lack of flexibility in work arrangements. The data reveals that nearly twice as many working mothers as fathers have considered leaving their jobs due to the stress associated with childcare. This statistic is alarming and points towards a deep-seated issue in the current work environment where the needs of working mothers are not adequately accommodated. Furthermore, 30 percent of mothers, compared to 17 percent of fathers, report difficulties in finding working hours that align with their childcare needs. This disparity not only highlights the challenges faced by working mothers but also raises concerns about potential gender discrimination in the workplace.

The lack of flexible working options can exacerbate existing inequalities. Mothers often bear a larger share of domestic and childcare responsibilities, and inflexible work schedules can intensify these demands, leading to increased stress and potential burnout. This situation is particularly challenging for single mothers or those without access to external childcare support. The inability to balance these demands can lead to mothers being forced to choose between their careers and their family responsibilities, a choice that fathers are less likely to face to the same extent.

From a legal standpoint, these disparities could give rise to discrimination claims under various employment laws. Employers who fail to provide reasonable accommodations or flexibility to working parents, particularly mothers, might be seen as engaging in indirect discrimination. Such practices can be construed as creating an unfavorable work environment for certain groups of employees, thereby violating equal employment opportunity laws.

To mitigate these risks, employers must take proactive steps to provide equitable support to all working parents. This could include offering flexible work schedules, remote work options, or part-time arrangements that allow parents to manage their work and childcare responsibilities more effectively. Additionally, employers should consider implementing policies that specifically support working mothers, such as extended maternity leave, breastfeeding breaks, and facilities, or support for childcare.

Instituting these changes requires a cultural shift within organizations to recognize and value the diversity of employees' needs. This shift involves not only policy changes but also a broader understanding and empathy toward the challenges faced by working parents. By fostering an inclusive work environment that accommodates the unique needs of working mothers, employers can not only avoid potential legal challenges but also enhance employee satisfaction and retention.

Additional discrimination considerations in remote setups

The evolving legal landscape, shaped by advancements in legal technology and updated guidelines on harassment, presents new challenges and complexities for employers, particularly in the context of remote and hybrid work environments. The EEOC has recently published important updates in its guidance that address the nuances of remote work and discrimination.

One of the key aspects of this new EEOC guidance is the clarification it provides on legal standards and employer liability in the context of remote work. As the workplace extends beyond the traditional office environment into remote and hybrid models, the definition and scope of harassment have also expanded. This expansion necessitates a reevaluation of existing policies to ensure they adequately address the unique challenges and scenarios presented by remote work settings. For instance, harassment in virtual meetings or through digital communication platforms presents different challenges compared to in-person interactions, requiring tailored responses and preventive measures.

The guidance also underscores the importance of accommodating the needs of diverse employee groups, with specific attention to LGBTQ+ employees. This focus is critical in fostering an inclusive work environment and ensuring that harassment policies are sensitive to the needs of all employees, regardless of their sexual orientation, gender identity, or expression. Employers are encouraged to review and update their policies to ensure they provide clear, specific protections against harassment of LGBTQ+ employees, which is essential in maintaining a respectful and inclusive workplace culture.

Additionally, the guidance highlights the need for updated policies related to video meetings and lactation accommodations. As video conferencing becomes a staple in remote and hybrid work models, employers must establish clear guidelines to prevent and address harassment that may occur in these virtual settings. This includes setting standards for professional conduct during video calls and ensuring that employees' privacy and dignity are respected. Similarly, the guidance on lactation accommodations reflects an understanding of the changing needs of working parents, particularly mothers, in remote work scenarios.

Furthermore, the EEOC emphasizes the importance of training for employees on these new aspects of workplace conduct. Training programs should be updated to include scenarios and examples relevant to remote and hybrid work environments, ensuring that employees understand their rights and responsibilities under the new guidelines. This training should also cover how to report harassment in remote work settings and the resources available to employees who experience or witness such behavior.

In response to these challenges, I tell my clients that they would benefit from adopting a flexible approach to RTO mandates.

A one-size-fits-all policy may not only lead to legal repercussions but also overlook the diverse needs of a modern workforce. Companies need to consider individual employee circumstances, including disability, age, and parental responsibilities, to navigate this new landscape successfully. Inflexible RTO mandates not only risk alienating key segments of the workforce but also invite a host of legal challenges. By embracing flexibility and inclusivity in return-to-work strategies, employers can mitigate legal risks, foster employee engagement, and build a more inclusive and productive work environment.

Gleb Tsipursky is the CEO of the boutique future-of-work consultancy Disaster Avoidance Experts and is the bestselling author of seven books, including Leading Hybrid and Remote Teams. This article was written by Gleb Tsipursky for Fortune and was legally licensed through Industry Dive Content Marketplace. Please direct all licensing questions to legal@industrydive.com.