The disparate impact of return-to-office mandates
It's no secret that women are affected the most.
A fox invites a stork to eat with him at a table. He provides a bowl of soup. The stork can't eat the soup with its narrow beak, but the fox can eat it easily.
The stork then invites the fox to dine with her. She provides soup in a vessel with a narrow neck. The fox can't eat, but the stork enjoys her meal.
This fable from Aesop has long been construed as a "do unto others" story. But it was also cited in a 1971 U.S. Supreme Court ruling in a case involving employment discrimination. An employment practice that looks in theory but has an unequal outcome is illegal. The stork and the fox were both served dinner, but one will go hungry unless they're served dinner in a way that's appropriate for each.
And companies demanding that employees return to the office are teetering dangerously close to breaking the law. Most recently and overtly, Dell has announced that remote employees are ineligible for promotion.
Dell's discriminatory RTO policy
In February, Dell announced that hybrid employees would need to come into the office three days per week. Opting to remain fully remote comes with clear downsides. According to a Dell memo:
"For remote team members, it is important to understand the trade-offs: Career advancement, including applying to new roles in the company, will require a team member to reclassify as hybrid onsite."
I've talked about this before. The Bosses admonish that working remotely will hurt your career because your manager will forget about you. Or managers will feel more connected to in-office employees. These "suggestions" are meant to scare people back into the office if they care about career advancement.
Dell said the quiet part out loud by explicitly saying that working remotely will hurt a person's career. According to internal Dell data, reported to Business Insider, this policy overwhelmingly impacts women. A senior source at Dell says, "This new policy on its face appears to be anti-remote, but in practice will be anti-women."
And that's where Dell may run afoul of existing laws regarding discriminatory practices.
Disparate treatment vs. disparate impact
When most people think about discrimination, they think about overt acts. But in the U.S., federal law prohibits both disparate treatment and disparate impact.
Disparate treatment is usually intentional, whereas disparate impact is unintentional. According to the Society for Human Resource Management, "disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group" (protected groups include race, color, sexual orientation, religion, etc.)
Disparate impact came out of a Supreme Court case in 1971, Griggs v. Duke Power Co. The company required a high school diploma for employees to receive a promotion into another department, plus completion of two aptitude tests. These requirements were unrelated to job performance and disproportionately impacted Black employees.
The Supreme Court ruled against Duke Power Co., saying that the company violated the Civil Rights Act of 1964. In the majority opinion, Chief Justice Warren E. Burger referenced the fox and the stork fable, writing:
Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox. On the contrary, Congress has now required that the posture and condition of the job seeker be taken into account. It has—to resort again to the fable—provided that the vessel in which the milk is proffered be one all seekers can use.
The [Civil Rights] Act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.
RTO mandates are prime for a lawsuit
The Supreme Court noted that "business necessity" is a key factor in determining disparate impact. Chief Justice Burger continued, "If an employment practice which operates to exclude [people] cannot be shown to be related to job performance, the practice is prohibited."
Requiring in-office presence as a requirement for promotion is a hard argument for Dell to make, considering the company is global. Even before the rise in remote work, the company was operating teams and departments across hundreds of office locations (180+, according to the company's own website). It's a hard argument for any company that's operated with remote work just fine for several years. And then suddenly demanded employees return to the office because The Bosses thought they were losing control or because of real estate costs.
If internal company data shows that the RTO mandate disproportionately affects women, and the company can't show "business necessity," it's only a matter of time before a class-action lawsuit is filed. And if not Dell, certainly another company.
Dell seems to be flaunting existing laws around disparate impact. Although there's another explanation: Dell is trying to force employees to quit, rather than go through another round of layoffs.
In 2023, Dell went through two rounds of layoffs, in February and August. The first round was about 5% of its workforce, with the second round being an unknown number. In total, the company paid out over $700 million in severance packages, according to the company's own earnings report.
But people who quit don't get severance. And Dell avoids the press of announcing another layoff.
So... is it really about in-office work? Or is it Dell's attempt to further reduce its workforce?
Either way, I'm eagerly (and angrily) awaiting the lawsuit that will punish companies for RTO mandates that have disparate impact. It's an impossible argument to make that remote employees aren't as productive or that remote work impedes collaboration. Because it simply isn't true.
If you love this newsletter and look forward to reading it every week, please consider forwarding it to a friend. You can also subscribe and access extra articles every month.
Have a work story you'd like to share? Please reach out using this form. I can retell your story while protecting your identity, share a guest post, or conduct an interview.
