Can My Employer Fire Me For My Noisy Children?

Whizy Kim

For working parents, the coronavirus pandemic has presented a seemingly impossible challenge: continuing to do their jobs as normal while also having to take care of their children, whose daycares and schools are most likely closed. There have been countless personal stories of how difficult it is to be working two full-time jobs, and they have revealed the extent to which we are currently facing a national childcare crisis. This has led to a falling share of women applying to and being hired for jobs, compared to men, over the past several months.

Affordable childcare was scarce long before the pandemic hit, and many workplaces were offering poor paid family leave benefits. But like many other problems in our country, the issue has become more clearly highlighted. Earlier this week, the New York Times published a story about one woman in California who has filed a lawsuit because her employer fired her. The alleged reason? Her children were being too noisy during work calls. According to the plaintiff, Drisana Rios, she had continued to meet all deadlines while caring for her two children, and her supervisor made sexist comments to her about the presence of her kids.

Rios’ termination might make you wonder what your rights are at work during a pandemic that has drastically reduced childcare options. How far can you expect your workplace to accommodate you, and is it legal for your employer to fire you because your kids aren’t quiet enough during Zoom meetings? The short answer is yes — unless your employment contract isn’t at-will and requires just cause for termination, your employer can really fire you for any reason at all. But the story is different if gender had an effect on your employer’s decision. Would Rios have been fired if she had been a father taking care of his children?

“It could be [gender discrimination],” says Adian Miller, an attorney at Barrett & Farahany in Atlanta who specializes in employee and labor rights. “If there’s evidence that male employees had similar disruptions — if not from children, perhaps elderly family members or pets — and were not terminated, then it could be gender discrimination.” 

She has seen similar cases before, where employers have different expectations and reactions to employees with children based on their gender. “I have a case where a male employee was fired because he needed to be home to provide childcare, and his wife worked a more demanding job,” she says. “The employer decided that the wife should have provided the childcare and the male employee should have returned to work.”

Miller explains that Title VII of the Civil Rights Act of 1964 protects employees from gender discrimination in the workplace. “Wrongful termination is a legal term for any kind of termination that occurred for an unlawful reason. Here, if she was terminated for gender discrimination, that would amount to an unlawful termination.”

In Rios’ case, it will likely depend on what can be established in court. “If other male employees have had kids interrupt them, with no adverse actions, then the case gets even stronger,” Miller says. “Other things to look at would be whether the supervisor made an effort to accommodate male employee’s desired work schedules, but did not accommodate her schedule.”

But even if the court finds that it wasn’t gender discrimination, there could be other state laws that affect whether the firing or other actions the employer took were lawful. And Miller also points out that the Family First Coronavirus Response Act (FFCRA) was signed into law on March 18th. It requires public employers and private ones with fewer than 500 employees to provide up to 80 hours of paid sick leave. It also requires some employers to provide “an additional 10 weeks of paid expanded family and medical leave.”

If you’re facing a situation similar to Rios’ and want to reduce the likelihood of your employer punishing you or firing you, there are some steps you can take. “It sounds like Rios tried this,” Miller says, “but definitely set out a schedule that will allow you to perform your position, and still manage your childcare needs best. Take the time you can under the FFCRA to develop childcare arrangements that work for you. Don’t be afraid to inquire about other positions within the company that might better fit your changes in circumstances, or look for other jobs.” It might be best to get these attempts in email, too. In the worst case scenario, if you end up suing your employer for wrongful termination, that could help establish that you made good-faith efforts to continue completing your tasks and meeting deadlines.

Being fired often means you’re ineligible for unemployment benefits. But if you’re terminated because of an issue related to childcare, you could still try to apply for unemployment. In March, unemployment benefit eligibility was expanded to include people whose work had been affected by COVID-19. “It will depend in part on whether the employer contests her application,” says Miller. “If the employer claims she was fired for poor performance, she can appeal and argue COVID-related reasons. An administrative judge would render a decision. Unemployment laws also vary state by state, but that is the general process.”

The pandemic has burst the dam on a whole flood of conflicts at work, even outside of childcare problems. “We are seeing a lot of issues related to workplaces not being safe from COVID, and employees fear returning to work,” Miller says. “I imagine it will be most fruitful for companies to try to accommodate its employees who work from home, and possibly less cost-intensive than deep cleaning and monitoring a workplace every day. That being said, a lot of companies are struggling financially right now, and may simply need to reduce their ranks, automate or outsource services, and close locations. It’s hard to see how all of these factors will play out.”

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