Tuesday, July 11, 2023

“Geographical discrimination” is NOT a thing

"If you don’t relocate and return to in-person work, we’re going to have to let you go." Many employers are having this very conversation with their remote employees. Some employees who want to continue working remotely are starting to push back.

According to a recent report, employees are considering suing their employers for geographical discrimination

Workers who moved to another city, state, or even country from their employer's main office during the pandemic are claiming that they're being discriminated against geographically by being forced to return to in-person work.

Geographical discrimination is not a thing, at least not legally. It is 100 percent legal to end remote work, require in-person work inside your place of business, and terminate anyone who refuses to comply despite what was permitted during the Covid pandemic.

Employees are at-will, which means an employer is free to fire (and an employee is free to quit) for any reason, good, bad, or indifferent, as long as the reason isn't otherwise illegal. "Geography" — the location of an employee's work — is not a protected class under the law anywhere. Thus, a return-to-work mandate ending remote work is perfectly legal, even if it requires some employees to relocate back to the location of your business to keep their jobs. 

There is one exception to the legality of "geographical discrimination" — if an employee needs to continue working remotely as a reasonable accommodation. The remote-work experience created during the pandemic may impact the reasonableness of a remote-work reasonable accommodation request now that the pandemic has ended. 

The temporary telework experience could be relevant to considering the renewed request [for remote work as a reasonable accommodation].… [T]he period of providing telework because of Covid-19 could serve as a trial period that showed whether or not this employee with a disability could satisfactorily perform all essential functions while working remotely, and the employer should consider any new requests in light of this information.  

Otherwise, it's legal to discriminate against employees based on where they live. It might be a cruddy HR practice to end remote work for employees who have performed successfully and without issue while remote from distance, but cruddy doesn't necessarily mean illegal.