Equality in the Virtual Workplace

Abstract

This article places the sociological data on telecommuting into a theoretical context in an attempt to resolve a current split in feminist work/family conflict jurisprudence. Some legal feminists argue that women's workplace inequality is largely the result of forces external to the workplace - i.e., learned or inherent differences in women's propensity to perform carework. Other legal feminists argue that women's workplace inequality is largely the result of forces internal to the workplace - i.e., workplace structures and practices that exclude most women from the most desirable jobs. This article argues that the telecommuting data supports the latter theory, rather than the former. Specifically, the data helps identify specific ways in which employers are using telecommuting to exacerbate the gender hierarchy in the workplace. This data therefore provides a basis for prioritizing legal solutions that directly address the employment relationship. In particular, the article argues that employers' current use of telecommuting constitutes disparate impact discrimination that violates Title VII of the Civil Rights Act of 1964. The article uses the example of telecommuting as a method for reconceptualizing disparate impact doctrine in a way that would require employers to restructure the workplace around gender-neutral worker norms.