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A Post-Pandemic Antidiscrimination Approach to Workplace Flexibility

Publication Title

Washington University Journal of Law & Policy

Abstract

Before the COVID-19 pandemic, the judiciary largely accepted the “full-time face-time norm” resulting in the systematic exclusion of persons with disabilities, women, and other members of protected groups from certain jobs. Claims involving aspects of the full-time face time norm include accommodation requests for telecommuting, flextime, part-time, and other flexible working arrangements. This Article examines pre-pandemic case law under the ADA and Title VII of the Civil Rights Act. COVID-19 has brought dramatic workplace changes, requiring judges to re-examine their previous restrictive rulings on workplace flexibility. During the pandemic, companies around the world went from prohibiting remote work to requiring it. This Article encourages judges, using the lessons learned during the COVID-19 pandemic, to re-examine the defining features of “work” and empower antidiscrimination law to more meaningfully expand equal employment opportunities.

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