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Equality in the Virtual Workplace ARTICLES Equality in the Virtual Workplace Michelle A. Travist I. INTROD UCTION .............................................................................. 284 II. How TELECOMMUTING AFFECTS WOMEN'S WORKPLACE E Q U A LITY ...................................................................................... 289 A. The Rise of Telecommuting .................................................... 289 B. The Telecommuting Promise .................................................. 295 C. The Telecommuting Reality .................................................... 302 1. Widening the Gap Between Men and Women in the PaidLabor Market ........................................................... 302 2. Widening the Gap Between Men and Women in Unwaged Domestic Work ................................................. 312 III. THE VALUE IN SEEKING SOLUTIONS IN EXISTING ANTIDISCRIMINATION LAW ........................................................... 318 IV. REALIZING TITLE VII'S PROHIBITIVE AND TRANSFORMATIVE P O TEN TIA L .....................................................................................33 1 A. Disparate Treatment Theory .................................................. 333 B. D isparateImpact Theory ........................................................ 341 1. The Plaintiff's Prima Facie Case..................................... 342 2. The Employer's Business Necessity Defense ................... 360 t Associate Professor of Law, University of San Francisco School of Law. B.A., 1991, Cornell University; J.D., 1994, Stanford Law School. I would like to thank Rachel Amow-Richman, Laura Kessler, Martha McCluskey, and Donna Young for giving me the opportunity to present this work with them on the "Gender, Work and Caretaking" panel at the Law & Society conference in Vancouver, B.C., and for providing useful feedback. Special thanks are due to Vicki Schultz, who moderated the panel and who provided valuable comments on an earlier draft. I am also grateful to those involved in the "Subversive Legacies" conference at the University of Texas School of Law who allowed me to present this research and who deepened my thinking on the topic. Additional thanks are due to Joan Williams, Erin Kelly, and Juliet Bourke for helping shape my thinking on this project and for inviting me to present it at the Business and Professional Women's Foundation conference on "How Workplace Changes Impact Families, Work and Communities" in Orlando, Florida. This project also was made possible by the insights of my friends on the Lewis & Clark Law School faculty, by the research assistance of Jennifer Gozdowski Brown, Sean Driscoll, and Bryan Smith, and by the support of Richard Dickson. 284 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW Vol. 24:2 3. The Plaintiffs Demonstration of an Alternative Employm ent Practice....................................................... 369 4. The R em edy ......................................................................373 V . C O NCLUSION ..................................................................................374 I. INTRODUCTION I recently attended a conference at Stanford Law School that was titled, "Women and Leadership."' At this conference, an impressive group of legal scholars, sociologists, judges, and lawyers assembled to tackle the question of why women remain dramatically under-represented in leadership positions in the legal profession. While watching one panel discussion on "The Struggle for Balanced Lives," I was captivated by the comments of Mark Chandler, the Vice President of Legal Services and General Counsel at Cisco Systems, Inc., a worldwide internet networking company.2 I found myself nodding along as Mr. Chandler argued that the struggle for work/life balance required "questioning assumptions" about the way that work is organized.3 However, when Mr. Chandler went on to argue that technology in general-and telecommuting in particular-was the means for achieving that end,4 I found myself taking pause. Mr. Chandler's comments mirror those by legal scholars, activists, the popular press, and others, who have been touting telecommuting as the new means for achieving women's workplace equality.5 These advocates predict that telecommuting will dismantle the existing gender segregation and hierarchy in the paid labor market by allowing women to balance waged work and domestic responsibilities and remain employed continuously during early child-rearing years.6 Similarly, these advocates predict that telecommuting will redistribute the gendered division of labor in the home, as male telecommuters begin to substitute caregiving time for their prior commute time.' In this light, telecommuting indeed sounds like the perfect answer to the work/family conflicts facing so many workers today. These predictions, however, all assume one very significant 1. See Conference on Women and Leadership, at http://womenlaw.stanford.edu/conference.wal.html (Mar. 8, 2002) (last visited May 14, 2003). 2. See id. (providing a streaming video of Mr. Chandler's speech as part of the "Plenary Session 11: Would You Rather Sleep or Win? The Struggle for Balanced Lives"). Cisco Systems, Inc. is described on the company's website, at http://www.cisco.com/public/corpabout.shtml (last visited July 12, 2002). 3. See Conference on Women and Leadership, supra note 1. 4. See id 5. See infra notes 60-72 and accompanying text. 6. See infra notes 85-87 and accompanying text. 7. See infra notes 88-92 and accompanying text. 2003 EQUALITY IN THE VIRTUAL WORKPLACE premise, which is that technological innovation has the power to modify existing employment structures and gender roles, rather than being adapted to and governed by the status quo. Unfortunately, telecommuting proponents have been ignoring a growing body of sociological research that points toward the opposite conclusion: that telecommuting actually is increasing gender inequality both in the workplace and in the home.8 More specifically, telecommuting appears to be magnifying the existing gender segregation and hierarchy in the paid labor market because employers have developed two distinct types of telecommuting arrangements that affect men and women differently. For the predominantly male population of high-level professionals, employers use telecommuting as a benefit that gives workers increased choice, flexibility, and autonomy.9 In contrast, for the predominantly female population of low-level clerical workers, employers use telecommuting to increase managerial control and reduce costs, resulting in decreased pay, benefits, autonomy, job security, and advancement opportunities." At the same time, current telecommuting arrangements also appear to be magnifying the gendered division of labor in the home, as female telecommuters tend to use prior commute time for additional caregiving, while male telecommuters tend to use prior commute time to perform additional hours of paid work." In other words, the data suggests that new telecommuting technology is not working as an independent or causal variable to transform existing gender norms either in the workplace or in the home.'2 Instead, telecommuting is acting as a dependent variable that 8. See infra Part l.C. 9. See infra notes 106-107 and accompanying text. 10. See infra notes 108-109 and accompanying text. 11. See infra notes 166-177 and accompanying text. 12. Telecommuting is also likely to have a negative impact along racial and ethnic lines, if the history of industrial homeworking is any indication of how employers will implement modem forms of home-based work. See generally ANNIE PHIZACKLEA & CAROL WOLKOWITZ, HOMEWORKING WOMEN: GENDER, RACISM AND CLASS AT WORK 45-68 (1995) (documenting the racial and ethnic effects of homeworking); Julia Kirk Blackwelder, Texas Homeworkers in the 1930s, in HOMEWORK: HISTORICAL AND CONTEMPORARY PERSPECTIVES ON PAID LABOR AT HOME 75 (Eileen Boris & Cynthia R. Daniels eds., 1989) [hereinafter HOMEWORK]; Eileen Boris, Black Women and Paid Labor in the Home: Industrial Homework in Chicago in the 1920s, in HOMEWORK, supra, at 33; M. Patricia Fernandez- Kelly & Anna M. Garcia, Hispanic Women and Homework: Women in the Informal Economy of Miami and Los Angeles, in HOMEWORK, supra, at 165. This is also likely because telecommuting's negative effect on women is related to women's low economic status and over-representation in jobs at the lower end of the workplace hierarchy, which are characteristics shared disproportionately by members of minority groups. This Article, however, focuses on gender issues, while recognizing that proposed solutions must be scrutinized for the risk of essentializing the experience of women who are white. Cf Nancy E. Dowd, Resisting Essentialism and Hierarchy: A Critique of Work/Family Strategies for Women Lawyers, 16 HARV. BLACKLETTER L.J. 185, 186 (2000) [hereinafter Dowd, Resisting Essentialism] (noting the risk of essentializing women when discussing workplace equality solely from the perspective of white women). See generally Trina Grillo, Anti-Essentialism and Intersectionality: Tools to Dismantle the Master's House, 10 BERKELEY WOMEN'S L.J. 16 (1995); Joan Williams, 286 BERKELEY JOURNAL OF EMPLOYMENT & LABOR LAW Vol. 24:2 employers are manipulating in ways that magnify existing gender inequality. This disappointing result is not inevitable. Work/family conflict scholars and other telecommuting advocates are correct that new technology has the potential to advance women's workplace equality. That potential, however, is not inherent in the technology
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