When "Work Hybrid - Or Else" Policies Become Potential Employment Law Violations (Implications for Veteran/Military/MilSpouse Talent Programs)

(This article is specific to a policy at Dell Technologies, but has military/veteran/milspouse implications for all employers considering Return to Office mandates)

Business Insider published an article this month outlining implications for Dell's "Return to Office" (RTO) mandate issued in February.

https://www.businessinsider.com/dell-remote-workers-promotion-return-office-push-flexible-work-2024-3

In the article BI points out that, while Dell will still allow remote work, those who chose remote work will not be considered for promotions, nor will their requests to change roles be evaluated. In order to receive a promotion, an employee would need to switch to hybrid work, and come into an office at least 3 days a week.

Without even reading the rest of the article, my first thought was "how many of these remote workers are women, people with disabilities and/or people over the age of 40?" Turns out, the article quotes a Dell insider with access to data on people working remote who determined that most of the people in that status at Dell are women.

"The laws enforced by EEOC prohibit an employer or other covered entity from using neutral employment policies and practices that have a disproportionately negative effect on applicants or employees of a particular race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), or national origin, or on an individual with a disability or class of individuals with disabilities, or on applicants/employees age 40 or older, if the polices or practices at issue are not job-related and necessary to the operation of the business" (https://www.eeoc.gov/prohibited-employment-policiespractices)

While this RTO may on the surface seem neutral and designed simply to encourage people to come back to the office, the practical and actual effect is that, by restricting remote workers from promotions and other favorable employment conditions, it is adversely affecting the career progression and benefits of multiple demographics protected by the EEOC and other federal agency laws.

I'm curious to know how many of these remote workers are also veterans (with or without a disability), military spouses (of which approximately 90% are women) and/or caregivers of severely wounded veterans. How many of these remote workers serve in the National Guard or Reserves, who may have elected remote work to be closer to their units versus closer to an office? Dell has won many awards for being disability / women / veteran friendly over the years - this RTO mandate could change that.

I encourage all employers considering RTO mandates to assess the 2nd and 3rd order effects of the decision. Really evaluate how the decision may adversely impact all the effort your company has made in the DE&I space over the last 10 years. And consider how the mandate may expose you to all types of violations of government employment laws (EEOC, USERRA, ADA, etc.), which leads to extra government oversight.