July 05, 2022

Do You Have Proximity Bias?

Here’s one more to add to the list of biases.  But this one is not unlawful…yet.  So, what is it?  Most describe it as an employer’s preference for employees to work on-site rather than working from home (WFH).  The preference is based on the employer’s belief that employees who work on-site are more productive than those who WFH, which may or may not be true. Probably, “it depends.”

It is an issue that arose and a term that was coined before COVID-19.  But the attention it has garnered has significantly increased since COVID-19. There is plenty of discussion about whom proximity bias may adversely impact: parents, women, minorities, and individuals with disabilities – to name a few.

What I find addressed less often is an employer’s preference to hire people who live near the work location.  That preference is based on the employer’s belief that employees who live within a certain proximity can get to the office sooner, if needed, that those who live further away. That is more likely true. But again, it depends.

So, where am I headed? Could a new protected class be on the horizon? I envision a state or local legislative body proposing to prohibit discrimination based on an individual’s residential proximity to the employer’s work location.  Part of me thinks, “No way!” There is such a clear business justification for that.  Then, part of me thinks, “But is that really so different?” A number of states and local jurisdictions currently prohibit discrimination in employment based on with whom or how many people I live (familial status or family responsibilities). So, why not where I live?

It might seem like a stretch, but I can see it coming up.  So, stay tuned. In the interim, if you do have a hiring practice or preference based on where someone lives, ensure it is job related and consistent with business necessity (one of the U.S. EEOC’s favorite phrases).