Telecommuting As A Civil Right: The PORT Act

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The Proof Of Required Travel Act (PORT) is a supplement to Title VII (Employment Discrimination Laws) of the Civil Rights Act, with aims to protect and promote the right to telecommute. The Act declares:

An employer may not require any employee to travel into a work site, nor may it make an employment decision due to an employee’s refusal to travel into a work site, unless the employer can prove requirement of travel due to one of the following conditions:

  • Telecommuting would render the employee unable to perform essential functions of the position
  • Telecommuting would impose undue burden on employer operations
  • Telecommuting has resulted in the employee demonstrating diminished performance

The underlying justification for PORT is that telecommuting — sometimes referred to as remote working, teleworking, working virtually, or working from home — is shown to be the most-desired employment freedom not being granted today, as well as being among the most impactful and immediate positive changes the U.S. can effect on climate, transportation, and economic issues.

What prevents millions of Americans from undertaking systemic telecommuting is unwarranted discrimination and unfair treatment of employees who operate in a virtual workspace (or request to do so), often manifested as open discriminatory treatment or disparate impact under neutral policy:

  • Increased expectation levels around availability and activity verification, beyond what is asked of commuting employees
  • The commonly accepted refrain of remote work as a "perk" rather than an equally legitimate working arrangement
  • Compensation penalties and caps imposed on telecommuting employees, justified by the stigma of the "perk" as a negotiation tool
  • Hindrances to career development due to implicit or explicit bias in considering telecommuting employees for promotions and raises
  • Refusal to acknowledge telework as such when it is performed at a work site, despite the overwhelming frequency with which it occurs
  • Refusal to grant an employee’s request to telecommute, without evidence to support such refusal

As such, being discriminatory in nature and generally unproductive to the interests of all parties involved, Title VII should apply. The exception conditions listed under PORT already exist as precedent under The Americans with Disabilities Act of 1990 and the Telework Enhancement Act of 2010.

Extensive Q&A is available at mitchturck.com/port/. Social media engagement is tagged #PORT. Links to some of the more popular questions: