COVID-19 Resource Center

The Disparate Impact of COVID-19 and its Effect on Litigation

May 26, 2020Article

For reasons that are not all entirely clear, COVID-19 has impacted genders and racial groups in different ways. For instance, globally, although men and women have about the same chance of contracting the disease, men are much more likely to die from it.[1] Furthermore, the mortality rate for people of color has been significantly higher than that for whites. By some reports, African Americans have died at a rate of 2.4 times higher and Asian and Latino Americans have died at a rate that is 2.2 times higher than white Americans.[2] It does not appear that the virus itself is more common in either gender or among different races, such as has been found with other diseases like sickle cell anemia.[3] Instead, there appear to be social and historic norms that are causing COVID-19 to have a disparate impact.

From a gender perspective, women generally earned less, saved less, and held more insecure jobs prior to the pandemic.[4] They were therefore in a much more precarious economic position before the pandemic hit and less able to weather the economic downturn. Moreover, women hold a disproportionate number of “essential” jobs—from grocery store worker to health care worker to janitor.[5] This has increased their exposure to the disease and also imposed additional time and energy constraints on them. Furthermore, women are much more likely to be single parents than men, thus making the economic downturn harder for them to navigate.[6] Additionally, domestic, sexual, and gender-based violence increases during crises and disasters. Statistically, the victims of such violence are mostly women.[7] And now, children are out of school and the elderly and infirm are locked in. Taking care of family members, now including teaching, nursing, feeding, cleaning, and entertaining, falls disproportionately to women. It is thus they, in the main, who bear the brunt of this burden.[8] The heaviest burden, by far, has fallen on women of color.

In addition to the challenges faced by white women, women and men of color are suffering a disproportionate burden of illness and death.[9] The data suggests that African American, Latino American, and Native American patients are overrepresented, compared to their percentage in the community, in both hospitalizations and deaths from COVID-19.[10] The factors that contribute to this may included living conditions, work circumstances, underlying health conditions, and lower access to medical care.[11] People in minority groups often live in more crowded conditions, which increases one’s risk of contracting any disease, including COVID-19.[12] Minorities hold more jobs that are “essential” and have therefore kept these groups at work and in contact with more people from whom they could contract the disease.[13] Chronic health conditions such as heart disease and diabetes make one much more vulnerable to COVID-19 and are seen more commonly in African American, Hispanic American, and Native American populations.[14] And finally, minorities have historically had less access to health care, especially primary care, increasing the risk that they will fall ill and, when ill, will be sicker.[15]

This disparate impact will undoubtedly affect litigation in America. How will women jurors who have worked three jobs (teacher, housekeeper, and bookkeeper, for example) feel about the plaintiff who is still able to work? How will the minority juror who had to keep showing up for work, even though members of his family and community were sick, feel about the employer who discharged an employee—even for cause—during the pandemic? How will the judge who lost a close male friend to the disease feel about requests for in-person proceedings? These and many more questions will have to be answered in the months and years ahead.

For the moment, those in the litigation field should consider the implications of the virus’s disparate impact in connection with return-to-work plans. The question is much more nuanced than just a matter of being willing to return. Women more often need to ensure that their children and parents are cared for. Minorities more often rely on public transport which is unavailable or some may not yet consider safe. Women and minorities will have more persons in their immediate circles who have been ill from the disease and minorities may be more at risk for contracting the disease when they return to work. All of these factors should be considered when employers develop and implement return-to-work policies.


Author: Kathryn S. Whitlock (Senior Partner, Atlanta) Editor: S. Christopher Collier (Senior Partner, Atlanta)

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[1] Brookings Institute, https://www.brookings.edu/blog/up-front/2020/05/15/covid-19-much-more-fatal-for-men-especially-taking-age-into-account/

[11] Ibid