Sexism and civility in today’s legal profession: Why one attorney was sanctioned for his remarks to opposing counsel

Sexism and civility in today's legal profession: Why one attorney was sanctioned for his remarks to opposing counsel

By Eduard Meleshinsky

In a clarion call for civility among attorneys, Magistrate Judge Paul Grewal sanctioned a defense attorney for his tactics in a civil rights case, and excoriated him for “repeatedly and unapologetically flout[ing]” the Northern District of California’s Guidelines for Professional Conduct, the Federal Rules of Civil Procedure (FRCP), the court’s prior order, and – in this author’s opinion – offending standards of basic civility most of us learned on the playground, as children. The order is available here.

In connection with a deposition noticed by the mother of a pretrial detainee who committed suicide while in jail, the attorney for the public entity and employee defendants produced documents in a “physically cracked and unusable disc” on the day of the deposition, delayed correcting this abjectly deficient production for over a month after being repeatedly asked to do so by plaintiff’s counsel (only to produce documents defendants’ attorney already knew to be in plaintiffs’ possession), made “extremely long speaking objections” in depositions ordered by the court, and many more violations. Tellingly, defendants’ attorney made “no attempt to defend any of this conduct.”

The unprofessional conduct did not stop at discovery abuse.  Escalating his disgraceful misconduct from unprofessionalism to sexism, defendants’ attorney told one of the plaintiffs’ female attorneys, at a deposition she was taking, “[D]on’t raise your voice at me. It’s not becoming of a woman ….” In briefing his opposition to the sanctions request, defendants’ attorney doubled down on his statement with a sorry-not-sorry apology (“a halfhearted politician’s apology ‘if [he] offended’ Plaintiff’s counsel”).

As Judge Grewal explained in his order, defendants’ attorney’s attack “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.” The judge further elaborated that such gender-based vitriol “reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.” The Court found that these types of statements – in addition to harming the many female attorneys who regularly endure similar treatment – degrade the legitimacy of the legal system itself.

Gendered attacks “reflect and reinforce the male-dominated attitude of our profession.” This malignant attitude has deep roots in the legal profession. Even the Supreme Court of the United States in Bradwell v. The State (a case that has rightfully taken its place among Plessy and Korematsu as part of the constitutional anti-canon) has perpetuated these gender stereotypes.  In upholding a state law prohibiting women from practicing law on account of their gender, the Court opined:

The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

A lot of progress has been made since 1872: the 19th Amendment was ratified; Congress enacted the Equal Pay Act and Title VII of the Civil Rights Act of 1964, and amended the same to prohibit pregnancy discrimination; and Sandra Day O’Connor was confirmed as the first of four women so far to serve on the high court. However, despite the important gains made in the fight for gender equality in the workplace and beyond, much has remained the same in the legal profession for female attorneys.

For example, the opportunity for female attorneys to advance to leadership roles in law firms remains stymied, female attorneys are judged more harshly if they lack “interpersonal warmth” and are not recognized for their legal competence to the same degree as their male counterparts for career advancement purposes, and, more generally, the gender pay gap remains ever- present and ever unaddressed. In light of the work that remains to be done in making women’s equality a reality, our profession should, at the very minimum, not tolerate Mad-Men-styled sexist remarks from its members.

Fortunately, Judge Grewal suffers no fools. Because of the defense attorney’s egregious misconduct, the jurist awarded plaintiffs their fees and costs in bringing the motion for sanctions, as well as attorneys’ fees for depositions, including the deposition during which the sexist comment was made. Recognizing that monetary compensation for plaintiffs’ attorneys’ fees and legal costs still fell short of a just result, Judge Grewal ordered the “specific and appropriate sanction” of compelling defendants’ attorney to “donate $250 to the Women Lawyers Association of Los Angeles Foundation … and submit a declaration to the court confirming his compliance with this order.”

One hundred and forty-four years have passed since Bradwell, yet we continue to see conduct in the legal profession that perpetuates harmful gender-based stereotypes.  Too often, that conduct is simply dismissed without any consideration of its broader impact on our progress toward gender equality.  Courts should emulate Judge Paul Grewal, giving discrimination no quarter and enforcing basic civility in the legal profession.

An earlier version of this post appeared on the Bryan Schwartz Law blog under the title “Court Sanctions Defense Attorney for His Sexist Remarks to Opposing Counsel.”

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Judicial confirmations in 2016: The myth of the Thurmond Rule

By Kyle Barry

“I think it’s clear that there is no Thurmond Rule” – Republican Senator Mitch McConnell

“There is no Thurmond Rule” – Republican Senator Orrin Hatch

With only 11 judges confirmed, 2015 was the worst year for judicial confirmations since 1960. Thirty-one nominees were left pending, including 14 noncontroversial nominees ready for votes on the Senate floor. With this abysmal record, it’s clear that the Senate’s unapologetic Republican majority will persist in its strategy of obstruct and delay, trying to keep vacancies open and limit the president’s influence on the judiciary. The excuses have started already, with Republican leadership alluding to a supposed Senate custom, known as the “Thurmond Rule,” of cutting off judicial confirmations during a presidential election year. The Thurmond Rule is complete nonsense, but before explaining why, it’s worth noting the destructive results of last year’s historic obstruction and where things stand today.

The lack of confirmations in 2015 was an enormous step backward. At the start of 2015, there were only 43 vacancies and 12 judicial emergencies, numbers that have since increased by 63 percent and 166 percent, respectively. On January 1 vacancies climbed back to 70 for the first time since May 2014, and by month’s end four more seats will be empty. Fourteen states now have multiple vacancies; nine states have three or more; and six states—Texas (9), Pennsylvania (6), Alabama (5), Florida (4), New Jersey (4), and New York (4)—have at least four vacancies. In Texas, the longstanding epicenter of the vacancy crisis, eight of the nine vacancies are judicial emergencies; in New Jersey, that’s true of all four. In these corners of the country, justice is on hold until the Senate resumes its basic constitutional function of confirming judges.

In 2016, the good news is that, before the Senate adjourned last year, Majority Leader Mitch McConnell agreed to hold confirmation votes for five judicial nominees by Presidents’ Day recess, starting on January 11 with Third Circuit nominee L. Felipe Restrepo. Only against the Senate’s recent record could such a modest agreement represent progress, but it does mean that by mid-February in 2016 we’ll have nearly half the total confirmations we had all of last year. It also means, assuming all five nominees are confirmed, that four judicial emergencies will be filled, including one on the Third Circuit.

The bad news is that Republicans will inevitably rely on these confirmations when, soon after, they invoke the so-called “Thurmond Rule” to shutdown confirmations entirely. First they’ll point to this early-year, five-judge agreement as a magnanimous gesture that warrants unequivocal praise. Then they’ll say, sorry, no more; it would be inappropriate to move more judges because of the longstanding Thurmond Rule. They’ll say that the rule dates back to 1968, when Senator Strom Thurmond objected to President Lyndon Johnson elevating Abe Fortas to Chief Justice during an election year. Since then, they’ll say, the Senate has applied the Thurmond Rule to block confirmation of all judicial nominees in the latter months of a presidential election year. Judiciary Committee Chairman Chuck Grassley has already primed the pump, saying that the rule goes into effect “next summer.” Media reports have reinforced the concept, restating the rule in formal terms. According to one Politico report, “[t]he Thurmond Rule . . . holds that the Senate shuts off the confirmation valve of lifetime judicial appointments in July of an election year.”

Do not believe it.

The Thurmond Rule is not real. It is a myth, a figment of the partisan imagination invoked to give an air of legitimacy to a strategy—blocking even the most noncontroversial of judicial nominees—that is pure obstruction. Most obviously, there is no Thurmond Rule in the formal sense—no law, senate rule, or bipartisan agreement renewed each congress. Its existence also is belied by historical practice. Going back to Reagan, the Senate has confirmed an average of 16 judges in the second half of presidential election years, and in 2008 the Democratic Senate confirmed 22 judges in the last seven months of the George W. Bush administration, including 10 district court judges in September. It is telling that these numbers well exceed the 11 confirmed in all of 2015, when the Senate was supposedly operating under “regular order.”

 

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Even the final years of two-term presidencies have been relatively productive; on average, the respective eighth year for Reagan, Clinton, and George W. Bush (each of whom faced an opposition senate) yielded about 10 percent of their total judicial appointments. Bush was the lowest of the three, with 28 judges confirmed in 2008 for 8.6 percent of his 324 total district and circuit court confirmations. It would take 35 confirmations this year for President Obama to appoint 10 percent of his total judges in 2016, and about 30 confirmations to hit Bush’s rate of 8.6 percent.

President
Judges Confirmed in 8thYear
Total Confirmations
% of Total Confirmations in 8th Year
George W. Bush
28
324
8.6%
Bill Clinton
39
375
10.4%
Ronald Reagan
40
379
10.6%

 

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The above chart also shows that election-year confirmations have not been limited to district court judges. A couple of noteworthy examples within the data: In 2008, Bush nominated Fourth Circuit Judge Steven Agee in March, Judiciary Committee Chairman Patrick Leahy held Agee’s hearing on May 1, and the full Senate confirmed Agee on May 20. In 1980, President Carter nominated Stephen Breyer to the First Circuit in November, and the Senate confirmed Breyer in December on a vote of 80 to 10.

All this historical data was perhaps best summed up by Chuck Grassley himself, who in 2008 spoke at a hearing dedicated to arguing that the Thurmond Rule does not exist: “The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term,” and the Thurmond Rule, Grassley said, is “plain bunk.”

Good words for a Judiciary Committee Chairman to live by, and those to which Grassley should be held in 2016.

Kyle Barry is the Director of Justice Programs at Alliance for Justice, a national association of over 100 organizations, representing a broad array of groups committed to progressive values and the creation of an equitable, just, and free society.   This post originally appeared on the Alliance for Justice Blog.

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Tis the season: Giving thanks for new employment protections

Tis the season: Giving thanks for new employment protections

By Lisa Mak

In the spirit of the holidays, here’s a round-up of five legal developments that California workers and their advocates can be thankful for this year.

Fair Pay Act

In October 2015, Governor Brown signed the California Fair Pay Act to give our state the strongest equal pay protections in the nation.  In 2014, a woman working full-time in California still earned an average of only 84 cents to every dollar a man earned – a wage gap that has remained unchanged for nearly a decade. The new law mandates equal pay for “substantially similar work,” instead of the old outdated language requiring equal pay only for “equal work on jobs” at the “same establishment.” Thus, male and female employees are now entitled to equal pay if they perform comparable work, even if they have different job titles or work in different offices at a company. The new law also requires that any legitimate, non-gender based factors that employers rely on to explain gender wage differences must be “applied reasonably” and “account for the entire wage differential.” The Fair Pay Act also prohibits retaliation against workers who seek to enforce the Act or who inquire about the wages of other employees. This new law empowers women to challenge unfair pay practices and gives advocates new tools to combat the gender wage gap that has persisted in this state for far too long.

Protecting Reasonable Accommodation Requests

AB 987 was passed in July 2015 to explicitly affirm that workers who request reasonable accommodation based on religion or disability are protected from retaliation under the Fair Employment and Housing Act (FEHA). The legislation was passed in response to a misguided California appellate court’s decision in Rope v. Auto-Chlor System of Washington, Inc. In that case, the employee was fired after requesting a work accommodation so that he could donate his kidney to his ailing sister. The court held that accommodation requests did not constitute a protected activity sufficient to support a FEHA retaliation claim. This decision threatened to overturn years of legal interpretation that protected workers’ rights to request accommodations. With the passage of AB 987, we can now be sure that workers have legal protection if they request an accommodation from their employer due to disability or religion.

Increased Wage Theft Protections

To help combat pervasive wage theft in this state, SB 588 was passed to authorize the California Labor Commissioner to file a lien or levy on an employer’s property to assist employees in collecting judgments for unpaid wages. According to a 2013 report by the National Employment Law Project and the UCLA Labor Center, only 17% of workers who prevailed in their wage claim at the Labor Commissioner’s office were able to receive any payment between 2008 and 2011. Workers who did receive payment were able to collect only 15% of what was owed. The new law also provides that any employer or any person acting on behalf of an employer who “violates, or causes to be violated,” regulations regarding minimum wages or hours and days of work, may be on the hook for wage theft. Workers and their advocates now have significantly stronger tools to go after employers who try to evade liability by shifting responsibility to other companies or by refusing to pay their judgments.

Scrutiny Of Misclassification In Shared Economy Companies

In June 2015, the California Labor Commissioner ruled that a driver for Uber was an employee, not an independent contractor, and ordered the company to pay her back for work-related expenses. In August, the California Employment Development Department determined that a former Uber driver was an employee and was entitled to receive unemployment benefits. Then in September, a federal judge in San Francisco ruled that Uber drivers could proceed as a class action in a lawsuit over whether the drivers should be classified as employees or independent contractors. The class action alleges that Uber failed to pass on tips left for drivers. Although the classification issue for Uber drivers and other similar workers is not yet settled in California, it reflects the willingness of the state’s legal authorities to scrutinize misclassification issues and enforce labor rights in the evolving world of shared economy businesses.

Cost-Shifting To Employees Only If FEHA Lawsuit Frivolous

Previously, employees who lost on their Fair Employment and Housing Act claims could be required to pay the employer’s legal costs. Since these costs could be substantial, workers could be discouraged from trying to vindicate their workplace civil rights out of fear of having to pay if they lost their lawsuit. However, now after the California Supreme Court’s decision in May 2015 in Williams v. Chino Valley Independent Fire District, an employee who loses his or her FEHA claims in a lawsuit will not have to pay the employer’s legal costs on those claims unless the employer shows the claims were frivolous. This new standard can help reduce some of the financial risk for employees seeking to enforce their rights.

These developments reflect our state’s continuing trend of protecting working people, low-wage workers in particular, from exploitation and unfair treatment. Although there’s always more advocacy to be done, we have these positive steps to celebrate for this year.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

Bill protecting workers from forced arbitration awaits Governor approval

Bill protecting workers from forced arbitration awaits Governor approval

???????????????????????????????????????????????????????????????????What good is a law designed to protect your rights in the workplace if your employer can coerce you into waiving those rights as a condition of employment?  Not much good at all.  But the good news is that a recent bill passed by the California Legislature will prevent unscrupulous employers from strong-arming workers into waiving important rights.

AB 465, which is awaiting the Governor’s signature, would ban the practice of requiring workers to waive any of their rights, forums and procedures guaranteed by the California Labor Code.  The “forum and procedures” language is critical, because it targets the widespread practice of forcing employees to sign mandatory arbitration clauses.  Ending this abusive tactic is at the heart of what AB 465 seeks to accomplish.

Arbitration clauses are everywhere: in credit card agreements, in hospital admission forms, and in any number of lengthy, legalistic documents you routinely sign without bothering to read.  But arbitration clauses have become especially prevalent in the workplace.  Under current California law, your employer can fire you if you refuse to agree to submit all of your employment-related disputes to arbitration.

What’s wrong with arbitration?  Nothing at all, if the decision to arbitrate is made knowingly and voluntarily by all parties.   But coerced arbitration is inherently unfair to the employee and skews the balance of power further in the direction of the employer.   Instead of having your dispute heard by a court or state agency – institutions relatively immune to undue influence by the employer – your case will be decided by an individual paid by the employer, pursuant to a process designed by the employer or by the arbitration provider selected by the employer.

Do you want to go to the Labor Commissioner or other state agency over wage, working conditions or occupational safety issues?  Too bad.  You’ve agreed to private arbitration.   Do you want to band together with co-workers and file a class action to address wage theft, misclassification, or other issues best decided on a collective basis?  Too bad.   And if you’re an immigrant worker with a limited command of English, you may not even know that you’ve agreed to private arbitration.  Again, too bad.  Still enforceable.

But not if Governor Brown signs the bill.  If it becomes law, this bill will prevent employers from coercing you to waive any right guaranteed by the California Labor Code as a condition of employment, including your right to take your employer to court or file a complaint with a government agency.

This bill doesn’t solve all the problems workers face in the world of mandatory arbitration since it only applies to Labor Code violations.  That means it does not apply to workplace anti-discrimination provisions, which are part of a separate Code.  You can still be fired for refusing to submit your discrimination, retaliation or harassment claims to arbitration.  For now.

Mandatory arbitration may be an idea whose time has come and is now, finally, going.  Last year, the California Legislature passed a bill prohibiting mandatory waivers of the right to go to court for certain “hate crimes.”  President Obama signed an Executive Order prohibiting employers with federal contracts from requiring their employees to sign mandatory arbitration clauses.  AB 465 is an important next step in what workers’ rights advocates hope will be the dismantling of the mandatory arbitration machine employers have constructed.

Curt Surls

About Curt Surls

Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.

Worker classification and secure work in the “sharing economy”

Worker classification and secure work in the “sharing economy”

FullSizeRender-1By Veena Dubal

Last month, a California Labor Commissioner decided that Barbara Ann Berwick was an employee of (venture capital darling) Uber for purposes of employment protection under California law.   A charged media flurry followed.   If Uber drivers were employees, then was the company’s highly profitable business model kaput?   Were casual Uber drivers going to be entitled to minimum wage and business expenses (like gas and car upkeep)?  What did this mean for the potential success of other aspiring businesses in the so-called “sharing-economy”?  How did the commissioner come to this decision?  What defines an employee?

While the Berwick decision forced many non-lawyers to think about worker classification for the first time, this debate is nothing new in the tort context.   Courts have long struggled to distinguish independent contractors and employees when determining vicarious liability.   Who should be responsible for the negligence of a worker?  This question, under the common law, turned on an unwieldy analysis of whether that worker was an independent businessman, engaged in his own entrepreneurial dealings, or an employee laboring for an employer.  Far from being easily identifiable, the definition of an employee for tort purposes has resulted in much head scratching, with courts coming down differently while applying the same facts to the same (capacious) set of rules.

But where did this idea that only common law “employees” get work safety net benefits come from?  What few understand is that applying this dichotomous classification in tort law to the context of employee protections is not natural or necessary.   In fact it is relatively recent.  Whether or not the application makes good legal sense or serves broader social goals is worth pondering.

In the tort context, the inquiry boils down to an analysis (crudely put) about who deserves blame, that is, who is really in charge (or, in legal terms, who controls the means and manner of production).   U.S. courts first began to borrow this analysis and utilize it in the employment protection context when businesses tried to evade New Deal legislation put in place to protect the ordinary worker.   Prior to efforts by business representatives to dodge the costs associated with secure work, service workers – including insurance salesmen, taxi drivers, and newspaper boys – were protected under the law.   Indeed, the legislative history of the New Deal reveals no Congressional debate on whether or not “independent contractors” should be covered.  The term used over and over again, by both representatives of manufacturing and of labor, is “worker.”

Today, in what is popularly termed the corporate “sharing economy” – or perhaps more aptly, the “sharing-the-scraps economy” – companies are borrowing from post-New Deal efforts by businesses to increase their own profit through use of “contractors,” evading laws intended to force them to take responsibility for their workers.  Uber, for example, is reaping huge profits from the labor of casual drivers by calling those workers “independent businessmen.”  The company’s position has been that this contractor status of workers means that the company is not liable for the worker’s negligence – OR for the health, safety, and financial security of Uber drivers.

While across the country, judges, commissioners, and regulators have come down differently about whether or not Uber drivers are employees, the history and legislative intent of employment protections begs the question:  why are courts applying the reasoning of tort law to social policy that is intended to create a safety net for workers?

As we enter a historical moment when half the working population will be laboring casually and precariously as a result of evolving business models, we must ask not, “who is an employee” under the common law, but how do we use laws and regulations to create stable and secure work environments?

Veena Dubal is an Associate Professor at University of California Hastings College of Law.  Professor Dubal’s research focuses primarily on law and social change in the context of work law.  Her dissertation, a three year ethnography, examines the work lives and worker collectivities of taxi drivers in San Francisco. Her research suggests that conventional wisdom on lawyering on behalf of low-income independent contractors needs to be re-examined and re-configured based on the desires and everyday realities of these workers.  An earlier version of this blog post was published on the author’s blog.

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On to the next battle — employment equality for LGBT workers

On to the next battle -- employment equality for LGBT workers

By Lisa Mak

 


Last Friday, the Supreme Court legalized same-sex marriage across America.  This historic decision was a momentous step forward in advancing equality for the LGBT community, but the fight for equality is far from over.  What’s next?

The first battleground is to achieve recognition on a national level that the right to work free from discrimination is a fundamental civil right.  According to a report published last month by the Movement Advancement Project, 61 percent of the LGBT population live in states with medium or low legal protections, or that have hostile laws that restrict their rights.  This includes insufficient to non-existent protections in the employment area, as the report specified that 52 percent of the LGBT population live in states that do not prevent employers from firing them based on their sexual orientation.  Imagine: an employee exercises her Constitutional right to marry on a Saturday, and then on Monday gets fired for doing so.  Or for placing a wedding picture on her desk, talking about her spouse, or expressing her sexual identity in any way.  Outrageously, this could be the reality for the majority of LGBT employees in this country.

Employment discrimination against LGBT workers is undeniably still a prevalent problem.  A 2013 survey from the Pew Research Center found that 21 percent of people surveyed said they had been treated unfairly by an employer based on their sexual orientation or gender identity.  The percentages were markedly higher for transgender employees and LGBT people of color.  A 2013 report authored by various organizations found that nearly 50 percent of black LGBT employees reported experiencing discrimination at work due to their sexual orientation.  Between 75 and 82 percent of Asian and Pacific Islander LGBT employees reported workplace discrimination as well.  Such discrimination can include the failure to hire or promote LGBT workers, workplace harassment, unequal wages, and the lack of on-the-job support – the same kinds of employment rights that other minority groups have been advocating for in the workplace for decades.

Despite these realities, according to data from the Human Rights Campaign, only 19 states currently have laws that prohibit workplace discrimination based on both sexual orientation and gender identity.  Another three states prohibit workplace discrimination based on sexual orientation, but not gender identity.  Ten states have employment protections based on sexual orientation and/or gender identity only for public employees, which does nothing for private sector workers.  And in 18 states, LGBT employees still have no employment protections at all.  That lack of protection is just another form of denying equality for employees.

The situation is even bleaker at the federal level, although progress is being made. Yet there is still no federal statute that protects employees based on sexual orientation or gender identity.  The proposed Employment Non-Discrimination Act (ENDA) that would prohibit such discrimination has been introduced in Congress each year since 1994, but has never mustered enough Republican support to make it to the President’s desk.  Last year, House Speaker John Boehner openly expressed his disapproval of ENDA, telling the LGBT Equality Caucus that there was “no way” the legislation would pass that year.  Boehner stated that the bill was “unnecessary” because “people are already protected in the workplace.” Boehner’s statement and others like it demonstrate just how out of touch key members of Congress are with the kind of discrimination LGBT workers face.

Gainful employment instills a sense of purpose and dignity, and increases meaningful contributions to our communities.  Our anti-discrimination laws are in place to correct the traditional exclusion of marginalized groups – such as women, older workers, and racial minorities – and to ensure equal employment opportunities.  It is time to fully add LGBT employees to that list.  Whether single or married, they should not be penalized in their careers or livelihood for exercising their right to work.

It’s time for Congress to pass ENDA at the federal level and for State legislatures to implement or expand laws to protect LGBT employees.  Work must continue in every arena, including in those States where there are already such laws, such as California, where agencies and attorneys should bring critical cases to strengthen enforcement.  Finally, businesses should work to create an inclusive workplace for LGBT employees through policies, practices, and training.  Many companies have already done so, but others continue to flaunt their willingness to discriminate.

As Justice Kennedy wrote in the Obergefell decision, in seeking the right to marriage, same-sex individuals asked “for equal dignity in the eyes of the law.”  We should continue to recognize this dignity by continuing to address the gap in legal employment protections for the LGBT community.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

Valuing fatherhood in the workplace

Valuing fatherhood in the workplace

Nurse

By Sarah Schlehr and Mariko Yoshihara

This Father’s Day, let’s do more than just celebrate our dads with Hallmark cards and backyard barbecues.  Instead, let’s give our dads something they really need – flexible workplace policies.

It can’t be surprising that the increase of women in the workforce, coupled with laws that discourage fathers from taking leave, has created a cascade of domestic stresses.  While women still bear a disproportionate share of the domestic work despite also working outside the home, working fathers now report feeling more work-family conflict than working mothers do.  The irony of this conflict is that fathers are actually prevented from sharing some of the burdens (and joys) of family life because they are saddled by Leave It To Beaver-era parental leave laws.

The good news is, change appears to be on the horizon.  This April, Massachusetts became the first state to require all but the smallest employers to provide fathers with unpaid job-protected leave for the birth of a child.  The law, renamed from the Maternity Leave Act to the Parental Leave Act,  requires businesses with at least six employees to cover dads as well as moms.  The expanded coverage is a much-needed first step in recognizing the universal need for fathers to spend time and bond with their newborn children.

A 2007 study found that fathers who took two or more weeks of leave after a child was born were more likely to perform certain daily child care tasks, like diapering, feeding, and bathing later on.  Fathers who took less than two weeks of leave were no more involved than those who took no leave at all.

Despite the clear benefit of taking time off to bond with a new child, fewer and fewer businesses are offering leave benefits to fathers and research has shown that those who do take leave face a significant stigma in the workplace (let’s not forget the New York Mets baseball player, Daniel Murphy, who was criticized when he took three days off for the birth of his child).

According to a recent study, most fathers only take between one and two weeks off after the birth of a child and the length of time off was closely tied to how much of the leave was paid.  Luckily, California is one of the few states that offer paid leave to parents.  And it’s no surprise that since the program was implemented, the percentage of “bonding leaves” claimed by men has gone up from 18.7 percent in 2005 and 2006 to 31.3 percent in 2012 and 2013.

Unfortunately, many fathers, especially low-income fathers, cannot take advantage of paid leave because their employers are too small to be covered by a law that would provide the new dads with job protection.  Most fathers simply cannot risk losing their job, especially after the birth of a new child.  Leaving aside the lucky Massachusetts dads, the only fathers who can access job-protected leave are those who are covered by the Federal Family and Medical Leave Act (FMLA) or a state law corollary.  But these laws leave a lot of fathers out in the cold since they only cover employees who work for companies with 50 or more employees and who have worked there for at least a year.

Incremental change may be on the way in California, where advocates for working dads (and moms) are pushing to increase the boundaries of who is covered by the California Family Rights Act, California’s corollary to the FMLA.  California’s SB 406, the legislation that would amend the law, does not go as far as the Massachusetts parental leave law.  But it does propose to expand leave rights to workers at smaller businesses, by lowering the employee threshold from 50 or more employees to 25 or more.

While SB 406 and the Massachusetts law are certainly steps in the right direction, both still lag far behind what other countries provide for their fathers.  For years, Sweden has had a generous parental leave policy of 16 months that could be shared by the mother and father.  Beginning in 1995, Sweden introduced a “use it or lose it” policy that reserved one month specifically for dads.  This was increased to two months in 2002 and will increase again to 3 months in 2016.  Some countries, like Chile, Portugal, and Italy, go so far as to make paternity leave compulsory, to help ensure that fathers share childcare responsibility with mothers.

It’s time for California and the rest of the United States to catch up and show that the job of parent is at least as important as the jobs parents perform for their employers.

Sarah Schlehr

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

Religious freedom comes of age in corporate America

Religious freedom comes of age in corporate America

Abercrombie

By Alan Reinach

Religious minorities have always been at the forefront of pushing religious freedom in American law. This year is no different, as Samantha Elauf, a young Muslim woman, won a critical case on behalf of all who seek workplace accommodations for their religious beliefs and practices. Ms. Elauf was denied a job at popular retailer Abercrombie & Fitch, not because she was unqualified, but because she wore a head scarf. Although she was never asked why she wore the scarf to her interview, managers assumed it was for religious reasons, and for that reason, didn’t hire her. The United States Equal Employment Opportunity Commission took up Ms. Elauf’s religious discrimination case, all the way to the Supreme Court. The Supreme Court’s 8-1 decision rejected A & F’s argument that its “look” policy is religion neutral, and therefore, not discriminatory. The Court held that employers must treat religious beliefs and practices favorably, and cannot hide behind “religion-neutral” policies.

This decision is a stunning reversal of a decades-long trend treating religious accommodation claims with suspicion. Some fifty years ago, in the wake of the assassination of President John F. Kennedy, President Johnson arm twisted and cajoled Congress into enacting the Civil Rights Act, in honor of Kennedy’s legacy. While the act outlawed employment discrimination on the all the usual bases, religion has always been a poor stepchild.

Almost immediately, the question arose whether the Act’s prohibition of religious discrimination required employers to accommodate the religious beliefs and practices of its employees. Typically, such accommodations involve making exceptions from dress codes for religious expressions such as beards or yarmulkes. Or, even more commonly, employers are asked to permit workers time off to observe the Sabbath, a religious holiday, or to attend church.

When courts were divided on how to answer this question, Congress amended the Civil Rights Act in 1972 to clarify the employers must provide “reasonable accommodation,” but only if it does not result in an “undue hardship.” Still, employers did not know what these vague terms meant in practice. In a 1977 decision in Trans World Airlines v. Hardison, the Supreme Court appeared to view religious accommodation with suspicion, holding that even a minimal amount of hardship was “undue.” The back story on this case is that the court was asked to invalidate religious accommodation altogether as a violation of the First Amendment’s “establishment clause” separating church and state. Although the Court’s decision avoided the establishment clause argument, it greatly weakened the law instead.

The next time religious accommodation went to the Supreme Court was in 1986, when the Supreme Court held, in Ansonia Board of Education v. Philbrook, that employers get to choose among alternative accommodations. Often, employers choose accommodations that disadvantage employees.  This decision also weakened the position of workers seeking religious accommodation.

In 1990, when Congress enacted the Americans with Disabilities Act, Congress used the same legal standard for the disabled:  reasonable accommodation short of an undue hardship, but defined undue hardship as one causing “significant difficulty or expense.” Advocates for religious freedom began to draft comparable language, and have been asking Congress for nearly twenty years to toughen the religious accommodation law, to no avail.

But 1990 also saw a Supreme Court decision in a religious freedom case, Employment Division v. Smith, which has had an enormous impact on workplace discrimination. In the now infamous “peyote” case, Justice Scalia wrote that religion neutral laws did not raise First Amendment free exercise of religion concerns. Employers have often assumed the same logic applies to their own religion neutral policies – that they need make no exception for religious beliefs and practices. In practice, many Americans have lost their jobs because employers refused to make any exceptions for their religious observances, even when they could do so easily.

Justice Scalia’s opinion for an 8-1 majority in the Elauf case now buries the notion that company policies “trump” religious accommodation requests. The impact on companies will be modest, since such requests are typically quite few in number. But for those Americans of all faiths who can’t just park their religion at home when they go to work, the implications are huge. The issue in Samantha Elauf’s case concerned appearance: wearing of a head scarf. Clearly, the case signals a shift away from conformity to corporate appearance standards. California has gone even further, forbidding employers from segregating workers from the public on account of their religious appearance.

But the decision also implicates many other corporate policies, especially scheduling and discipline. Companies will have to become more flexible in scheduling those who need time to observe the Sabbath or attend church. They will also have to refrain from disciplining workers who would otherwise accumulate attendance points on account of religious observances.

Religious freedom has finally come of age in corporate America.

Alan Reinach

About Alan Reinach

Alan J. Reinach, Esq., is the Executive Director of the Church State Council, the oldest public policy organization in the west devoted exclusively to issues of religious discrimination and the separation of church and state.

The Fair Scheduling Act: Get the facts

The Fair Scheduling Act: Get the facts
Via Twitter: @ChelseaRosario_

Via Twitter: @ChelseaRosario_

Over the past few months, the Chamber of Commerce and its Big Business allies have mounted an all-out war against AB 357, the Fair Scheduling Act of 2015, by Assemblymember Chiu and Assemblymember Weber.  AB 357 is a bill that would simply ensure that workers are provided with fair and predictable work schedules so that they can manage their lives and other commitments, like second jobs, school, family care, or medical appointments.  As more employers move to “just-in-time” scheduling, which gives workers little to no notice of what days or hours they’ll be working, the need for AB 357 is abundantly clear, which is why dozens of labor, civil rights, anti-poverty and women’s groups all support this bill.

Yet, as the bill moves to a floor vote in the Assembly this week, opponents of the bill have been bombarding legislators and news outlets with misleading information and “sky is falling” rhetoric designed to confuse legislators and alarm small businesses in the state.  Don’t be fooled.

First, this bill only applies to very large food and retail establishments — those with 500 or more employees in the state and 10 or more establishments in the United States — large corporations with extensive resources.  In fact, these are the corporations that created the advanced computerized scheduling algorithms that have put workers’ schedules in constant flux in order to maximize profitability.

The Chamber claims that the bill would penalize employers who make changes to a work schedule with less than two weeks’ notice of the scheduled shift.  This is false.  Additional pay is only required if a change is made with less than one week’s notice. The penalty for short scheduling is only one hour of additional pay, unless the change is made within 24 hours of the scheduled shift, in which case the extra pay varies between two and four hours of additional pay, depending on the length of the shift.  Considering the havoc this type of erratic scheduling wreaks on workers juggling multiple jobs and families, this is hardly a severe penalty.

They also claim that this bill denies employees the opportunity to pick up additional hours at the last minute.  This, too, is false.  The bill contains numerous exceptions that allow for flexibility.  For example, the bill would not apply if another employee is unable to work because of illness, vacation, or time off or if an employee trades shifts with another employee or requests a change in his or her shift.

Opponents argue that the bill would tie the hands of store managers in their ability to deal with unforeseen circumstances such as changes in weather, a product delivery date or a product launch.  The bill explicitly provides exceptions for situations like public utilities failures or acts of God.   Product delivery dates or product launches, on the other hand, are circumstances that large retailers know about well in advance.  Nothing prevents them from making necessary scheduling changes with adequate notice to its workers.

As a last ditch effort, opponents clamor for more time to assess how San Francisco’s fair scheduling ordinance will work.  For the thousands of workers whose schedules change daily, the time to act is now.  In fact, a unified statewide policy would benefit both retailers and workers in California.  Otherwise, retailers will have to deal with a patchwork of local laws as other cities follow in San Francisco’s footsteps.

It is time to set the facts straight on AB 357.  Scheduling fairness has been a core, fundamental principle of this state since the establishment of the eight-hour day and forty-hour work week.

Even in 1999, when the legislature passed AB 60, which codified California’s overtime requirements, the Chamber of Commerce opposed the bill, stating that “employers should be able to work employees 10 or 12 hours a day, without the penalty of overtime if competitive forces necessitate such work schedules.”

We cannot buy in to the same old arguments.  In the same way overtime laws affect employer scheduling practices – by imposing a premium or penalty on an employer for using overtime labor– and to compensate employees for the burden of a long week, AB 357 would impose a premium on an employer for last-minute scheduling changes. The power dynamic between employer and employee is already skewed in favor of the employer. Compensating employees for the burden of an erratic schedule is just a small incentive for employers to plan ahead so employees can do the same.

AB 357 is about fundamental fairness and recognizing that, like with our overtime laws, maximizing profitability for large businesses should not come at the expense of our working families.

What do the United States and Papua New Guinea have in common?

What do the United States and Papua New Guinea have in common?  According to the United Nations, they are the only countries in the world without any sort of paid time off for new mothers.

In the Mother’s Day edition of his HBO show “Last Week Tonight,” John Oliver, the British comedian who is perpetually incredulous over most things American, juxtaposed the maudlin, corporate exploitation of the holiday with the grim economic realities facing working mothers in this country.  But Oliver noted a tiny bright spot.  Three states, California, Rhode Island and New Jersey, have some sort of limited paid leave for new mothers.

California’s paid family leave program is modest.  Payments are only partial and a worker can be fired for taking paid family leave unless they are also eligible for job protection under the California Family Rights Act (“CFRA”).  Yet, only workers at companies with 50 or more employees and who have been on the job for at least a year are covered under CFRA.  Accordingly, only about half of California employees can actually take advantage of the paid family leave program.

That may be about to change.  Senate Bill 406, currently pending before the California Legislature, would expand the job-protection coverage of the paid family leave program to include smaller companies of 25 or more employees.  It would also expand the definition of family member for whom a worker can take job-protected leave to care for to reflect the realities of modern families, by including grandparents, grandchildren, siblings, and adult children.

Even this modest expansion of the paid leave program has drawn the garment-rending wailing of the Chamber of Commerce, who predictably labeled it a “job killer.”  In the Mother’s Day clip, Oliver mocked the overwrought rhetoric and overblown fears of Congressional opponents of the unpaid Family Medical Leave Act (“FMLA”) in 1992:  “Our businesses shall crumble, or cities shall burn and hungry wolves will roam the streets.”

In reality, a 2012 Department of Labor survey showed only 15% of employers reporting any significant difficulty in complying with the FMLA.   There were no reports of hungry wolves.  A similar study conducted ten years after the enactment of California’s Paid Family Leave Act found that 90% of California employers considered the Act to have a positive or neutral effect on productivity, profit, morale and costs.

Progress in protecting the economic security of families seems to happen only incrementally.  The expansion of California’s paid leave program reflected in SB 406 is a great next step.  Let’s leave Papua New Guinea in the dust!

Watch the John Oliver clip by clicking here.

Curt Surls

About Curt Surls

Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.

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