The myth of the disgruntled employee 1


By Marvin Krakow

Removed from the distant wars currently in the news, it is easy to see how neighbors alike in so many ways must dehumanize one another in the midst of conflict. It’s a form of blindness that is common not just to war, but to all conflict – and one that I see all too often in my practice.

Let me introduce you to the people who come to our law office for help.   Many have worked for the same employer for long years, often for decades.  Most feel strong and warm connections to their employers and co-workers.  They struggle, as we all do, with the challenges of life, with their health, with family responsibilities, with financial reversals, and with their careers.  They come to see us, because their bosses have disrupted their work, their source of income, their identity. They are not irrational.  They are not trying to game the system.  They work with a seriousness of purpose.

Who are they?  They do every kind of work: executives, janitors, public servants, truck drivers, waiters, teachers, and artists. They come from every imaginable background.  They have advanced degrees; they did not learn to read.  Their families are established; they are recent immigrants, accompanied by their children who translate. Some are old, some young, some rich, some poor.  They are straight. They are gay.   They have strong religious beliefs.  They have no religious beliefs. They are breadwinners with obligations to pay college tuition or to support an elderly parent.  They are men and women near the ends of long careers who need another few years of work, because they cannot afford to retire.   They are from every racial and ethnic background.

If they share anything in common, it is that they are not happy to find themselves in a lawyer’s office.  When I ask potential clients about their previous dealings with lawyers, the most common response is that they have never hired a lawyer, and have never been involved in a lawsuit.  Most of them come to us reluctantly, and they apologize for doing so.  They will explain that they would prefer to consider all other options instead of filing suit.  They come, despite that reticence, because they feel they have been seriously hurt and profoundly disrespected by their employers.

Who brings a lawsuit?  Here are a few examples from my own recent experience: a store manager falsely accuses a 60-year old retail assistant of failing a drug test, and fires him.  New owners replace a worker who successfully led a computer software development department for over thirty years and replace her with a less qualified, younger man.  An executive needs time off to care for his dying wife; the owner fires him a week after she dies.

In each of these cases, the prevailing myth of the “disgruntled employee” hides the reality of our common humanity. It is impossible to hear the adjective “disgruntled” without filling in the noun “worker,” and conjuring an image of a madman spraying bullets from an automatic rifle.

The myth serves intertwining legal and psychological purposes for employers and their counsel.   A long term, productive employee is viewed as damaged.  He or she suddenly becomes a “complainer,” “a trouble maker,” “not a team player,” “unable to communicate,” “uncooperative,” “unresponsive to constructive criticism,” “an alarmist,” someone who “games the system,” “insubordinate.”  Managers targeting these employees sometimes send lengthy and detailed emails documenting “deficiencies” which were neither observed nor noted before the employee raised questions of discrimination or harassment on the job.  As part of this management mythology, employers assume that an employee who complains does so out of a failure of character: the employee must be permanently and irrationally dissatisfied by his or her lot in life, and with his or her workplace in particular.  They believe, or claim to believe, that the employee is dangerous.

Management’s goal is to cast the person as fundamentally unlikeable, less worthy of respect, “less human.”  Ultimately, management lawyers who demonize the worker who reports a problem by treating them as quasi-criminals, put the entire workforce at risk.  When the starting point is that complaints come mainly or exclusively from defective personalities, employers fail to take reports seriously.  They fail to remedy problems before they grow more serious.  They ignore warning signs of sexual predators.  They fail to correct safety hazards.  They allow mistreatment of older workers.  They make it harder for a parent to care for his or her children.

There is a better way.  When a manager puts aside defensiveness and character assassination, and  sees the care and loyalty driving an employee complaint,  he or she is likely to recognize issues that are critical to the well-being of the employer’s enterprise. Unfortunately,  conflict feels less troubling when the enemy isn’t quite so human.  I sometimes think these employers missed a chance to get to know my clients in all their humanity.  But perhaps it is simply easier for them to forget the people they once knew.

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

Corporate clones no more: Religious diversity is coming to a store near you

By Alan Reinach

Ever since the Civil Rights Act championed the rights of a diverse workforce, many American corporations have fought to hold on to their homogeneous corporate image.  Some industries, like airlines and retail stores, have elevated corporate cloning to an artform, insisting that their employees embody their brand.

But the rise of the clones has met with resistance in the courts.  In an early case, an airline lost a legal challenge to its requirement that “stewardesses” (they were not called “flight attendants” back then) all be female, young, slender, sexy, and clad in tight fitting clothing.  No matter that such corporate branding was designed to appeal to the male business traveler.  The courts rejected these requirements as gender discrimination.

In more recent years, the most notorious American company to pursue a similar strategy is the clothing retailer, Abercrombie & Fitch.  A&F began as a purveyor of luxury sporting goods in 1892.  After bankruptcy in the mid 1970’s, the brand was resurrected as a youth-oriented clothing retailer.  Today, it is a thriving fixture of the American shopping mall.  Don’t expect to find salespeople in an A&F store – the company doesn’t hire any!  The people who staff A&F’s retail outlets are called “models.”

By hiring “models,” A & F seeks to preserve the right to make its “look”policy a key part of its marketing strategy. Those who work in retail are expected to be living ads for the brand, its image, and its product.

Enter a Muslim woman, wearing a head covering, and you can predict the unfolding drama. In 2009, 19-year-old Umme-Hani Khan was working at an A&F store for several months before the regional sales manager spotted her, and quickly fired her for violating the company’s “Look Policy” – specifically, its prohibition of hats.  The United States Equal Employment Opportunity Commission filed a lawsuit, and the judge heard arguments whether the “Look Policy” justified what amounted to religious discrimination.  The company vainly tried to prove that its marketing success depended on strict compliance with its “Look Policy.”  But as the judge wanted to see more than opinion – she wanted to see how having this woman and her head covering in the store for four months had an adverse impact on the store’s business.  Without such evidence, the judge ruled that A&F had no defense to this act of religious discrimination.

The protection for religious expression exemplified by the outcome in the Abercrombie & Fitch case has enormous significance for all Americans, and for the look of the American workforce. Many religions express themselves through individual dress and appearance:  Muslim women may cover their heads, but so do others.  Sikh men wear turbans, observant Jewish men wear yarmulkes.  Men in several religious traditions wear beards. Christians may wear a cross necklace, and the list goes on.

California now leads the way in outlawing such conduct, with passage of the Workplace Religious Freedom Act, which explicitly prohibits segregating workers form the public on account of religious appearance. As a result of the new California law, and decisions like that in the A&F case, expect to see more religious diversity in corporate America, especially in retail.

The momentum in favor of diversity of both religion and appearance is long overdue. Homogeneous corporate appearance standards are part of a culture that breeds conformity and mediocrity at the expense of individuality and freedom of religious expression.  So don’t be shocked the next time you see a turban, a hijab or a beard at one of the country’s giant chains. Corporate clones be gone: individuality is coming back to a workplace near you.

Editor’s Note:  For more about what the Abercrombie & Fitch decision means for workers, read CELA VOICE Co-Chair Charlotte Fishman’s op-ed in the Sacramento Bee.

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.

At-will employment: What would Midas do? 1


By Marvin Krakow

In California, as in most of the United States, the default rule about job security is that there is none.  Employers call the default job security rule “at-will employment.”  What at-will employment means is that the boss is free to say “you’re fired,” at any time, for any reason, or for no reason at all.   A new boss who wants to clean house can show the door to a man or woman who devoted twenty or thirty years to the company, without a penny of severance.  Sometimes, business owners and managers use the at-will rule to hide illegal reasons for firing.  They get rid of whistleblowers.  They force out older workers.  They pick on those too sick to fight back.  As our economy goes through turmoil or as an individual business goes through hard times, loyal employees learn to their dismay that they have no job security at all.

A wise woman once explained to me her approach to difficult problems.  She called it the “what would Midas do?” method.  You may remember the fable of King Midas, a man with great wealth, and, as it turned out, excessive greed.  But for our purposes the critical fact is great wealth.  The method is simple: For any given problem, consider how a person of unlimited wealth might solve the problem.  What could he or she buy that would fix it?  Then, having identified the expensive method, figure out how to duplicate the result with amounts of money or resources more readily available to ordinary mortals.  The “what would Midas do” method can shine a bright light on the related problems of job security and workplace fairness.

We don’t have to guess what our mythological Midas might do.  We actually know.  Our modern day Midases are the One Percent.  They are the managers of multinational corporations, the highly compensated professionals, the academic superstars.  What they do is surprisingly simple.  They use their privilege and bargaining power to insist on written employment contracts that modify the default rule of at-will employment.  Almost without exception, the One Percent, our modern oligarchs, insist on contract terms which prevent firing without cause and which provide generous severance payments when they are fired.  We see this in news reports of CEO’s who walk away from their jobs with multi-million dollar “golden parachuteswhen the company changes hands or the board of directors decides it’s time for a new king or queen.

And we also have seen the Midas approach adapted by the less wealthy.  Working men and women, when they have the power of a good union behind them, bargain for security in much the same way as the far wealthier business owners.  I learned that lesson on my father’s knee.  I had the good fortune to grow up in a home where unions were valued for bringing security to the workplace.  As a young boy, I asked my father what a union was and what a union did.  His answer – which I remember to this day – was that a union keeps the boss from saying “Off with your head!”  Seeing what Midas does, union members and their representatives, as their first order of business, negotiate contracts which prevent termination without just cause.  Next, union bargainers seek earned severance benefits to provide loyal employees the resources to support themselves and their families during the long search for a new a job.

In recent decades, unions have fallen on hard times.  For most of us, there is no union to bargain for job security.  Even for working people who have a union, the rich and the powerful have mounted persistent and effective assaults on job security.  We need to ask the question again: how can we have the job security which the wealthy take for granted?  The answer is simple.  We can change the default rule to the rule which the wealthy claim for themselves.  Revoke the at-will rule for firing employees after their first year.  Change the default rule to permit termination only for just cause.  Require employers to fund and to pay meaningful severance benefits for economic layoffs.  Those simple changes would create a better and fairer workplace.

We can’t expect those with the Midas touch in this economy to eliminate at will employment voluntarily.  But, no matter how long it may take, instituting a just cause requirement is the real answer to this Midas question.

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

Low wages & unpredictable schedules: A toxic combination for part time employees


By Charlotte Fishman

In a society that blurs the lines between corporations and people, perhaps it was inevitable that some employers would blur the lines between people and inanimate objects.  Even so, it is shocking to learn that in a growing number of low wage industries, employers  treat part time employees as fungible, disposable assets, instead of human beings worthy of  respect.

Part time workers who toil in retail, food service, and janitorial jobs often find that their time is treated like just another production cost to be sacrificed on the altar of “maximizing profitability.”  They may be kept “on-call” with no compensation, assigned shifts with short notice, or burdened with unpredictable, fluctuating hours.  Even if scheduled to work, they may be told “we don’t need you today,” and sent home empty-handed.

When the labor needs of a business increase, a part time employee’s request for increased hours or  full time work is often denied.  Why? It is more “cost effective” to hire an additional part time worker than to pay a current employee the statutorily mandated benefits that come with increased hours.  Job security is illusory.  Nothing stops an employer from firing a part time employee who refuses to come in on short notice, even if the cause is a sick child or inability to rearrange an established childcare schedule at the last moment.

In addition to being inhumane, these insecurity-inducing employment practices take a huge toll on the  nation’s economic and social health. Without a predictable schedule, how can a low skilled worker improve his or her employability through education? How can a working mother arrange for stable childcare? How can a low wage worker take on additional part time employment to raise the family income above poverty level?

Scheduling abuse of low wage part time workers is a serious social issue that is finally getting the attention it deserves.   On July 22, California Representative George Miller and Connecticut Representative Rosa DeLauro introduced  H.S. 5159, “The Schedules that Work Act” in the House of Representatives.   A companion bill sponsored by Senators Elizabeth Warren and Tom Harkin will be taken up by the Senate.

“The Schedules that Work Act” is characterized by its proponents as a conversation starter about the devastating effect of unreasonable scheduling demands – a practice that has become commonplace in industries as diverse as Big Box stores, fast food chains and multi-national banks.  If enacted, it would prevent retaliation against employees who ask for schedule adjustments;  create an interactive process for employees to obtain accommodation for caregiving responsibilities, classes, second jobs, and other needs;  require employers to provide at least two weeks advance notice of work schedules; and provide at least some compensation for last minute schedule changes, split shifts and early dismissals.

Unfortunately, the bill’s provisions, modest as they are, may be too controversial to pass the gridlock in Congress.  While employer-side representatives loudly proclaim the benefit of flexible part time schedules for both employers and employees, the Bureau of Labor Statistics reports  that roughly 7.5 million employees are working part time only because their hours were cut or they were unable to find full time work.

This is not to say that flexible part time scheduling can never be beneficial for employees.  A predictable flexible schedule — one that enables part time employees to take a second job, to enroll in a training course or to provide care for family members – would be highly desirable to many.

There are hopeful signs of change to come at the local level.  In San Francisco,  Supervisor Eric Mar is poised to introduce the aptly named “Retail Workers Bill of Rights” to the Board of Supervisors at its July 29 meeting.   The proposed ordinance targets “formula retail” businesses,  a designation that includes chain stores, fast food restaurants, and multi-national banks.   Among the rights granted to employees are the right to  four hours pay for “on call” time or shift cancellation on short notice and the right to be offered additional hours before  any new part time workers are hired. The bill is supported by Jobs with Justice, a broad coalition of labor, community and small business groups.

The families of part time low wage workers need and deserve help creating a path out of their current predicament.  The toxic combination of low wage employment and unpredictable schedules is a form of involuntary servitude that should have no place in 21st century America.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

Tinder on fire: How women in tech are still losing


By Lisa Mak

A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.”  These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen.  Last month, Wolfe brought suit against Tinder for sex discrimination and harassment.  Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse.  Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “slutty.”

The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience.  Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference.  After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats.  She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”

In 2012, junior partner Ellen Pao filed a sexual harassment suit against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances.  And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry.  An online video game was even released in which users could “beat up” Sarkeesian.  These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.

There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution.  These laws provide strong protections against gender harassment in employment and other contexts.  So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?

It doesn’t help that tech companies are also notorious for their lack of diversity.  This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white.  The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn.  Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade.  These numbers confirm what the stories reflect — that this industry truly is “a man’s world.”  And this needs to change.

Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive.  Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.”  While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected.  Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.

Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech.  This also needs to change.  Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.

But change will not be achieved without help from sources outside the industry.  Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry.  We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance.  If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to changing the “guy culture.”

The tech world doesn’t have to be a man’s world, and it shouldn’t be.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney at Lawless & Lawless in San Francisco, exclusively representing plaintiffs in employment matters. Her litigation work focuses on cases involving discrimination, harassment, whistleblower retaliation, medical leave, and labor violations. She is an active member of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, a volunteer and supervising attorney at the Asian Law Caucus Workers’ Rights Clinic, and a Young Professionals Board member of Jumpstart Northern California working to promote early childhood education. She is a graduate of UC Hastings School of Law and UC San Diego.

Californians get a raise today, but we can do better!

monimum wage increase ahead

By Kevin Schwin

Today, California’s minimum wage increases to $9 per hour.  To many Californians, this comes as good news, but will still not be enough to lift them out of a life of poverty.  Other localities have taken more aggressive approaches to boost wages, like Seattle, Washington which recently decided to increase the city’s minimum wage to $15 per hour by 2018.  Since Congress has idled on increasing the minimum wage, efforts across the country are necessary to curb the exponential growth in income disparity that has occurred over the past few decades.

The first federal law establishing a minimum wage was passed in 1938.  At that time, minimum wage was set at $0.25 per hour.  Critics complained the law would have a devastating effect on the economy.  The opposite proved true as unemployment rates dropped significantly in the years following.

Following passage of the Fair Labor Standards Act in 1938, minimum wage continued to increase gradually.  In 1968, federal minimum wage was $1.60 per hour.  That may not sound like much, but adjusted for inflation, that was $10.69 per hour in 2013 dollars.

Since 1968, however, the federal minimum wage has been steadily declining in terms of buying power.  In other words, an employee earning minimum wage in 1968 could afford to live much more comfortably than an employee earning minimum wage today.  Not surprisingly, the income disparity between the richest 1% of Americans and the other 99% has steadily grown.

Many opponents of minimum wage increases claim that raising the minimum wage kills jobs and hurts the overall economy.  However, a number of studies over the past 14 years show that minimum wage increases have little to no effect on economic growth.  This makes sense.  People who earn more spend more.  When spending increases, businesses have to hire more workers to handle the increased demand for products.  Accordingly, any jobs lost from businesses that cannot afford to pay higher wages and still remain profitable are replaced by jobs created by businesses that need more staff to cover increased sales.

This day in age, full time employees earning minimum wage make $15,080 a year assuming a 40 hour workweek and no time off.  The federal poverty line for a 2 person household is currently $15,730 a year, and it increases to $19,790 for a 3 person household.  This is highly problematic, especially for single parents.  In order for a single parent making minimum wage to meet the basic necessities of life, s/he has to either take on more than full time work, go on government assistance, or, worst of all, turn to crime.  On the other hand, if minimum wage is increased to just $10 per hour, a full time minimum wage earning employee will make $20,800 per year, which amount is sufficient for a single parent with 2 children to stay above the poverty line.

In conclusion, we need to increase the minimum wage.  It will reduce the rising income disparity.  It will have no effect on the economy.  And, most importantly, it will keep millions of single parents and children out of poverty.

Kevin Schwin

About Kevin Schwin

Kevin Schwin graduated from the Cleveland-Marshall College of Law cum laude with a J.D. Concentration in Labor and Employment Law. While in law school, Mr. Schwin served as President of his law school’s Employment and Labor Law Association. Mr. Schwin received his B.B.S. from Miami University in Oxford, Ohio, majoring in Human Resource Management. Mr. Schwin enjoys sports and traveling in his free time. He traveled to Italy as a foreign exchange student while in high school. He speaks fluent Italian and is proficient in French.

Even when LGBT Pride Parade is over, corporations should keep marching against discrimination


By Elizabeth Kristen

On Sunday, hundreds of thousands lined Market Street and watched the corporate contingents as they marched in San Francisco’s annual LGBT Pride Parade.  The corporate banners and legions of marching employees are testament to how companies are trying hard to appear that they have “come out” as pro-LGBT rights.  Other signs of change can be seen in the recent corporate advertising campaigns featuring LGBT couples and families.  This kind of corporate support for LGBT equality and the integration of the LGBT community into the mainstream has undoubtedly been a forceful engine for change.  But the majority of LGBT workers are still afraid to come out fully in their places of work and they continue to face harassment and discrimination.

Given the long wait for a federal non-discrimination law, what can employers do to welcome LGBT employees and keep them safe?  A critical component that should be familiar to every HR manager is promoting a positive, inclusive LGBT workplace culture. Fortunately, according to a recent study, most employee resource groups have already achieved this. 67% of LGBT employees feel “very welcomed” by their employee resource group, while only 2% feel either “not too welcomed” or “rejected.” But this leaves a substantial middle ground that companies can improve on by making overtures to LGBT employees, while taking an emphatic stance against offensive comments, jokes, and policies.

Implementation of pro-LGBT personnel policies is also important, as it addresses important concerns for LGBT employees while also familiarizing non-LGBT people with LGBT needs. Companies that want to demonstrate their commitment should also provide benefits to compensate for legal inequalities that same-sex couples face, as Google did in 2010, and cover important gender confirmation surgery for interested transgender individuals.

Some statistics also tell the story of how far we have come and how far we still have to go.

  • 91% of Fortune 500 companies have extended workplace protections to cover sexual orientation, up from 61% in 2002.
  • For transgender individuals, the proportion is only 61% as of 2014.  That number is up from 3% in 2002, but still falls short.

Policies on paper are not enough to change a workplace, however.  Real cultural shifts only come with action, including action at the top of the corporate ladder.  Employers who mandate LGBT sensitivity in workplace training alongside race, sex, national origin, disability and other characteristics are making the welcome message clear.  And those who implement gender neutral bathrooms are putting into everyday practice a respect for the diversity of their workforce. And though homophobic objections are becoming more and more marginalized, companies and/or their CEO’s can repudiate them publicly, in a way that will convey to both employees and consumers that the company stands by its commitment to the LGBT community.

Despite the fantastic victories achieved, the fight for LGBT rights and inclusivity is far from over. Workplaces have a role to play in that fight. Workplace managers should take pride in what progress they have facilitated, yet remain attentive to the challenges that remain. Just because June’s LGBT Pride Month is over, there is no reason to stop marching towards pro-LGBT workplaces.

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid Society - Employment Law Center.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008.

With so many corporations coming out for LGBT rights, why are so many workers still in the closet? 1

charlotte pride photo.fixed

It is hard to deny the remarkable ascendance of LGBT rights over the past decade. But the breathtaking gains in marriage equality in all corners of the country have obscured the focus on at least one important arena where we still lack equality – the workplace.

A recent Human Rights Campaign survey details the experiences of LGBT people at work.  Perhaps most startlingly in an era when being out is in for LGBT celebrities, sports figures, and politicians the survey revealed that 53% of everyday LGBT folks are still fully or mostly closeted at work.  When polled about why they remain closeted, 38% of respondents cited the possibility of making others feel uncomfortable; 36% responded that they feared the possibility of being stereotyped; 31% feared losing connections or relationships with coworkers; and 23% anticipated being passed over for advancement or development opportunities.

LGBT workers who fear disclosing their sexual orientation or gender identity are probably pretty accurate in predicting how their co-workers might react.  Less than half of non-LGBT survey respondents said they felt comfortable hearing an LGBT coworker talk about their social life, dating, or a related subject, and more than 70% agreed that it would be “unprofessional” to talk openly about one’s sexual orientation or gender identity in the workplace. Of course, this is a standard that is not applied to straight workers, who routinely regale their closeted LGBT co-workers with stories about their opposite-sex relationships and social life.  Indeed, more than 60% of non-LGBT respondents reported that children, spouses, and social activities were indispensable topics of conversation in the workplace.

But this survey gives us more to worry about than how LGBT workers are censored in coffee room conversations.  Another finding is that more than one in five respondents had looked for alternate employment in order to avoid anti-LGBT hostility.  And nearly 10% of LGBT employees report they felt so much hostility at their workplace due to their sexual orientation that they had no choice but to leave their job.

The numbers are far worse for transgender workers: a report issued in 2011 by two LGBT rights organizations found that 90% of transgender people nationwide had experienced at least one form of harassment, physical assault, mistreatment, or sexual assault at work because of their gender identity.  And almost half have been fired, not hired or denied a promotion because of anti-transgender bias.

So what is to be done to turn the promise of welcoming workplaces into a reality?  Some might blame closeted employees for hiding their identities from co-workers, thus depriving co-workers of the opportunity to unlearn their stereotypes and bias.  However, the burden should not fall on LGBT employees to expose themselves to the very real risks of harassment, ostracism, job loss, or worse.  As has been the case in the marriage equality movement, coming out has an important role to play in making change in the workplace for LGBT people.  But it cannot happen without the protections of strong anti-discrimination laws and comprehensive employer policies that promote inclusion, train managers to combat harassment, and provide equal benefits for LGBT employees and their families.   In another post, I will be outlining how corporations can do just that.  As for passing laws to end employment discrimination and harassment against LGBT people, the prescription is simple — Congress should finally to pass the Employment Non-Discrimination Act!

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid Society - Employment Law Center.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008.

Corporate “wellness” programs are unhealthy for employee rights 1

By Nicole Heeder

The Affordable Care Act has everyone up in arms.  From its chaotic rollout to the Supreme Court’s fast approaching opinion in the Hobby Lobby birth control coverage case, “Obamacare” has been writhing with controversy.

So why isn’t anyone talking about the dangers  posed to employee privacy by Obamacare’s “health contingent wellness plans”?  Although on the surface these plans have an admirable purpose, we need to look deeper. Here’s how these wellness plans work:   An employer may offer its employees financial incentives to quit smoking, lose weight or make other healthy changes to their lifestyle, encouraging healthy behavior. So far so good?

While this sounds good in theory, the devil is in the data, specifically the data that employers are collecting to measure their employees’ health status. Health contingent wellness plans require employees to undergo invasive biometric health screenings on an annual basis.  Employees are weighed, poked and prodded to find out their weight, height, body mass index, blood pressure, and cholesterol levels. Biometric results are then used to identify individuals who are at risk for disease, most commonly heart disease and diabetes. Once the data is collected, the employer then offers employees incentives to change their lifestyle all in the name of lowering employer healthcare costs.

These incentives may come in the form of decreased premiums, cash or other gifts.  But the incentive programs are not all they’ve cracked up to be — employees who do not meet expectations may be subjected to surcharges if they fail to stop smoking, take a fitness course or work with a health coach, not to mention the follow-up testing.

There is also the real risk that employers will view employees who do not meet company set standards as a burden on their workforce.  An employer who believes that perceived medical conditions or disabilities interfere with the employee’s ability to perform may be tempted to discriminate against or terminate employees who fail to meet health goals.

With this in mind, some protection against employer discrimination is built in to the ACA — access to the biometric results is limited to the third party vendors who conduct the testing. However, practically speaking, this structure is far from fool-proof. Should an employer suspect that an employee has a disability or medical condition, something as simple as reviewing the insurance premium changes may provide confirmation. Worse yet, these screenings often take place at the worksite further threatening employee privacy and easing employer access.

Another form of protection is the “reasonable alternative standard” for employees whose medical condition prevents them from attaining the health results required to qualify for incentives. But since an effective alternative needs to be tailored to the individual’s specific medical condition, the employee is forced to self-identify the disability in order to qualify for lower premiums.  Compelled disclosure of a medical condition or disability to an employer violates the California Fair Employment and Housing Act.

The Fair Employment and Housing Act and other California laws prohibit disability discrimination and prevent an employer from discriminating against an employee for lawful off-duty conduct.  Employee choices about what to eat, whether to exercise, or whether to smoke cannot be policed by employers.  Health contingent wellness plans undermine these protections.

While encouragement of a healthy workforce is commendable, “health contingent wellness plans” present risks that must be addressed  to ensure that they do not become a smokescreen for discrimination based on health status.

Nicole Heeder

About Nicole Heeder

Nicole Heeder owns and operates Law & [M]ocean, a plaintiffs’ employment law boutique in San Diego. She is focused on eradicating discrimination and harassment issues in the workplace.

Paid Sick Days – Healthy for California


By Elizabeth Kristen

This week, California’s “Paid Sick Days” bill cleared another hurdle in the Senate Labor Committee where it passed on a party line vote.  AB 1522, by Assemblymember Gonzalez, would provide all California workers with at least three days of paid sick leave per year. The bill would also allow an employee to use leave if necessary due to domestic violence, sexual assault, or stalking.

While a provision of some sick leave is an important improvement upon California law, three days per year is simply not enough.  And the recent deletion of the private right of action, which would allow workers to enforce their rights in court, removes an important mechanism to make sure that workers actually are able to access their right to paid sick days.  California needs to adopt a more robust paid sick leave law. Doing so is critical for public health, for workers and their families, and for California’s economy.

Many workers, especially low-wage workers, do not receive any paid time off from work for their illness. This forces them to work while sick – serving food in restaurants, providing child and elder care, and ringing up purchases as cashiers.  This is bad enough for the workers themselves, but the consequences infect the economy and public health as well.

The burden to work while sick is not something that we all bear equally. Latino workers, for example, are significantly less likely to have paid sick days – only 47 percent of Latinos receive some form of paid time off, compared with 61 percent of the overall workforce. Unsurprisingly, the poorest workers also have the least access to paid sick leave. Thus, workers who can least afford to use unpaid days and who cannot afford to lose their jobs are also those least likely to have paid sick days at their disposal.  Of workers paid $65,000 or more per year, more than 80% have paid sick days; by contrast, only about a quarter of workers making less than $20,000 per year reap this important benefit.

Recognizing this disproportionate burden, several forward-thinking cities have made progress towards eliminating this difficult ultimatum by adopting paid sick leave laws. The table below shows those jurisdictions, including the size of employer covered by the paid sick days law, the maximum amount of leave provided, and whether the leave is paid or unpaid. Although eligibility and the extent of benefits vary greatly, all of these jurisdictions see healthy families and healthy economies as intimately linked, not mutually exclusive.

Paid Sick Days

Although cities have pioneered this protection, some states recognize that the cost or trappings of urban living serve as barriers for many workers and families. The state of Connecticut became the first state to adopt paid sick days in July 2011. Connecticut’s leave can be used for the worker’s own health, for the care of a child or a spouse, or for needs related to domestic violence or sexual assault. A recent report about this law found that offering paid sick days did not harm business. In fact, many businesses reported positive effects, including reduced employee turnover, reduced spread of illness, improved morale, and increased productivity, motivation, and loyalty. Eighteen months after the law took effect, more than 75% of employers were either “very supportive” or “somewhat supportive” of the new law.

Unfortunately in other states, the legislative trend has moved in the opposite direction. Ten states— Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Mississippi, North Carolina, Tennessee, and Wisconsin — have enacted legislation to block cities from adopting paid sick leave, and fourteen other state legislatures have seen the introduction of such legislation.  In addition, Milwaukee, Wisconsin’s paid sick days bill was invalidated by a state law banning such ordinances.

Enactment of a federal law allowing workers to protect their health without sacrificing their financial or occupational wellbeing would override state laws hostile to the rights of workers. Pending national legislation—the Healthy Families Act—would provide paid sick days as well as paid safe days for victims of domestic violence, sexual assault, and stalking.  But, for the time being, “[t]he United States is the only country out of the 15 most competitive that doesn’t guarantee paid sick days to all workers, leaving 40 percent in the private sector without access to the leave.”

This coverage gap is not only embarrassing, it also is bad for workers and their families and undermines public health. By allowing workers to address their pressing health needs without sacrificing wages, paid sick leave would preempt the degeneration of illnesses into emergency situations. Without offering paid sick leave, workers must gamble with their health, and may suffer wage and job losses. In addition to these economic concerns, workers’ hardships often need to be offset by significant public assistance expenditures. Nor does the employer benefit by withholding paid sick leave from its employees: loss of productivity due to illness is twice as expensive to employers as absenteeism. These conclusions follow not only from common sense, but from the benefits reaped by workers and businesses across the state of Connecticut.

The rhetoric surrounding this debate is feverish, but the health of our economy and the health of our workers need not be at odds. Paid sick leave is the antidote to many social ills – from economic inefficiency to reliance upon public assistance. All stakeholders should endorse paid sick leave in order to promote a healthier economy, for employers and employees alike.

Elizabeth Kristen

About Elizabeth Kristen

Elizabeth Kristen is the Director of the Gender Equity & LGBT Rights Program and a senior staff attorney at Legal Aid Society - Employment Law Center.  Ms. Kristen began her public interest career as a Skadden Fellow at Legal Aid.  Ms. Kristen graduated from University of California at Berkeley School of Law in 2001 and served as a law clerk to the Honorable James R. Browning on the Ninth Circuit Court of Appeals in San Francisco.  In 2012-13, she served as a Harvard law School Wasserstein Public Interest Fellow.  She has been a lecturer at Berkeley Law School since 2008.

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