Silencing the survivors: How the Brock Turner case reflects the failures of our justice system

Silencing the survivors: How the Brock Turner case reflects the failures of our justice system

Woman1By Lisa Mak

Like many others, I was outraged by the outcome of Brock Turner’s case for his rape of an unconscious, intoxicated woman behind a dumpster.  This woman was brave enough to go through the process of a 16-month criminal case.  She wrote an extremely powerful and heartbreaking statement that she read in court when addressing how Turner’s assault has forever changed her life.  Prosecutors had sought a six-year prison sentence for Turner’s crime.  Yet Judge Aaron Persky only imposed six months of prison with probation, stating that a longer sentence “would have a severe impact” on Turner and that Turner “will not be a danger to others.”

Unfortunately, this painfully skewed result, the biased way the case was portrayed, and the outrageous statements from Turner’s family and friends defending his actions, are all too familiar features of a system that often does not treat rape and assault for what they are – violent, heinous crimes that violate basic human dignity.  The events and reactions in the Turner case remind me of cases I’ve litigated where employees were sexually harassed, assaulted, or raped in the workplace.

It seems like the same story every time.

The victim is blamed and doubted.  Questions may be asked about whether she was somehow responsible for what happened.  Were you drunk at the company party?  Why did you enter his hotel room to talk about work?  Have you ever sent a risqué email at work?  Did you date that co-worker? Why can’t you remember all the details?  Are you sure the relationship wasn’t consensual?  Investigations into workplace sexual harassment complaints may not happen, or when they do, they may be conducted in a way that is slanted against the victim.  Given the difficulty of coming forward, it is unsurprising that many sexual harassment cases go unreported.

The perpetrator is protected.  He is given the benefit of the doubt.  He may receive little to no discipline for his misconduct.  The victim is advised that everyone is “moving on” from the situation.  To add insult to injury, often employees who complain about sexual harassment will be fired in retaliation.  For example, in her lawsuit against Tinder in 2014, co-founder Whitney Wolfe alleged that she was forced out of the company after her complaints of discrimination and harassment.

There is often a mistaken focus on the impact on the perpetrator’s career and reputation, as opposed to the physical and psychological impact on the victim.  When former Dean of Berkeley Law School Sujit Choudhry was accused of sexually harassing his executive assistant, university officials were allegedly reluctant to terminate him for fear of ruining his career.  He was never in fact terminated, and resigned after a lawsuit was filed against him earlier this year.

Similarly, when Turner’s father pleaded for leniency for his son, he ignorantly argued: “[Turner’s] life will never be the one that he dreamed about and worked so hard to achieve.  That is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”  This, compared with the life of the woman Turner raped, who explained: “My independence, natural joy, gentleness, and steady lifestyle I had been enjoying became distorted beyond recognition.  I became closed off, angry, self deprecating, tired, irritable, empty … You bought me a ticket to a planet where I lived by myself.”  Yet Judge Persky remained concerned about the “severe impact” a longer prison sentence would have on Turner, the convicted criminal.

Whether sexual assault happens at work, at school, in a home, or anywhere else, the same infuriating narratives keep surfacing – blaming the victim, doubting the crimes, and protecting the perpetrator.  Language is used to downplay the severity of the attacks.  Turner’s friend, Leslie Rasmussen, submitted an equally outrageous letter of support for him for trial, writing: “[W]here do we draw the line and stop worrying about being politically correct every second of the day and see that rape on campuses isn’t always because people are rapists.”

This isn’t about being politically correct.  This isn’t about alcohol or promiscuity or the tarnished futures of privileged individuals who chose to violate the rights of others.

This is about calling out sexual harassment, assault, and rape for what it is.  This is about respecting women and human beings and common decency.  Cases like Brock Turner, along with the many cases of workplace sexual harassment we see, underscore the need to focus on the consequences caused by the perpetrator and not on rationalizations for the violent conduct.  When survivors of assault and harassment are able to come forward and speak their truth, their courage should always be met with an outcry of support and a fair chance at justice.

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.

The legacy of the civil rights movement

The legacy of the civil rights movement

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The struggle for civil rights puts us squarely within a longstanding movement. It is helpful to keep the history of those efforts in mind as we focus on the problems of the moment. Here are the reflections of a woman who has dedicated her life to global human rights – The Legacy of the Civil Rights Movement.

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).

A Mother’s Day gift of job-security

A Mother’s Day gift of job-security

This Mother’s Day, let’s give moms the gift of job-security for the time they take away from work to bond with their new babies.  Just last month, Governor Brown signed into law a bill that would boost Paid Family Leave benefits for parents who take baby bonding leave, but nearly half of all California workers could still be fired for taking the leave and accessing those benefits.  Under current law, job-protection for baby bonding leave is only available to parents who work for large companies with 50 or more employees, leaving out over forty percent of the workforce in California.

A legislative proposal currently underway in California, Senate Bill 1166, by Senator Hannah-Beth Jackson, would help ensure more mothers can go back to their jobs after taking up to 12 weeks of baby bonding leave, by extending job-protection to parents who work for smaller companies.  The reality is, almost half of the workforce is now women and mothers and fathers are sharing in financial and childcare responsibilities.  Without job-protection for new parents, mothers are usually the ones who are forced out of the job market when they would otherwise choose to return after an extended period of leave.

Many other states have already expanded their family leave laws to provide more parents with job-protection when out on leave.  Most recently, New York signed a bill that provided paid family leave benefits with job protection for nearly all workers in the state, regardless of the size of their employer.  In Washington DC, all employees have 16 weeks of job-protected leave.  In Maine, workers at companies with 15 or more employees have 10 weeks of job-protected leave; Massachusetts provides 8 weeks of job-protected leave for workers at companies with 6 or more employees; Minnesota offers 6 weeks of job-protected leave for workers at companies with 21 or employees; and Oregon provides 12 weeks of job-protected leave for workers at companies with 25 or more employees.

Opponents of SB 1166 argue that the proposed measure would “kill jobs” and “unduly burdens and increases costs of small employers.” These fear-based, sky-will-fall arguments have no basis.  In 2004, the National Federation of Independent Business conducted a poll of small businesses that contradicts the “undue burden” narrative.  The average number of requests for leave is only one per year.  Two-thirds of the small businesses did not receive a request for leave at all in the prior three years.  When asked about the principal problem caused by the employee’s absence, the most frequent response was “no real problems.”  A 2012 national survey of employers conducted by the Department of Labor also found that small employers were less likely to report problems with family leave than were large employers and that fewer than 10 percent of employers reported problems with productivity, absenteeism, turnover, profitability, career advancement, or morale because of family leave.

At last month’s bill signing ceremony raising California’s minimum wage, President pro Tem Kevin de León said, “When it comes to taking care of working families, mark my words, California leads the nation…the rest of the country looks toward California for leadership on this issue.”  It’s time for California to make good on its promise to working families – to provide not just higher paid leave benefits, but an assurance that their job will be there when they need it the most.

In addition to signing your Mother’s Day cards today, please sign this petition in support of SB 1166, because no mother in this state should have to choose between caring for a child and keeping a job.

What we can learn from the U.S. women’s soccer team this Equal Pay Day

What we can learn from the U.S. women's soccer team this Equal Pay Day
Leroux

U.S. soccer fan and cutout of U.S. national team player, Sydney Leroux, at the Women’s World Cup Final in 2015.

The U.S. Women’s National Soccer team recently became the (familiar) faces of the problem of women being paid less than men for the same work.  Last month, Hope Solo, Carli Lloyd, Becky Sauerbrunn, Alex Morgan, and Megan Rapinoe filed a complaint with the Equal Employment Opportunity Commission saying that the U.S. Soccer Foundation pays the women far less than its male players.  While inequalities in the treatment of female athletes are legion—recall the controversy about the women’s team being forced to play on artificial turf, the recent offensive comments about women’s tennis, and ESPN’s failure to include the women’s basketball bracket in its app— there has been less attention focused on pay disparities.  When we talk about female athletes’ pay, the usual excuse for paying women less is that they generate less revenue.  Yet the women’s soccer team generated $20 million more in revenue than the men, but are paid four times less.  The women’s team has been far more successful than the men’s team, including winning three World Cup championships, but still struggle for fair and equal pay.

Unequal pay is a problem for all women, and has real financial consequences.  Indeed, one study found the gender pay gap begins even with the unequal allowance boys and girls are given for household chores.  Melinda Gates recently pointed out the additional burden on women around the world of unpaid additional household work.  The annual cost of the gender pay gap is $9 trillion dollars — dragging down the entire global economy.

On April 12, 2016, we observe Equal Pay Day (now in its twentieth year).   Equal Pay Day symbolizes how many days into the next year women have to work to make what men earned in the prior year.  Unfortunately, we likely will be observing Equal Pay Day until 2059 — the estimated date we can expect to close the gender pay gap.  Equal Pay Day falls at different points in the calendar for women of color who experience a more egregious wage gap than do white women (as compared to all men and/or white men).  The federal Equal Pay Act has been on the books for more than 50 years.  Yet every year, women are deprived of valuable economic and tangible benefits of their hard work.

Pay disparities exist in all sorts of jobs where women and men perform the same work.  For example, female pilots are paid 16 percent less than male pilots and women who are chefs earn 28.1 percent less than male chefs.  In the tech industry, women are experiencing a significant pay gap with women in Silicon Valley earning on average just 49 cents for a man’s dollar.  The cause of the gender pay gap goes beyond factors like education and choice of profession.  As much as 40 percent of the gender pay gap is unexplained by such measurable factors.  When women enter a male dominated profession, pay begins to decrease.

This year, a stronger equal pay law went into effect in California.  The law should ensure that women who perform substantially similar work to men receive the same pay.  For example, one caller to the Legal Aid Society-Employment Law Center explained that the job of cleaning up fire- or water-damaged homes is sometimes gender-segregated with women receiving less pay. Given that the work is so similar, it is likely that under the California Fair Pay Act, women cleaners should be paid the same as men.  However, one big problem is that women often do not know how much men in similar jobs are being paid.  The new California law enhances protections for workers who talk about their pay (or ask about the pay of others).  Once a California worker does know about a pay disparity, it will be up to the employer to prove it was based on a factor other than sex and that it explains the entire wage difference.

Ending the gender pay gap calls for action on many fronts.  The Equal Pay Today Campaign (of which LAS-ELC is a member) has called for five specific changes — ending job segregation, stopping wage theft, eliminating retaliation for discussing wages, stopping pay disparities as a result of parenting and caregiving responsibilities, and changing the disparities in pay in promotions for women performing the same job as men.  Another recently proposed piece of legislation in California (CELA-sponsored) would prohibit employers from using a new employee’s prior salary to base salary decisions in order to begin to break the cycle of persistent pay discrimination for women.

As we observe Equal Pay Day and anticipate the U.S. women’s soccer team’s appearance at the summer Olympics in Brazil this summer, we hope to recognize the amazing contributions made by women throughout the world that finally deserve equal recognition through ending the gender pay gap – because it’s 2016!

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.

State Bar President and California Bar Associations Call on President and Senate to Heed the Constitution and Fill SCOTUS Vacancy

State Bar President and California Bar Associations Call on President and Senate to Heed the Constitution and Fill SCOTUS Vacancy

 

Today, bar associations from across the state of California sent a letter to President Barack Obama and Senate leaders urging them to heed their constitutional duty to fill the vacancy on the Supreme Court. The bar associations, representing more than 30,000 lawyers throughout the state, called on the president to quickly nominate a qualified candidate to the Supreme Court, and for the Senate to consider that nominee without delay. The effort, spearheaded by the California Employment Lawyers Association, brings together the Los Angeles County Bar Association, the Alameda County Bar Association, the Lake County Bar Association, the Yolo County Bar Association and more than a dozen other statewide and local bar associations.  California State Bar President David Pasternak also signed on to the letter in his individual capacity.

Within hours of Justice Antonin Scalia’s death, Senate Republican leaders stated that they would refuse to even consider the president’s nominee. Nearly a month later, Senate Republican leaders have held firm to the position that they will refuse to hold hearings or a floor vote for any nominee put forward by this president. With few exceptions, Senate Republicans support this position.

“The implications of this course of action would be significant, subjecting people in different regions of the country to different legal standards on matters of constitutional importance and leaving open the specter of an unresolved constitutional crisis,” the letter warns.

“[T]he framers placed in the hands of the executive and legislative branches of our government a duty to ensure that the third pillar of our democracy, our courts, would be protected from entanglement in partisan politics,” the letter explains.  “While careful evaluation and reasoned debate regarding the qualifications of the nominee are central to the Senate’s role to advise and consent, it would undermine the rule of law and risk nullifying the Supreme Court’s power to serve its constitutional role as arbiter of disputes, were the confirmation process to be delayed until a new president is inaugurated.”

Bar associations representing the two most populous cities in the United States have now called on the Senate to consider a nominee to the Supreme Court without delay. The letter, sent today, comes on the heels of similar calls by the New York State and New York City Bars respectfully requesting the Senate to reconsider its refusal to consider a nominee put forward by the president.  Constitutional law scholars at universities around the country have also weighed in via a joint statement, pointing out that the Constitution “has no exception for election years.”

The letter signed by the California bar associations does not mince words. “We ask that you carry out your constitutionally prescribed roles with full fealty to the oaths you have taken so that our Supreme Court is returned to its full membership,” the signers write.

Jean Hyams

About Jean Hyams

Jean K. Hyams is a founding partner of Levy Vinick Burrell Hyams LLP, a Bay Area boutique law firm focused on representing employees in employment disputes. She left a career as a manager in high-tech companies to pursue her dream of becoming a civil rights lawyer. She has been named by Northern California Super Lawyers as one of the Top 50 Women Lawyers in Northern California for the past five years and her firm has been rated one of the Best Law Firms (Tier 1 – Employment Law) by U.S. News and World Report. After almost a quarter-century in practice, she now also serves as a court-appointed and private mediator of employment disputes. Jean is Co-Chair of the CELA VOICE.

Why California needs stronger parental leave policies

Why California needs stronger parental leave policies

By Menaka Fernando

At first glance, a cultural shift appears to be occurring in the country when it comes to parental leave. In the past year, companies like Facebook, Microsoft, Accenture and Netflix have instituted generous paid parental leave policies that give parents the ability to take time off from work to bond with a new child. However, while paid parental leave may be becoming more accessible to high-wage earning professionals, it remains impossibly out of reach for many workers who risk losing their job if they take any time off after having a new child.  It’s worth noting that Netflix’s parental leave policy glaringly excluded low-wage workers from its benefits.

Last week, Senator Hannah-Beth Jackson (D-Santa Barbara) unveiled a new legislative proposal that would dramatically improve access to parental leave for all California workers by addressing one of its biggest barriers — job protection.

The reality is the patchwork of existing protections for workers who need to take parental leave are woefully inadequate. The California Family Rights Act and the federal Family and Medical Leave Act provide 12 weeks of unpaid leave and job protection, but these laws only cover employees who work for larger companies with 50 or more employees. This leaves over 40% of California’s workforce ineligible for job-protected leave because their employer is too small.

Because nearly half of the workforce is not covered by our family leave laws, employers can punish workers for taking time off to care for a new child.  As a workers’ rights advocate, I often hear stories of employees – particularly low-wage earners – whose careers are slow-tracked, whose hours are restricted, or who are simply fired for taking or even requesting family leave.

Even more troubling is that workers without job protection are unable to take advantage of the state’s Paid Family Leave (PFL) program, which provides partial wage replacement benefits for those who take family leave. Studies have shown that low-wage workers who qualify for these benefits often cannot use them even though they pay into the program.  A 2011 Center for Economic and Policy Research study of the PFL program showed that the ability to use parental leave is far greater for salaried employees (mainly managers and professionals) and high earners (those earning over $20 per hour plus employer health insurance) than for those in hourly and low-quality jobs.

In the same study, 37% of respondents expressed concern that if they took PFL, their employer would be unhappy, their opportunities for advancement would be affected, or they might simply be fired. At a time when financial security and healthcare coverage are so important, the risk of losing one’s job to take leave to care for a new child is simply a risk that many new parents cannot afford to take.

Senator Jackson’s bill would alleviate that risk by extending parental leave rights for new parents (including domestic partners and adoptive or foster parents) who work for employers with 5 or more employees.

The need for expanded and equitable access to parental leave in the state cannot be understated.  The benefits of parental leave on the health and welfare of the economy and our state’s working families have been well-documented.  Research shows that paid family leave, particularly when there is job protection, increased new mothers’ wage growth and future employment rates.  Fathers who take parental leave are more engaged with their newborns, promoting greater gender equity at home and at work. In addition, evidence strongly suggests that children enjoy many short- and long-term benefits from parental leave including better health and  higher high school graduation rates.

While it is encouraging that good corporate policy is pushing the conversation on parental leave forward, it’s time for the Legislature to act. The protections of Senator Jackson’s bill will help ensure the physical, psychological, and economic health of all of California’s working families, and not just Silicon Valley executives.

Menaka Fernando is an associate attorney at Outten & Golden LLP, where she represents individual employees in litigation and negotiation, and a member of the California Employment Lawyers Association.

CELA VOICE Guest Blogger

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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.”

 

image005

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.

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