Workplace flexibility is good for everyone

By Elizabeth Kristen

David Chiu, President of the San Francisco Board of Supervisors, recently introduced innovative legislation to help working families.

Titled the Family Friendly Workplace Ordinance, the bill would allow employees to ask for modifications at work to better accommodate their family caregiving responsibilities without fear of retaliation or other negative job consequences.  The bill was originally to be placed on the ballot but now will be regular legislation as it has garnered the support from San Francisco Mayor Ed Lee.

If enacted, the new law would provide employees at companies with 20 or more workers with the right to request modifications at work, such as a later start time or a predictable work schedule to assist with family caregiving, and requires that the employer engage in a conversation about the request. The employer is not required to grant the request if it has a good faith business reason, and if it does grant it, can later revoke it.

A recent caller to Legal Aid Society-Employment Law Center’s work and family helpline from San Francisco was trying to navigate care for her newborn when she returned to work – her baby was 2 months old.  She tried to work with her employer so that one day a week she could leave earlier than she had in the past.  She offered to stay later a different day to make it up, but her employer flatly refused and she felt crushed that they would not work with her so that she could manage childcare for her infant.

Unfortunately, her story is all too common.  Workers who need more flexible work schedules (or more predictable work hours) to attend to caring for ill or elderly parents also would benefit from this law.  Another helpline caller whose mother had been diagnosed with Alzheimers asked her employer to change her shift so she could arrange for her mother’s care.  The employer refused, without even considering whether this was feasible for the company.

As Professor Catherine Albiston, professor of law and sociology at U.C. Berkeley, recently explained, without legal protections workers who ask for flexibility are stigmatized, passed over for promotions, paid less, or seen as less committed to the job.  Because women have traditionally borne most of the responsibility for family caregiving tasks, the burden of such negative workplace consequences has fallen more heavily on women.

A study of a similar law in the UK found that businesses also benefitted from workplace flexibility.  In fact, “70 percent of employers surveyed said flexibility helped recruit better workers and kept employees engaged and motivated.”

Supervisor Chiu noted that “The experience in other countries has been extremely positive. In Britain in the first year after this law passed, one million parents requested flexible working arrangements. Nearly all of these requests were granted with little opposition by employers.”

The legislation is an important first step toward making workplaces better for everyone with family or caregiving responsibilities. Some have also argued that the bill will help San Francisco stop the flight of families out of the city.  San Francisco has the lowest percentage of children (13.5%) of any major city in the country and legislation like the Chiu ordinance may help keep families with children in San Francisco.

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 at Work.  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. Legal Aid at Work together with the California Women’s Law Center and Equal Rights Advocates make up the California Fair Pay Collaborative dedicated to engaging and informing Californians about fair pay issues.

Iowa Supreme Court re-affirms statutory right of jittery, insecure spouses to interfere in the workplace 2

Iowa Supreme Court re-affirms statutory right of jittery, insecure spouses to interfere in the workplace

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By Curt Surls

Imagine the pilot episode of a revival of the 1970’s situation comedy “The Mary Tyler Moore Show.”  It is July 2013.  After a painful break-up with her fiancé, 30-year-old Mary Richards relocates to Des Moines, Iowa, to start a new life.

Mary interviews for a secretarial position at a local television station with Executive Producer Lou Grant.  Lou is an overweight, balding, married father of three grown daughters.  Lou offers Mary an associate producer position, reporting directly to him.  Lou’s wife Edie is threatened by the presence of an attractive, young woman in the workplace.  Edie demands that Mary be fired immediately.  Lou admits that he is attracted to Mary, even though their workplace relationship has been strictly professional.  Lou fires Mary.  He replaces her with Rhoda.  In Iowa in 2013, Mary has no legal recourse.

This month, the Iowa Supreme Court reaffirmed its controversial December 2012 decision holding that a fifty-something Fort Dodge, Iowa dentist acted legally when he fired his 32-year-old dental assistant for being too attractive.  Although the dental assistant had shown no interest in her married boss, both the dentist and his wife feared that he would be powerless to resist her charms.  In a decision insulting to both major genders, the Court reasoned that the firing did not constitute gender discrimination because it was not “because of sex.”  Instead, the Court reasoned, it was motivated by the dentist’s feelings of attraction for a specific person (I suppose you could call it “because of sexy”).

The latest version of the case, Melissa Nelson v. James H. Knight, DDS, P.C. can be read in full here.

Here is the official photo of the Justices of the Iowa Supreme Court.  See if you can spot what they all have in common.

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Melissa Nelson was only 20 when she was hired by Dr. James H. Knight as a dental assistant.  For ten years, she was an exemplary employee.  She regarded her boss as a “father figure.”  Dr. Knight, on the other hand, found himself growing increasingly attracted to his young assistant.   In 2009, Dr. Knight’s wife insisted that her husband’s unilateral attraction to Ms. Nelson was a threat to their marriage.  Dr. Knight and his wife consulted with the senior pastor of their church, who blessed the decision to terminate Ms. Nelson.   Ms. Nelson sued for gender discrimination.  The trial court and the Supreme Court of the State of Iowa agreed with the Knights — and their pastor–and held that firing Ms. Nelson for being a potential threat to Dr. Knight’s marriage did not constitute illegal gender discrimination.

The Court’s original decision in late 2012 was greeted with outrage and ridicule.  In June 2013, the court withdrew its opinion and agreed to reconsider the matter, giving rise to the hope that they had seen the light and would permit the case to go to trial.  Those hopes were dashed when the Court reaffirmed its position that there is a difference between an employment decision based on personal feelings towards an individual and a decision based on gender itself.  “In the former case, the decision is driven entirely by individual feelings and emotions regarding a specific person,” stated the opinion’s author, Justice Edward M. Mansfield (he’s the one in the back row, far left).  “Such a decision is not gender-based, nor is it based on factors that might be a proxy for gender.”

Wait a minute, argued Ms. Nelson’s attorneys and reasonable people everywhere.  Of course it was “because of sex.”  If she were not female, she wouldn’t be in danger of involuntarily attracting the unwanted attention of her heterosexual male boss.  If it is illegal to sexually harass an employee, why should an employer escape liability for firing an employee out of fear that he was just about to harass her.  Under this logic, even an employee who spurns the sexual advances of her supervisor is vulnerable to dismissal under a fabricated “my wife made me fire you to save our marriage” defense.

But back to Mary Richards.  In the eponymous spin-off series “Lou Grant,” Lou found a job as a newspaper editor for the fictitious Los Angeles Tribune.   What if he re-hired Mary?  Could Edie get her fired again in California?  Not likely.

The Iowa Supreme Court was interpreting Iowa law and federal law from the United States Court of Appeals for the Eighth Circuit.   The Court relied heavily on 8th Circuit precedent holding that sexual favoritism is, in essence, a private matter between the parties that doesn’t warrant regulation as gender discrimination.  California state law takes a broader view of the impact of sexual favoritism on the workplace environment.  Our Supreme Court has recognized that sexual favoritism is not merely a private matter.  Instead, favoritism can create an atmosphere demeaning to women, giving rise to claims of a hostile work environment by both men and women.  California courts are, therefore, likely to view conduct such as Dr. Knight’s in the broader context, and find a termination under similar circumstances in California to be discriminatory.

And besides.  Why would Lou even listen to Edie?  They got divorced after the third season of “The Mary Tyler Moore Show,” and Edie promptly remarried.  You can watch the wedding here.

Curt Surls

About Curt Surls

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

Farm work with a serving of chlorpyrifos-methyl

Farm work with a serving of chlorpyrifos-methyl

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By Michael Marsh

Several weeks ago, I argued in this blogspace that the best reason for consumers to buy organic vegetables is to protect farmworkers and their families from pesticides. A new report from Farmworker Justice highlights how pesticides are poisoning farmworkers and what can be done about it.

I have a farmworker client, Marcelo, who exemplifies the problems mentioned in the report. He applied pesticides, many of them quite toxic to humans. He was trained by his employer in the most perfunctory fashion. Marcelo was supposedly trained to handle, mix and apply ninety-six different pesticides, each with very different properties and requirements. The training lasted one hour. Or about thirty-seven seconds for each pesticide, some of which have tongue-twister names that would be difficult to pronounce in the allotted time, such as 1,3-dichloropropene, or chlorpyrifos-methyl.

Marcelo was told that he needed to change the filters in his respirator when he could smell or taste the pesticides he was applying. Only two problems with that. First, by the time a worker can smell or taste pesticides through a respirator, it is too late. The worker is already improperly exposed to toxins. And second, Marcelo’s employer never provided him with replacement filters. Instead, he was fired for complaining about the lack of filters and other pesticide violations.

While Marcelo’s employer paid dearly for its mistreatment of him, many more farmworkers are exposed and ignored. Fortunately, recent news coverage is bringing this problem to the attention of the public, and the Environmental Protection Agency is developing more stringent regulations that should offer greater protections to farmworkers and their families.

Michael Marsh

About Michael Marsh

Michael Marsh is Directing Attorney of the Salinas office of California Rural Legal Assistance, Inc. His practice focuses on working with farmworkers to improve the quality of their working lives.

Gaming the system: If you can’t beat ‘em, change the rules 2

Gaming the system: If you can’t beat ‘em, change the rules

By Wendy Musell

A basic premise in our American justice system is that everyone should have to play by the same rule book, and the rules should not be rigged so that one side wins. These basic rules of fairness are being put to the test by the proposed changes to the federal rules of civil procedure.

The federal rules of civil procedure — just the name sounds boring and designed to put you to sleep. But while you’re dozing, there is a plan afoot — driven by attorneys representing employer interests — to change the rules in every federal courtroom across the country to limit access to evidence necessary to prove up violations of your civil rights. How? By drastically limiting discovery — the process by which civil litigants can get access to the other sides’ evidence, documents and witnesses.

Employment, civil rights and consumer cases, unlike contests between large business interests, are fights—where one side has more money, more time to kill, and often controls the evidence, documents and witnesses. Witnesses in employment civil rights cases are most often the supervisors who perpetrated the unlawful conduct, human resources who may not have addressed the complaints adequately and current employees who may fear that telling the truth will result in standing on the unemployment line.

To win an employment civil rights case, the employee-side lawyer

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needs to ask a lot of questions of multiple witnesses to find out who did what, who will admit to seeing the unlawful actions, and where the documents are located. It is also necessary to find out if different and changing reasons are given for the employment actions to show the jury that the employer’s actions were based on an unlawful reason, and not a legitimate non-discriminatory reason that the employer professes.

Take for example, a woman fired after she refuses the sexual overtures of her boss on the basis that her work was not competent. If there are only five depositions allowed, the victim of sexual harassment may not be able to get to the bottom of why she was fired, demonstrate her work was competent, or be able to demonstrate that she was fired because she would not give in to her boss and not based upon the quality of her work.

The employer can hide the ball until all five depositions are used up in a game of “gotcha.”After all, employees are often prohibited from taking emails and documents, no matter how important the document is to proving the employer violated the law. And they are shut out from their former employer’s computer system after they no longer work for the company, One of the only ways for a person whose civil rights were violated by their former employer to prove their case is by asking for the evidence about what happened, a process that is governed by the rules of civil procedure.

The proposed new rules slash in half the number of permissible depositions, limit the number of document requests, and limit how many written questions can be asked. These changes are akin to telling David, go ahead and fight Goliath, but we will tie one hand behind your back and only give you only half a slingshot.

The only way to ensure there is any place for employees to seek redress for violations of their civil rights , is to allow adequate access to evidence. Otherwise, we might as well be honest to American workers and tell them the rules have changed. And the number one rule is — you lose.

Wendy Musell

About Wendy Musell

Wendy Musell is a partner at the civil rights law firm Stewart & Musell, LLP, a bi-coastal law firm located in San Francisco, California, and Freehold, New Jersey. Since 1999, Ms. Musell has specialized in employment discrimination and disability cases, including individual and class action cases in both state and federal court. Ms. Musell has received multiple awards for her representation of clients who are HIV positive. Cases that Stewart & Musell, LLP has prosecuted on behalf of employees has been featured widely in the news and in print media, including ABC, NBC, CBS, Fox Network and the Wall Street Journal.

ENDA: Is there an end to LGBT employment discrimination? 1

ENDA: Is there an end to LGBT employment discrimination?

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By Anne Richardson

At present, employers in 29 states are legally allowed to fire an employee for being lesbian, gay, or bisexual. In 33 states they can fire a transsexual employee based only on gender identity without fear of repercussion. At the same time, 37.7% of ‘out’ LGBT employees report being discriminated against at work, and 9% reported losing a job because of their orientation. Though federal laws forbid workplace discrimination based on race, religion, sex, age, national origin or disability, no such protections exist for LGBT workers nationwide.

The extent of discrimination against LGBT workers was chronicled in A Broken Bargain, a recent report from the Center for American Progress, Human Rights Campaign Fund and Movement Advancement Project.  These organizations, along with many others are calling for Congress to pass the Employment Non-Discrimination Act of 2013 (ENDA – SB 815).

This week, the Senate Health, Education, Labor, and Pensions Committee passed ENDA out of committee.  If it goes on to become law, ENDA will extend to gay, lesbian, bisexual and transgender employees the same workplace protections guaranteed to other groups. Specifically, it would forbid discrimination “because of such individual’s actual or perceived sexual orientation or gender identity.”

A story on the blog Policymic titled 5 People Who Were Fired for Being Gay, and the 29 States Where That is Still Legal, profiles a lesbian soccer coach in Tennessee, a management analyst with the Library of Congress, and others who have faced employment discrimination because of their LGBT status.

Many feel the time has come for Congress to pass ENDA, including groups like the Human Rights Campaign Fund that are calling for public action.  Without ENDA, LGBT workers around the country will continue to endure workplace discrimination and be excluded from the promise of a free and fair workplace for all Americans.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

Italian Colors decision shows Supreme Court’s true colors on arbitration agreements

By Anne Richardson

Many people don’t realize that when they start working at a new company the papers they sign often contain agreements to give up their right to go to court if their rights are violated.  Too often, it is only when a company has fired that worker, refused to pay her overtime, or subjected her to harassment that a person turns to a lawyer and discovers that the employment dispute will be decided by an arbitrator, not a judge or a jury.

Even if the prospective employee reads and understands that what they are signing requires them to arbitrate, their “agreement” is hardly a voluntary one — most employees are powerless to alter the terms of an employment agreement.  For many, the need to pay bills outweighs the concern that someday that employee may have a dispute with the employer.

The downsides of arbitration to employees and consumers are many.  Employers and large corporations are more likely to be “repeat players” in arbitration, and it is well known that arbitrators tend over time to become partial to those that employ them regularly.  In addition, an arbitrator who does provide a large judgment to an employee is subject to being blackballed by the employers who may refuse to agree to use that arbitrator in the future.  According to a 2007 survey conducted by the non-profit Public Citizen, consumers had lost more than 94 percent of cases handled by the debt collection arbitrator National Arbitration Forum.  The Supreme Court’s June 20 decision in American Express Co. v. Italian Colors Restaurant continues an aggressive run of cases by this Court that take the side of big business against the little guy.  In Italian Colors, owners of a small restaurant tried to challenge an arbitration agreement that was forced upon them by American Express.  The restaurant owners claimed that American Express violated federal antitrust laws that affected small businesses as a class, but the arbitration agreement prohibited any class action claims.

Unfortunately, the restaurant’s individual claim was only worth $38,549.  The cost of arbitrating the case was estimated to be between $100,000 and $1,000,000.  Unless the restaurant could bring a class action, there was no way it could recover its loss.  The restaurants argued that the class action prohibition in the arbitration agreement prevented the enforcement of federal antitrust laws.

Justice Scalia, writing for the majority, upheld the class action prohibition in the arbitration agreement.  In her sharply worded dissent, Justice Kagan called the decision a “betrayal of our precedents,” wherein “[t]he monopolist gets to use its monopoly power to insist on a contract effectively depriving its victims of all legal recourse.”

Employee arbitration agreements may still be challenged on grounds that they are unconscionable if the employee was forced to accept the agreement and the terms of the agreement are overly harsh or one-sided in some respect, then the arbitration agreement will not be upheld.

But the Italian Colors case demonstrates that the Federal Arbitration Act, which was passed in 1925, needs to be amended.  Congress must respond to the Supreme Court’s extreme interpretation, which threatens to undermine important legislation protecting consumers, employees and other vulnerable citizens.

Anne Richardson

About Anne Richardson

Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.

“The Pursuit of Happiness” – an Independence Day reflection on San Francisco’s LGBT Pride Parade

“The Pursuit of Happiness” – an Independence Day reflection on San Francisco’s LGBT Pride Parade

By Charlotte Fishman

Over one million people attended the San Francisco Pride Parade last Sunday, and I was one of them.  Having just returned from attending the National Employment Lawyers Association Summit for Worker’s Rights in Denver, I got caught up in the excitement of my daughter and her high school friends as they prepared to leave for their trip to the City.

Four days earlier, the United States Supreme Court had announced two long-awaited decisions affecting same sex marriage – Hollingsworth v. Perry leaving intact the California Supreme Court’s decision to strike down Proposition 8, and United States v. Windsor,  declaring Section 3 of the Orwellian-titled Defense of Marriage Act [“DOMA”]  an unconstitutional denial of equal protection of more than one thousand federal laws affecting marital or spousal status.  Justice Kennedy’s majority opinion in Windsor did not mince words:  “DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.”

After waving goodbye to the kids, we parents rapidly made a decision:  a beautiful day, a historic occasion—how could we miss it?!  As soon as we reached the BART platform, we were surrounded by riders in rainbow-hued tights, tutus, face paint, headgear, and jewelry.  As we rode from station to station, the train filled to bursting with riders of every age, race, and family circumstance – gaggles of glittery teenage girls, two-mom families with preschoolers, heterosexual couples with costumed babies, pierced bike riders, and elderly same-sex couples sporting rainbow beads. It felt like half the population of the East Bay was traveling to the Pride celebration.

Despite my understanding the legal and historical importance of the Windsor decision, I was still unprepared for its emotional impact on the crowd.  Parade participants weren’t just celebrating California’s legal right to marry – they were bearing witness to society’s validation of individual choices and family ties.  Float after float, sponsored by Google, Kaiser and other large mainstream institutions, rode down Market Street accompanied by waving employees who were embraced by the cheering crowd. “All love is equal!” chanted marchers bearing equality signs in all the colors of the rainbow.  Market Street was vibrating with a palpable sense of pride, joy, gratitude – and relief.

The founders of this country wisely named “the pursuit of happiness” as one of the inalienable rights of mankind. My experience at the Pride Parade last Sunday brought me a deeper appreciation for that foundational principle, and for the efforts of those who work every day to extend the blessing of this social contract to the hopes, dreams and pursuits of all our citizens.

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.

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