Filner went out with a bang 6

Filner went out with a bang

By Nicole Heeder

This is San Diego Mayor Bob Filner’s last week in office.  For the last 2 months, we have endured ubiquitous news coverage after 18 courageous women came forth to tell their stories of humiliating sexual harassment, literally, at the hands of Bob Filner.  These accounts brought to light the Mayor’s affinity for subjecting his employees and female colleagues to his abusive conduct, including persistent verbal sexual assaults, unwanted kissing, and groping, and what has been coined the Filner Headlock. After 3 days of mediation, 1 week of intensive therapy, and no end in sight, the nation welcomed Filner’s resignation.

Everyone tuned in to witness Filner’s parting words, certain that he would sincerely apologize to the many women he had intimidated and disenfranchised throughout his short term of office. Instead, he denied sexually harassing anyone, stating that his intention was not to offend or violate but to “establish personal relationships.” As it turned out, amidst a barrage of self-serving “explanations,” the most authentic part of Filner’s resignation speech was the admission that his conduct was a “combination of awkwardness and hubris.”   In ancient Greece, hubris referred to actions that shamed and humiliated the victim for the pleasure of the abuser. Even after his “rehabilitation,” Filner doesn’t know what sexual harassment is, but his comment about hubris was right on the money.

More often than not, sexual harassment is about abuse of power, not sexual desire. Last week, in a progressive step toward increasing protection for employees, Governor Jerry Brown signed off on SB 292, overturning Kelly v. The Conco Companies, clarifying that sexual harassment need not be motivated by sexual desire to be unlawful conduct under the California Fair Employment and Housing Act.

In Kelly v. The Conco Companies, a male employee was subjected to demeaning sexual comments and gestures by his male supervisor and then physically attacked and retaliated against when he complained. The  Kelly decision misconstrued the Fair Employment and Housing Act, when it held that sexual harassment must be motivated by sexual desire. By this logic, you could intimidate your co-worker with sexual innuendo and profanity day after day but if you did not desire to have sex with her, then you would not be guilty of sexual harassment.

SB 292 reaffirms existing California law, which recognizes that sexual harassment is not always about sex.  Indeed, it is frequently about the abuse of authority, dominance and self-gratification. Whenever people hear about women (or men) who have been continuously sexually harassed in the workplace, the first question asked is almost always, “why did she put up with it for so long?”  The answer, of course, is abuse of power. When a victim does not immediately come forward to complain, it doesn’t mean that the victim enjoyed what was happening or that the harassment was welcome. Perhaps they are ashamed.  Women harassment victims may feel the need to keep it to themselves to avoid the innuendo that it was somehow their fault.  Men harassment victims may be embarrassed of how others will react when hearing that he “let this happen.”  More often than not, it is the result of an intimidated victim in fear of getting fired and being unable to support themselves and their families.

When Filner came into office, I am certain that he wanted to set an example during his term. It just so happens that in his short reign, he did. Although unintended, the example worth learning is that the balance of power can shift. After his “inspiring” resignation speech, yet another woman, moved by the strength of the others, stepped forward to speak out against Filner. These 19 women were all subjected to harassment by a man who thought he was invincible. Thanks to them, he was wrong.  Now, with the signing of SB 292, the State of California has reaffirmed its commitment to protecting workers from sexual harassment, whatever the motivation of the perpetrator.

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.

Devastating consequences to working moms and infants when employers violate the law

Devastating consequences to working moms and infants when employers violate the law

By Sarah Schlehr

California law has the back of new and expectant mothers who need workplace accommodations during pregnancy or time and space to breastfeed after giving birth.  By following the laws, employers protect the moms-to-be and babies. Unfortunately, when employers disregard their legal obligations, the consequences for women and their babies can be huge – premature delivery, back injuries, undernourished babies, even stress-related miscarriage.

A recent article in the Huffington Post exemplifies the suffering one employee experienced when Albertson’s failed to accommodate her most basic requests for accommodations: she delivered prematurely and her newborn died.  In a recent blog post detailing this tragic case, the public interest law firm, Public Justice, calls for action at the federal level to extend the types of protections available under California law across the nation.  Blogger and Public Justice staff attorney Claire Prestel touts the recommendations of an important recent report by the National Women’s Law Center and A Better Balance

So here’s a newsflash that shouldn’t be news to anyone: More and more pregnant women are working, working closer to their due dates, and providing essential income and benefits for their families. This means that if we are going to get serious about restoring the middle class, part of our effort must go to protecting these women so they can support their families. The NWLC/ABB report outlines concrete steps that can and should be taken right now, including guidance the EEOC can issue without presidential or congressional action.

Another recent blog post from Public Justice senior attorney Victoria Ni, The Facts of Life, describes the long struggle women have experienced to secure their right to breastfeed their babies while supporting their families by working.  In California, the law was amended this year to ensure that discrimination based on sex specifically included breastfeeding.  Despite this, many women continue to experience difficulties trying to pump breast milk during work hours.  Unfortunately, even a day or two of interrupted pumping can have significant and ongoing effects on a mother’s ability to breastfeed their newborn.  While certainly not as extreme as the death of a newborn, the inability to supply one’s child with breast milk can have serious long-term effects on the health of one’s baby.

Often the accommodations female employees need are as simple and obvious as not requiring a pregnant woman to lift heavy items or to allow a woman with gestational diabetes the ability to eat regular snacks during work so her blood sugar can remain stable.  For women who wish to breastfeed, the accommodation is usually as straightforward as providing them with a private space (not a bathroom stall) and time to pump breast milk.

In view of how long and hard employees had to fight to establish these reasonable and simple laws, it should perhaps not come as a surprise that employers continue to fight long and hard to resist following them.  But resistance to change does not justify the serious consequences to women and the long-term harms suffered by infants, all of which can be prevented in California through enforcement of the legal protections.

Sarah Schlehr

About Sarah Schlehr

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

EEOC loses battle (but not war) on discriminatory background checks 2

EEOC loses battle (but not war) on discriminatory background checks

By Christian Schreiber

When it dismissed a federal lawsuit last week, the U.S. District Court for Maryland made it even harder for workers with poor credit histories and past criminal convictions to find a job.  Civil rights advocates hope the decision is not a bellwether for similar cases pending around the country.

The lawsuit, brought by the federal Equal Employment Opportunity Commission, charged Freeman, a privately-held event-management company, with violating Title VII of the Civil Rights Act through its use of credit and criminal background checks.  According  the EEOC’s complaint, the employer’s decision to use background checks to screen out job applicants amounted to discrimination because it disproportionately impacted African-American and male job applicants. These views are being echoed in recent posts by John Nicasio on multiple news outlets. This has attracted much needed attention to an otherwise no so popular topic.

Freeman’s hiring process involved detailed inquiries into both the applicant’s credit histories and criminal backgrounds.  Freeman “regularly ran credit checks for 44 job titles,” and excluded all applicants from certain positions who met any of 12 different categories of purported credit-unworthiness.  Even common credit blemishes, such as credit card charge-offs, medical liens, unpaid student loans, or foreclosures would result in the applicant being rejected.

The Freeman court joined the chorus of employers extolling what some consider the “common sense” of performing credit and criminal background checks.    These proponents also ignore the studies demonstrating that credit problems do not predict employee performance, as well as those that document atrocious error rates on credit checks.   A report released by the Federal Trade Commission earlier this year found that a quarter of consumers identified errors on their credit report that might affect their credit scores.

In 2011, California limited the use of credit checks in employment.  After three prior attempts were vetoed by Governor Schwarzenegger, the bill was itself an object lesson in persistence.  However, the law also established broad exceptions to the “prohibition” on employment-related credit checks, effectively blessing their use across jobs and industries where the need or utility has never been demonstrated.

In addition to the credit-check hurdle, Freeman’s standard employment application form asked, “Have you ever pleaded guilty to, or been convicted of, a criminal offense?”  Applicants were told certain convictions would not be considered in the hiring process (yeah, right), but the company acknowledged a “bright-line rule” that disqualified any applicant who “failed to disclose a conviction, seriously misrepresented the circumstances of a criminal offense, or made any other materially dishonest statement on the application.”

In June, the EEOC filed two similar complaints against Dollar General Corp and BMW, alleging that the companies’ use of criminal background checks resulted in a disparate impact against African-American job applicants.  Referred to as “disparate impact” cases, these types of challenges stand or fall on the persuasiveness of the parties’ statistical evidence.  In the EEOC v. Freeman case, the court let loose on the EEOC’s expert, excoriating his methodology and ultimately calling his findings “an egregious example of scientific dishonesty.” (Ouch.)  Though it may be possible to blunt the impact of Freeman simply by putting on better statistical evidence, the decision nonetheless entrenches practical misconceptions and legal standards that are hostile to workers.

These cases are being watched closely by consumer and civil rights advocates, who still hold out hope that the EEOC’s oversight of these employment policies will curtail the increasing use of background checks to screen out applicants.   Advocates hope Freeman doesn’t signal that more bad news lies ahead.

Christian Schreiber

About Christian Schreiber

Christian Schreiber is a partner at Chavez & Gertler, where he works primarily on class actions involving employment and consumer rights, civil rights, and financial services matters.

Subsidizing our food supply on the backs of the working class

By Afshin Mozaffari

The fast-food workers’ protests for higher wages last month triggered a national debate about workers’ compensation, price of food, and the role of the statutory minimum wage.  Thousands of fast-food workers have been holding one-day strikes from New York to several Midwestern cities, demanding $15 an hour – more than twice the federal minimum wage.

The federal minimum wage rate has been in effect since 1938 and is part of the Fair Labor Standard Act (“FLSA”), which, among other things, also set the 40-hour workweek and overtime pay.  Beginning at a rate of $0.25 in 1938, the minimum wage standard has been raised more than 20 times  to reflect cost of living increases.  The last time Congress visited this issue was as part of the Fair Minimum Wage Act of 2007, which amended FLSA to gradually raise the minimum wage from $5.15 per hour to its current rate of $7.25.  Prior to that, the minimum wage rate had not been adjusted since 1997.

These numbers do not reflect the full story. Those making minimum wage have less buying power than their peers did in the mid-1950s.  Although the federal minimum wage generally kept pace with increases in the cost of living, it began to fall behind during the 1980s. In fact, according to a recent report, the “effective minimum wage,” which is the local minimum wage rate adjusted for the cost of living, is actually $6.07 in Los Angeles and $6.27 in San Francisco. Based on the Department of Housing and Urban Development estimates of fair market rents for housing, even ignoring taxes, a minimum wage worker in Los Angeles must work 34.5 hours per week just to pay rent.  Minimum wage workers in San Francisco need to work 33.75 hours to pay rent.

Based on the federal minimum wage standards, a full time worker earns approximately $13,920 per year.  The poverty income threshold in the United States is just over $23,000 for a family of four.  In other words, a minimum wage worker holding a full time job is guaranteed to live well below the poverty line, which itself has been kept artificially low.

Some argue that minimum wage positions are filled with teenagers, who need not concern themselves with such “real life” affairs as paying rent or providing for children.  However, this position simply ignores the reality of minimum wage worker demographics today.  The median age of fast-food workers is over 28, with many trying to support their families.

Many, if not most, minimum wage workers are compelled to work multiple jobs to make ends meet.  Indeed, McDonald’s financial planning guidelines for its low-pay workforce anticipates a second, nearly full-time job as part of its “sample monthly budget” for its low wage employees.  Meanwhile, the food prices, especially in the fast-food industry, remain fairly low and fast-food companies continue to post healthy profits.  The McDonald’s Corporation, for instance, reported approximately $5.5 billion in profits in 2012. It paid its CEO $27.7 million in compensation during the same year.  With the public benefiting from a relatively cheap food supply and the corporations enjoying profits equal to small countries’ gross domestic product, it is time to ask ourselves how long are we willing to allow minimum wage workers to subsidize our food supply by working more than 70 hours per week while struggling with poverty so that our food prices remain where they are and corporate profits continue to rise.

For more information on joining the fight to help raise the minimum wage, click here.

 

Is your favorite restaurant a sweatshop?

By Kevin Kish

Last week, thousands of workers at fast-food restaurants across the U.S. walked out of work to protest low pay.  Their actions brought rare media attention to the millions of people in this country who work full-time shifts – or more – without making enough money to meet basic life needs.

But paying more at a restaurant than you would for a fast-food meal is no guarantee that workers are earning enough to live on, or even that they are earning the legal minimum wage.  The New York Times recently reported about one of my clients who was never paid overtime wages for 60-hour workweeks despite working at a Beverly Hills restaurant where a meal can cost more than $500.  For one person.

In fact, in my experience representing hundreds of restaurant workers in claims for unpaid wages in Los Angeles, there is generally no relationship between the price of a restaurant and the way the workers there are treated, including whether they are paid all of the wages they earn.  At fancy date-night spots and at neighborhood lunch counters alike, workers get paid the minimum, or not, depending on whether the owner cares about following the law.  Many don’t.  A nation-wide study from 2009 found that more than 23% of cooks, dishwashers, and food preparers were not paid minimum wage, and a whopping 70% of restaurant workers experienced overtime violations.

One reason for this is that employees often fear speaking out about unfair or illegal treatment, for good reason.  In the Beverly Hills case, my client was fired on the spot when he asked to go home after working for 9 hours with a fever, and after more than five years of service at the restaurant.

Most people care about whether other people are treated fairly in the workplace.  But in a global economy, where your shirt is made in Bangladesh and your phone is made in China, it can be difficult to feel you can make a difference.

Restaurants are a good place to start.  75% of Americans eat out at least once a week, and when we walk into a restaurant to eat, we also walk into a workplace where we can make a difference directly.  A national restaurant-worker organization, Restaurant Opportunities Centers United, has published its second-annual Diner’s Guide to Ethical Eating (also available as a free mobile app) with information about labor practices at restaurants around the country.

You can find out, for example, whether your favorite spot offers employees paid sick days, so you know your meal wasn’t prepared by someone with a fever. If it doesn’t, ask the manager or owner about it.  As consumers, we have insisted on healthier choices in restaurants, on calorie-counts and on fresh ingredients free of pesticides.  More than 10 million Americans work in restaurants.  We can also insist they get a fair shake.

Kevin Kish

About Kevin Kish

Kevin Kish is the Director of the Employment Rights Project at Bet Tzedek Legal Services in Los Angeles. He leads Bet Tzedek’s employment litigation, policy and outreach initiatives, focusing on combating illegal retaliation against low-wage workers and litigating cases involving human trafficking for forced labor.

Rape in the fields goes unpunished 1

Rape in the fields goes unpunished
Raspberry Workers in Oxnard

© Copyright CRLA, Inc.

By Michael Marsh

Recent Congressional hearings have focused much-needed attention on the problem of sexual assault against women in the U.S. armed forces. San Diegans are demanding that their mayor resign because of sexual harassment allegations. But where is the public outrage against sexual harassment and assault suffered by women who work in our fields?

To be a female farmworker today is to face the sort of sexual harassment and assault that secretaries and other female office workers faced in the 1950s and ’60s. Supervisors create and maintain hostile work environments. Sexual banter, inappropriate touching, and hostility toward women are commonplace.

As an attorney for farmworkers, I am frustrated by how little progress we have made in resolving this problem. Years ago, one of my first clients was a farmworker who suffered six months of daily comments by her supervisor about her body. On numerous occasions, he attempted to coerce her into having sex with him by threatening to fire her or have her deported. She lived in constant fear. Finally, finding her alone at the edge of a field one evening, her supervisor raped her.

Ironically, the worker, whom I’ll call Guadalupe, did not come to my office to report the sexual assault. She came with a family law question. Did she have to list the “father’s” name on the birth certificate? The assault had resulted in a pregnancy. Not knowing any of this, I congratulated her on the pregnancy. Only then did she break down in tears and explain that her supervisor had raped her. When I asked her why she had not reported the rape to me earlier, she said she was embarrassed and, in any case, did not think there was anything that could be done about it.

Little has changed. According to one report, hundreds, if not thousands, of farmworker women have been compelled to have sex with their supervisors to get or keep jobs, and many others suffer a constant barrage of sexual comments, groping, and propositions for sex. Another survey found that 90 percent of farmworker women reported that sexual harassment is a major problem in the workplace. A 2012 report by Human Rights Watch states that in most instances the perpetrators of such harassment are supervisors, foremen, and farm labor contractors.

Last year, I settled the case of a farmworker who alleged she was raped by her supervisor in a truck at the side of a field at 5 a.m. before the rest of the crew had arrived. The worker, whom I’ll call Maria, had accepted a ride from him because the company van was full.

Farmworker women endure many difficulties to support their families, and threats by farmers to call immigration authorities on some complaining workers are implicit and explicit. The power imbalance is extreme. Workers understand that supervisors have absolute power to discipline and fire workers. And farmworker women often lack information and support to challenge bad behavior.

The root of the problem is that our society has dehumanized farmworkers. When city dwellers speed by farmworkers on the highways of California, they do not see people working upright, standing on two feet, eyes focused on the horizon. They see bundles packaged against the sun and wind, hunched over as if on all fours, with eyes focused toward the ground. In short, they see animals, not human beings.

Focus groups of California registered voters organized by the Rural Community Assistance Corporation indicate that citizens understand that living and working conditions for farmworkers are extremely substandard. But these same citizens justify the conditions, arguing that farmworkers chose their own lot or, conversely, that these conditions must be an improvement from conditions in Mexico. In any case, so many farmworkers are “illegals,” so what should they expect?

We need to change society’s view of farmworkers. Schoolchildren should learn about the contributions farmworkers make to our economy and society and the problems farmworkers face. An effective media campaign—funded by the agricultural industry and the government—should be launched that educates the public and humanizes farmworkers in the public eye. And while some news organizations—such as the Center for Investigative Reporting, Univision, and PBS/Frontline—have done commendable work on the sexual harassment of farmworker women, more needs to be reported.

Laws must also be enforced.

Protection requires speed, but, right now in California, the federal Equal Employment Opportunity Commission (EEOC) takes a year or more to assign an investigator to a case and another one to three years to complete an investigation. During those long waits for justice, witnesses disappear, especially in a migrant labor market, making difficult cases nearly impossible to prove. Harassers become emboldened.

California employers are required to train supervisors about sexual harassment every two years and to give all employees information about sexual harassment every year. But many agricultural employers fail to provide any meaningful training whatsoever. In Guadalupe’s case, her employer gave workers a sexual harassment information sheet that was so poorly translated into Spanish that it stated “if you report sexual harassment to your supervisor, you will be retaliated against.”

Maria reported her attacker to the local sheriff, but most women do not report the assaults to authorities. Even when they do, it can lead nowhere. Maria’s attacker was interviewed by deputies but never charged with a crime. The silver lining was that Maria’s victimization and her cooperation with law enforcement formed the basis for her successful application for a “U” visa, which is granted by U.S. Citizenship and Immigration Services to victims of certain violent crimes who collaborate with authorities to investigate or prosecute those crimes. As knowledge of “U” visas becomes more widespread among the farmworker community, I expect that more farmworker women will come forward to report these crimes.

Our office works closely with a rape crisis organization, medical personnel, and local law enforcement. But in many areas, rape crisis organizations are non-existent or underfunded. Lawyers win settlements for victims but do little to address the underlying causes of the problem. Rural law enforcement officers are not as empathetic to the complaints of assault victims as many of their urban counterparts. All this must change.

Farmworker women may not wear our country’s uniform or carry a weapon into battle, but the work they perform is just as important. They deserve equal protection against sexual harassment and assault.

This article originally appeared at www.zocalopublicsquare.org.  

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.

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