50 is not the new 30 when you need a job 5

By Scott R. Ames

I’m turning 50 on Saturday, and my wife and friends tell me that “50 is the new 30.”  There’s even a blog named after this phrase.

While gyms and trendy cafés are filled with these “50 are the new 30 year-olds,” the job market tells a much different and more sobering story.

According to the Bureau of Labor Statistics, when older workers lose their jobs, the re-employment rate for individuals between 55 and 64 is 47 percent (dropping to 24 percent for those over 65), compared with a 62 percent re-employment rate for 20 to 54 year-olds.  The average length of unemployment for older workers is 46 weeks, compared with 20 weeks for younger workers.  When older workers find new employment, their median salary loss is 18 percent compared with a 6.7 percent drop for 20 to 24 year-olds.

This data doesn’t match the rosy picture my wife is painting about me turning 50.  And it gets worse.  In 2009, the U.S. Supreme Court issued Gross v. FBL Financial Services, Inc., 129 S.Ct. 2343 (2009), making it harder to win age discrimination claims brought under the federal Age Discrimination in Employment Act than claims brought on race, sex, and other bases covered by Title VII.  Under California law, the standards are the same but some courts seem to require more evidence of age-related comments and age-bashing than they do for other forms of discrimination.

For example, in Sandell v. Taylor-Listug, Inc. 188 Cal.App.4th 297 (2010), a San Diego Superior Court judge dismissed 60-year old Robert Sandell’s age and disability discrimination lawsuit  before trial, despite being provided with evidence that Mr. Sandell was replaced by a younger employee, that the company’s President stated at meetings that he wanted to replace older workers with younger employees, that employees over 50 were being replaced with substantially younger new hires, and that the company’s founder told Mr. Sandell that he “is old” and is “getting up there.”  Fortunately, the Court of Appeals reversed the San Diego Superior Court’s decision and allowed Mr. Sandell’s case to go before a jury, but this case highlights the uphill battle employees face when bringing claims based on age discrimination.

Finally, the social, emotional and financial impact on older workers who lose their jobs can be  devastating.  People are living longer and are having children later in life, and many cannot afford to “retire” or be forced out of work in their 50s, 60s or even 70s.  In addition, an employee over 50 may have worked for the same employer for many years, so that losing a job results in the loss  of an integral social network.

As I approach 50, my professional commitment to advancing the rights of older workers has become a little more personal.  Jokes about “Having a senior moment” no longer sound so funny or hit a little too close to home, because in the job market 50 is definitely not the new 30.

Scott Ames

About Scott Ames

Scott Ames has been litigating wrongful termination, discrimination, harassment, family and medical leave, breach of contract, wage and hour violations, unfair competition and trade secret matters, and other employee rights cases for over two decades. Mr. Ames’ demonstrated record of success has resulted in him being named among the Top 100 Attorneys in Southern California in 2012 and 2013, a “Southern California Super Lawyer” by Los Angeles Magazine from 2007 through 2014, and a “Best Lawyer in America” from 2006 through 2014. Mr. Ames is also active in his community, and has served on a number of committees and boards of non-profit organizations which seek to improve the lives of the disenfranchised or working poor.

Celebrating Labor Day 3

Celebrating Labor Day

By Joan Herrington

What does Labor Day mean to you?  A day to sleep in, to fire up the BBQ, to organize school supplies, or to hit the sales?  How about a day to remember the Pullman strike?  The what? Why?

Labor Day was established in 1894 after federal troops killed workers during the Pullman strike.

Pullman railroad workers lived in company towns, rented company houses, and bought their goods in company stores…all at company-set prices.  They were fired if they tried to unionize.  When George Pullman slashed his railroad workers’ pay by 25%, they could no longer afford to live in Pullman Town.  To protest their non-living wage, Pullman employees went on a “wildcat” strike.  Over the next six days, to show solidarity for Pullman workers, over 100,000 railroad union members cross-country refused to service trains with Pullman cars.  At George Pullman’s request, United States Attorney General Richard Olney obtained a federal court injunction against the strikers, and federal troops were sent in to enforce it.

After federal troops killed some of the workers on strike, the trains started running again.  But scandal erupted when the public learned Olney was also a director of Pullman’s railroad.  In other words, Olney, the head of a taxpayer-funded federal agency obtained a federal court order and used federal troops to protect his own and corporate interests against striking workers.  Outraged at this abuse of power, rioters spread from city to city, causing 30 deaths and millions of dollars in damage.  To restore calm, within the next week, a bill establishing Labor Day as a national holiday honoring “the strength and spirit de corps of the trade and labor organizations” was rushed through Congress and signed by President Grover Cleveland.

The battle for a living wage continues to this day.

This Labor Day, some 15 million American workers struggle to live on minimum wage earnings. Just last week, fast food workers went out on strike for a living wage. 

Earlier this year, Acting Secretary of the United States Department of Labor Seth Harris travelled around the country to hear testimony in support of the proposed Fair Minimum Wage Act of 2013 to raise the federal minimum wage from $7.25 to $10.10 per hour by 2015.  He listened to: a store clerk who doesn’t know how she will support herself and her five-year-old son since her employer cut her hours of work; a homeless shelter worker who often lives without power because she can’t afford to pay her bill; a solo father who sells his own blood so his two children won’t go to bed hungry.

Reflecting on the people he met, Harris stated:

I’ve met workers of every age, race, ethnicity and background. In superficial ways, they could have not been more different. But what unites all of them is this: the desire to work hard and the opportunity to make life better for themselves and their families. Too many of them are stuck at a wage that forces them to depend on the generosity of community organizations, family, friends or government just to stay above water. I haven’t met anyone who is looking for a handout. To the contrary, they just want a fair wage so they don’t have to rely on others.

The bill to raise the minimum wage is still stuck in Congress.  Why not honor this Labor Day by contacting your Congressional representative and ask him or her to support The Fair Wage Act of 2013?

Click here to find contact information for your Congressional representative or here for more information on The Fair Wage Act of 2013.

Joan Herrington

About Joan Herrington

As a former Administrative Law Judge with the California Fair Employment and Housing Commission, Joan focuses on protecting employment rights. Joan helps the Department of Fair Employment and Housing enforce the Fair Employment and Housing Act by representing employees in lawsuits, such as discrimination and harassment based on race, national origin, color, pregnancy, sex, sexual orientation, disability, medical condition, age, and religion. Joan also focuses on protecting employees and whistleblowers from unlawful retaliation. As a qualified and experienced mediator, Joan also helps resolve employment disputes.

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.

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


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.


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.

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