Telecommuting as reasonable accommodation? Court says, “Yes.”

Telecommuting as reasonable accommodation? Court says, “Yes.”


By Lisa Peck and Daniel Velton

When Yahoo’s Marissa Mayer abandoned the company’s wildly popular telecommuting policy, the move was met with a storm of protest.  As an industry leader, Yahoo’s innovative flex options were seen as a welcome paradigm shift of where, how, and by whom work gets done.

Mayer’s move reflected a common misconception that telework creates a dangerous “out of sight, out of mind” career dynamic. Employers worry about reduced performance, decreased productivity, increased obligations, and lack of control or oversight.  Employees fear exclusion from opportunities and advancement, loss of benefits, being ostracized or devalued for lack of “face-time.”

Yet, telework is sometimes the best choice for worker job satisfaction and employer competitive advantage. Technological advances, evolving societal values, and legal progress affecting workers’ rights make telework not only a possibility, but also a practical necessity in today’s workplace.

The reasons for teleworking are as diverse as the people seeking alternatives to physically being in the workplace all day, everyday. For example:

  • An employee who is able to work a full-time schedule may have an illness preventing him from physically being in the office full-time;
  • A start-up business is in dire need of more workers, but it does not have the resources to physically expand its workspace or move to a bigger location;
  • A single parent needs flexible work arrangements to work from home to provide care for a disabled child;
  • An employer suffers pointless downtime as a result of horrendous commuter traffic, and needs a solution.

In these situations, telework is a win-win for everyone.

Recently, in Equal Opportunity Employment Commission v. Ford Motor Co., the United States Court of Appeals for the Sixth Circuit issued a groundbreaking opinion recognizing that an employee may be entitled to “remote work” (telework) as a reasonable accommodation for his or her disability, along with more traditional options such as modification of workstations, flexible work-hours, frequent breaks, job transfers or reassignments, and finite leaves of absence.

In its decision, the Sixth Circuit Court differentiated “remote work” from “flex-time” arrangements – distinct concepts that are often confused. Although employers may reasonably require a worker’s adherence to a regular schedule during predictable business hours, the essential functions of many jobs do not require in-person attendance.

The court reasoned that, “the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.” It recognized a cultural shift in that “communications technology has advanced to the point that it is no longer an ‘unusual case where an employee can effectively perform all work-related duties from home.’”

The Federal government recognizes telework as an established component of the modern workplace. The Telework Enhancement Act of 2010 required federal agencies to establish a framework making telework available to federal employees. The EEOC published Guidance to put employers on notice that blanket prohibitions on work-from-home policies may constitute actionable discrimination against disabled employees. The U.S. Department of Labor warns employers against misuse of telework policies for reasons prohibited by law, such as excluding employees from telework or forcing telework upon employees based on improper motives. Yet, during recent outbreaks of the H1N1 virus, the DOL suggested telework as an option for employers to minimize the spread of illness and worker absence. Similarly, OSHA has updated provisions relating to the safety of and recordkeeping for teleworkers at remote worksites to protect both employers and employees.

Telework also offers creative solutions to employers. For instance, employers reasonably worry about consistent workflow during an employee’s leave of absence, and the added expense and logistics of covering the absence. However, an employer may consider temporary reassignment of an employee to a telework position as an alternative to full-time leaves of absence, and it may consider combining intermittent leave with telework to both extending the time over which leave may occur while keeping work current.

Some employers, including the U.S. Patent and Trademark Office, have taken teleworking to a new level with “hoteling,” a practice allowing rotation of office space while other employees work from home. Other trends breaking down the walls of our workplace are concepts of work-anywhere, “BYOD” (or, “Bring Your Own Device”), walking meetings, and other innovations to improve both work-life balance and productivity.

Telework opens doors for both employees and employers.  The recent decision recognizing telecommuting as a reasonable accommodation is an important step toward workplace equality.  By acknowledging that workers can efficiently perform and thrive  in alternative “workplaces,” the court has set a welcome precedent in favor of innovative workplace policies that increase employment opportunities for all.

Lisa Peck

About Elizabeth Peck

Lisa is a partner in the firm of Peck Law, LLP with offices in Salt Lake City, Utah and San Jose, California.  She practices employment, discrimination, and civil rights law. She is a past ambassador for the National Multiple Sclerosis Society, and having been diagnosed with MS in 1996, Lisa remains actively involved in educating the MS community, their caregivers, and physicians about their rights and responsibilities under the ADA and the FMLA.  Lisa splits her time between California and Utah, and she is an avid cyclist, skier, lacrosse player, and surfer.

Honor working moms this Mother’s Day by signing a card to protect their jobs

Honor working moms this Mother’s Day by signing a card to protect their jobs


By Sarah Schlehr

This year marks the 100th official anniversary of Mother’s Day.  Let’s make it memorable by asking Congress to support the Pregnant Workers Fairness Act.  The National Women’s Law Center is asking everyone to sign the biggest Mother’s Day card ever.  By signing this card, you will be asking Congress to protect pregnant women and allow them to keep their jobs when they need modest accommodations during their pregnancy.

Although California has some of the strongest workplace protections for pregnant women, many states today do nothing to protect moms-to-be in their jobs.  Pregnant women have been fired because they asked to avoid heavy lifting, stay off ladders, or sit on a stool instead of standing at a cash register all day.  And the companies that fired them, did so legally!  This needs to change.

Women make up almost half of today’s workforce and over forty percent of moms are the sole or primary breadwinners for their families.  Sixty-five percent of married mothers with children work.  The Pregnant Worker’s Fairness Act would help moms-to-be stay in their jobs and continue providing the financial support that their families need.

Not only are mothers’ incomes often essential to providing for the needs of their babies, but studies have shown that working mothers have children with higher scores in language, reading, and math across gender, socioeconomic, and marital status.  The daughters of working mothers showed more positive assertiveness, increased willingness to challenge traditional gender roles, and increased competence.  Dual income couples also report the highest marital quality.  And while there is nothing wrong with being a stay-at-home mom, we need to protect the employment of mothers who work.

The Americans with Disabilities Act (“ADA”) already protects disabled workers from being fired when they need reasonable accommodations at work.  There is no reason that pregnant workers shouldn’t receive the same protection.  For example, the ADA would protect a worker who experienced a hernia and needed to avoid heavy lifting, but if that same worker became pregnant, the employer could legally fire her for asking for the exact same accommodation.

The Pregnant Worker’s Fairness Act would change this by ensuring that employers make reasonable accommodations when workers have a medical need because of pregnancy, childbirth, or related medical conditions.  Because new moms should never have to choose between the health of their baby and their job.

This Mother’s Day, tell Congress to do more than pay lip service to our hard working moms.  It’s time we pass the the Pregnant Worker’s Fairness Act and show our moms that they are valued both at home and in the workforce.

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.

What you need to know before you blow the whistle 2

What you need to know before you blow the whistle

By Anne Richardson

Can a public employee be terminated because he testified truthfully that another government employee was defrauding the government?   That is the question in the case of Lane v. Franks, argued in front of the United States Supreme Court earlier this week.

Edward Lane was hired as interim director of an at-risk youth program for Central Alabama Community College.  Shortly after he started working, he audited the program’s finances, and found that Sue Schmitz, an employee who was also a  member of the State Legislature, appeared not to be performing her community relations job, even though she was collecting a paycheck.

Representative Schmitz’ “no show” job performance was investigated by the FBI, and eventually she became the subject of a federal prosecution by the United States Attorney for the Northern District of Alabama. Lane was subpoenaed by the U.S. Attorney to testify before a grand jury and in two criminal trials.

Lane testified truthfully that Representative Schmitz was on the payroll for his program –  one of its highest paid employees — but had never reported for work.  When he attempted to get her to carry out her job duties Schmitz refused, and  warned him not to mess with her.  He fired her despite the threat because he believed that allowing her to continue taking money for a “no show” job would make him complicit in her dishonesty.

Schmitz was convicted in federal court of taking $177,000 in public funds.  The Alabama Attorney General called the case “one of the most egregious public corruption situations in Alabama’s history.” It led to a total rewrite of its public corruption laws and ethics laws. But instead of being rewarded for his part in bringing her to justice, Mr. Lane was fired from his job.

Hey wait a minute, how could this happen?  Government whistleblowers are protected by the First Amendment, aren’t they?  Well, not always.  The Supreme Court has long held that government employers have greater latitude to discipline whistleblowers than employers in the private sector.  It created a balancing test to ensure that public employees cannot simply say whatever they want, to whomever they want.

In Pickering v. Board of Education, the Court ruled that the subject of the employee’s speech must be of public concern; the employee’s comments cannot be false; and the employee’s conduct must not interfere with the regular operations of the employer.  In Garcetti v. Ceballos, the Court ruled that if the employee’s speech is part of her official responsibilities, she is not protected from retaliation by the First Amendment.

The Lane case gives the Supreme Court its first opportunity to clarify what it meant in Garcetti.   The attorney representing Lane’s employer argued that since Lane’s testimony was based on information that Lane learned in carrying out his job duties, he is not protected by the First Amendment. Lane’s attorney responded that since testifying in response to a federal subpoena in a corruption investigation was not part of his job duties, he is protected.  Lane is supported by numerous groups, including the National Association of Police Organizations, whose “friend of the court” brief argued that permitting retaliation against officers who testify would “promote obstruction of justice.”

California law provides more protection to whistleblowers, both public and private. In 2013,the Legislature amended the California Labor Code to make it clear that employees are protected against retaliation “regardless of whether disclosing the information is part of the employee’s job duties.”

California’s approach is better because whether or not reporting misconduct is a whistleblower’s job, society loses if he is not protected. If you can terminate someone who fulfills his responsibility by testifying truthfully, you are creating a perverse incentive to lie under oath.  As a society, we should encourage whistleblowers who bring corruption to light, not punish them.  A decision from the high court should be announced this summer.

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.

Organizations have the power to reduce unconscious bias

Organizations have the power to reduce unconscious bias

By Ramit Mizrahi

As I explained last week, unconscious biases harm women in the workplace. Rather than just putting the burden on women to navigate around biases, organizations should be focusing on fixing the problem.

Many people assume that it will take years, if not decades, to reduce the effects of biases because we must fundamentally transform how people think. But psychologists have identified at least six concrete steps that can alter the decision-making environment to reduce the impact of implicit biases in the short term. Each of these can be utilized in the workplace to create immediate improvements.

1.  Block biases by withholding identifying information.

When decision-makers are kept ignorant of the identifying characteristics of individuals (called blinding), they are prevented from acting based on stereotypes. For example, many orchestras conduct auditions behind a screen to conceal the musicians’ identities.  It has been estimated that this process leads to a 50% increase in women making it past the preliminary round, and a 30 to 55% increase in the proportion of female hires.

2.  Raise consciousness about bias whenever decisions are being made.

People discriminate less when stereotypes and group categories are made salient.  It may be than when we are conscious of commonly held stereotypes, we can actively work to avoid falling prey to them. Organizations should have open discussions about the effects of unintentional biases prior to making hiring and other employment decisions. The Implicit Association Test (IAT), a test used to help identify implicit biases, can also be used as a consciousness-raising tool to help people explore their implicit biases.

3.  Establish objective criteria whenever possible.

Research has shown that the more ambiguous criteria and subjectivity are allowed in making a decision, the more likely that unintentional bias can influence the process. Objective criteria should be established in advance to ensure that people are being judged on the appropriate measures.

4.  Give the decision-maker enough time and information to make decisions.

When people are distracted or under time pressure, they are more likely to fall back on ethnic and gender stereotypes to make decisions. Without adequate information, they tend to fill in the gaps with biased assumptions.  Organizations can correct for these tendencies by providing more time and information.

5.  Expand the “in-group” to include traditionally stereotyped people.

Some psychologists have concluded that the disparity between the ratings of in-group and out-group members stems more from a preference for in-group members than from a dislike of out-group members. Studies show that if people recognize a person as an in-group member (college alumni, from the same city, favors the same sports team… anything), they are less likely to focus on the other differences that make the person an outsider. So, for example, a company can create camaraderie among “teams” so that people relate to each other as members of the same group.

6.  Integrate workplaces and put women and minorities in positions of authority.

This is the ultimate solution. We know that the mere presence of a person can reduce stereotyping against her group. In fact, a whole body of research has shown that intergroup contact can reduce biases. However, if there are only one or two token women (or people of color) in positions of authority, others may simply write them off as exceptions to the rule. Women are not immune to these biases. Only when there is a number so large that they cannot be written off as exceptions will pre-existing stereotypes be fundamentally altered. Thus, the more numerous women are, the less biases affect judgments of them.

Two studies discussed in Virginia Valian’s book, Why So Slow? The Advancement of Women, reflect this point. In the first, 486 blue-collar and clerical work groups evaluated the performance of both men and women. When women consisted of less than 20% of a group, they were rated much lower than the men. When they were between 20% percent and 50% of the workforce, they were still rated lower than the men, though less so. But when women constituted 50% or more of the groups, they were rated more highly than males. The second study found that when women were 25% or less of an applicant pool, they were evaluated more negatively than when they made up 37.5% or more of a pool. In addition, the fewer women there were in the applicant pool, the more likely they were to be perceived as stereotypically feminine (i.e., unambitious, emotional, indecisive).

These studies lend force to the argument that a critical mass of women can suppress – or even alter – the implicit associations between sex and ability that lead people to judge women less favorably than they deserve. A critical mass of 20% has been proposed to break stereotypes. The more women we have in positions of authority, the less they will be harmed by unconscious biases. Reaching and surpassing this critical mass should be a top goal for employers committed to equal opportunity.

Since implicit associations affect the decision making of even the most well-intentioned people, biases will continue to permeate our workplaces unless employers take action.  Much has been written about what women can do in the short term to not be victimized by bias. The time has come for employers to “lean in” and take decisive action to prevent these biases from manifesting in the first place.

Ramit Mizrahi

About Ramit Mizrahi

Ramit Mizrahi, the founder of Mizrahi Law, APC, practices in the area of employment law, representing employees exclusively. Her work focuses on cases involving discrimination, harassment, retaliation, leave law issues, and wrongful termination. She is a graduate of Yale Law School, The London School of Economics, and UC-Berkeley.

Fighting for a fair shot at justice — score one for “the little guy”?

Fighting for a fair shot at justice -- score one for


By Wendy Musell

It is often said that “sunlight is the best disinfectant,” but even the sun needs a little help at times. Major changes to the Federal Rules of Civil Procedure that would have made it much harder for consumers and employees to vindicate their rights were on track for approval by a rules subcommittee by April 10, 2014

The proposed changes would strip the tools that attorneys for employees, consumers and environmental advocates use to gain access to documents, depositions and admissions of their adversaries. The new limits on discovery would make it more difficult, if not impossible, for plaintiffs’ lawyers to find the smoking gun document, the lone employee who will tell the truth about the reason for a firing, about why faulty ignition switches were installed, or about what chemicals made their way into the drinking water after a toxic spill.

The changes were not the result of a proverbial back door deal – an agreement reached over hazy cigar smoke or an exchange of manila envelopes containing wads of cash. No. The proposed changes were presented right out in the open and subject to a six month public comment period.

Advocates for workers and consumers across the country became alarmed when the word got out that the number of people who could be deposed would be slashed from 10 to 5, that written questions under oath would be reduced from 25 to 15, and that other means of obtaining evidence of wrongdoing were reduced. Many stepped forward to voice opposition to the changes.

The California Employment Lawyers Association, National Employment Lawyers Association, Alliance for Justice, Public Justice, NAACP, Mexican American Legal Defense Fund, AARP, National Association of Consumer Advocates, American Association of Justice, Equal Justice Center, American Diabetes Association, Disability Rights Education and Defense Fund, ACLU, Impact Fund, and many other public interest organizations gave public testimony in support of keeping discovery robust and giving “the little guy” a fair shot at obtaining redress for wrongdoing.

In addition, law professors and traditional bar organizations, including the American Bar Association, Texas Trial Lawyers Association, Los Angeles County Bar Association, Utah Association of Justice, and Tennessee Association of Justice, joined the chorus of civil rights, environmental and consumer rights organizations describing how these changes could impact the balance of justice in federal court, tipping the trough of justice for defendants representing corporate interests. Arthur Miller, a venerated law professor from NYU, gave an impassioned speech before the Congressional committee considering the proposed changes.

The public outpouring of criticism from around the country made a difference. In the face of tremendous opposition, the Advisory Committee on

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Civil Rules recommended against adopting the limitations on depositions, interrogatories and admissions proposed.

The public comment period ended February 15, 2014. Now the matter will go before the Committee on Rules of Practice and Procedure, empowered by Congress to hold a two-day meeting in May. That meeting will be “open to public observation but not participation.”

While it remains to be seen if the “sunlight” of observation is as powerful as the “sunlight” of participation, one thing is clear – active involvement is the key to retaining civil rights. Without the concerted pressure of public interest organizations, and the volunteer work of many people passionate about preserving the rights of individuals to find justice in the federal courts, odds are that the changes would have sailed through leaving the “little guy” unprotected — just as if the backroom “fix” really had been in.

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.

Fifty years after sex discrimination became illegal, the focus is still on how women behave instead of changing organizations to eliminate gender bias 3

Fifty years after sex discrimination became illegal, the focus is still on how women behave instead of changing organizations to eliminate gender bias

programmerBy Ramit Mizrahi

Women: “Lean in.” “Be more confident.” “Ask for a raise, but do it in a way that is ‘feminine’ so you don’t come off as demanding or unlikeable.”

We’ve had a surge of self-help articles and books telling women how to navigate a biased system. But, fifty years after sex discrimination was first made illegal, shouldn’t the focus be on how to stop the bias in the first place?

In this two-part series, I’ll first discuss how implicit biases harm women in the workplace and then cover some of the steps we can take to reduce bias.

Identifying the Problem

Many male managers believe that the glass ceiling has been shattered. This opinion, however, is not shared by their female counterparts, who know from experience that sex discrimination is alive and well in the workplace. While overt discrimination has been on the decline for the past half-century, subtle forms of discrimination are still pervasive. This is especially true in high-level jobs where criteria for advancement are more subjective. Even well-meaning executives make judgments and take actions that reflect stereotypes and implicit attitudes that disadvantage female candidates for promotion.

In the past 20 years, there has been an explosion of research about what has come to be called cognitive or implicit bias. It all begins with the research proving that even the best-intentioned people harbor biases. This is true of men and woman of all ages and races; no one is immune. It’s not that we set out to judge women or minorities more harshly or treat them less favorably. What happens instead is that our internalized stereotypes and assumptions about certain groups of people end up influencing our judgments and evaluations without us realizing it.

As psychologist Virginia Valian has explained in her book Why So Slow? The Advancement of Women,

“A woman does not walk into the room with the same status as an equivalent man, because she is less likely than a man to be viewed as a serious professional.”

People hold gendered expectations, and women who don’t meet them are viewed as less capable. For example, if asked to visualize a computer programmer, for example, one will likely think of a man (probably “geeky” and younger); someone who doesn’t fit that image will then be at a disadvantage as people wonder if she’s “as good.”

When a man succeeds, his success is seen as confirmation of his innate ability, whereas a woman’s success is often attributed to luck or simplicity of the task. When she fails, however, her failure is seen as reflection of her (lack of) ability.

It gets even more complicated when assessing leadership, particularly in jobs that are perceived as masculine. Male leaders may be judged better than female leaders who are equally effective, but who lead with a less aggressive style. Attitudes about proper gender roles positively affect performance evaluations for leaders who conform to gender norms, and negatively affect performance evaluations of women who are engaged in nontraditional employment.

Gender norms can produce a double-bind effect. In some work environments women must speak more (or louder) than men if they want to get their ideas noticed, but when they do, they are derided as pushy. In problem-solving situations social scientists have observed that women get more negative facial expressions from both male and female peers, and are perceived less positively than men, even when they follow the same script as males.

Even “neutral” evaluators can be affected. When observing a woman struggling to be heard by others, receiving negative facial expressions, and having her points ignored, outside evaluators may attribute the reaction of peers to the woman’s lesser ability, or to her bossiness, rather than to gender bias. Professor Valian describes how people who would never endorse overt “statements such as, ‘Women do not command respect from their subordinates,’ may nevertheless feel comfortable saying, ‘Lee does not command respect from her subordinates.’ The latter comment is just a ‘fact’ about Lee, arrived at through impartial and fair observation.”

While each such instance on its own may be considered inconsequential, over the course of a woman’s career, they combine to undermine career success.

Subtle biases can lead to huge differences in how people are treated based on their perceived sex. In a 2012 study, Yale-based researchers sought to explore differences in how science faculty from large research universities rate applications for a lab manager position based on the perceived sex of the applicant. They sent 127 volunteer professors from six research institutions the application of an undergraduate science student who had applied for a lab manager position. Each of the professors received the same materials, except that some were randomly assigned the name of a female student while others were assigned a male name. They were asked to rate the student’s competence and hireability, as well as the amount of salary and mentoring they would offer the student.

The results were startling:

  • — The female student was deemed less competent (on a 5-point scale as with the other measures in this study, rated 3.33 by male faculty and 3.32 by female faculty as compared to the male rated 4.01 and 4.1).
  • — The female student was deemed less hirable (rated 2.96 by male faculty and 2.84 by female faculty as compared to the male rated 3.74 and 3.92).
  • — The female student was offered a mean starting salary of $26,507.94 as compared to $30,238.10 offered to the male student.
  • — The female student was offered less mentoring (a rating of 4.0 by male faculty and 3.91 by female faculty as compared to the male rated 4.74 and 4.73).
  • — The female student was evaluated as being more likeable, but that did not translate into positive perceptions of her competence of benefits in terms of a job offer, a higher salary, or more mentoring.

These results were consistent across gender, age, scientific discipline, and tenure status. The researchers concluded that faculty gender bias, unconscious and unintended, impedes women’s full participation in science.

Similar effects were observed in another study that focused on race. In a study targeting the legal profession, researchers enlisted five law partners to draft a memo on trade secret issues that would be presented as if written by a third-year litigation associate. They deliberately inserted 22 errors (including spelling, grammar, technical writing, factual, and analytical errors). Sixty law firm partners of different backgrounds were recruited to participate in a “writing analysis study,” and asked to review the legal memo written by “Thomas Meyer.” Half were told that the author was a white associate and half were told he was black.

Stark differences resulted in the assessments:

  • — On average, partners found 2.9 of the 7 spelling grammar in white Thomas’s memo as compared to 5.8 of the errors in African-American Thomas’s memo.
  • — Partners found an average of 4.1 of the 6 technical writing errors in white Thomas’s memo as compared to 4.9 in African-American Thomas’s memo.
  • — Partners found an average of 3.2 of the 5 errors in facts in white Thomas’s memo as compared to 3.9 in African-American Thomas’s memo.
  • — Partners provided 11 edits or comments on formatting for white Thomas while making 29 for African-American Thomas.
  • — Partners described white Thomas as someone who “has potential” with “good analytical skills” and a “generally good writer but needs to work on. . . .”
  • — They described African-American Thomas as follows: “needs lots of work,” “can’t believe he went to NYU,” and “average at best.”
  • — These biases were found across the spectrum of sex, race, and other traits.

The authors’ analysis is on point:

“When expecting to find fewer errors, we find fewer errors. When expecting to find more errors, we find more errors. That is unconscious confirmation bias. Our evaluators unconsciously found more of the errors in the “African American” Thomas Meyer’s memo, but the final rating process was a conscious and unbiased analysis based on the number of errors found. When partners say that they are evaluating assignments without bias, they are probably right in believing that there is no bias in the assessment of the errors found; however, if there is bias in the finding of the errors, even a fair final analysis cannot, and will not, result in a fair result.”

So what do we do? First, we must stop pretending to be sex blind, color blind, or blind to any other differences. Despite our best intentions, we are not. In fact, research has shown that people who most value fairness and objectivity are particularly likely to fall prey to biases, in part because they are not on guard against them.

This is not an easy task.  Fifty years after the enactment of the Civil Rights Act of 1964, we can all agree that intentionally discriminating against someone because of her sex or race is an act that is morally reprehensible as well as illegal. But can we equally embrace the lesson learned from years of social science research into implicit bias – that we all harbor biases? Unless and until individuals and organizations are willing to grapple with this uncomfortable truth, we will be unable to dismantle these hidden barriers head on.

Ramit Mizrahi

About Ramit Mizrahi

Ramit Mizrahi, the founder of Mizrahi Law, APC, practices in the area of employment law, representing employees exclusively. Her work focuses on cases involving discrimination, harassment, retaliation, leave law issues, and wrongful termination. She is a graduate of Yale Law School, The London School of Economics, and UC-Berkeley.

The Educational-Entertainment Complex exposed, under fire

The Educational-Entertainment Complex exposed, under fire

By Guest Blogger:  Matthew A. Kaufman

The National Labor Relations Board recently publicized the NCAA’s playbook.  For sports fans, the NLRB revealed all the things that we kind of knew (or should have known) were true, but now we know: it is all true.

Here’s what happened: on March 26, the NLRB ruled that Northwestern University football players were employees under the National Labor Relations Act and ordered that an election take place on collective bargaining.   The Board found that the Northwestern football team made overwhelming demands on the football players’ time.   During the season, players devoted 40 to 50 hours per week to the team, sometimes as much as 60 hours per week.  During the spring, the team required 12 to 20 hours per week of player time.  That does not leave a lot of time for a first-class education.   In that regard, scholarship football players received $61,000 a year in tuition, room, board and books.  Walk-on players – zero.  The NLRB found that playing football at Northwestern was pretty much a full-time job, hence collective bargaining.

In the big picture, college football seems ripe for unionization.  Last year, the Northwestern football team made a $7 million profit.  Northwestern isn’t even close to being in the league of the NCAA’s top earners.  In 2012, the University of Texas cleared $75 million in profit from football, and in 2014, UT will pay its coach $9.4 million.  Meanwhile, on the opposite end of the spectrum are the rank and file college players.  NCAA rules prohibit compensating them for their services.  The reality is that the chances of making the NFL are tiny.  The NFL Players Association advises hopeful professional football players to “come up with alternative plans for the future.”  Imagine if a trade school put that on its website.

The NCAA’s president, Mark Emmert, who himself earns over $1.7 million per year, denounced the NLRB’s decision as “grossly inappropriate.”  According to Emmert,

“To convert to a unionized employee model is essentially to throw away the entire collegiate model for athletics.  You can’t split that in two.  You’re either a student playing sports or you’re an employee of a university.  It would blow up everything about the collegiate model of athletics.”

Emmert almost got it right.  The collegiate model cannot coexist with a business model of college athletics.  But it was the NCAA and its member schools who long ago blew up the notion of bona fide amateur college athletics and turned their students into unpaid football players. The current model of collegiate football makes big money for colleges on the backs of an undercompensated workforce that, by rule, has no negotiating power.  Let’s let the players negotiate so that change can come to this fundamentally unfair system.

Equal Pay Day and the elusive gender pay gap

Equal Pay Day and the elusive gender pay gap

equal-pay-day-gender-gapBy Elizabeth Kristen

April 8, 2014, is “Equal Pay Day” in the United States. On average, women earn less than men. In fact, in 2012, full-time working women earned only 77% of what men made. That means the average woman must work four additional months—until April 8—to earn the same amount of money as a man. Equal Pay Day is yearly event meant to raise awareness of the gender pay gap.

Data shows that the gender pay gap is real. According to the AAUW, women just out of college earn 7% less than their male peers. As women get older, the pay gap gets worse: women over 35 earn 75-80% of what men make. And there’s nowhere to hide. The pay gap exists in all 50 states.

Although several US laws protect women from pay discrimination, the gender pay gap persists and improvement has recently come to a halt. Observers offer different solutions based on what they see as the root cause. For example, some agitate for legislation to address modern discriminatory employer practices. Some want to raise the minimum wage because women make up a whopping two-thirds of minimum-wage earners. Others train women to “lean in” to fight stereotypes and gendered roles. All of these seem to be viable contributors to this injustice.

Critics say that the gender pay gap is a fallacy. The argument is that women’s “life choices,” nothing more sinister, account for the gap: women tend to choose lower-compensated professions, decline to move for better opportunities, want more flexible schedules, and etc. Scholars dubbed this phenomenon the Mommy Penalty. Because women devote part of their lives to caring for their families, women work less and earn less.  The critics argue that such choices would hinder the progress of anyone’s career, male or female.

But the real fallacy is the “life choices” argument.  First of all, so-called life choices cannot fully explain the gender gap. According to a study by the Center for American Progress, 41.1% of the pay gap “cannot be explained by characteristics of women or their jobs.” “Life choices,” to use the questionable term, cannot account for the disparity.

Second, if workers who have care-giving responsibilities have to make compromises that burden their careers, then that’s an unacceptable contribution to the gender pay gap. And with women accounting for two-thirds of all caregivers, the penalties disproportionately impact women. With better leave laws and more flexible standards, valuable workers would not have to sacrifice their careers if family life calls them home. One day, I hope we reframe this issue and push for a more family friendly workplace notwithstanding sex, gender, or conventionality.

Although the laws are not perfect, California is at the forefront on family leave law, providing several strong statutes with worker-friendly presumptions. In total, California’s work and family laws, including the Pregnancy Disability law, the California Family Rights Act, Paid Family Leave, Kin Care, and the Family-School Partnership Act, mark a strong public policy in support of working families.

Strong family leave laws, however, are only part of the picture. California still has a way to go before it closes its gender pay gap. The Legal Aid Society – Employment Law Center is part of the Equal Pay Today! campaign. The campaign has a 5-point platform to end unequal pay practices. Check out the website for details and for ways to get involved.

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.

Pillage in private: Raiders try to punt cheerleader wage claims into arbitration

Pillage in private: Raiders try to punt cheerleader wage claims into arbitration

Oakland Raiderettes Lacy T. and Sarah G. filed suit against the Oakland Raiders for various labor law violations.

Employee and consumer advocates have been screaming for years about the harsh realities of arbitration clauses.  We’ve decried them for being secret; for being unfair; and unconscionable and unconstitutional.  Like the frog in the slowly heated pot of water, the public has remained idle in the face of an unprecedented erosion of their rights.  Traction in the media has been hard to come by, and it has been worse among Congressional leaders.

Turns out all we needed was a little pom-pom pizazz.  The media has latched onto the allegations being made by Lacy T., a former Oakland Raider cheerleader and member of the team’s Raiderettes.  Lacy T. has filed a class action lawsuit (check another example of class action trials – Xarelto lawsuits) against the Raiders for wholesale violations of the California Labor Code – failing to pay minimum wage for all required hours worked, failing to pay overtime, failing to provide mandated meal and rest breaks, making illegal deductions from wages for a laundry list of “infractions,” as well as for costs the employer is required to cover, and failing to pay wages on time.

The case has garnered an extraordinary amount of attention, considering the abuses alleged are endemic to low wage positions in many industries.  Undoubtedly, the intense media interest is fueled by  the NFL’s high profile, the fact that every story provides an opportunity to display pictures of the Raiderettes in uniform, and the prospect that this wage dispute may provide titillating details of the Raiders’ demeaning treatment of its cheerleaders.  As the NFL knows, sex sells. Even if it doesn’t pay enough to buy gruel.

The latest Dickensian twist in Lacy T.’s case occurred last month when the NFL moved to have the minimum wage claims taken out of a public courtroom and put into a secret arbitration to be presided over by its $44 million man, NFL Commissioner Roger Goddell.  The claims in the case, and the Raiders’ response, show just how much the team’s management has turned its back on a proud history at the cutting edge of employment civil rights.  Al Davis was the first NFL owner to hire an African-American head coach (Art Shell), a Latino head coach (Tom Flores) and a female CEO (Amy Trask).  But by invoking an arbitration clause unilaterally imposed on its Raiderettes, and pushing Lacy T.’s case into a secret arbitral forum, the Raiders have perverted another of the late Mr. Davis’ ends-means mottos:  Just Win, Baby.

Arbitration was originally conceived by Congress in the 1920s as an alternative mechanism to resolve business disputes.  In the years since, it has steadily been perverted into a means for businesses to steal from and cause injury to individuals without any real threat of liability or significant financial consequence.

It is no small irony that secret arbitration has been championed at the highest level by Supreme Court Justice Clarence Thomas.  Twenty three years ago, during Thomas’ Supreme Court confirmation hearings, Anita Hill publicly accused Thomas of sexual harassment. Her testimony (and the appalling questioning by the Senate committee) riveted the country.  Through her courageous actions, the entire country awoke to the existence of sexual harassment in the workplace.

Today, Professor Hill has been making the rounds publicizing “Anita,” a new documentary about the experience.  Two decades after exposing an insidious workplace problem on the national stage, she is asking a new generation of workers – women and men – to consider the lessons of those hearings.

Which brings us back to Lacy T.   Yes, the media is just as itchy today to publish salacious details about the Raiderettes as it was to report on Clarence Thomas’ crude statements in 1991.  The difference today is that the media may not be given any such opportunity to cover the details of a modern scourge for low-wage workers: wage theft.  And as long as workplace problems – of any kind – are denied public scrutiny and forced into secret star chambers, progress will be elusive. “Anita” reminds us that public testimony can be painful.  But it’s often how change is made.

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.

Did Apple, Google and other tech giants really steal $9 billion from their own employees? 1

Did Apple, Google and other tech giants really steal $9 billion from their own employees?


The luminaries of Silicon Valley are idolized like sports stars. They are adored for the revolutions they have launched and praised for the fortunes they have amassed. They are revered for their business savvy and shrewdness. But it turns out there is another darker side to the Silicon Valley success story.

It was early 2005. Silicon Valley had finally shaken off the hangover from the Dot Com Bubble and things were back in full swing. Steve Jobs had just introduced the iPod Shuffle to the world, the latest in a long line of tech hit wonders that were about to send Apple share prices into the stratosphere. Google Maps had just gone live, destined to send paper maps the way of the dodo bird. And the demand for high-tech engineers was about to go into overdrive. Google’s human resources department had recommended that the company “dramatically increase the engineering hiring rate”, which would involve “drain[ing] competitors to accomplish this rate of hiring.” In other words, Silicon Valley appeared to be on the brink of a bidding war for high-tech talent, threatening to stifle growth, profit margins and share prices.

Cue the quick-thinking CEOs of Silicon Valley, who got together and formed a pact not to recruit or hire each other’s employees and stave off the bidding war. The day was saved! Capitalism had prevailed!

Or had it?

Not according to an antitrust lawsuit filed by the Department of Justice in 2010 and a civil class action lawsuit filed against Adobe, Apple Inc., Google, Intel, Intuit, Pixar and Lucasfilm in 2011. According to the lawsuits, what Steve Jobs, Eric Reid and company had done was nothing less than an anti-competitive conspiracy to violate federal and state antitrust laws. The lawsuits estimated that the wages of over 100,000 tech employees were unlawfully reduced as a result of the illegal pact, leading to an estimated $9 billion in wages effectively stolen from them to pad the tech giant’s profit margins.

As one publication noted, there is a certain irony in the fact that spiraling demand for high-tech engineers may actually have lead to a reduction of their wages.

David Pando of Pando Daily has constructed an authoritative account of how the tech giants formed and maintained the pact to keep high tech wages down. He quotes from numerous emails that clearly weren’t vetted by any lawyers before they were sent. Based on the emails, it is clear Steve Jobs wasn’t exactly shy about bullying and goading other CEOs into line.

When Google began recruiting Apple’s Safari team, Jobs shot off this email to Google CEO Sergey Brin: “If you [Brin] hire a single one of these people that means war.” Brin immediately ordered a freeze on all recruiting of Apple employees.

Likewise, when Adobe began recruiting junior-level Apple employees, Jobs emailed Adobe CEO Bruce Chizen asking for an explanation. Chizen replied that he had thought the pact was limited to non-recruitment of senior level employees. Jobs then threatened: “OK, I’ll tell our recruiters they are free to approach any Adobe employee who is not a Sr. Director or VP. Am I understanding your position correctly?” Chizen immediately backed down and agreed to stop all efforts to recruit any Apple employees. Chizen told his staff: “if I tell Steve [Jobs] it’s open season (other than senior managers), he will deliberately poach Adobe just to prove a point. Knowing Steve, he will go after some of our top Mac talent…and he will do it in a way in which they will be enticed to come (extraordinary packages and Steve wooing).”

For all its glitz and glamour, Silicon Valley is becoming a tale of two cities, of haves and have-nots. John Plender of the Financial Times has calculated that Apple, Microsoft, Google, Cisco, Oracle, Qualcomm and Facebook have amassed a cash pile amounting to a staggering $340 billion in the form of cash and liquid investments. Awash in cash, these tech giants had no good reason to break the law in order to steal $9 billion from its own employees.

Unfortunately, civic responsibility is in exceedingly short supply in Silicon Valley nowadays. According to one study, the gap between the privileged and the rest in Silicon Valley has only grown more vast over time. The average house in Palo Alto sold for more than two million dollars in 2013. There are fifty or so billionaires and tens of thousands of millionaires in Silicon Valley. Meanwhile, poverty levels have also hit record levels accompanied by a 20% rise in homelessness due to soaring housing prices. Emmett Carson, chief executive of the Silicon Valley Community Foundation put it thus: “Rising tides do not lift all boats. . . We have to be intentional as a community about addressing inequality.”

George Packer of the New Yorker suggests tech titans have turned a blind eye toward the plight of their lesser brethren in part because they have constructed and lived in their own virtual worlds, physically and mentally aloof from their surrounding communities: “At Facebook, employees can eat sushi or burritos, lift weights, get a haircut, have their clothes dry-cleaned, and see a dentist, all without leaving work. Apple, meanwhile, plans to spend nearly five billion dollars to build a giant, impenetrable ringed headquarters in the middle of a park that is technically part of Cupertino. These inward-looking places keep tech workers from having even accidental contact with the surrounding community.”

This epidemic of moral aloofness has not infected all. Palm CEO Edward Collagan was one of the few willing to stand up to Jobs and fight for his workers. He emailed Jobs: “[Y]our proposal that we agree that neither company will hire the other’s employees, regardless of the individual’s desires, is not only wrong, it is likely illegal.…I can’t deny people who elect to pursue their livelihood at Palm the right to do so simply because they now work for Apple, and I wouldn’t want you to do that to current Palm employees.”

Fast forward to 2014. Palm is no longer around. Apple continues to dominate the tech world. And that class action? It settled for $20 million, a fraction of the $9 billion estimated to have been stolen from high-tech workers. What’s that saying about good guys finishing last?

Eugene Lee

About Eugene Lee

Eugene D. Lee represents employees throughout California who seek to protect their legal rights in the workplace. Mr. Lee has obtained numerous six- and seven-figure settlements and judgments for employees throughout California. Mr. Lee received a B.A. with honors from Harvard University, and a J.D. with honors from the University of Michigan Law School. Prior to starting his own firm, Mr. Lee was a lawyer in the New York offices of Shearman & Sterling and Sullivan & Cromwell.

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