Election aftermath: The road ahead

Election aftermath: The road ahead

photo-1445365813209-5ab6d8f397cbWhen I was in law school, a white male student ran for a position in our student body government. In his campaign statement, he said that if elected, he would eliminate funding for the school’s minority organizations and use the money to “blow lines” off the taut stomachs of Southeast Asian boys. At a town hall meeting, this man still did not seem apologetic and told us to lighten up, that it had just been a joke. Many minority students, including yours truly, were outraged. When people ask why I became a civil rights lawyer and involved in progressive causes, I cite that incident as one of several defining moments. Because it was heartbreaking that someone in San Francisco these days would still think that racist jokes were acceptable, and that some people didn’t think it was a big deal.

The election results brought new heartbreak. Whatever theories emerge about the outcome, one thing remains clear – there is still so much to be done to protect our civil rights. If you think we are safe from racism, sexism, homophobia, and xenophobia in this country, think again. If you think that the laws we have in place offer enough protection to prevent unfair treatment, think again. If you think that there are too many complaints about discrimination and harassment, think again.

Our state’s public policy is clear:

“It is hereby declared as the public policy of this state that it is necessary to protect and safeguard the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

It is recognized that the practice of denying employment opportunity and discriminating in the terms of employment for these reasons foments domestic strife and unrest, deprives the state of the fullest utilization of its capacities for development and advancement, and substantially and adversely affects the interests of employees, employers, and the public in general.”

Discrimination in any form adversely affects us all. It’s not a joke, and it’s definitely a big deal. People who come to my office are not litigious by nature – they have suffered real harm and mistreatment in the workplace simply because of who they are. Because their skin is not white. Because they are women. Because they were not born in this country and speak imperfect English. Because of who they pray to. Because they are perceived as too old or too disabled to work. Because they love their same-sex partner. Because of these and other immutable qualities that are supposed to be embraced and protected under our laws and under human decency.

If you think we’ve progressed to be more inclusive, look harder at what this nation has revealed about itself. And look harder at the work that needs to be done. Now more than ever, we need to continue seeking justice, fair treatment, and equal opportunities for all.

Lisa Mak

About Lisa Mak

Lisa Mak is an associate attorney in the Consumer & Employee Rights Group at Minami Tamaki LLP in San Francisco. She is passionate about representing employees and consumers on an individual and class basis to protect their rights. Her practice includes cases involving employment discrimination, harassment, retaliation, wrongful termination, labor violations, and severance negotiations. Ms. Mak is the Co-Chair of the CELA Diversity Committee, Co-Chair of the Asian American Bar Association’s Community Services Committee, and an active volunteer at the Asian Law Caucus Workers’ Rights Clinic. Ms. Mak is a graduate of UC Hastings School of Law and UC San Diego. She is fluent in Cantonese and conversant in French.

Unfortunately, our “post-racial” society isn’t post-bias

Unfortunately, our “post-racial” society isn’t post-bias

By Amy Semmel


According to a recent study by MTV, the majority of millennials believe that they live in a “post-racial” society.  They cite Barack Obama’s presidency as a great achievement for race relations.  Having a black President even influenced a majority of the study participants to believe that people of color have the same opportunities as white people.  Unfortunately, employment statistics say otherwise. Since 1972 –when the Federal Reserve began collecting separate unemployment data for African-Americans — the black unemployment rate has stubbornly remained at least 60% higher than the white unemployment rate. The gender pay gap has barely budged in a decade, with full-time women employees being paid 78% of what men were paid.  And the gap is worse for women of color, with Hispanic women laboring at the bottom, with only 54% of white men’s earnings. 70% of Google employees are male, with only 2% Black, 3% Latino, and 30% Asian. This from the company whose motto is “Do no Evil.” How can this be? While overt racism or sexism is rarer today in corporate America, implicit biases linger.

Source: Google Official Blog - googleblog.blogspot.com

Source: Google Official Blog – googleblog.blogspot.com

Imagine that you are supervisor, with two virtually identical resumes on your desk.  Both candidates are equally qualified.  Do you gravitate toward the one with a white Anglo-Saxon name (think “Emily” or “Brendan”), or a name more likely to belong to an African-American (think “Lakisha” or “Jamal”)? Aware of their bias or not, hiring managers are 50% more likely to call the applicant with the white-sounding name in for an interview.  There is a growing body of research like this that proves that implicit bias is real and is having real-life consequences for people who are considered “other” in terms of race, disability, sexual orientation and other characteristics. (There are even on-line tests you can take to find out about your own implicit biases.)  But even as our understanding of how implicit bias leads to discrimination grows, judges often fail to recognize that discrimination can result from unconscious stereotypes or subtle preferences for people similar to oneself—perhaps today even more than overt bigotry.  To truly provide equal opportunity for all, social science research into how people actually behave in the workplace must inform the enforcement of anti-discrimination laws.

Amy Semmel

About Amy Semmel

Ms. Semmel devotes her practice to eradicating discrimination and retaliation in the workplace. She advocates for employees seeking remedies for retaliation for whistleblowing, discrimination and wage theft. Ms. Semmel is frequently invited to speak at conferences and seminars throughout the state. Subjects on which she has spoken include discovery issues in employment litigation; liability of successor, electronic discovery, alter ego and joint employers; the Private Attorney General Act, and developments in wage and hour law.

The Civil Rights Act – looking ahead

The Civil Rights Act – looking ahead

By Marvin Krakow

When we look back, few of us would want to be associated with opposition to our country’s efforts to end discrimination.  Yet, today, as we did then, we all too quickly close our eyes to the mistreatment of others, and all too readily harden our hearts against the suffering of those we call “other”.  As we try to imagine the challenges and opportunities of the next fifty years, an appreciation of how far we have come may help us choose progress and compassion over misplaced caution and over “all deliberate speed”.   We have a chance to think big.

Looking Ahead — Part 2

We can draw a two part lesson from the changes which followed the 1964 Civil Rights Act.

First, we have learned to appreciate diversity and inclusion.  People once excluded by law and by custom, when given a chance, contribute to our communities.  They become our co-workers, our business partners, our friends, our loved ones. We share celebrations, food, holidays, life’s passages.

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Our work becomes more productive.  Our art, our writing, our music, the entirety of human expressive effort becomes more creative.  Our lives are enriched beyond measure.

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Second, we have learned that we often fail to see or to appreciate discrimination inherent in our daily lives.  In the mid-twentieth century, we failed to appreciate the extent to which our laws and customs abused and marginalized women, minorities, members of the LGBT community, immigrants, people with physical and mental challenges, and older people.

Occupy_Wall_Street_spreads_to_PortlandToday, we fail to recognize the ways in which we abuse and marginalize people without money, people with limited education, and people whose religions we do not understand.  We fail to recognize the ways in which we deny the humanity of working men and women  and degrade their lives.  What we don’t see, we can’t acknowledge: the more subtle and hidden forms that traditional discrimination now takes.

Our work is not done.  Imagine how our communities might look fifty years from now at the one hundredth anniversary of the Civil Rights Act.  Imagining the future gives us a sense of the struggles ahead, but at the same time, it acknowledges changes already underway, and it provides hope to sustain our efforts.  Here is my personal wish list for 2064:

  1. Employers must have good cause before firing a worker.  Job security will be a fundamental right for all.
  2. Countries participating in the global economy will develop and enforce international standards for treatment of working men and women.  Participating countries will require that goods and services sold in their domestic markets be produced in safe facilities, by workers who are paid a living wage,  enough to provide food, clothing, shelter, medical care, and education for their families.
  3. The countries of the world will develop and enforce international standards for environmentally sustainable production.  No business will be allowed to operate without systems and processes to prevent environmental damage.  Participating countries will no longer permit the degradation of land, water, and air as a part of doing business.
  4. The right to free movement of all people among the countries of the world will be guaranteed in the same way that the right to free movement of all people among the states of the United States is guaranteed by our Constitution. How we treat a person will not depend on where he or she was born.  We will recognize that laws which restrict immigrants are fundamentally unfair.  We will provide sufficient support and services to fully integrate newcomers into our communities.
  5. In the United States, we will expand Social Security to develop an effective and financially sound workplace benefit system, including unemployment stipends, paid medical and family leave, disability insurance and retirement pensions which support a decent life.
  6. Both here and abroad, we will find ways to reduce inequality of income and wealth, making sure that all people can earn enough to provide a decent life for themselves and for their families.
  7. Workplaces will follow the model of union grievances, and will provide informal, effective, and speedy dispute resolution mechanisms to address claims of unfair treatment, and to serve as a check on unilateral management actions.
  8. We will reaffirm and guarantee the rights of working people and consumers to present discrimination and workplace fairness claims to juries.
  9. Workplaces will provide support for family obligations, including decent childcare, and paid leave for medical and newborn care.
  10. Successful businesses will develop mechanisms to involve workers in decisions affecting the operation of the workplace.  In the unionized sector of the economy, an expansion of the mandatory subjects of collective bargaining may support that change.  In every workplace, we will protect working men and women who speak out about issues at work, safety, pay, discrimination, illegal conduct.   Even in the absence of legal requirements, the economic advantages realized by fully engaging working men and women will provide a competitive advantage to businesses which seize the initiative.
  11. We will surrender the illusion of superiority.  The mistreatment of others, including all forms of discrimination and retaliation, rests on the often unacknowledged assumption that the person in power is better than the person oppressed.  It is possible, however, to affirm our own needs and desires without denigrating the humanity of others.
  12. This item left blank.  It will be filled in by the struggles of ordinary people.  It will amaze us!
Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

The Civil Rights Act – looking back

The Civil Rights Act – looking back

By Marvin Krakow

The Civil Rights Act of 1964 guaranteed equal treatment in the workplace, in public facilities, and in public accommodations, regardless of race, religion, ethnicity or sex.  Equality was not the norm in 1964.  Remembering where we started may provide hope and inspiration for the next fifty years.

This is the first of a two part posting: first, a history we have lived, second, imagining and planning for the future.

Looking Back – Part 1

http://upload.wikimedia.org/wikipedia/en/f/ff/Little_Rock_Desegregation_1957.jpg

Little Rock Desegregation 1957” by Will Counts. Licensed under Fair use via Wikipedia.

By beginning with a look at the United States of the late 1950’s and early 1960’s, we can better appreciate the magnitude of the changes we have experienced.  There and then were the conditions which the Civil Rights Act was meant to address.  The United States Supreme Court struck down segregated schools and the doctrine of “separate but equal” public facilities, only in 1954.  A year later, the Court called for dismantling segregated public schools with “all deliberate speed.”   In practice, communities and states intent on resisting the required changes made much of “deliberate” at the expense of “speed.”

In 1960, as part of the Wilmington, Delaware school district’s long delayed preparation for desegregation, I, with a few classmates, had a chance to visit the black school about six blocks from our own.  The only apparent equal part was the architectural plan.  The two schools had the same floor plans.  Even as an eleven year old, I could see that the black school had almost no books, that the sandstone bricks were crumbling, the toilets broken and foul.  By contrast, my own school had well maintained granite, a fully stocked library, plenty of classroom supplies and materials, clean and functioning lavatories.

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

Courtesy of South Carolina Department of Archives and History

The lack of adequate facilities and the open lie of “separate but equal” were but the tip of the iceberg of de jure segregation.  Our country had opportunities only for a select few.  We did not tolerate differences.  We murdered those who challenged the assigned order.   State sponsored and state enforced racial separation — combined with political disenfranchisement, and an economic and social caste system — was violent, brutal, and unremitting.   In the Summer of 1964, the world witnessed the terrorism supporting American segregation in the murders of James Earl Chaney, Andrew Goodman, and Michael Schwerner.

Lynchings, counted in the thousands, were carried out over generations, not only in the South, but throughout the country.  “Race riots”, actually pogroms and massacres of entire communities, terrorized people of color.  The ferocity of racial as well as ethnic violence characterized and defined American society in the first half of the twentieth century.

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“Student and Faculty Civil Rights Rally, San Jose State College, February 28, 1964” by Moore, John. Courtesy of San José State University, Special Collections and Archives

Pervasive discrimination was not limited to African Americans.  Universities had quotas for Jews, Catholics, and other minorities.  Large corporations, law firms, hospitals would not consider ethnic minorities for hire.  Women had limited rights to own property.   Gays were invisible. In quantitative terms, almost two-thirds of our country’s people suffered discrimination.  Freedom and opportunity were reserved for members of a small and privileged class consisting almost exclusively of economically fortunate, white, Anglo-Saxon, Protestant men.    The norm, the life experienced by most people, included closed doors, hatred, persecution, and violence.

When we hear the stories of individuals we can begin to understand the extent and severity of discrimination in the mid-twentieth century United States.  From my own family stories: a young woman limited to secretarial work for men who were far less talented than she, a high school girl learning from her admired father that his field of work was closed to all women, a man who died unable to tell his family of his love for another human being, a woman hospitalized for “hysteria” as she came to terms with her love of another woman, an entire family whose parents, grandparents, aunts and uncles, and cousins were slaughtered after the United States refused them safe haven from Nazi genocide.

There are few in my generation, coming of age in the 1960’s, who do not know such stories.  The details may vary. The story tellers may be Asian, Hispanic, African American, Irish, Native American. Regardless of one’s origins, America of the early and middle twentieth century held up the torch of liberty and opportunity while unapologetically shutting doors and crushing hopes.

Discrimination and violence strike deeply.  At its core, discrimination is a disregard and disrespect of another person’s humanity.  It is an expression of contempt and hatred.  When we suffer discrimination, the pain stays with us for years.  It is felt for generations.  When we engage in discrimination, when we tolerate contempt and hatred, and when we acquiesce in violence, we rend the fabric of our communities.  We corrupt our souls.

O’Connor, Sotomayor, Ginsburg, and Kagan” by Steve Petteway. Licensed under Public domain via Wikimedia Commons.

The Civil Rights Act of 1964, at the time of its passage, represented our country’s highest aspirations in the face of social and political realities far different than our Constitution’s promises.  The ongoing success of that legislation is all around us. Women and minorities have entered the workplace.  Many have risen to positions of prominence.  People with physical and emotional challenges are emerging from the shadows of dependence and isolation.  We are beginning to understand the waste of human potential and the pain we inflict in denying and demonizing love and sexuality.  We have made room for a true diversity of spiritual beliefs and practices.

But we can’t take our progress for granted.  As we try to imagine the challenges and opportunities of the next fifty years, an appreciation of how far we have come may help us choose compassion over misplaced caution and progress over the next iteration of “all deliberate speed.”

We now have a chance to be on the right side of history.  In my next post, I will discuss how we might get there.

 

 

Marvin Krakow

About Marvin Krakow

Marvin Krakow (B.A., Yale, 1970, J.D. Yale, 1974), a founding partner of Alexander Krakow + Glick LLP, focuses on discrimination based on race, age, religion, disability, gender, sexual orientation, national origin, and ethnicity, wrongful termination of employment, civil rights, and class actions. He has won seven, and eight figure results. He helps victims of sexual harassment and rape, and represents whistle blowers. He argued landmark cases before the California Supreme Court, Loder v. City of Glendale and Superior Court v. Department of Health Services (McGinnis).

Interns may work without pay, but that does not mean they should work without protection against harassment and discrimination

Interns may work without pay, but that does not mean they should work without protection against harassment and discrimination

By Amy Semmel

Unpaid internships are touted as the first rung on the modern ladder to career success.  But it may come as a surprise to learn that unpaid interns are currently falling through a loophole in California’s comprehensive anti-discrimination laws.  Next week, the California Assembly Judiciary Committee will hold a hearing to consider Assembly Bill 1443, a bill designed to close that loophole and provide interns the same protections against discrimination, harassment and retaliation that regular employees now have.

According to editors at the popular fashion industry website, Fashionista, “Internships can be a great way to break into the industry – actually we’d argue that they’re pretty much the only way to break into the industry.”  Here in Hollywood where I work, successful directors, producers, actors, writers and show runners regale us with stories of their lowly start as interns, fetching the coffee and running production errands.

College students and recent grads clamor for the opportunity to get a shot at these entry level “jobs.”  The 2013 College Graduate Employment Survey by a management consulting firm estimates that almost 30% of 2012 college graduates worked at an unpaid internship during college.   Unfortunately, the inherent opportunity of internships brings with it the potential for exploitation of workers who are young, anxious to succeed, and eager to please.

AB 1443 would protect against the kind of sexual harassment faced by Lihuan Wang, a 22-year-old broadcasting intern who took an unpaid internship at Phoenix Satellite Television, only to find herself being lured to a hotel room where she claims her supervisor forcibly kissed and groped her.  Ms. Wang says she learned that the same supervisor had harassed others and reported the harassment to management.  After she complained, the supervisor blocked her employment prospects with the company.  Her discrimination and harassment claims were thrown out of court in New York, which like California had no protection for unpaid interns because they are not considered employees.

Let’s make sure that the first step on the career ladder is a sturdy one for Californians just entering the working world.  Particularly in an economic climate where new college graduates and other young people are willing to work for nothing more than the experience they gain, interns deserve the full protection of California’s equal opportunity laws.

 

Amy Semmel

About Amy Semmel

Ms. Semmel devotes her practice to eradicating discrimination and retaliation in the workplace. She advocates for employees seeking remedies for retaliation for whistleblowing, discrimination and wage theft. Ms. Semmel is frequently invited to speak at conferences and seminars throughout the state. Subjects on which she has spoken include discovery issues in employment litigation; liability of successor, electronic discovery, alter ego and joint employers; the Private Attorney General Act, and developments in wage and hour law.

International Women’s Day now means progress without equity

International Women’s Day now means progress without equity

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By Elizabeth Kristen

International Women’s Day, celebrated worldwide this past weekend, started out as  “International Working Women’s Day” in 1911. One week later, the notorious Triangle Shirtwaist Factory Fire of 1911 broke out, killing over 140 workers – mostly women – who were trapped inside the factory. The horror of that fire and the working conditions imposed on the women locked inside the factory galvanized the labor movement and the women’s rights movement. Even though the name may have changed, this annual day honoring women is the perfect time to take account of the barriers working women still face today.

Working women in the United States confront challenges ranging from workplace discrimination and harassment to unequal pay and inadequate leaves of absences.  The 2014 Shriver Report:  A Woman’s Nation Pushes Back from the Brink collects essays that detail how these barriers impact not only working women, but their families, the economy and society as a whole.

Discrimination and harassment – Women continue to face unlawful discrimination and harassment on the job based on sex, pregnancy, gender identity, sexual orientation, race, national origin, disability, and many other characteristics.  The U.S. Equal Employment Opportunity Commission, the agency that enforces our federal civil rights laws published its statistics for charges filed in Fiscal Year 2013.  Charges of sex discrimination constituted approximately 30% of the charges filed with the EEOC.  The California Department of Fair Employment and Housing, the state agency that enforces our state civil rights laws published its statistics for 2012. This data showed that sexual harassment charges were approximately 60% of the charges filed regarding sex discrimination and harassment.  These statistics demonstrate that employment discrimination and harassment continue as serious problems for working women.

On the legislative front of women’s rights issues at the federal level, the Pregnant Workers Fairness Act would strengthen the protections for working pregnant women.  We also need the protections of the Employment Non-Discrimination Act, which would prohibit discrimination on the basis of sexual orientation and gender identity across the country.  But these laws must also be enforced, which means vigilant leadership and restoration of the funding cuts that have undermined the California and federal agencies charged with civil rights enforcement.

Gender-Based Wage Gap – Despite the fact that gender-based pay discrimination has been against the law for over 50 years, women in the United States still face a significant wage gap.  Recently, there has been little progress in closing the gap in wages between women and men.  As of 2012, women’s median earnings were 81% of men’s.  And the wage gap is worse for women of color.  Because women are breadwinners for their families, the impact of wage discrimination is felt across the board.  The Paycheck Fairness Act, pending in Congress, would help fight gender-based pay discrimination

Leaves of Absence – Women are still the primary caregivers in the U.S. and they also often must take time off work for pregnancy and childbirth.  Yet the U.S. lags behind nearly every other country in the industrialized world in terms of how much leave it provides for caregiving, pregnancy and childbirth.  The federal Family and Medical Leave Act provides for job-protected leaves of absence for caregiving as well as for pregnancy and bonding leave.  However, the FMLA is unpaid leave and many workers cannot afford to take unpaid leave.  The FMLA also provides no protection for those workers at companies with fewer than 50 employees at or near their worksite, those who have worked for the employer for less than a year, and many who work part-time. Additionally FMLA takes a narrow view of what it means to be a family member, drawing a tight boundary around the nuclear family– parent, child, and spouse.   Grandparents, siblings and other extended family are not included.

The California Paid Family Leave Law, the first of its kind in the country, provides partial wage replacement to workers who take time off to care for family members or bond with a new child.  As of July 2014, California workers will be able to take  paid family leave for a broader group of family members that will include grandparents and grandchildren, siblings, and parents-in-law.

Some federal legislators are already taking the cue from California with a pending bill in Congress to provide paid leave nationally.  They should keep up the momentum and improve the FMLA to extend coverage to more workers and to widen the circle of who is considered “family.”

The United Nations’ theme for this year’s International Women’s Day is “Equality for Women is Progress for All.”  The global gender gap index shows a strong correlation between a country’s gender gap and its economic competitiveness. Given the fact that women are at least half of the potential workforce, a nation’s economic competitiveness depends on how it treats women. Improving the lives of working women will enhance progress for all working families and our national economy.  When that happens, we will all be able to proclaim “Happy International Women’s Day”!

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.

100% healed policies = 100% discrimination 3

By V. James DeSimone

For an employee who depends on her job, having to take a disability leave for medical treatment is a frightening prospect.  Picture Cynthia, a 29 year old employee of a major restaurant chain, who suffers from severe and intermittent pain in her hips while walking as the result of a condition stemming from childbirth.  Despite her pain, she performs her job as a server and event coordinator in an exemplary and enthusiastic manner.

After eight years on the job, however, the pain becomes so great that she schedules  surgery on both hips.   Unfortunately, she experiences complications, but Cynthia perseveres through subsequent surgeries and a painful rehabilitation, determined to get well enough to return to work and her normal life.

At each step of the way, she keeps her employer updated on her status, confident that she will be able to do her job with minimal restrictions.  Finally, after an extended medical leave of absence from work, she is ready to go back to the job she loves and on which she depends.

But there is a stumbling block.  She is ready to come back to work and suggests a less physically demanding retail position. However, the Human Resources Director informs her, “don’t come back until you are 100% better,” and Cynthia is never going to be “100% healed.”  She will always have limitations that will require some accommodation from her employer in order to perform her job.

However, she is not deterred.  In anticipation of returning to work, Cynthia schedules a meeting with her supervisors to discuss the modifications she will need, but they cancel it. Then, out of the blue, she receives a letter from the company terminating her employment.  The reason:  job abandonment — failure to return from leave.

Cynthia’s experience is not unique. Employee advocates report that termination after a disability leave or a request for accommodation are two of the most frequent reasons why an employee will contact a lawyer.   According to the Equal Employment Opportunity Commission (“EEOC”), one of the “hottest areas of EEOC litigation right now involves the agency’s efforts to root out inflexible leave policies – particularly those that supposedly eliminate an employer’s legal obligation to explore and make reasonable accommodations for employees returning from medical leaves of absence.”

The California Commission on Health and Safety and Worker Compensation has published a “Helping Injured Employees Return to Work,” a handbook of practical guidance for businesses.    It provides as examples of inappropriate policies:

  • Requiring that injured employees be released to full duty without restrictions or be healed 100 percent before returning.
  • Always terminating an employee if he or she is unable to return to full duty after a specific, fixed period.
  • Delaying discussion of job accommodations until the employee’s condition is permanent and stationary.

Almost all courts that have examined these so-called “100% healed” policies have concluded that they are an outright violation of the Americans with Disabilities Act.   When an employee is out on disability leave, companies must communicate with the employee, preferably in person, in what is called the good faith interactive process.  All attempts to reasonably accommodate the employee to allow him or her to perform the essential functions of the job should be made.

The rules for reasonable accommodations protect all of us.  After all, we never know when one of us or a loved one may become sick or injured and require some form of leave or accommodation.  It’s a shame that it sometimes takes a lawsuit to hold companies accountable when they break the rules.  But what’s clear is this — when it comes to “100% healed” policies, employers should take heed that the justice system is going to hold them 100% liable.

V. James DeSimone

About V. James DeSimone

In October of 2015, after 25 years as a partner in Schonbrun DeSimone, Jim opened up his own law firm, V. James DeSimone Law, located in Marina Del Rey. In 2014, Jim was honored with a CLAY award for California Civil Rights Lawyer of the Year. He has been named a Top Employment Lawyer in California by the Daily Journal for 6 of the past 8 years. He is a trial lawyer focusing on civil rights and employment law and has tried numerous cases to verdict achieving seven figure recoveries for his clients. As a civil rights and employment lawyer, his cases range from wage and hour class actions to individual employment discrimination cases, and to representation of families whose family members with a disability have been killed by police officers. You can find out more about his work at www.vjamesdesimonelaw.com.

Abercrombie & Fitch doesn’t get it when it comes to diversity

In 2010, Abercrombie & Fitch fired a 19-year old Muslim stock clerk who wore a hijab to work with the permission of her local manager.  In answer to her EEOC charge of religious discrimination, the company argued  that any deviation from its “Look Policy” would place an “undue hardship” on its California beach inspired Hollister brand.  Federal District Judge Yvonne Gonzalez Rogers didn’t buy it.

In her recent op ed in the Sacramento Bee, CELA VOICE contributor Charlotte Fishman explains how its adherence to a rigid appearance code ran afoul of federal and state law mandating religious accommodation in the workplace.

Charlotte Fishman

About Charlotte Fishman

Charlotte Fishman is a San Francisco attorney with over 30 years of experience handling employment discrimination cases on the plaintiff side. In 2005 she launched Pick Up the Pace, dedicated to overcoming barriers to women’s advancement in the workplace through legal advocacy and public education. She has authored amicus curiae briefs in major cases before the United States and California Supreme Court and writes and speaks to a wide audience on cutting edge employment issues affecting women.

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.

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 to 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.

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.

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