Uber and tech: Are you listening now?

Uber and tech: Are you listening now?

PhoneBy Lisa Mak

This past Sunday, ex-Uber engineer Susan Fowler published a powerful blog post about the gender discrimination she experienced while working at Uber. It started with her male manager sending her messages, stating that he was in an open relationship and was trying to stay out of trouble at work but couldn’t help it, because he was looking for women to have sex with. Susan sent screenshots of the chat to Human Resources. The response? Uber HR and upper management told her that even though this was clearly sexual harassment, they were not comfortable giving the manager anything besides a warning. The reasons? This male manager was a “high performer” and it was his “first offense,” so they did not want to ruin his career over “an innocent mistake.” The company then gave Susan the “choice” of moving to another team, or staying on the male manager’s team and likely receiving a negative review from him.

When Susan later tried to transfer to other teams, her transfers were blocked due to undocumented “performance” problems. Her performance review was downgraded from a positive to a negative score, and she was told that she needed to prove herself as an engineer.

Presumably Uber, like most large U.S. companies, has a policy encouraging employees to report incidents of discrimination. Each time Susan received a sexist email, she forwarded it to HR. This included emails with her director when he said the company would not order promised leather jackets for the female engineers because they had not been able to get a bulk discount on the women’s jackets as they had for the men’s jackets. When Susan reported this to HR, she was told that maybe she was the problem, that she should not be surprised at the gender ratios in engineering, and that it was unprofessional to report things to HR via email.

Less than a week later, Susan’s manager told her that she was on “very thin ice” for her HR report and could be fired if she did it again. He also said that his threats to fire her for reporting things to HR were not illegal. Susan reported this conversation to HR and the CTO, but again the company did nothing. Susan left Uber for a new job.

After Susan’s blog post went viral, Uber CEO Travis Kalanick suddenly announced that the company is launching an “urgent” internal investigation into the matter, headed by former U.S. Attorney General Eric Holder.

Some takeaways from Susan’s terrible experience: We need to stop pretending that the tech world is a pure meritocracy, and instead call out the prevalent sexism in that sector. For starters, there’s the numbers issue. On her last day at Uber, Susan calculated that of the over 150 reliability engineers there, only 3 percent were women. Just last month, civil rights activist Rev. Jesse Jackson called out Uber to release its workforce diversity data. Why does a tech company of this size still need to be urged to be transparent about its diversity numbers? And then there’s the cultural issue – a culture that favors men in the STEM fields, that marginalizes women, and blames them when they speak out about misogyny. The problem of victim-blaming is also amplified in the tech space where employees are often on social media, with the risk of being judged by potential employers and targeted by internet trolls. We’ve known about these problems for years. So why hasn’t anything changed?

We also need to fix the double standard that underlies companies’ responses to these complaints. When Susan reported her male manager’s behavior, Uber did not want to ruin his career over a “first offense.” She later learned from other Uber female engineers that it was not, in fact, his first offense. Unfortunately, we’ve seen how companies use this excuse to sweep complaints under the rug, whether in tech or in other sectors. This attitude presumes that a man’s career opportunities are somehow more valuable and worthy of protection than a woman’s workplace rights.

Whether it was the harasser’s first offense or his fiftieth, Uber’s response was out of line as a matter of law. There is no exception to enforcing employment laws based on whether someone’s career and reputation would be “ruined” over claims of harassment and discrimination. It certainly is not a reason to avoid addressing the problem. Employers are legally obligated to investigate all complaints of harassment and to take prompt, effective action to stop it. Forcing the harassment victim to transfer is retaliation, not a remedy. Our laws focus on protecting those who suffer harassment, discrimination, and retaliation, and on eliminating those evils from our workplaces – not on whether the perpetrator will have hurt feelings or a derailed career.

Companies need to start taking complaints seriously, doing fair investigations, and taking appropriate remedial steps at the time these issues are raised. Uber is not some small start-up with five employees stuffed in a garage. It has thousands of employees, an HR department, legal counsel, and a board of directors. Why was nothing done to help Susan until she made her story public?

Uber does not get credit for now conducting an investigation into Susan’s claims, after she has already left the company and after she made a public blog post about her experience. Uber does not get credit for now committing to release its diversity statistics after this incident. Investigating and taking action should have happened long ago, instead of letting the situation spiral out of control. Kalanick’s apology now is simply too little, too late.

It should not take a blog post and public outrage to make a company finally pay attention to employees’ complaints of sexual harassment, gender discrimination, and retaliation. Our laws require companies to treat their employees fairly all the time, every time, not just when it is a PR nightmare.

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.

Silencing the survivors: How the Brock Turner case reflects the failures of our justice system

Silencing the survivors: How the Brock Turner case reflects the failures of our justice system

Woman1By Lisa Mak

Like many others, I was outraged by the outcome of Brock Turner’s case for his rape of an unconscious, intoxicated woman behind a dumpster.  This woman was brave enough to go through the process of a 16-month criminal case.  She wrote an extremely powerful and heartbreaking statement that she read in court when addressing how Turner’s assault has forever changed her life.  Prosecutors had sought a six-year prison sentence for Turner’s crime.  Yet Judge Aaron Persky only imposed six months of prison with probation, stating that a longer sentence “would have a severe impact” on Turner and that Turner “will not be a danger to others.”

Unfortunately, this painfully skewed result, the biased way the case was portrayed, and the outrageous statements from Turner’s family and friends defending his actions, are all too familiar features of a system that often does not treat rape and assault for what they are – violent, heinous crimes that violate basic human dignity.  The events and reactions in the Turner case remind me of cases I’ve litigated where employees were sexually harassed, assaulted, or raped in the workplace.

It seems like the same story every time.

The victim is blamed and doubted.  Questions may be asked about whether she was somehow responsible for what happened.  Were you drunk at the company party?  Why did you enter his hotel room to talk about work?  Have you ever sent a risqué email at work?  Did you date that co-worker? Why can’t you remember all the details?  Are you sure the relationship wasn’t consensual?  Investigations into workplace sexual harassment complaints may not happen, or when they do, they may be conducted in a way that is slanted against the victim.  Given the difficulty of coming forward, it is unsurprising that many sexual harassment cases go unreported.

The perpetrator is protected.  He is given the benefit of the doubt.  He may receive little to no discipline for his misconduct.  The victim is advised that everyone is “moving on” from the situation.  To add insult to injury, often employees who complain about sexual harassment will be fired in retaliation.  For example, in her lawsuit against Tinder in 2014, co-founder Whitney Wolfe alleged that she was forced out of the company after her complaints of discrimination and harassment.

There is often a mistaken focus on the impact on the perpetrator’s career and reputation, as opposed to the physical and psychological impact on the victim.  When former Dean of Berkeley Law School Sujit Choudhry was accused of sexually harassing his executive assistant, university officials were allegedly reluctant to terminate him for fear of ruining his career.  He was never in fact terminated, and resigned after a lawsuit was filed against him earlier this year.

Similarly, when Turner’s father pleaded for leniency for his son, he ignorantly argued: “[Turner’s] life will never be the one that he dreamed about and worked so hard to achieve.  That is a steep price to pay for 20 minutes of action out of his 20 plus years of life.”  This, compared with the life of the woman Turner raped, who explained: “My independence, natural joy, gentleness, and steady lifestyle I had been enjoying became distorted beyond recognition.  I became closed off, angry, self deprecating, tired, irritable, empty … You bought me a ticket to a planet where I lived by myself.”  Yet Judge Persky remained concerned about the “severe impact” a longer prison sentence would have on Turner, the convicted criminal.

Whether sexual assault happens at work, at school, in a home, or anywhere else, the same infuriating narratives keep surfacing – blaming the victim, doubting the crimes, and protecting the perpetrator.  Language is used to downplay the severity of the attacks.  Turner’s friend, Leslie Rasmussen, submitted an equally outrageous letter of support for him for trial, writing: “[W]here do we draw the line and stop worrying about being politically correct every second of the day and see that rape on campuses isn’t always because people are rapists.”

This isn’t about being politically correct.  This isn’t about alcohol or promiscuity or the tarnished futures of privileged individuals who chose to violate the rights of others.

This is about calling out sexual harassment, assault, and rape for what it is.  This is about respecting women and human beings and common decency.  Cases like Brock Turner, along with the many cases of workplace sexual harassment we see, underscore the need to focus on the consequences caused by the perpetrator and not on rationalizations for the violent conduct.  When survivors of assault and harassment are able to come forward and speak their truth, their courage should always be met with an outcry of support and a fair chance at justice.

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.

The Top Five Wins for Workers’ Rights in 2014

The Top Five Wins for Workers' Rights in 2014

By Sharon Vinick

2014

As the year comes to a close, it’s time for a “Top Five” list.  Interest in “Top Ten” or “Top Five” lists is so immense that psychologists have even coined the term the “Top Ten Effect,” to describe the “bump” that items on such a list receive in terms of sales.  A list of the top developments in employment law may not cause a run on any stores, but policy makers and working people should take note (drum roll please) as we now count down the list of five developments that will change the landscape of employee rights as we enter the new year.

  • No. 5:  New California Law Says Proof of Sexual Desire is Not Required to Win Sexual Harassment Claim

 The California Legislature deserves recognition for a new law that strengthens protection against sexual harassment on the job. For years, employers have tried to defend against sexual harassment claims by arguing that the harassment, although boorish, was not illegal because it was not based upon sexual desire.  This “defense” goes something like this — The boss who “joked” with his female subordinate about hopping over to a motel for the night wasn’t actually attracted to her, so that couldn’t be sexual harassment.  Or as the employer claimed in one infamous case, the ironworkers who hazed a new guy on the crew with threats of sexual violence couldn’t have perpetrated sexual harassment since they were all straight.  Earlier this year, the California legislature took away this excuse when it amended the Fair Employment and Housing Act to specifically provide that “sexually harassing conduct need not be motivated by sexual desire.”  These few short words will provide powerful protection for victims of workplace sexual harassment.  As important, the change reminds employers and the courts that sexual harassment is about abuse of power, not sex.

The California Supreme Court took aim at the hypocrisy of employers who hire and exploit undocumented workers. It has often been noted that low wage workers, regardless of their immigration status, are frequent victims of workplace violations. Undocumented workers, fearful that any complaint regarding a violation of these rights might result in their deportation, are a particularly vulnerable group.  This year, in Salas v. Sierra Chemical Company, the California Supreme Court ruled that an employer who discriminates or retaliates against an undocumented worker can be held liable. While the case limits the damages available to these employees, it does provide that employers who violate the workplace rights of undocumented employees will be held accountable for their actions.

While the phrase “wage theft” has been around for years to describe employers who fail to pay overtime or other wages earned by their employees, a number of cases in 2014 have raised public awareness and built public outrage regarding the all-too-common practice of employers forcing employees to work without pay.  Studies suggest that employers are ripping their workers off to the tune of more than $50 billion annually.

The year began with a high profile wage-theft story from an unlikely quarter with the filing of a class action lawsuit against the Oakland Raiders by one of their cheerleaders, Oakland Raiderette Lacy T. The lawsuit sparked similar lawsuits at four other NFL franchises and, as important, a national conversation about wage theft.   In March, seven class action lawsuits were filed across the country against MacDonald’s on behalf of workers in the fast food franchise restaurants alleging its franchises did not pay employees for all hours worked and forced them to work through breaks. Challenges to wage theft kept rolling throughout the year.  In November, employees of Yank Sing, a high end San Francisco dim sum restaurant recovered a landmark settlement — $4 million in back pay and benefits for “blatant” wage theft in settlement of complaints before the California Labor Commissioner. These high profile lawsuits have increased public awareness of wage theft and their examples serve as a deterrent to future wage theft.

  • No. 2:  National Labor Relations Board Opens the Door for Retail Workers to Organize by Department

The federal administrative agency that oversees labor-management relations also took steps to level the playing field for workers in 2014.  In July, the NLRB issued a decision that makes it far easier for unions to get a foothold in large retailers, including Walmart.  In a case involving Macy’s department store, the NLRB ruled that the United Food and Commercial Workers could organize a subgroup of 41 cosmetic workers at a 150-employee store.  Before this change, unions faced huge challenges because they were required to win storewide votes.  As of 2013, only 4.6% of workers in the retail industry were members of unions, as reported by the Wall Street Journal.   That’s down from more than 6% in 2003.  The UFCW is campaigning to organize retail workers at stores like Bloomingdales, Macy’s, Target and, of course, Walmart.

  • No. 1:  Increases in Minimum Wage for Workers 

Without question, the movement that gained the most momentum this year for workers was the campaign to increase the minimum wage.    President Obama called upon Congress to raise the minimum wage from $7.25 an hour to $10.10 an hour, and signed an Executive Order to raise the minimum wage to $10.10 an hour for new federal contract workers.  Unfortunately, the gridlocked Congress did not act to increase the minimum wage that applies to all workers around the nation. However,  eleven states (California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, Michigan, Minnesota, Rhode Island, Vermont, and West Virginia) and the District of Columbia did raise their minimum wage.

As of January 1, 2015, twenty-nine states and the District of Columbia will have minimum wages that exceed the paltry $7.25 per hour that workers earn under the federal minimum wage.  The highest minimum wage in the nation is in the District of Columbia, where the minimum wage is $9.50 an hour.  And, by January 1st, six other states (California, Connecticut, Massachusetts, Rhode Island, Vermont and Washington) will have legally mandated minimum wages of at least $9.00 an hour. While significantly more work remains to be done in this area, increases in the minimum wages are a meaningful development for millions of low-wage workers in this country.

So, as the year 2014 comes to a close, let’s toast these advancements for workers and rededicate ourselves to improving the working lives of all employees in the new year.

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

Tinder on fire: How women in tech are still losing

Tinder on fire: How women in tech are still losing

??????????????????????????????????????????????????????????????????

By Lisa Mak

A “whore,” “gold-digger,” “desperate loser,” and “just a bad girl.”  These are only a handful of the sexist comments that Whitney Wolfe, co-founder of the mobile dating app Tinder, alleges she was subjected to by chief marketing officer Justin Mateen.  Last month, Wolfe brought suit against Tinder for sex discrimination and harassment.  Wolfe’s legal complaint details how Mateen sent outrageously inappropriate text messages to her and threatened her job, and how Tinder CEO Sean Rad ignored her when she complained about Mateen’s abuse.  Wolfe claims that Mateen and Rad took away her co-founder designation because having a 24-year-old “girl” as a co-founder “makes the company look like a joke” and being a female co-founder was “slutty.”

The conduct, which Wolfe’s complaint characterizes as “the worst of the misogynist, alpha-male stereotype too often associated with technology startups,” unfortunately remains the norm, and Wolfe is not alone in her experience.  Last year, tech consultant Adria Richards was fired after she tweeted and blogged about offensive sexual jokes made by two men at a tech conference.  After one of the men was fired from his job, Richards experienced horrendous Internet backlash, including rape and death threats.  She was then fired by Sendgrid after an anonymous group hacked into the company’s system in some twisted attempt at vigilante “justice.”

In 2012, junior partner Ellen Pao filed a sexual harassment suit against a venture capital firm, alleging retaliation after refusing another partner’s sexual advances.  And back in 2010, Anita Sarkeesian was the target of online harassment after she launched a Kickstarter campaign to fund a video series to explore female stereotypes in the gaming industry.  An online video game was even released in which users could “beat up” Sarkeesian.  These are just some of the many examples of demeaning attacks against women in the testosterone-driven tech world.

There are many state and federal laws that prohibit the kinds of workplace harassment that these women experience, including the federal Civil Rights Act of 1964, the California Fair Employment and Housing Act, the Bane and Ralph Act, and the California Constitution.  These laws provide strong protections against gender harassment in employment and other contexts.  So why do these attacks on women continue to happen in an industry that is supposedly progressive and populated with fairly educated adults?

It doesn’t help that tech companies are also notorious for their lack of diversity.  This year, Google released its first diversity report which revealed that 70 percent of its workforce was male, and 61 percent was white.  The workforce was also predominantly male and white at Facebook, Yahoo, Twitter, and LinkedIn.  Another report this year shows that the percentage of women occupying CIO positions at companies has remained stagnant at 14 percent for the last decade.  These numbers confirm what the stories reflect — that this industry truly is “a man’s world.”  And this needs to change.

Some may dismiss Wolfe’s lawsuit and similar complaints as coming from women who are hypersensitive.  Indeed, Wolfe claims that when she complained about Mateen’s harassment, she was dismissed as being “annoying” and “dramatic.”  While some degree of social adaptation may be expected when joining any company, particularly freewheeling start-ups, there are limits that must be respected.  Those limits are crossed when the pressure to conform to a white, male norm is so great that women who challenge this norm are further harassed or their voices suppressed.

Unfortunately, this marginalization of women who challenge the macho culture even comes from other women, who blame the “feminists” for making it harder for women to advance in tech.  This also needs to change.  Women who speak out about sexism and misogyny in the tech industry deserve the support of their colleagues, and men who turn to vitriol and juvenile behavior to intimidate deserve censure.

But change will not be achieved without help from sources outside the industry.  Attorneys and employee advocates must continue to bring attention to the rampant sexism that is “business as usual” in the tech industry.  We need to encourage tech companies of all stages and sizes to comply with employment laws, adopt proper HR practices, promote diversity and inclusion, and use objective standards to measure performance.  If the tech industry is serious about encouraging young girls to become coders and developers, it also needs to place women in conspicuous leadership roles and pay real attention to changing the “guy culture.”

The tech world doesn’t have to be a man’s world, and it shouldn’t be.

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.

Sweat, blood, tears and stock options: the labor laws that protect all of us, even startup entrepreneurs

Sweat, blood, tears and stock options: the labor laws that protect all of us, even startup entrepreneurs

By Daniel Velton

If you live in Silicon Valley, it’s hard to miss news about deals like the recent $19 billion acquisition of WhatsApp, a young instant messaging company with a mere 55 employees. Or the $1 billion purchase of Instagram, a photo-sharing startup employing only about a dozen folks. Or the blockbuster deal for Waze, a small smartphone navigation company.

The lore of startup culture is by now well known. These often casual workplaces boast features like ping pong tables, 3D printer vending machines, skeeball, rock climbing walls, motorcycles, video games, draught beer taps, yoga mats and arcades. (Now television viewers can tune in to the startup world through a new HBO series.)

As hard as startuppers play, they work even harder. In their blur of 60-80 hour workweeks and caffeinated coding, dreams of being part of The Next Big Deal feed their dedication. They give up a lot of themselves and their personal lives in exchange for the elusive prospect of an early retirement. Many, though, often lose sight of the fact that there’s at least one thing they don’t give up — their rights.

California’s labor laws protect all of us, whether we work in shorts and flip-flops (or bunny slippers) in a fast and loose startup culture, or in slacks and dress shirts in a more traditional corporate environment.   More than one startup has learned this lesson the hard way.  The free-wheeling culture at Square Inc. has been cited by some as leading to a sexual harassment claim against the company’s chief operating officer.  Then there were claims of intimidation, violence and gunplay at the heart of a retaliation lawsuit against Color Labs’ co-founder.  And then there is the seminal Silicon Valley age discrimination case – Reid v. Google, Inc. – involving a 52-year-old manager allegedly referred to by managers as a “fuddy-duddy” with ideas “too old to matter.”   Eventually, his termination lawsuit went all the way to the California Supreme Court, which ruled that comments like those could establish age discrimination.   Finally, though well past its start-up phase, even tech giant Oracle Corporation was recently hit with a claim for retaliation by a sales manager who objected to what he says was national origin discrimination against Indian employees.

Silicon Valley interests may have successfully pushed through an 11th hour budget trailer in 2008 to end overtime pay for many computer professionals, but even in the wild world of startups, there are still laws protecting workers.  The bottom line is that laws that prohibit discrimination, retaliation and harassment, statutes that require employers to accommodate disabled employees, rules that mandate overtime pay for most hourly workers — these and many other protections cover all of us, regardless of where we work.

Startup employees may sell their souls, but they should be mindful that their legal rights don’t go away as part of the bargain.

 

Daniel Velton

About Daniel Velton

Daniel Velton began his career with the largest labor and employment law firm in the world. Using that experience, he brings valuable knowledge and perspective to his current practice, in which he exclusively represents employees in individual and class action discrimination, wrongful termination, harassment, wage and hour, and other employment cases.

Filner went out with a bang 6

Filner went out with a bang

By Nicole Heeder

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

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

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

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

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

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

Nicole Heeder

About Nicole Heeder

Nicole Heeder owns and operates Law & [M]ocean, a plaintiffs’ employment law boutique in San Diego. She is focused on eradicating discrimination and harassment issues in the workplace.

Supreme Court’s changing definition of supervisor: What does it mean to employees? 2

By Sharon Vinick

In 1998, the Supreme Court issued two key decisions regarding an employer’s liability for work place harassment — Burlington Industries , Inc. v. Ellerth, 524 U.S. 742 (1998) and Farragher v. Boca Raton, 524 U.S. 775 (1998) – which held that if a supervisor harasses an employee, the employer is strictly liable for the harm that is caused by the harassment.

Relying upon the ruling in these two cases, as well as the federal Equal Employment Opportunity Commission (“EEOC”) guidelines that define a “supervisor” as being anyone with authority to take tangible employment actions or to direct an employee’s daily work activities, Meatta Vance, who worked as a substitute server and a part-time catering assistant, sued her employer, Ball State University (BSU) for racial harassment.

Ms. Vance claimed that another BSU employee, Saundra Davis, had racially harassed her and created a hostile work environment, and that BSU was strictly liable for Ms. Davis’ acts, because Ms. Davis was her supervisor.  The lower courts  rejected Ms. Vance’s claim, finding that Ms. Davis was not Ms. Vance’s supervisor, because Ms. Davis did not have the authority to “hire, fire, demote, promote, transfer or discipline” Ms. Vance.

In Vance v. Ball State University, the Supreme Court rejected the EEOC guidelines regarding the definition of supervisor and the arguments offered by the Government’s attorneys.  Justice Alito, writing for the majority, held that for the purpose of holding an employer strictly liable, the term supervisor is limited to only those individuals who have been “empowered” by the employer to hire, fire, demote, promote, transfer of discipline.

As Justice Ginsberg points out in her dissenting opinion, this definition of “supervisor” is blind to the realities of the workplace.  Harassing employees who lack the authority to discharge or demote, are often “responsible for the day-to-day supervision of the workplace” and are authorized to make decisions which result in tangible employment actions against the employees whose work they are directing.  To hold that an employer is not strictly liable for the actions of these managers, is tantamount to giving job site bosses, and line managers, carte blanche to harass employees until such time as the employee actually files a complaint.

The implications of the Supreme Court’s decision in Vance will be wide-reaching.

First, many individuals with managerial authority will no longer be considered to be supervisors, leaving employees subjected to harassment by these individuals without a remedy unless they can prove that the employer knew about the harassment and failed to act.  For example, under the definition of supervisor adopted by the majority opinion, a law firm associate who supervises paralegals and gives out plum assignments, but cannot hire or fire the paralegals, is not a supervisor for purpose of imposing liability on the law firm for the associate’s acts of harassment.  Similarly, an employer is not strictly liable for the harassing conduct of a job-site boss, as long as the employer doesn’t invest the boss with the authority to hire and fire.

Second, employers are likely to strip responsibility for hiring, firing and promotion away from managers, in order to limit the company’s liability for acts of harassment by those managers.  This is likely to impact those employees who are most vulnerable to harassment, such as individuals who work at far-flung job sites where harassment can go uncheck and unnoticed (including individuals working in construction or agriculture),  and people who work in the food-industry where there are multiple shifts.

While the impact of the decision in Vance will not be known for some time, the decision is clearly a “win” for employers.  As Justice Ginsberg so eloquently stated, “the Court embraces a position that relieves scores of employers for responsibility for the behavior of the supervisors they employ.”  One can only hope that members of Congress read to the very end of Justice Ginsberg’s dissent, where she invites them to enact legislation to “correct the error to which this Court has fallen, and to restore the robust protections against workplace harassment the Court weakens today.”

Sharon Vinick

About Sharon Vinick

Sharon Vinick is the Managing Partner of Levy Vinick Burrell Hyam LLP, the largest women-owned law firm in the state that specializes in representing plaintiffs in employment cases. In more than two decades of representing employees, Sharon has enjoyed great success, securing numerous six and seven figure settlements and judgments for her clients. Sharon has been named by Northern California Super Lawyers for the past five years. Sharon is a graduate of Harvard Law School and UC Berkeley. In addition to being a talented attorney, Sharon is an darn good cook.

In two 5-4 decisions, Supreme Court narrows Title VII protection against harassment and retaliation

By Charlotte Fishman

What Senator Warren has labeled “the Corporate Capture of the Federal Courts”  was on full display at the United  States Supreme Court today.  The Court issued Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar, two 5-4 pro-employer decisions authored by Justice Samuel Alito and Justice Anthony Kennedy, respectively.  Justice Ginsburg authored two impassioned dissents that she read from the bench.

To attorneys who represent victims of discrimination of harassment  and retaliation, these decisions illustrate a depressingly familiar scenario of judicial bias:    the majority is far more concerned with protecting employers from lawsuits than vindicating employees’ statutory right to be free from discrimination and retaliation.

In Nassar, Justice Kennedy’s words convey solicitude for the welfare of employers that is in sharp contrast to his disdainful view of employees:  “The fair and responsible allocation of resources in the judicial and litigation system” requires raising the standard for retaliation claims because “[i]t would be inconsistent with the structure and operation of Title VII to so raise the costs, both financial and reputational, on an employer whose actions were not in fact the result of any discriminatory or retaliatory intent.”

The majority’s lack of comparable concern for the “financial and reputational” cost of retaliatory harrassment to the employee is noteworthy, as is its unquestioning acceptance of the hypothetical danger rarely, if ever, encountered by employee-side practitioners:  “Consider…the case of an employee who knows that he or she is about to be fired for poor performance, given a lower pay grade, or even just transferred to a different assignment or location.  To forestall that lawful action, he or she might be tempted to make an unfounded charge of racial, sexual, or religious discrimination: then when the unrelated employment action comes, the employee could allege that this is retaliation.”

In Ball, Justice Alito’s opinion reveals the majority’s staggering ignorance of (or indifference to) the power of low level supervisors to use their employer-delegated authority to harass employees under their control.  The opinion limits employer’s vicarious liability for workplace harassment to the actions of supervisors who have the power to “hire, fire, demote, promote, transfer or discipline.”   In so ruling, the Court threw out EEOC Enforcement Guides in effect since 1999, and made it harder for employees to obtain redress for harassment by defining individuals who control day-to-day schedules and assignments as mere “co-workers.”

The tendency of the federal courts to favor corporate interests over that of individuals has become the subject of increasing public concern, and today’s decisions provide additional fuel for the argument that  we need greater experiential diversity on the federal bench.  Hopefully, Congress will accept Justice Ginsburg’s invitation to “correct this Court’s wayward interpretations of Title VII” and  restore the Title VII protections that are weakened by today’s cases.  But in the long run, what is needed to restore balance to our judicial system is the appointment of federal judges who are better attuned to the rights of individuals.

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.

%d bloggers like this: