2016 ← CELA VOICE

Election aftermath: The road ahead

Nov

10

2016

When 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.

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.

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A turning point in paid family leave: California measure has broad political and medical support

Sep

16

2016

Charles Anderson, a new father who was denied parental leave by his employer, and his baby girl.

By Jenna Gerry

With unprecedented bi-partisan support, a bill that would expand parental leave to 2.7 million more of California’s working families is on Gov. Jerry Brown’s desk. Introduced by Sen. Hannah-Beth Jackson (D-Santa Barbara), SB 654, the New Parent Leave Act, would extend six weeks of job-protected bonding leave to California workers at companies with at least 20 employees within 75 miles of the employee’s worksite.

This bill addresses one of the biggest barriers workers face when trying to take Paid Family Leave — knowing that their job may not be there when they get back. This bill is remarkable not only for what it will provide to millions of California workers but for the justified bi-partisan support it received on the Assembly floor.

Here in California, the state Chamber of Commerce has consistently put every bill expanding the right to take job-protected parental leave on its infamous “Job Killer” list. In the past, a bill’s placement there has ensured that no Republican legislator would support it, and it has often meant that few to no moderate Democrats would either. Indeed, it can be the kiss of death for progressive legislation, even in our Democratic-controlled Legislature. So, as SB 654, prominent on the “Job Killer” list, headed to the Assembly floor in August, Jackson and the bill’s sponsors were not sure if we had the 41 votes we needed. But something miraculous happened.

After hearing her fellow Republicans voice staunch opposition, Assemblymember Melissa Melendez (R-Murrieta) stood up to speak in support of SB 654. She described her own experience of deciding to leave the military when she became a mother — in part because she would have received only six weeks off after giving birth. She could not imagine having to leave her child that fast. Melendez called on her colleagues to consider that we guarantee the job of any member of the military reserves if they are called to active duty. And she asked whether “the birth of a child is less important than service to one’s country.” She also challenged past rhetoric from both sides of the aisle justifying votes against parental leave measures.

When the final vote came down, nine Republicans joined 45 Democrats in favor of SB 654. We hope this was a turning point, and our state and nation can now transcend partisan politics to understand, finally, that family leave affects us all. As Melendez put it, “Republicans and Democrats agree that family is important, that children are important. And, if you believe that, you have to put your money where your mouth is.”

California’s health community is also speaking out for SB 654. More than 120 California health care professionals and 16 health care organizations — including the American Academy of Pediatrics’ California chapter — delivered a letter to Governor Brown this week urging him to sign it. “This is about clear empirical evidence,” said one signatory, Dr. Paul Chung of UCLA, “showing that the health and well-being of parents and their children — the present and future of our state’s economic productivity — are improved by job-protected paid parental leave.”

In addition to my organization, Legal Aid Society-Employment Law Center, several groups that advocate for policies to support the viability of working families cosponsored and helped promote SB654: the California Employment Lawyers Association, Equal Rights Advocates, and the California Work and Family Coalition (which counts these groups and many more among its members).

Now it is time for Governor Brown to make parental leave a reality for millions more California workers, especially because they’re already funding six weeks of it through payroll deductions. But parental leave is about more than the bottom line; it is about ensuring the wellbeing of California families and the state as a whole.

Jenna Gerry is an attorney at Legal Aid Society – Employment Law Center (LAS-ELC), where she advises workers struggling with family and medical crises and participates in legislative advocacy to expand family-friendly workplace policies. LAS-ELC is a co-sponsor of SB 654, along with the California Employment Lawyers Association, the Work and Family Coalition, and Equal Rights Advocates.

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We’ve Finally Reached 2016 African American Women’s Equal Pay Day

Aug

23

2016

Today we commemorate “African American Women’s Equal Pay Day,” the day in the year when African American women’s wages finally catch up to what men earned last year. It is important to note that African American Women’s Equal Pay Day comes nearly four months after “Women’s Equal Pay Day,” which included wages of women of all races, and was marked on April 12th of this year. The four-month lag signifies the nearly 20-cent wider wage gap African American women face when compared to women of all races. So, while the average wage gap for all women in the United States is 79 cents for every dollar a man makes, African American women’s wages are at just 60.5 cents on the dollar. African American lesbian couples, who doubly experience the high wage gap (plus discrimination based on sexual orientation), have triple the poverty rate of white lesbian couples.

Eliminating the racial gender wage gap would provide concrete economic benefits to African American women. To give a concrete example, women could buy nearly three years of food for their families or pay rent for nearly two years with those additional wages. Given that so many African American women and their families are struggling to make ends meet, receiving equal pay would make a life-changing difference.

Last year, California passed one of the strongest equal pay laws in the country, the California Fair Pay Act of 2015, which strengthened protection for workers who discuss or ask about their wages and the wages of others. It also protects women who challenge gender based pay differences in jobs that are “substantially similar” to theirs. For example, a female housekeeper who is being paid less than a male janitor could remedy the pay difference since the jobs are so similar and wage inequality would likely be unjustified. The California Labor Commissioner is charged with enforcing the California Fair Pay Act.

This year, California State Senator Hall has introduced SB 1063, the Wage Equality Act of 2016, which would add race and ethnicity to California’s strong Fair Pay Act. Under SB 1063, California employers would be prohibited from paying workers less for substantially similar work based on race or ethnicity. An African American woman thus might have a claim that she is being paid less based not only on sex, but on race as well. With SB 1063, she would be able to more effectively address racial wage inequality.

Certain cities already are specifically addressing wage inequality by sex, race and ethnicity. For example, in San Francisco, city contractors will have to disclose data on what they pay their workers, broken down by both sex and race, to the City. California state contractors may also be required to submit similar pay data reports under another bill that should reach the governor’s desk for approval. And the federal Equal Employment Opportunity Commission intends to revise its Employer Information Report (EEO-1) data collection to include salary information based on ethnicity, race, and sex.

Our current laws against sex and race discrimination have proven inadequate to end race- and sex-based unequal pay since the pay gap remains depressingly large more than fifty years after passage of federal civil rights laws in these areas. Pay disclosure rules are an important step towards closing the pay gap for women and women of color in particular. They force employers to self-audit and identify unjustified pay disparities. In the event they do not correct the disparities, disclosure enable government agencies to conduct targeted enforcement of equal pay laws.

It will reportedly be more than a decade before the first African American woman (Harriet Tubman) graces the face of U.S. currency. With these new laws there is hope that before the Tubmans arrive, African American women will already be receiving the full value of those $20 bills and not just 60 percent.

The Legal Aid Society-Employment Law Center 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.

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.

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

Jun

7

2016

By 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.