Gender Discrimination ← CELA VOICE

Uber and tech: Are you listening now?

Feb

21

2017

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.

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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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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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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Sexism and civility in today’s legal profession: Why one attorney was sanctioned for his remarks to opposing counsel

Feb

1

2016

By Eduard Meleshinsky

In a clarion call for civility among attorneys, Magistrate Judge Paul Grewal sanctioned a defense attorney for his tactics in a civil rights case, and excoriated him for “repeatedly and unapologetically flout[ing]” the Northern District of California’s Guidelines for Professional Conduct, the Federal Rules of Civil Procedure (FRCP), the court’s prior order, and – in this author’s opinion – offending standards of basic civility most of us learned on the playground, as children. The order is available here.

In connection with a deposition noticed by the mother of a pretrial detainee who committed suicide while in jail, the attorney for the public entity and employee defendants produced documents in a “physically cracked and unusable disc” on the day of the deposition, delayed correcting this abjectly deficient production for over a month after being repeatedly asked to do so by plaintiff’s counsel (only to produce documents defendants’ attorney already knew to be in plaintiffs’ possession), made “extremely long speaking objections” in depositions ordered by the court, and many more violations. Tellingly, defendants’ attorney made “no attempt to defend any of this conduct.”

The unprofessional conduct did not stop at discovery abuse. Escalating his disgraceful misconduct from unprofessionalism to sexism, defendants’ attorney told one of the plaintiffs’ female attorneys, at a deposition she was taking, “[D]on’t raise your voice at me. It’s not becoming of a woman ….” In briefing his opposition to the sanctions request, defendants’ attorney doubled down on his statement with a sorry-not-sorry apology (“a halfhearted politician’s apology ‘if [he] offended’ Plaintiff’s counsel”).

As Judge Grewal explained in his order, defendants’ attorney’s attack “endorsed the stereotype that women are subject to a different standard of behavior than their fellow attorneys.” The judge further elaborated that such gender-based vitriol “reflects not only on the attorney’s lack of professionalism, but also tarnishes the image of the entire legal profession and disgraces our system of justice.” The Court found that these types of statements – in addition to harming the many female attorneys who regularly endure similar treatment – degrade the legitimacy of the legal system itself.

Gendered attacks “reflect and reinforce the male-dominated attitude of our profession.” This malignant attitude has deep roots in the legal profession. Even the Supreme Court of the United States in Bradwell v. The State (a case that has rightfully taken its place among Plessy and Korematsu as part of the constitutional anti-canon) has perpetuated these gender stereotypes. In upholding a state law prohibiting women from practicing law on account of their gender, the Court opined:

The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.

A lot of progress has been made since 1872: the 19th Amendment was ratified; Congress enacted the Equal Pay Act and Title VII of the Civil Rights Act of 1964, and amended the same to prohibit pregnancy discrimination; and Sandra Day O’Connor was confirmed as the first of four women so far to serve on the high court. However, despite the important gains made in the fight for gender equality in the workplace and beyond, much has remained the same in the legal profession for female attorneys.

For example, the opportunity for female attorneys to advance to leadership roles in law firms remains stymied, female attorneys are judged more harshly if they lack “interpersonal warmth” and are not recognized for their legal competence to the same degree as their male counterparts for career advancement purposes, and, more generally, the gender pay gap remains ever- present and ever unaddressed. In light of the work that remains to be done in making women’s equality a reality, our profession should, at the very minimum, not tolerate Mad-Men-styled sexist remarks from its members.

Fortunately, Judge Grewal suffers no fools. Because of the defense attorney’s egregious misconduct, the jurist awarded plaintiffs their fees and costs in bringing the motion for sanctions, as well as attorneys’ fees for depositions, including the deposition during which the sexist comment was made. Recognizing that monetary compensation for plaintiffs’ attorneys’ fees and legal costs still fell short of a just result, Judge Grewal ordered the “specific and appropriate sanction” of compelling defendants’ attorney to “donate $250 to the Women Lawyers Association of Los Angeles Foundation … and submit a declaration to the court confirming his compliance with this order.”

One hundred and forty-four years have passed since Bradwell, yet we continue to see conduct in the legal profession that perpetuates harmful gender-based stereotypes. Too often, that conduct is simply dismissed without any consideration of its broader impact on our progress toward gender equality. Courts should emulate Judge Paul Grewal, giving discrimination no quarter and enforcing basic civility in the legal profession.

An earlier version of this post appeared on the Bryan Schwartz Law blog under the title “Court Sanctions Defense Attorney for His Sexist Remarks to Opposing Counsel.”

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Valuing fatherhood in the workplace

Jun

21

2015

By Sarah Schlehr and Mariko Yoshihara

This Father’s Day, let’s do more than just celebrate our dads with Hallmark cards and backyard barbecues. Instead, let’s give our dads something they really need – flexible workplace policies.

It can’t be surprising that the increase of women in the workforce, coupled with laws that discourage fathers from taking leave, has created a cascade of domestic stresses. While women still bear a disproportionate share of the domestic work despite also working outside the home, working fathers now report feeling more work-family conflict than working mothers do. The irony of this conflict is that fathers are actually prevented from sharing some of the burdens (and joys) of family life because they are saddled by Leave It To Beaver-era parental leave laws.

The good news is, change appears to be on the horizon. This April, Massachusetts became the first state to require all but the smallest employers to provide fathers with unpaid job-protected leave for the birth of a child. The law, renamed from the Maternity Leave Act to the Parental Leave Act, requires businesses with at least six employees to cover dads as well as moms. The expanded coverage is a much-needed first step in recognizing the universal need for fathers to spend time and bond with their newborn children.

A 2007 study found that fathers who took two or more weeks of leave after a child was born were more likely to perform certain daily child care tasks, like diapering, feeding, and bathing later on. Fathers who took less than two weeks of leave were no more involved than those who took no leave at all.

Despite the clear benefit of taking time off to bond with a new child, fewer and fewer businesses are offering leave benefits to fathers and research has shown that those who do take leave face a significant stigma in the workplace (let’s not forget the New York Mets baseball player, Daniel Murphy, who was criticized when he took three days off for the birth of his child).

According to a recent study, most fathers only take between one and two weeks off after the birth of a child and the length of time off was closely tied to how much of the leave was paid. Luckily, California is one of the few states that offer paid leave to parents. And it’s no surprise that since the program was implemented, the percentage of “bonding leaves” claimed by men has gone up from 18.7 percent in 2005 and 2006 to 31.3 percent in 2012 and 2013.

Unfortunately, many fathers, especially low-income fathers, cannot take advantage of paid leave because their employers are too small to be covered by a law that would provide the new dads with job protection. Most fathers simply cannot risk losing their job, especially after the birth of a new child. Leaving aside the lucky Massachusetts dads, the only fathers who can access job-protected leave are those who are covered by the Federal Family and Medical Leave Act (FMLA) or a state law corollary. But these laws leave a lot of fathers out in the cold since they only cover employees who work for companies with 50 or more employees and who have worked there for at least a year.

Incremental change may be on the way in California, where advocates for working dads (and moms) are pushing to increase the boundaries of who is covered by the California Family Rights Act, California’s corollary to the FMLA. California’s SB 406, the legislation that would amend the law, does not go as far as the Massachusetts parental leave law. But it does propose to expand leave rights to workers at smaller businesses, by lowering the employee threshold from 50 or more employees to 25 or more.

While SB 406 and the Massachusetts law are certainly steps in the right direction, both still lag far behind what other countries provide for their fathers. For years, Sweden has had a generous parental leave policy of 16 months that could be shared by the mother and father. Beginning in 1995, Sweden introduced a “use it or lose it” policy that reserved one month specifically for dads. This was increased to two months in 2002 and will increase again to 3 months in 2016. Some countries, like Chile, Portugal, and Italy, go so far as to make paternity leave compulsory, to help ensure that fathers share childcare responsibility with mothers.

It’s time for California and the rest of the United States to catch up and show that the job of parent is at least as important as the jobs parents perform for their employers.

About Sarah Schlehr

Sarah B. Schlehr is the founder of The Schlehr Law Firm, P.C. Her firm focuses on representing employees who are discriminated against because of pregnancy or for taking a leave of absence. Her firm also represents veterans who have been discriminated against for taking military leave. She is a graduate of Harvard Law School, Brigham Young University, Gerry Spence’s Trial Lawyers College, and the Strauss Institutes’ Program on Mediating the Litigated Case.

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What do the United States and Papua New Guinea have in common?

May

18

2015

What do the United States and Papua New Guinea have in common? According to the United Nations, they are the only countries in the world without any sort of paid time off for new mothers.

In the Mother’s Day edition of his HBO show “Last Week Tonight,” John Oliver, the British comedian who is perpetually incredulous over most things American, juxtaposed the maudlin, corporate exploitation of the holiday with the grim economic realities facing working mothers in this country. But Oliver noted a tiny bright spot. Three states, California, Rhode Island and New Jersey, have some sort of limited paid leave for new mothers.

California’s paid family leave program is modest. Payments are only partial and a worker can be fired for taking paid family leave unless they are also eligible for job protection under the California Family Rights Act (“CFRA”). Yet, only workers at companies with 50 or more employees and who have been on the job for at least a year are covered under CFRA. Accordingly, only about half of California employees can actually take advantage of the paid family leave program.

That may be about to change. Senate Bill 406, currently pending before the California Legislature, would expand the job-protection coverage of the paid family leave program to include smaller companies of 25 or more employees. It would also expand the definition of family member for whom a worker can take job-protected leave to care for to reflect the realities of modern families, by including grandparents, grandchildren, siblings, and adult children.

Even this modest expansion of the paid leave program has drawn the garment-rending wailing of the Chamber of Commerce, who predictably labeled it a “job killer.” In the Mother’s Day clip, Oliver mocked the overwrought rhetoric and overblown fears of Congressional opponents of the unpaid Family Medical Leave Act (“FMLA”) in 1992: “Our businesses shall crumble, or cities shall burn and hungry wolves will roam the streets.”

In reality, a 2012 Department of Labor survey showed only 15% of employers reporting any significant difficulty in complying with the FMLA. There were no reports of hungry wolves. A similar study conducted ten years after the enactment of California’s Paid Family Leave Act found that 90% of California employers considered the Act to have a positive or neutral effect on productivity, profit, morale and costs.

Progress in protecting the economic security of families seems to happen only incrementally. The expansion of California’s paid leave program reflected in SB 406 is a great next step. Let’s leave Papua New Guinea in the dust!

Watch the John Oliver clip by clicking here.

About Curt Surls

Curt Surls has been practicing in Los Angeles, specializing in employment law, for almost 25 years. Mr. Surls is a Fellow of the American Bar Foundation, a non-profit professional association honoring lawyers whose careers have demonstrated dedication to the welfare of the community and the traditions of the profession. Prior to opening the Law Office of Curt Surls in July 2012, he was a partner with Bornn & Surls for over 15 years. Mr. Surls was also an attorney with the Oakland civil rights firm then known as Saperstein, Seligman & Mayeda, specializing in employment and civil rights class actions. Mr. Surls also worked for the Department of Industrial Relations and the Legal Aid Foundation of Los Angeles.

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Three California bills to support this Equal Pay Day

Apr

14

2015

By Mariko Yoshihara

Today we recognize Equal Pay Day, which marks the day in 2015 when the average woman could finally stop working if she was hoping to make the same amount of money the average man made last year. Last year, Equal Pay Day was on April 7th. In 2013, Equal Pay Day was on April 9th. That’s right, over the past few years the day where women finally catch up has become harder, not easier, to reach. In fact, according to a recent study the gender wage gap in this country will not close until 2058. The outlook is a little better for California, where the gender wage gap is projected to close in 2042. But this is unacceptable. Some women will never see pay equity in their lifetime.

Even more distressing is the size of the wage gap and its economic consequences for women of color, particularly in California. While white women in California earn 76 cents for every $1 a white man makes, Hispanic women and African American women earn only 44 cents and 64 cents, respectively, for every $1 a white man makes. California ranks third, only to Texas and New Jersey, for the largest wage gap for Hispanic women.

But not all hope is lost. Some members of the California legislature are taking an aggressive approach to tackling the gender wage gap this year, with three separate measures that address pay equity directly, and dozens of other bills that address women’s economic security generally. Here are the three pay equity bills to watch:

Senate Bill 358, by Senator Jackson, will help strengthen California’s Equal Pay Act by eliminating loopholes that prevent effective enforcement and by empowering employees to discuss and inquire about pay in the workplace without fear of retaliation.
Assembly Bill 1017, by Assemblymember Campos, will help prevent employers from preserving and perpetuating historical pay inequities by prohibiting them from asking job applicants for prior salaries. This bill will help put men and women on more of an equal footing when negotiating pay with prospective employers.
Assembly Bill 1354, by Assemblymember Dodd, will require state contractors to submit equal pay reports to the Department of Fair Employment and Housing, containing summary data of their workers’ compensation, broken down by race and gender. Simply by requiring employers to compile this data, the bill will help employers take proactive measures to ensure their pay practices are fair and equitable.

All three of these bills will be heard in their first policy committee next Wednesday, April 22nd. Call or write your state representatives and tell them to support these important bills that will help bring us closer to finally achieving pay equity in California.

Lactating men, toilet stalls and the arc of justice

Feb

27

2015

By Christian Schreiber

For the vast majority of workers, the laws that protect their rights operate silently in the background. This is especially true in California, where labor laws are frequently hailed – or assailed – as the country’s most protective for workers.

It’s easy to forget that the standards we take for granted today were once uncharted frontiers, but sometimes a reminder is in order: the provision of new rights always meets resistance, but seldom do we regret the expansion.

A recent example makes the point. The U.S. Supreme Court denied a breastfeeding mother’s last chance at an appeal last month. The plaintiff in the case, Angela Ames, alleged that she was wrongfully terminated from her job at an Iowa insurance company after returning to work from pregnancy leave. Ames requested a room where she could express breast milk, and was instead told by her boss to “go home and be with your babies.” The district court tossed the case on summary judgment, noting that her sex discrimination claims could not stand because “lactation is not a physiological condition experienced exclusively by women.” The 8th Circuit upheld the decision.

If you’re thinking this sounds like an article in the Onion, you’re not alone. Legal opinions relying on “Strange But True” articles make me think that my trivia-minded children have a too-near-term future on the bench. And I can’t be alone in being reminded of this:

Unfortunately, Ames and other women trying to breastfeed remain unprotected in many settings, and experience resistance in even unlikely places. Last fall, my sister-in-law was prepared to sit for her board exams in for Pulmonary and Critical Care Medicine. When she asked the American Board of Internal Medicine for accommodation to express milk during the 10-hour testing day, she was told to spend her break time pumping. Because as every lactating man knows, pumping is the same thing as studying, resting, eating, smoking, or taking a break.

In California, breastfeeding rights are well established. But because she lives in Indiana (where she is currently completing her fellowship), she enlisted help from me and the ACLU’s Women’s Rights Project. We wrote a letter explaining the shortsightedness of ABIM’s position. The good news is ABIM accommodated her request, and subsequently changed its policy. Ms. Ames was not so lucky.

California working mothers can now rely on Labor Code section 1030, which since 2003 has required employers to provide unpaid time and non-bathroom space for employees to express breast milk. When the bill mandating these changes was debated, however, the Chamber of Commerce predictably opposed the bill.

The Chamber’s position evolved over the next decade. Last year it did not oppose AB 1787, which would have required large commercial airports to provide places for nursing mothers. But the Chamber is nothing if not consistent. Instead of recognizing that today’s vanguard is tomorrow’s baseline, the Chamber still reflexively opposes any “new rights” in the workplace, typically tagging such efforts as “job killers.”

It is time our elected officials stop crediting the tired perspective of holdouts quivering at the edge of a civil rights moment. Time has a way of showing that the Chamber’s unbroken chorus of “impending doom” and “runaway rights” holds neither moral nor economic sway. And it never stands the test of time. A dozen years later, what California employer is clamoring to end the tyranny of nursing mothers being released from the confines of a toilet stall?

The Chamber’s economic perspective is just as faulty.. Consider the following two slides:

If the Chamber’s perspective were valid, the laws enacted to protect workers in San Francisco should have crushed the City’s economic vitality. Plainly,they didn’t..

The Legislature is poised to consider any number of bills this session that will expand the rights of workers, including a renewed effort to guarantee equal pay for working women. When the Chamber begins its craven “job killer” refrain, as it will both publicly and privately in the days ahead, it should be met with skepticism. California legislators need not shy away from the reality that civil rights legislation has demonstrated a distinct, eastward migratory pattern.

If the arc of the moral universe is long and bends towards justice, short-term plans that offer only the promise of continued inequity should be met with a new chorus. “See me in 10 years if you’re still interested in reversing these rights. Otherwise, I hear they’re hiring in Iowa.”

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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Six Years After the Lilly Ledbetter Fair Pay Act and Still More Work to Do

Jan

29

2015

By Sharon Vinick

Six years ago today, President Obama signed his first piece of legislation — the Lily Ledbetter Fair Pay Act — to extend the time period in which an employee could file a claim for pay discrimination. The Act overruled the United States Supreme Court’s decision in Ledbetter v. Goodyear Tire & Rubber, which Ledbetter said allowed her employer to pay her unfairly “long enough to make it legal.”

At the time of its passage, President Obama said that the passage of the Act would “send a clear message that making our economy work means making sure it works for everyone.”

Sadly, in the six years since the passage of the Act, the gender pay gap has – at best – barely budged. Indeed, by some estimates, the wage gap has actually widened in the last few years.

If the new Congress is truly committed to the goal of pay equity, concrete steps must be taken. First, Congress should pass the Paycheck Fairness Act, which will strengthen the Equal Pay Act and help secure equal pay for equal work. Second, Congress must act to increase the minimum wage, as women make up two-thirds of the country’s minimum wage earners. Third, Congress should enact a universal, government-paid preschool program, as 10% of the wage gap is attributable to time that women spend outside of the workforce.

While the Lily Ledbetter Fair Pay Act was a step in the right direction, Congress still has a lot of work to do to close the persisting wage gap. Let’s hope by the Seventh Anniversary of the Act, we are closer to pay equity and an economy that truly works for everyone.

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.

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A New Year’s resolution for CEOs: Admit the mistake and take action to end bias

Jan

16

2015

By Sharon Vinick

On February 4, 2014, Microsoft announced that Satya Nadella would become the new Chief Executive Officer of Microsoft. Nadella had worked in Silicon Valley since 1992, and had been with Microsoft for 22 years when he was elevated to the position of CEO. His first year compensation amounts to about $84 million. Until October, Nadella’s tenure as Microsoft’s CEO was unremarkable. But then came his remarks at the annual Grace Hopper Celebration of Women in Computing, the World’s largest gathering of women technologists. The head of Microsoft chose this gathering of more than 8000 attendees, mostly women, to suggest that women were better off trusting “karma” than pushing for raises. The incident raised the hackles of women inside and outside the technology world and immediately raised Nadella’s profile as well … but not in a good way.

The CEO had been invited to speak at a plenary session, which was open to all conference attendees. In response to a question the best ways for women to advance in corporate America, Nadella said that “[i]t’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along.” Nadella went on to say that not asking for a raise was “good karma.”

Not too surprisingly, Nadella’s remarks immediately drew the ire of women, particularly as studies routinely show that women are paid less than men. Indeed, some research shows that Nadella’s advice is exactly the opposite of what women need. According to Linda Babcock, an economics professor at Carnegie Mellon University and leading researcher on women and pay negotiations, one of the reasons that women make less money is because they are less likely than their male counterparts to negotiate their compensation.

There is at least one silver lining in the story of this CEO blunder — it appears that Mr. Nadella may have learned something from the experience. The first sign of the lesson learned came in the form of a tweet. Unlike many CEOs, he did not try to explain away the ignorant remarks. Instead, within hours of leaving the stage, Mr. Nadella tweeted: “Was inarticulate re how women should ask for raise. Our industry must close gender pay gap so a raise is not needed because of bias.”

Next came Nadella’s brief email to all Microsoft employees, in which he stated that his response to the question was “completely wrong.” Yes, you read that right. Within hours of making a foolish and clearly erroneous suggestion about how women should try to get ahead in the world of technology, Nadella sent an email saying he “answered the question completely wrong.” He also went on to say “I believe that men and women should get equal pay for equal work. And when it comes to career advice on getting a raise when you think it’s deserved . . . you should just ask.”

Then, a week after the incident, Nadella issued a companywide memo committing to expanding diversity within the company. Significantly, the memo points repeatedly to the danger of “conscious and unconscious” bias in the workplace. The concept of “unconscious” bias, also known as implicit or cognitive bias, refers to the way that people make decisions based on stereotypes and assumptions without intending to discriminate. In Nadella’s own words —

“My advice [to not ask for a raise] underestimated exclusion and bias — conscious and unconscious — that can hold people back. Any advice that advocates passivity in the face of bias is wrong. Leaders need to act and shape the culture to root out biases and create an environment where everyone can effectively advocate for themselves.”

Psychologists, academics and employment rights lawyers have been talking about this phenomenon for years. The Nadella memo is a clear sign that their message is finally reaching the top echelons of corporations. And that is good news.

Cynics will assume, probably correctly, that the quick apology was a public relations tactic. And there is no question that the seemingly radical act of Nadella admitting that he had made a mistake virtually ended the criticism. But there is reason to hope that the CEO for one of the world’s largest companies may have learned a deeper lesson than how to engage in damage control. As we begin a new year, CEO’s across the country should take a page from Nadella’s playbook, accept that they may not yet fully understand the forces that have caused the gender pay gap, and resolve to “act and shape the culture to root out biases.” Admitting error, saying that you were “completely wrong,” and taking action to change corporate culture is not only the right thing to do, it is also good business.

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.

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