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This series, beginning here, explores the top ten ways that employers deny employees their medical leave rights.#4 – Failing To Provide Employees Information About Their Leave Rights
Employers have an obligation to inform employees about their leave rights. For example, an employer must “give its employees reasonable advance notice of employees’ [Fair Employment and Housing Act] rights and obligations regarding pregnancy, childbirth, or related medical conditions,” including by posting a notice of leave rights in a conspicuous location, including it in a handbook or distributing it to employees separately, and giving a copy to the employee “as soon as practicable after the employee tells the employer of her pregnancy or sooner if the employee inquires about reasonable accommodation, transfer, or pregnancy disability leaves.” (Cal. Code Regs., tit. 2, § 11049, subd. (a), (d).)
Similarly, “[e]very employer covered by the [California Family Rights Act (“CFRA”)] is required to post and keep posted on its premises, in conspicuous places where employees are employed, a notice explaining the Act’s provisions and providing information concerning the procedures for filing complaints of violations of the Act with the Department of Fair Employment and Housing.” (Cal. Code Regs., tit. 2, § 11095.)
If the employer fails to provide an employee reasonable advance notice of their leave rights under the…
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An estimated 0.3% of adults are transgender. Many face pervasive harassment, discrimination, violence, and abuse in every aspect of their lives, including at work, in housing, education, healthcare, and personal relationships. Consider the discrimination suffered by transgender individuals at work. According to a comprehensive 2011 report titled “Injustice At Every Turn: A Report of the National Transgender Discrimination Survey“:- 90% of transgender individuals surveyed reported experiencing harassment, mistreatment or discrimination on the job or took actions like hiding who they are to avoid it.
- 47% said they had experienced an adverse job outcome, such as being fired, not hired or denied a promotion because of being transgender or gender non-conforming.
- Over one-quarter (26%) reported that they had lost a job due to being transgender or gender non-conforming and 50% were harassed.
- Large majorities attempted to avoid discrimination by hiding their gender or gender transition (71%) or delaying their gender transition (57%).
- Overall, 16% said they had been compelled to work in the underground economy for income (such as doing sex work or selling drugs).
- Respondents who had lost a job due to bias also experienced ruinous consequences such as four times the rate of homelessness, 70% more current drinking or misuse of drugs to cope with mistreatment, 85% more incarceration, more than double the rate working in the underground economy, and more than double the HIV infection rate, compared to those who did not lose a job due to bias.
- A staggering 41% of respondents reported attempting suicide compared to 1.6% of the general population, with rates rising for those who lost a job due to bias (55%), were harassed/bullied in school (51%), had low household income, or were the victim of physical assault (61%) or sexual assault (64%).
California has protected transgender employees from workplace and housing discrimination since before 2003. It has done so through the Fair Employment and Housing Act (FEHA), which prohibits discrimination, harassment, and retaliation based on certain protected categories. However, many Californians remain unaware that transgender employees are protected from workplace discrimination. To help educate workers and employers, the California Legislature made these protections explicit in 2003 and 2011. And, this week, California’s Department of Fair Employment and Housing issued guidance . . .
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On Tuesday, October 6, Governor Brown signed SB 358 (Jackson), the California Fair Pay Act. The Act, aimed at addressing the gender pay gap, will be the nation’s toughest. It seeks to ensure that women are paid equally for performing substantially similar work, and protects employees from retaliation for disclosing/discussing wages or seeking to enforce their rights. Credit goes to Senator Hannah-Beth Jackson (D-Santa Barbara) for authoring the bill, which had wide bipartisan support, and to co-sponsors
Equal Rights Advocates, California Employment Lawyers Association, and Legal Aid Society-Employment Law Center.The Fair Pay Act Strengthens Existing Law
California’s Equal Pay Act, Labor Code section 1197.5, was first enacted in 1949 and revised in 1985. It is similar to the federal Equal Pay Act of 1963. The Fair Pay Act bolsters the California Equal Pay Act in the following ways:
1. It provides for equal pay for “substantially similar work,” not just equal work in the same establishment.
This means that a woman need not hold the exact job as her male comparators to seek equal pay. Instead, the works needs to be “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”
2. It eliminates loopholes and limits employers defenses when a wage differential is challenged.
Previously, the following four defenses were permitted:
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If you believe that you were not hired/promoted or were terminated/laid off because of your age, can you still have a case if the person given preference is also over 40?
The short answer is “yes.”
It does not matter that the person favored is also over 40 if he is “substantially younger.”
The Supreme Court in O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996), confirmed that age discrimination can occur even if the person favored is also over 40. In O’Connor, a 56-year-old who was fired and replaced by a 40-year-old sued under the Age Discrimination in Employment Act of 1967 (“ADEA”). The district court granted the defendant’s summary judgment motion and the Court of Appeals affirmed, holding that the plaintiff failed to make out a prima facie case of age discrimination under because he failed to show that he was replaced by someone under the age of 40. The Supreme Court, in an opinion written by Justice Scalia, held that an employee asserting age discrimination need not demonstrate that his replacement was under 40; rather, he must demonstrate that his replacement was “substantially younger.” O’Connor, 517 U.S. at 312. The Court explained:
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When the Supreme Court recognized last month in Obergefell v. Hodges, 576 U.S. ___ (2015) that the fundamental right to marry applies to same-sex couples, Americans rejoiced. The Court’s opinion reflected the tipping point we have reached as a nation with broad public acceptance of LGBT rights.
But civil rights activists and allies were quick to point out that there is more work to be done. Pundits observed that in some states, a gay couple could be married in the morning and fired from their jobs for being gay hours later. Indeed, LGBT people in many states still lack protections from discrimination and harassment in employment, housing, and education. Sexual orientation discrimination in employment is not explicitly prohibited under federal law. In California, we are lucky to have the Fair Employment and Housing Act, Government Code section 12940 et seq., which has, since 2000, prohibited discrimination and harassment based on sexual orientation in employment and housing. LGBT people in other states have not been so fortunate.
LGBT workers are protected from sexual orientation discrimination under Title VII
Thanks to a landmark decision by the federal Equal Employment Opportunity Commission (EEOC), however, millions more LGBT workers now have some protections. In a July 15, 2015 decision, the EEOC held that sexual orientation discrimination is unlawful under Title VII of the Civil Rights Act of 1964 (Title VII). Title VII applies to employers with at least 15 employees. It prohibits discrimination, harassment, and retaliation based on protected categories, including with respect to hiring, firing, promotions, training, wages, and benefits.
Title VII prohibits discrimination based on sex, race, color, religion, and national origin; it does not explicitly cover discrimination based on sexual orientation. In a 3-2 decision, the EEOC reasoned that sexual orientation discrimination is nevertheless prohibited by Title VII because it is a subset of sex discrimination. The EEOC determined that an air traffic controller who alleged that he was denied a promotion because of his sexual orientation could pursue his claim of sex discrimination. While the 17-page decision is worth reading in full, the excerpts below capture the EEOC’s reasoning.
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A fascinating report released by the Federal Reserve Bank of New York in March 2015 examines gender differences in executive compensation. The report, titled “Gender and Dynamic Agency: Theory and Evidence on the Compensation of Top Executives,” used data from Standard & Poor’s ExecuComp database to look at the compensation of 40,704 executives (1,312 of whom were female).
The key findings of the report are:
- There is no link between firm performance and the gender of top executives. Thus, the gender pay gap at the executive level cannot be explained by performance differences.
- 93% of the gender pay gap among top executives is accounted for by the fact that female executives receive a far lower percentage of incentive pay — namely, stock options and stock grants — as a percentage of total compensation.
- Women’s compensation has “lower pay-performance sensitivity,” meaning that they gain far less from the positive performance of their firms. When a firm’s value increases by $1 million, it leads to a $17,150 increase in firm-specific wealth for male executives and a $1,670 increase for females.
- In contrast, women suffer more when a firm loses value: “A 1% increase in firm value generates a 13% rise in firm specific wealth for female executives, and a 44% rise for male executives, while a 1% decline in firm value generates a 63% decline in firm specific wealth for female executives and only a 33% decline for male executives.”
A critical point is that the authors showed that there was no link between . . .
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California’s undocumented workers make up nearly 9.4% of our workforce. They are the backbone of many California industries, including agriculture, construction, and hospitality. They are also among our most exploited workers, as some take advantage of their financial vulnerabilities, cultural and geographic isolation, and fear of deportation. As the powerful and poignant PBS documentary Rape in the Fields explored, immigrant women face shockingly high levels of sexual harassment, sexual assault, and rape at work. Undocumented workers are also subjected to rampant violations of wage and hour laws, including not being paid the minimum wage, not being paid overtime, and not being given proper meal and rest breaks. The median earnings of undocumented workers are about $20,000 per year, as compared to $50,000 per year for U.S.-born workers.
However, California laws and court cases make clear that undocumented workers deserve protections. Our workplace protection and wage and hour laws apply to everyone, regardless of their status. In addition, our laws have sought to address the reason that many undocuments employees are afraid to come forward: a fear that their employer will get them deported. Employers are expressly prohibited from reporting or threatening to report undocumented workers or their relatives to authorities in retaliation for their asserting their rights under these laws. Employers who retaliate in such a way can lose their business licenses; lawyers making such reports can be disbarred.
Two new developments are worth discussing.
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As I argued last week in my blog post on CELA Voice, we’re spending more time telling women how to navigate around bias in the workplace than we are trying to fix it. In the second post of the series, titled Organizations have the power to reduce unconscious bias, I explain how employers can reduce the effects of bias in their workplace. Many mistakenly believe that it would be too hard or take too […]
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We’ve had a surge of self-help articles and books telling women how they should act if they want to advance in the workplace. For example, women are told to “lean in,” “be more confident,” and “ask for a raise, but do it in a way that is ‘feminine’ so you don’t come off as demanding or unlikeable.”
Sex discrimination has been illegal for fifty years. Rather than telling women how to navigate a biased system, shouldn’t we focus on how to stop the bias in the first place?
Ramit’s two-part series, published in the CELA Voice Blog, addresses implicit biases, how they hurt women in the workplace, and what employers can do to reduce their effects. . . .
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Yesterday, the EEOC issued a new publication that discusses employees’ rights with respect to religious grooming and dress in the workplace. The publication, Religious Garb and Grooming in the Workplace: Rights and Responsibilities, is written in question-and-answer form and addresses some of the most common issues that come up when workers require religious accommodations with respect to their clothing and grooming. It is meant to guide employees and employers; you do not need to be a lawyer to understand it.
Here are some of the key points from the EEOC’s publication:…
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