Tuesday, March 19th, 2013:  I experienced democracy in action by joining the California Employment Lawyers Association (CELA) Lobby Day at our state Capitol in Sacramento.   (Yes, that’s me in the photo at the state Capitol.) CELA attorneys represent millions of California employees who want to work, free of unlawful discrimination and be paid their earned wages.   Each Spring CELA attorneys from all over California give up a day of work to meet with our state legislators and urge them to support bills to help improve California workplaces for employees and employers.

This year CELA sponsored three bills introduced in the state Senate, which clarify, simplify or fix existing employment laws.   They are:

SB 292: (Author: Senator Ellen Corbett) Sexual Harassment: This bill would clarify that the Fair Employment and Housing Act (“FEHA”), does not require a same sex harassment victim to prove that his or her  sexual harasser was motivated by sexual desire.   It arose from a terrible appellate court decision, Kelley v. The Conco Companies (1st Dist 2011), 196 Cal. App. 4th 191 which held that in a case of male to male sexual harassment, the plaintiff must prove the harasser sexually desired the plaintiff, even with a showing of  sexually explicit and offensive acts of harassment, which included threats of sexual violence.  Read the bill here:http://legiscan.com/CA/text/SB292/id/740322

This bill is needed so employers know that it still is the law that sexual harassment is all about unequal power in the workplace and using sex as a weapon to create a hostile work environment. Sexual desire has nothing to do with it. This is the pre-Kelley status quo under the Federal Title VII (42 U.S. C §2000e et seq.) and California’s FEHA (Gov. Code §12900 et seq

Making harassed workers prove their same sex harassers but not their heterosexual harassers sexually desired them creates a double standard based on sex and opens up a Pandora’s box  requiring intrusive probing of alleged harassers’  sexual preferences and sexual history in depositions in order to discern sexual desire for their victims.  It also gives same sex harassers a convenient dodge for avoiding liability, even in egregious cases i.e., “I wasn’t attracted to the employee I tormented”).  Since Kelley conflicts with another California Court of Appeal decision and the California Supreme Court declined to decide the conflict, it is up to our state legislators to fix this.

SB 404 (Author: Senator Hannah-Beth Jackson) Banning Family Hostile Workplace Stigmatization for family care giving duties: This family-friendly bill  addresses discrimination based on outdated stereotypes and unfounded assumptions about family care giving for workers with medical or supervisory care duties for a grandparent,  parent, parent- in-law, sibling, spouse, domestic partner, child or grandchild.  It does not require employers to accommodate family care giving, it just bans discrimination based on assumptions or stereotypes about those who care for a family member.  It does this by expanding the list of characteristics protected from employment discrimination under FEHA to include “familial status.”  Read the full bill here: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB404

This addition will: 1) help employers know when they need to take steps to stop this form of discrimination, 2) protect workers with family care giving responsibilities and 3) promote family friendliness, which should make California workplaces more attractive to the best talent and more productive.

Some examples of banned stereotyping include:  1. a single dad firefighter denied a promotion and given a negative performance review because he spent his flex time taking care of his children instead of playing golf like his male colleagues;   2. a mother with young children denied the option to vie for a promotion which requires overnight travel because it is assumed without asking her that she would not want to be away from her children overnight.

This bill is needed because growing numbers of workers have care giving responsibilities for their children, siblings, disabled spouses, domestic partners or elderly parents and find themselves unfairly stigmatized and denied workplace fairness by family-hostile attitudes and behaviors.

In 2007 and 2009 the Federal Equal Employment Enforcement Commission (“EEOC”) issued Enforcement Guidance on familial status discrimination, finding that it is often difficult to remedy using traditional gender discrimination laws. It is sometimes referred to as “sex plus” discrimination because if affects a subset of women or men who are pregnant or have family care giving responsibilities.

California needs to catch up to other states and local entities which ban familial status discrimination.  Let your state legislators know your views on this important change to the law.

SB 462 (Author: Senator Bill Monning): Conforming Attorneys’ Fees in unpaid wage cases: Right now if a California  employee brings an action to recover unpaid wages or benefits and loses, she or he could be liable for the employer’s attorneys’ fees.  That’s because Labor Code §218.5 is one of only two statutes which provides for attorneys’ fees to the “prevailing party”, which includes the prevailing employer.   The rest of fee statutes award attorneys’ fees to the “prevailing employee”, unless the employee brought the action in bad faith.  Labor Code 218.5 ignores that in most cases, the employee is far more able to pay attorneys’ fees.  In my practice I have seen low wage earners make the risk assessment that their valid unpaid wage claims are not worth bringing, given the risk of losing and being ruined by the employers’ attorneys’ fees bills, which they could never pay on their measly wages.  This chilling effect also hurts law abiding employers who pay their employees their earned wages since their competitors who unlawfully withheld wages get a cost savings advantage when they are not held accountable for their wage theft by workers too scared to do so.

Since this new  law would bring this outlier attorneys’ fee statute into conformity with the majority of federal and state labor laws requiring a finding of bad faith to shift fees to the losing employee, there is lots of authority on what is “bad faith”.  It is embarrassing that only California, Oklahoma and Florida maintain this outlier position when it comes to awarding attorneys’ fees to the prevailing party in wage claims.

California needs to get with it!   You can read the bill’s full text here: http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201320140SB462

Future blogs will update what happens to these bills this legislative session.

The information in this blog is for educational purposes only and does not constitute legal advice or create an attorney-client relationship between the author and anyone reading it.