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Tuesday, October 9, 2012

Q&A: Helping Low-Wage Workers Fight Employment Discrimination

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California has among the nation's toughest labor laws prohibiting discrimination, but Claudia Center, of the Legal Aid Society's Employment Law Center (LAS-ELC) in San Francisco, says her organization and its clients still need the Equal Employment Opportunity Commission to pursue its current agenda.

Since 1970, LAS-ELC has provided free legal services to California's working poor, low-income families and underserved communities. Through its workers' rights clinics, the center's staff attorneys represent clients in employment-related cases involving denial of wages, discrimination, work and safety issues, unemployment benefits, harassment, and wrongful termination.

Bloomberg BNA recently spoke with Center, a senior staff attorney at the public interest group, about its work, the search for a new EEOC commissioner, and how domestic violence intersects with Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act.

Bloomberg BNA: LAS-ELC is based in California and mainly works with state residents. However, staff members will visit Washington, D.C. to testify at public policy events before lawmakers and federal officials. Why is it important to appear at those inside-the-Beltway events?

Center: We are lucky, in part, because of the stability of our Legal Aid Society (San Francisco), which has been around nearly a hundred years. Many staff members have had the opportunity to develop areas of expertise around national origin and pregnancy discrimination, immigrants' rights, gender issues and family and medical leave matters. We have a lot of in-house knowledge. I feel as though we have an understanding within our areas of expertise of where the pressure points are within the laws.  

The other thing that is unique that we bring to Washington, D.C., is that we service, every year, over 2,000 clients. Staff members have a sense of the emerging issues because of our Workers' Rights Clinics, which are located throughout California.

The center is in a unique position to have high-end legal jurisprudence knowledge and expertise, as well as an influx of information about what is happening in the community. That is why we like to participate either in public policy events in the district or file amicus briefs.

Bloomberg BNA: Besides setting a precedent, what other factors in a case does the center consider when deciding whether to file an amicus brief?

Center: We try to have a good sense in our areas of expertise as to where the unanswered questions and disputes are around particular issues and their legal framework. LAS-ELC intervenes through amicus briefs to explain why the resolution of those unanswered questions might be important for our clients who are primarily low-wage workers.

Bloomberg BNA: As director of LAS-ELC's Disability Rights Program, have you recently filed any amicus briefs addressing disability discrimination?

Center: For many years, we were always filing briefs about the definition of a disability, trying to articulate what we thought Congress meant by the definition. LAS-ELC was one of the public interest groups that played a role in leading the amicus efforts on the issue. Now that we have the ADA Amendments Act and its regulations many of those issues are largely resolved.

The center is now turning to the unanswered questions that eluded the courts while they fought over the definition of a disability. For example, in the case of EEOC v. Picture People, we recently filed an amicus brief with other disability groups in support of a rehearing en banc.

[In Picture People, the U.S. Court of Appeals for the Tenth Circuit rejected EEOC's claim under the ADA on behalf of a deaf employee because her inability to communicate verbally meant she was unable to do her job in a Colorado photography studio with or without reasonable accommodation.]

There was a 2-1 decision in the case that had a passionate dissent. The idea of the dissent was whether she was qualified for the position should have gone to the jury. The employer claimed that oral and written English communication was essential to the job, but it wasn't written down in the job description.  

Her attorneys and the EEOC argued that the worker was able to communicate in other ways, although not orally. It was claimed that she was actually better than a hearing person when working with babies and toddlers, who themselves are unable to speak English yet, because she was good with gestures.  

The case raises the questions as to what is an essential job function and what it means to be qualified. This is where the rubber is going to meet the road now that the definition issues have been mainly resolved.  But don't get me wrong, there still will be lawsuits over the definition of a disability.

[Editor's Note: On 10/1/12, the Tenth Circuit denied appellant's petition for a rehearing en banc.]  

Bloomberg BNA: You said at the public input sessions in July on EEOC's development of a strategic enforcement plan that LAS-ELC hopes the EEOC will issue policy guidance on domestic violence and employment. Why the need for such guidance?

Center: Many people, who are experiencing domestic violence, as well as survivors of domestic violence, often undergo problems on the job. The problems intersect with Title VII and the ADA.

This is more common than what you might expect. For example, if someone is experiencing violence from either a partner or ex-partner and that person is a co-worker, then there maybe harassment or violence in the workplace that could create a hostile work environment that Title VII would prohibit.

Typically, an employer never thinks about this because sexual harassment is in one box and domestic violence is in another. Title VII may come into play when it comes to domestic violence, so we want the EEOC to use its voice to educate employers about this issue.

Similarly, about 95 percent of people who have experienced domestic abuse have some kind of a disability, such as post-traumatic stress disorder, an anxiety disorder, or depression. As a result, the employee may need time off from work or require accommodations.

We have found that employers don't connect the domestic violence experience to the idea of a disability. That is why we are hoping the EEOC will issue policy guidance about domestic violence.

Bloomberg BNA: Stuart Ishimaru, who was a Democrat, resigned from the EEOC as a commissioner in April. How will the resignation affect the release of new guidance by the EEOC before a replacement is appointed?

Center: I am not entirely sure, but I know that people within the employees' right community think very highly of Jenny Yang, who was nominated by President Obama for the commissioner position. People were very pleased with that selection. Just to disclose Yang worked at LAS-ELC for senior staff attorney Christopher Ho, as a summer law student. He thinks very highly of her.

I think in general the EEOC has been working quite hard during the past three years. I hope they will continue to work hard. The commission has released final regulations to the ADA Amendments Act and other important guidance documents, such as guidance on the use of arrest and conviction records in the hiring process. The EEOC is also starting to implement the Macy v. Holder decision on transgender discrimination being covered by Title VII.

They have completed many important projects, but there are still many important projects in the pipeline, such as guidance on leave as reasonable accommodation. I don't know if Ishimaru's resignation will slow things down, but I certainly hope not.

Bloomberg BNA: Any final thoughts?

Center: The EEOC has an important role in terms of announcing federal policy. It's kind of a bully pulpit role. In California, we often have stronger state labor laws. Historically, our disability laws were stronger until the ADA amendments Act, so we tend to go to our laws on many occasions. Still, it does change the conversation and public awareness when the federal government, whether it's Congress or the EEOC weighs in.

My perception is that since we've gotten the ADA Amendments Act and its regulations, there is a lot less push back from employers on the definition of a disability, even when it's a limited negotiation about an individual who needs an accommodation. I think that the voice of the federal government setting minimum standards and educating employers is really important.

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If you are interested in participating in a Q&A on enforcement actions, legal developments and news related to the Equal Employment Opportunity Commission or the Office of Federal Contract Compliance Programs or have a suggestion for a Q&A topic, send an email to lbridgeford@bna.com. You can also follow me on Twitter @LCBridgeford.
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