The Labor & Employment Blog is a forum for practitioners and Bloomberg BNA editors to share ideas, raise issues, and network with colleagues.
Tuesday, October 9, 2012
by Lydell C. Bridgeford
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
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.
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
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.
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
BNA: As director of LAS-ELC's Disability Rights
Program, have you recently filed any amicus briefs addressing
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
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
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
[Editor's Note: On 10/1/12, the
Tenth Circuit denied appellant's petition for a
rehearing en banc.]
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?
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.
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
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
BNA: Any final thoughts?
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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Burden of Proof
U.S. Citizenship and Immigration Services
Immigration and Customs Enforcement
ADA Amendments Act
Equal Employment Opportunity Commission