On May 29, the California State Senate passed SB 404, a bill authored by Senator Hannah-Beth Jackson (D-Dist. 19) and co-sponsored by Equal Rights Advocates (ERA), the California Employment Lawyers Association (CELA) and the Center for Worklife Law at UC Hastings. The bill will prohibit employers from discriminating against an employee based on his or her family responsibilities by adding “familial status” to the list of characteristics that are prohibited bases of discrimination under the employment provisions of the state’s Fair Employment and Housing Act.

As the law stands now, employees must draw on a patchwork of laws to show that an employer discriminated against the employee for being a primary caregiver by trying to prove that caregiving is a type of sex discrimination.  Many employers base adverse employment decisions on preconceived notions about family responsibilities. For example, employers may reduce an employee’s hours without the employee’s consent or pass over these employees for promotions.  This bill clarifies the law protecting caregivers giving guidance to both employees and employers about the rights of workers with family responsibilities.

“Today more and more workers are juggling both work and family care obligations, and the demands for elder care are projected to increase dramatically in the near future,” says Jamie Dolkas, Staff Attorney at ERA. “SB 404 provides much-needed protection to ensure that workers will not be treated unfairly because they care for their family members.”

Domestic Workers’ Bill of Rights and Bills Protecting Immigrant Workers From Retaliation Move Forward in California Legislature

Also on May 29, the Assembly passed “The Domestic Workers’ Bill of Rights,” (AB 241) introduced by Tom Ammiano (D-Dist. 17).  This bill would protect domestic workers, including nannies and those who provide in-home care, by regulating wages, providing for rest time, and protecting other working conditions.

While it exempts certain employers such as licensed health facilities or people who receive domestic care from the State of California or In-Home Supportive Services (IHSS), AB 241 defines employers of domestic workers as those who employ or exercise control over the wages, hours or working conditions of a domestic work employee, including those who obtain the services from third parties.

The same day, the California Senate passed SB 666, a bill authored by Senator Darrell Steinberg (D- Dist. 6 and President pro Tem), that would prohibit employers from threatening to report undocumented workers or their families when they exercise their labor and employment rights.  Employers may also risk losing their business licenses for retaliating against these employees.

Attorneys who use immigration status to threaten and intimidate witnesses would also face discipline, and whistle blowing protections would be extended to employees who testify before a legislature or other public body about anything related to a government investigation of the employer

AB 263, another bill protective of immigrant workers’ rights and, introduced by Roger Hernández (D-Dist. 48), passed through the Assembly. This bill would prevent employers from engaging in unfair immigration-related practices toward employees who assert their labor and employment rights. Unfair immigration-related practices would include threats of improperly using the Federal E-Verify system, requests of extraneous documents showing an employees’ eligibility to work, and threats of filing reports or contacting immigration authorities in response to an employee’s exercise of his or her rights.

“Equal Rights Advocates applauds the advancement of these three bills in the state legislature,” said Monali Sheth, Staff Attorney at ERA. “ AB 241, the Domestic Workers’ Bill of Rights, provides domestic workers the right to work for a living wage, decent working conditions, and with dignity, while SB 666 and AB 263 further protect the immigrant women we represent who are afraid of coming forward to complain when they have been overworked, underpaid, abused, and unlawfully harassed on the job.”

This post was written by Sonia Jacob, an ERA summer law clerk.

The settlement provides monetary and non-monetary relief for Amira to resolve claims that ERA filed on her behalf last year with the California Department of Fair Employment and Housing, alleging that Amira’s employer, a national operator of residential facilities and communities for seniors, had subjected Amira to harassment, other forms of discrimination, and ultimately terminated her because she was pregnant and sought to exercise her right to take pregnancy-related leave. Amira also alleged that the company discriminated against her and other caregivers based on their race and national origin.

Amira’s case is unfortunately not unusual.  ERA has seen a sharp rise in pregnancy discrimination and accommodation complaints in recent years, a trend mirrored at the federal level. (Click here to see ERA’s May 2012 report, Expecting a Baby, Not A Lay-off:  Why Federal Law Should Require the Reasonable Accommodation of Pregnant Workers, noting a 54% rise in pregnancy discrimination claims filed with the EEOC between 1997 and 2010.)  ERA Staff Attorney Mia Munro is proud to have represented Amira and observes that, “It takes real courage and determination for women like Amira to come forward and complain about these injustices.  We are very pleased that the matter has been resolved to the satisfaction of all parties.”

ERA Legal Director Jennifer Reisch further added that, “This case shows how discrimination against pregnant workers and the failure to provide reasonable accommodations that would enable women to keep working during pregnancy are particularly acute problems, and have especially devastating economic consequences, for women in low-wage jobs and industries.”

ERA fights for women like Amira because we believe that providing pregnant employees with reasonable accommodations on the job is essential to fulfilling the promise of equal opportunity in employment.  This is also why ERA is a strong supporter of the federal Pregnant Workers Fairness Act (PWFA), a bill which would require employers to provide pregnant workers with reasonable accommodations.  Learn more about this important issue and take action to support the PWFA.

*Not her real name

Earlier this year, ERA settled Flori’s claim against her employer and secured her the back-wages and overtime compensation she was owed.  ERA continues to monitor the employer’s wage and hour policies and practices for its current employees.

Getting paid for work performed is absolutely necessary to the survival and economic empowerment of low-wage women workers and their families.  Flori’s case highlights the injustice of wage theft among low-income immigrant workers who are marginalized by their national origin and limited English proficiency.

According to a recent report from UCLA’s Institute for Research on Labor and Employment, nearly 75 percent of workers in the hotel and restaurant industries in large U.S. cities are not paid for work they have performed “off-the-clock.”  The report also showed that close to 80 percent of low-income Latina immigrant workers in major cities across the country are not paid overtime.

The suit for sexual harassment, retaliation, and failure to prevent harassment and discrimination arose from the sexual harassment and assault of the plaintiff by her direct supervisor while she worked as a janitor for ABM in the San Francisco Ferry Building in 2004. When she complained to the company, ABM responded by swearing Ms. Bojorquez to silence, transferring her to a shorter-term position, and then terminating her.

Equal Rights Advocates (ERA), a national non-profit law firm dedicated to representing the rights of women and girls at work and at school, and the San Francisco law firm of Talamantes Villegas Carrera, LLP represented Ms. Bojorquez in the suit. The case is Bojorquez v. ABM Industries, Incorporated et. al., Case #CGC-10-495994, San Francisco Superior Court.

“The sexual harassment and assault of immigrant women at work is a national epidemic,” said Monali Sheth, staff attorney at ERA. “This case puts a spotlight on the problem and on companies like ABM which shamefully foster these terrible working conditions. What Ms. Bojorquez went through is outrageous and ERA will not stop its advocacy until the workplace is safe for all women.”

“TVC is extremely proud to have represented such a courageous woman as Ms. Bojorquez, who was willing to step forward and fight for her rights in spite of the serious hardships and obstacles she faced,” stated Virginia Villegas of Talamantes Villegas Carrera, LLP. “This case should put employers who do not take seriously their responsibility to prevent and address sexual harassment on notice that low-wage workers will not be deterred from coming forward and demanding that their rights be respected.”

Like many female janitors employed by ABM, Plaintiff worked alone at night, cleaning isolated office areas to which she was assigned by her foreman. Instead of providing her with a safe, discrimination-free workplace, ABM fostered a sexually hostile work environment in which Ms. Bojorquez’s foreman and direct supervisor was emboldened to sexually harass her on a regular basis. As she testified at trial, during Ms. Bojorquez’s first two months of employment with ABM, she was subjected to a barrage of unwelcome comments, requests for sexual favors, and unwanted touching by the foreman, her direct supervisor. This sexual harassment escalated to the point that on the night of October 4, 2004, he forced Plaintiff to the ground and raped her on the floor of an office she was cleaning.

After Ms. Bojorquez complained to ABM about the harassment and assault, the company swore her and other potential witnesses to secrecy, requiring them to sign a “Confidentiality Agreement” that the EEOC later determined to be unlawful. Instead of removing or disciplining Ms. Bojorquez’s supervisor, ABM retained him. Instead of remedying the sexually hostile work environment to which Plaintiff was subjected, Defendants unlawfully retaliated against Plaintiff by removing her from the worksite and later terminating her employment.

Ms. Bojorquez filed timely charges of discrimination and retaliation in 2005 against ABM with the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC). DFEH issued a right-to-sue letter on May 31, 2005. On April 23, 2009, the EEOC issued a Determination and found that there was reasonable cause to believe that ABM discriminated against Plaintiff because of her sex, and retaliated against her for complaining about sexual harassment by not recalling her for work.

At least half a dozen sexual harassment lawsuits have been brought against ABM by female janitorial employees within the past several years, including two class action lawsuits brought by the EEOC. One of these class actions, U.S. E.E.O.C. v. ABM Industries, Inc., et al, No. 1:07-cv-01428 LJO JLT, was brought in California in 2007 against the same three defendants named here. As in the present case, the EEOC found evidence that the 21 female employees included in the class were subjected to severe, pervasive sexual harassment at worksites in the Central Valley, up to and including sexual assault. The case settled in 2010 for $5.8 million.

Media Contacts:
Monali Sheth, Staff Attorney, Equal Rights Advocates
msheth@equalrights.org 415-621-0672 x387 (office) 510-290-6544(cell)
Virginia Villegas, Partner, Talamantes Villegas Carrera, LLP
virginia@e-licenciados.com 415-989-8000 x 22 (office) 415-810-8195

About ERA
Equal Rights Advocates (ERA), founded in 1974, is a national civil rights organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. Through its campaign approach—incorporating public education, legislative advocacy, and litigation—ERA seeks to assist women and girls throughout a life-long continuum: ensuring equality in their educational experience, combating sex discrimination in the workforce, and advocating for workplaces hospitable to working families. To learn more about ERA’s work, visit www.equalrights.org.
About TALAMANTES VILLEGAS CARRERA, LLP
Talamantes Villegas Carrera, LLP is a San Francisco based, plaintiff-side law firm dedicated to representing the rights of immigrant and low-wage workers. Since 1999, we have zealously represented workers and have won significant victories for some of the most vulnerable and exploited workers, including janitorial, farm, domestic, restaurant, and factory workers. TVC regularly collaborates with non-profit civil rights legal organizations throughout the State of California, such as Equal Rights Advocates, by providing resources, litigation support, legal clinic support, and man/woman power. Holding ourselves to the highest standards as lawyers, we work from the principles of honesty, fairness and candor. The attorneys of TVC have integrity and take seriously our obligation to represent our clients to the best of our abilities. To learn more about TVC’s work, visit www.e-licenciados.com.
Equal Rights Advocates
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