Fighting for Women's Equality

Class Action Suit Challenges Systemic Gender Discrimination In CA Workers’ Comp System

July 6, 2016 | by

FOR IMMEDIATE RELEASE  
July 6, 2016                              

Media Contacts:                
Marie Condron: 213-925-9605, mcondron@publiccounsel.org
Cynthia Foster: 615-944-9166, cfoster@equalrights.org

                                                                                     

‘Being a Woman Is Not a Pre-Existing Condition’ Class Action Suit Challenges Systemic Gender Discrimination In CA Workers’ Comp System

Statewide system relies on outdated stereotypes about women’s capacities and roles, contributing to the feminization of poverty in California, burdening women and families

LOS ANGELES — Today a group of women workers and the SEIU California State Council filed a first-of-its-kind, statewide class action lawsuit challenging systemic gender discrimination in California’s workers’ compensation system.

The landmark lawsuit, filed by Public Counsel, Caldwell Leslie & Proctor, PC, Equal Rights Advocates, and Professor Catherine Fisk of the University of California, Irvine School of Law against the California state agencies and officials responsible for administering the workers’ compensation system, documents the denial of equal compensation to women workers in violation of the U.S. and California constitutions. The suit, filed in Los Angeles Superior Court, exposes overt gender bias and discrimination against working women injured on the job by revealing a shocking pattern of reduced permanent disability benefits to women workers solely on the basis of their gender. In contrast, men’s benefits are not reduced on the basis of gender.  The suit also challenges the egregiously low workers’ compensation benefits afforded to women with work-induced breast cancer.

Describing the lawsuit, Kathryn Eidmann, staff attorney in Public Counsel’s Opportunity Under Law project said, “California’s workers’ compensation system treats gender as a preexisting condition, further penalizing women workers with injuries solely because they are women.  California sides with insurance companies and employers, letting them off the hook for workplace injuries to female employees and contributing to the impoverishment of women workers and their families.  Women workers in California neither receive equal pay for equal work, nor equal payouts when they’re injured on the job.”

For 17 years, plaintiff Leticia Gonzalez spent eight hours a day, five days a week, working on a computer in order to carry out her job duties as a telecommunications worker. After years of pain and numbness in her hands and wrists that affected her sleep, self-care and work, the workers’ compensation system confirmed that Leticia’s injuries were caused by the physical demands of her occupation. But the state’s Qualified Medical Examiner (QME) reduced the permanent disability benefits to which she was entitled by 20% because, “she has multiple risk factors for carpal tunnel syndrome, primarily age and gender.”

“California’s system of workers’ compensation reduces the payouts due to women workers on the basis of impermissible stereotypes about gender, pregnancy, and menopause.  This discrimination violates the promise of equal protection guaranteed by our Constitution and has no place in our state in 2016,” said Robyn Crowther, shareholder at Caldwell Leslie & Proctor, PC.

The complaint also documents the irrational undervaluation of breast cancer by the system. If a woman past child-bearing age undergoes a mastectomy due to work-induced breast cancer—an all-too-common occurrence for female firefighters and peace officers—the system presumes that she is entitled to zero permanent disability benefits for the loss of her breasts. This rating of zero ignores the concrete and medically-documented harms of breast cancer and the loss of a breast, including disfigurement, scar tissue, asymmetry, numbness, chronic pain, premature arthritis of the spine, impact on sexuality and psychology. In contrast, prostate cancer is assigned a substantially higher 16-20% disability rating.

“The loss of my breast has been devastating. I carry the same weight on my duty belt as my male colleagues, confront the same dangers, work just as hard, and it is not fair for me and my female peace officers to be penalized because of our gender,” said Sgt. Janice Page, a plaintiff in the case and a peace officer who received a zero percent disability rating for work-induced breast cancer. In her duties as a law enforcement officer, Sgt. Page was exposed to numerous carcinogenic toxins, including vehicle fires, ammunition, exhaust fumes, gasoline, diesel fuels, structure fires, and narcotics. She underwent five surgeries and the removal of her right breast, and continues to experience numbness on her right side.

“By permitting and condoning the distribution of workers’ compensation benefits on the basis of sex, the State is sending a clear message that women’s work is worth less,” said Rebecca Peterson-Fisher, Staff Attorney at Equal Rights Advocates. “This message denigrates the contributions of women to the workplace and perpetuates the unequal status of women.”

“This discrimination exacts a disproportionate toll on low-wage workers and women of color and reflects a national trend of decreasing employer liability for workplace injuries, at the expense of workers and their families,” said labor law expert Catherine Fisk.

Permanent disability benefits are the only compensation available to workers for losses to future earning capacity, physical integrity and personal wellbeing that result from most on-the-job injuries. The lawsuit asks the court to root out and eliminate gender discrimination in the workers’ compensation system, including by training employees and implementing a system of monitoring, accountability, and discipline.

 “Gender discrimination in California’s workers’ compensation system is a systemic problem, not an isolated occurrence, said Anne Hudson-Price, staff attorney at Public Counsel. “The medical evaluators making these determinations are overwhelmingly male, yet the State provides no guidance or training to address and eliminate sex discrimination.”

The SEIU California State Council, which represents over 700,000 caregivers, healthcare workers, education workers, social workers, and public sector workers in California, is also a plaintiff in the suit on behalf of its members. SEIU California State Council represents more than 490,000 working women in California, many of whom work in fields which workplace injuries are frequent and commonplace.

“Securing equal compensation for women injured on the job is an essential step towards justice for workers in California,” said Laphonza Butler, President, SEIU California State Council.  “Particularly among women who work in low-wage fields and are among the most vulnerable in our State, fair workers’ compensation benefits are vital to the economic security of workers and families.”

For more information on the case and to view the legal documents, visit workerscomppaygap.org.

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Public Counsel is the nation’s largest pro bono law firm. Founded in 1970, Public Counsel strives to achieve three main goals: protect the legal rights of disadvantaged children; represent immigrants who have been the victims of torture, persecution, domestic violence, trafficking, and other crimes; and foster economic justice by providing individuals and institutions in underserved communities with access to quality legal representation. Through a pro bono model that leverages the talents and dedication of thousands of attorney and law student volunteers, along with an in-house staff of more than 75 attorneys and social workers, Public Counsel annually assists more than 30,000 families, children, immigrants, veterans, and nonprofit organizations and addresses systemic poverty and civil rights issues through impact litigation and policy advocacy. For more information, visit www.publiccounsel.org.

Caldwell Leslie & Proctor, PC is a litigation boutique law firm located in Los Angeles.  Founded in 1988 as an intelligent alternative to large law firms, Caldwell Leslie  has attracted a loyal roster of clients, including Fortune 500 corporations, closely held businesses, major studios and networks, new media and emerging technology companies, cities and counties, state and local agencies, foreign companies, professionals and community groups. Caldwell Leslie places a strong value on service to the community and, in the last few years alone, the firm’s dedication to pro bono work has been recognized by some of the largest public interest organizations in Southern California. Caldwell Leslie and its attorneys have been honored with the 2013 Pro Bono Service Award from the ACLU of Southern California, the 2012 Pro Bono Service Award from the Asian Pacific American Legal Center, and the 2010 Pro Bono Firm of the Year from Bet Tzedek.  For more information, visit www.caldwell-leslie.com.

Equal Rights Advocates (ERA) is a national civil rights organization dedicated to protecting and expanding economic and educational access and opportunities for women and girls. Founded in 1974, ERA has been a pioneer advancing equality in work and schools for hundreds of thousands of women across the country. 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. Learn more at www.equalrights.org.

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