Monday, October 31, 2005

Genetic testing of employees

IBM announced this month that it will never use genetic data in its decisions to hire applicants or determine employee eligibility for its health care or benefits plans.

Approximately 800 genetic tests are currently available, including those to test for certain neurodegenerative diseases and to determine the risk of developing certain cancers. However, the number of genetic tests will probably expand tremendously in the next decades. Such tests will not only show whether someone is at risk of developing certain diseases but will also predict how well that individual will respond to certain prescription drugs.

While many employers are utilizing the genetic information to offer programs for employees to help them control or prevent diseases, there is always the possibility that employers can use such information to discriminate against "unhealthy" employees. Furthermore, even though employers require consent of their employees before obtaining full rights to the testing of their genetic information, employees generally have little or no bargaining power before surrendering their rights.

IBM's chief privacy officer, Harriet Pearson, has stated that genetic information "has nothing to do with your employment, how good your contributions are, how good of a team member you are, so making a policy statement in this case is the right thing to do."

Although IBM's move may appear to be purely ethical, it seems more likely to be a business tactic. Since IBM is a huge player in medical-information technology in offering a variety of computing technologies for medical and pharmaceutical research, it probably realizes that employees may resist in getting genetically tested if they believe that the medical information will be used against them, thus inhibiting the growth of a key market.

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Friday, October 28, 2005

Covert sex abuse of farmworkers

Sexual harassment and abuse against female farmworkers in the fields apparently often goes unnoticed. Attorneys for the EEOC claim that this occurs primarily because the majority of farmworkers have minimal knowledge of their legal rights, know little English, and are undocumented.

All of the San Francisco EEOC's recent cases involving farmworker sexual harassment have led to settlements.

In the case of Olivia Tamayo, inability of the parties to settle led to a trial in which the jury took less than six hours to award her $1 million in damages. This was despite the fact that Tamayo took six years to accuse her supervisor of rape.

A federal court jury in January decided that although Tamayo attempted to complain about the rapes, the defendant Harris Farms did not act promptly to stop the harassment once it was reported and retaliated against Tamayo, causing her to quit. Tamayo claimed that the defendant did not believe her and did nothing to protect her.

Tamayo said she was raped for the first time by her supervisor in 1993 in one of Harris Farms' almond groves. She said she did not know what to do or where to go, and could not tell her husband. Tamayo said that her supervisor brandished a gun and a knife while working.

According to Tamayo, her supervisor raped her two other times, once in his truck and another time at home while her husband worked and her children slept. She kept quiet until one day when he grabbed her by her hair and punched her face as she stood in the middle of a field.

Harris Farm still believes, based on the company's own internal investigation, that Tamayo's situation involved an affair that had gone bad and not rape, and thus plans to appeal the verdict.

Since the verdict, the defendant has been warned by the judge not to retaliate against its workers. Harris Farms has installed a complaint hot line for employees and trained supervisors to recognize harassment.

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Tuesday, October 25, 2005

California Court of Appeals has expanded Workers' Comp

Now, illegal immigrants injured on the job are entitled to workers' compensation benefits despite their legal status.

The 2nd District Court of Appeal ruled in a case against Farmer Bros. Co., which had attempted to deny workers' comp benefits to an employee who was in the country illegally.

The plaintiff, Rafael Ruiz, 35, claimed he injured his shoulders, back, neck and hands by repeatedly lifting heavy sacks of coffee beans.

Although Farmers Bros. argued that federal immigration laws superseded the state's workers' compensation system, which provides medical care and disability benefits to injured employees, the court disagreed.

Held the Court unanimously: "California law has expressly declared immigration status irrelevant to the issue of liability to pay compensation to an injured worker."

Andy Ramirez, a spokesman for Friends of the Border Patrol, a Covina-based group that sends members to patrol the U.S. border with Mexico, stated: "We can't reward people for breaking the law."

The state Department of Finance estimates that 2.6 million illegal immigrants live in California.

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Wednesday, October 19, 2005

Women and Work: Having it All

What is a “high achieving” person? As a member of the legal profession for nearly 30 years, I have witnessed a dramatic shift in the opportunities of women to enter the profession. Perhaps 5 or 10% of law school classes were female in the mid-seventies when I attended. Now the ratio is 50:50. The numbers of judges, including the two occupying the Supreme Court, has increased as well. Women occupy 43% of the associate and senior positions in law firms, and 17% per of the partner positions. While a disparity suggesting gender discrimination exists, the numbers reflect real progress in the equality of opportunity.

During this same time, families have disintegrated, with divorce in CA exceeding 50% of all marriages, and abortions occurring in 1 of 4 pregnancies. The economy, and the drive to “have more” of the “American Dream”, have produced stressed out couples, both working to pay the bills, while children are shuttled to day care and act as “latch key” kids until exhausted parents get home.

Men are asked to be more nurturing and less providing and protective, in the interest of gender equality. Women are asked to work long, grueling hours while their infant children are cared for by nannies or low paid child care center employees. Guilt and separation anxiety become the order of the day.

An article on the Front Page of the New York Times this month states some research findings that anger “high achieving” women of the 70s who have paid the price for their status in the business world today. This article, entitled: “Many Women at Elite Colleges Set Career Path to Motherhood” by Louise Story, collected the responses of young women at Ivy League colleges who stated they were unprepared to sacrifice motherhood and child nurturing in order to pursue high-pressure careers. They concluded that “having it all” was just not realistic or good for children and families.

A legal newspaper I read, the Los Angeles Daily Journal, covered the responses of “40 and 50 something” female attorneys to the N.Y. Times article by Story. These “women’s liberation” women did what they were driven to do, and did it at whatever cost it required: they were determined to be both “supermoms” and “super lawyers”. Now, a younger generation questions their sacrifice. They are naturally defensive. These women point out that large firms hiring top notch women lawyers have created liberal maternity leave policies and flexible hours, permitting the development of both a family and a career. These older women fear these new attitudes will undermine the hard won successes of women in the last decades.

So, who is correct? Is the issue as simplistic as the choice between the docile and demur mother & “little housewife” of the 40s and 50s or the supercharged executive “mom” of the 21st Century? I find it ironic that the persons most arguing for individual freedom of choice become most reactive when increasing numbers of very bright young women decide to exercise that choice differently than an earlier generation. These older women seem to be in denial of the social and relational carnage of the past 3 decades.

The politicians routinely resurrect their calls for “family values” each election cycle, yet where are the family friendly policies that are needed to support the family? Where are the funds and social programs that give mothers and fathers greater flexibility to adjust their hours for their children, and where are the corporate policies that provide “on site” day care so that parents may be in touch with their children throughout the day. Where are the liberal maternity and paternity leave policies that permit parents to be with their newborns during the critical first year of bonding and development? Where are the financial incentives and training needed to bring accessible, top quality child care to desperate parents? Where are the Churches that need to speak out for the protection and integrity of family relationships? Where is the “women’s movement” in seeking the right of mothers to stay with their newborn children during the time needed for mother-child bonding and nurturing?

Until a “high achieving” person is defined in our culture to include the quality of parenting and nurturing, we will not be the “high achieving” nation we are called to be. Until then, each couple will have to “travel to the beat of their own drummer’ to paraphrase Thoreau. A generation of young women appears to be defining differently and for themselves just what is “the good life”.

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Should a physician be able to refuse a medical procedure based on her religious beliefs?

An unmarried lesbian patient wants to be artificially inseminated and the doctor refuses to perform the procedure based on her religious beliefs.

It's the battle between free exercise of religion and unlawful discrimination.

Currently being appealed and possibly worthy of Supreme Court hearing, the case of North Coast Women's Care Medical Group v. Benitez raises an important constitutional question of first impression.

A pretrial ruling was made that doctors could not claim religious liberty in defense of unlawful discrimination.

In appealing, defense counsel argues that the trial court did not respect physicians' rights to the free exercise of religion under both federal and state constitutions.

Defendants claim that doctors who refuse to treat a patient based on their religious beliefs can satisfy their nondiscrimination obligations by referring the patient to another physician and paying any additional costs to the patient. In Benitez' case, defendant North Coast did offer to pay for her procedure when the second clinic she went to did not cover her treatment. Benitez refused to accept North Coast's payment.

Plaintiff's counsel argues that physicians cannot refuse to perform a medical procedure (in this case artificial insemination) on a protected group of people (homosexuals) due to their religious convictions. They claim that endorsing such religious beliefs would allow those beliefs to be superior to the law of the land.

Furthermore, since lesbians are already alienated from the medical system due to hesitancy in revealing their sexual orientation to their doctors, allowing a physician to refuse a procedure would further shut down communication with doctors. Plaintiffs also claim that a ruling in favor of the defendent would hinder the compelling interest that California has in maintaining the health and well being of all its residents.

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Sexist supervisor succumbs to sensitive Sylvia's suit

Sylvia Dominguez-Curry was rejected for a supervisory position that was eventually filled by a male. The man who was hired was interviewed by her supervisor along with another higher-level manager. The reason given for hiring the male was that he was more qualified because of his education and work experience.

Dominguez-Curry felt that she had not been hired because she was a women and she had evidence to prove it.

Dominguez-Curry's male supervisor would constantly make demeaning comments to women in her division, such as: "he wished he could get men to do [their] jobs," "women have no business in construction," and "women should only be in subservient positions". He made comments that female employees were likely to get pregnant, that he did not like working with pregnant women, and that women "had no business working if they had little children to care of at home." The supervisor also told sexually explicit jokes in the workplace.

What the Court decided: The supervisor's demeaning comments about women in the workplace, his hostility toward pregnant employees, his expressed preference for male employees, and his sexually explicit jokes possibly created a hostile work environment (the facts would be left for a jury to examine). It was also possible that the supervisor's discriminating behavior played a role in his hiring process due to his comment about wanting to hire a man. It did not matter whether the supervisor was not the sole decisionmaker.

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Tuesday, October 18, 2005

New California Bill affects pay for software professionals

On September 8, 2005, Governor Schwarzenegger signed Assembly Bill No. 1093 into law. This Bill expands the hourly rate exemption requirement for computer software employees. The Bill takes effect on January 1, 2006.

Usually, under both federal and state law, an employee must be paid on a salary basis to qualify for the executive, administrative, and professional exemptions (Exemption means that an employee is unable or exempt from receiving overtime pay).

However, California Labor Code Section 515.5 requires that, in order to be exempt from overtime, an employee must not be paid less, on an hourly basis, than a specified rate (currently $45.84 per hour) for all hours worked.

Employers have often disregarded this section and paid their employees on a salary basis, believing that salary pay is acceptable as long as the salary equals the specified hourly rate based on only a 40-hour workweek. This is a wrong interpretation of the law, and has subjected some employers to wage and hour class action lawsuits.

AB 1093 allows an employer to pay a computer professional on a salary basis as long as the salary is equal to or greater than what the employee would be paid on an hourly basis, at the specified hourly rate in Section 515.5, for all hours worked.

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Monday, October 17, 2005

Some things just aren't funny

For Susan Medeiros, not only did her co-worker think her joke wasn't funny; the joke resulted in getting her fired.

A co-worker working at Medeiros' restaurant was unhappy with the work schedule and complained, resulting in the change of many other workers' schedules.

Medeiros, a senior hostess, approached the co-worker from behind, placed her hands around her neck and shook her lightly while laughingly saying, "It's all because of you."

The co-worker reported the incident to a manager. Medeiros was fired.

When Medeiros filed for unemployment benefits, she was turned down. Medeiros sued.

Held the Hawaii Supreme Court: Medeiros' employer had a zero-tolerance policy against violence in the workplace that Medeiros was aware of, and so she should not have even joked about assaulting a worker. Consequently, her unemployment benefits were rightfully denied.

Case: Medeiros vs. Hawai'i Department of Labor and Industrial Relations, September 1, 2005

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Tuesday, October 11, 2005

"You've got to stop your evil ways, baby"

Carlos Santana's former personal assistant Bruce Kuhlman has filed a lawsuit against Santana and his wife Deborah for several claims including religious discrimination.

Kuhlman alleges religious discrimination based on his belief that the Santanas fired him for not being spiritual enough.

According to Kuhlman, Deborah Santana ordered him to meet with a "Dr. Dan" to improve "his consciousness or awareness level, which would bring him closer to God and make him a better worker."

Kuhlman also claims that Dr. Dan gave him literature on "neuro-emotional" and "neuro-calibration" techniques, the latter of which was apparently intended "to help you become as enlightened as God desires you to become."

The Santanas issued a statement denying all allegations and attributes Kuhlman's termination to his inadequate performance after he was given support and every opportunity to succeed.

The Santanas have long been spiritual seekers. In 2000 and just before he won 8 grammies, Carlos Santana credited an angel named Metatron for his career comeback.

"If the pink slip doesn't fit,
get redressed!"
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Thursday, October 06, 2005

Shifting of sexual harassment liability in 9th Circuit

The victims: Three female employees of the National Education Association’s Alaska affiliate, all of whom alleged that they had been subjected to a hostile working environment.

Precedent/"Old law": Direct evidence is required to show that harassing conduct towards these female employees was “because of sex” (i.e., harassment would not have occurred if they were male).

What happened: The women were subject to “frequent, profane, and often public” tirades by their supervisor Harvey, who frequently yelled at them for no reason and occasionally made intimidating physical gestures.

While Harvey did publicly criticize male workers within the office, he was much less aggressive about it than he was with the women. He also showed a greater willingness to resolve matters more amicably with the men. Unlike the male employees, the female employees testified that they cried, felt panicked and threatened, avoided contact with Harvey, called the police, and ultimately resigned their employment because of the alleged conduct.

Other witnesses, including male employees, confirmed those accounts.

What the court held: Overturning the district court’s ruling in favor of NEA-Alaska which held that the alleged harassment was not “because...of sex” within the meaning of Title VII of the Civil Rights Act of 1964, the Ninth Circuit held that there was sufficient evidence that Harvey treated the men and women in the office differently by creating “general fear” in the women.

The Court held that the motive in which the abusive supervisor took advantange of a female workplace because he could bully the women easier than the men was no "less because of sex than a motive involving sexual frustration, desire, or simply a motive to exclude or expel women from the workplace.” The Court mentioned that in such situations, it did not necessarily matter that some men were also harassed.

Case: Equal Employment Opportunity Commission v. National Education Association, Alaska, 04-35029.

"If the pink slip doesn't fit,
get redressed!"
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