Baby Steps

A woman! With a disability! On the floor of the Senate! With a newborn!

What if she weaponizes the baby?* What if there are 10 babies?** Can’t she just vote from the non-accessible cloakroom?***

Senator Duckworth yesterday made history—unbelievable because it shouldn’t have taken until 2018—by bringing a baby onto the floor of the Senate for a vote.**** All that needed to change to make this happen, in chronological order was: (1) women getting the right to vote; (2) non-white women getting the right to vote; (3) women being elected to the Senate; (4) pregnancy and childbirth; and (5) a rule that non-Senate members/staff were not allowed on the floor during votes, even if they are under the age of 2 weeks.

What is special about this list I just made? Everything except number 4 involves people changing barriers. What is holding women, people of color, and people with disabilities back from equal participation in our country? It’s not them – it’s the barriers we place on them. Some of these barriers are seen as neutral to some people, but when applied to a more inclusive group, they turn out to operate as exclusionary. Barriers do not need to be physical. Barriers do not need to be something that is put into place to stop a specific type of person or activity. Barriers may be lack of accommodation.

Sen. Duckworth arrived at the senate with her little tiny baby—10 days, people, 10 days!—and took a vote. She was ready to do it. It just took a bunch of stuck-in-the-mud folks being told they were being ridiculous not to adjust an overly broad rule and being embarrassed if they didn’t, to allow her to do so.

What I love most about this moment is that it combines multiple aspects of anti-discrimination law. It intersects gender, ethnicity, race, disability. It involves accommodations and equal access. Senator Duckworth, in one small moment, with one adorable little human, taught a master class on anti-discrimination law. Onward to bigger barriers and more inclusion.


*So many thoughts. (1) Have you ever met a baby? They’re already weaponized! (2) What does that even mean? (3) Are you afraid she’ll pressure people to actually think about babies when they’re making policy? The horror!

**Sounds pretty awesome. That would also mean multiple people of childbearing age, or heavily involved grandparents, or adoptive parents, and that’s pretty awesome too. (The linked article reports that Senator Hatch meant this as a joke. I’ll choose to believe him.)

***So, we’re back to segregation? I know we’ve never left it in practice, but explicitly? Not a nice look, Senator Cotton.

****Don’t be silly; the baby didn’t vote.


Forty-one year old Lisanne Wirth was seeking a job with more meaning and purpose for the second half of her career. After building a large enterprise user support website from scratch, her goal was to apply her user experience and content strategy expertise to work for the greater good. 

Inspired by a job posting from education nonprofit Teach For America (TFA) and its mission to end educational inequity for all children, Wirth joined TFA’s national staff in November 2014.

In her role as Director of Content Strategy, her responsibilities included search engine optimization (SEO), content development, optimization, and governance.

While developing a SEO plan, Wirth noted multiple issues with website accessibility. She reported the issues to her manager and second-level manager starting in August 2015. People with vision impairments who rely on screen readers would not be able to use the TFA website.

Core TFA topics like diversity, inclusiveness and diverse learning initiatives were published on web pages that were inaccessible – effectively excluding people with certain disabilities. “Not only is the lack of web accessibility out of alignment with a civil rights organization like TFA, it’s also likely a violation of public policy and federal and state law,” Wirth said. “I communicated this information to multiple levels of the leadership team in a formal presentation in November 2015, along with companies that have been sued. I assumed they would understand the gravity of the risk.”

“TFA insisted that they could say they’re ‘working on it’ indefinitely and that was good enough. I explained that the Department of Justice didn’t accept excuses, and that fixing the accessibility issues on would improve SEO too, but it didn’t matter,” Wirth said. “My role was reduced and marginalized as a result.”

Once it became clear that her managers did not want to fix the structural problems with the website, and she was being subjected increased and hostile scrutiny in an attempt to force her to quit, Wirth sent a formal written notice by email to her manager and the Vice President of Marketing in January 2016. The email included details about the numerous attempts to communicate the accessibility issues and potential impacts, and stated her belief the work environment was turning hostile because of her efforts around accessibility, diversity, and inclusiveness.

One week later, Wirth was terminated for “insubordination,” despite an extremely favorable annual review from a previous manager and no record of performance counseling. Over 18 months later, the TFA website still is not fully accessible.

Wirth filed a federal lawsuit alleging wrongful termination in violation of public policy on October 31, 2017.  Attorney Julia Campins of the civil rights employment firm Campins Benham-Baker, PC is representing Wirth. “Part of guaranteeing that people with disabilities have access to educational and job opportunities is protecting employees who advocate for such access.” Ms. Campins said. “Ms. Wirth is such an advocate and she is now out of a job.”

Click here for a copy of the Complaint.

About Campins Benham-Baker, PC
Attorneys Julia Campins and Hillary Benham-Baker represent employees in discrimination, wrongful termination, retaliation, employee benefits and general employment law matters, and also represent persons with disabilities in civil rights cases.
CONTACT: Julia Campins | (415) 373-533

Modern Accommodation

This is a version of an article recently published by the American Bar Association Section of Labor and Employment Law Newsletter

Employment lawyers may face daily issues regarding religious, transgender, and caregiver accommodations.  There would seem to be overlap among these topics, but there is not much.  Religious accommodations are provided for explicitly by statute.  The disputes are disputes of coverage—“religion,” types of practices to be accommodated, and notice.  Transgender cases are not true accommodation cases, but instead are generally disputes about discrimination.  Transgender cases often rely on the theory of sex stereotyping.  Caregiver cases cannot be strict accommodation cases, because aside from limited types of leave protected under FMLA, there are no federal accommodation requirements. Like transgender cases, many caregiver cases rely on sex stereotyping theories.

       I.            Religion

Title VII prohibits employers from discriminating against “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).  Determining whether a practice is religious turns not on the nature of the activity, but on the employee’s motivation.  Although generally notice of a need for an accommodation is required, the Supreme Court has held in EEOC v. Abercrombie & Fitch Stores, Inc. that it is unlawful to act with the motive of avoiding accommodation even if the actor “has no more than an unsubstantiated suspicion that accommodation would be needed.”

    II.            Transgender Employees

Although Title VII of the Civil Rights Act of 1964 (Title VII) does not include sexual orientation or gender identity as protected classes on its face, the EEOC takes the unequivocal position in its Strategic Enforcement Plan and enforcement/litigation activity that Title VII protects LGBT individuals.  Based upon the Supreme Court’s decision in Price Waterhouse v. Hopkins, sex stereotyping on the basis of sexual orientation and gender identity is almost universally accepted as actionable sex discrimination.  An employer with a specific dress requirement for men that is different than that for women is at risk for a discrimination suit.  It is not an “accommodation” request for the transgender employee to dress according to the employee’s gender identity, but rather a discrimination claim not to permit the employee to do so.  The EEOC has held that Title VII provides coverage for transgender employees.  It remains to be seen whether the courts will follow suit. 

 III.            Caregivers

As the Supreme Court acknowledged,

Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees.

Nevada Dept. of Human Resources v. Hibbs (2003). 

            The federal legal protections for caregiver accommodations are insufficient.  The Family and Medical Leave Act (FMLA) provides some employees with unpaid leave for serious health conditions of very close family members (and themselves).  The Americans with Disabilities Act (ADA) and Rehabilitation Act prohibit, among other things, discrimination based on “association with” an individual with a “disability” as defined by the ADA.  42 U.S.C. § 12101 et seq; id. § 12112(b)(4); 29 U.S.C. § 794.  The prohibition on disability discrimination can be used for pregnant workers with disabling conditions.  The association provision of the ADA does not provide a right to reasonable accommodation (which is required for individuals who themselves have disabilities).  Id. § 12112(b).  The Fair Labor Standards Act (FLSA) contains a Break Time for Nursing Mothers provision.  29 U.S.C. § 207(r).  It is unsettled whether there is a private cause of action to enforce this provision. 

The heavy lifting is left to stereotyping claims.  There is not, however, an accommodation provision of Title VII.  Where the employer does not regularly accommodate other workers, the court will not require it to change its business practices simply because a decisionmaker operates pursuant to pernicious stereotypes.  If, however, the employer regularly allows employees to work from home, but denies such an accommodation to an employee because he doesn’t believe men should be caregivers, then the stereotyping claim may be viable.

The stereotypes can take many forms:  That women who get pregnant will not or should not want to return to work.  That women who return to work will not have the time to do the job right.  That men who care for children aren’t real men.  While decisions based on stereotypes might be well-meaning or well-intended, paternalistic sex discrimination is illegal.  That women were treated better than a plaintiff woman should not, however, be fatal to a stereotyping claim.  The proper analysis requires looking below the surface of the employees’ gender to determine whether the true cause is sex stereotyping; whether the decision was “because of sex.”

Court Grants Preliminary Approval of Class Action Settlement in CREEC et al. v. Ashford Hospitality Trust, Inc.

On December 18, 2015, Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California entered an order granting preliminary approval to a class action settlement in CREEC et al. v. Ashford Hospitality Trust, Inc. Ashford owns approximately 125 hotels located in 20 states. The lawsuit, brought by the Civil Rights Education and Enforcement Center and two individuals with mobility disabilities who use wheelchairs, alleges that many hotels owned by Ashford provide transportation services to guests, but fail to provide equivalent wheelchair-accessible transportation services as required by the ADA and California state law. The lawsuit seeks only declaratory and injunctive relief: an order requiring all hotels owned by Ashford to comply with the ADA’s accessible transportation requirements. It does not seek monetary damages for the named plaintiffs or the class.

As the Court noted in the preliminary approval order, the settlement “provides a comprehensive scheme for injunctive relief.” As a result of the settlement, all of the hotels owned by Ashford that provide transportation services to their guests will provide equivalent accessible services to guests who use wheelchairs or scooters. The accessible services will be equivalent in timing, notice, routes or geographic scope, fares, hours, reservations, and restrictions. The settlement provides for three years of monitoring of the hotels to ensure compliance.

A final approval hearing will be held on March 10, 2016 at 11:00 am in Oakland, California. Plaintiffs and the Settlement Class are represented by CBB, CREEC, and CCDC. For more information, please contact Tim Fox of CREEC.

For more information about the lawsuit and proposed settlement, please see:

Federal Court Gives the Green Light to Discrimination Suit Brought by Gestational Surrogate Denied Lactation Breaks

A federal judge in California has refused to dismiss a discrimination suit against the Los Angeles Airport Marriott in which a longtime employee and gestational surrogate seeks relief for being denied lactation breaks.

The first-of-its-kind ruling concludes that plaintiff Mary Gonzales, who was prevented from taking twice-daily breaks to express breast milk even as other recently pregnant employees were allowed such an accommodation, has successfully stated claims against the hotel under both federal and California law.

“This is big win not only for Mary, but for women throughout California and across the country,” said John Davisson, a Georgetown Law student attorney who is working on Gonzales’s case. “This decision makes it clear that gestational surrogates and non-traditional mothers enjoy the same legal protections against pregnancy discrimination as mothers who have infants at home. It’s not up to Marriott to pick and choose.”

Gonzales is a cashier and general accountant at Marriott with a passion for helping individuals and couples struggling with infertility to build their families. In April of 2014, she gave birth to a healthy child pursuant to a surrogacy agreement.

In June of that year, when her pregnancy disability leave ended, Gonzales returned to work at Marriott. Gonzales would express milk at work for about 30 minutes twice a day to provide milk to the child she delivered, to receive personal health benefits of lactation, and ultimately to donate to women who were unable to produce sufficient milk for their own children.

But just a few weeks after returning to her job, Gonzales’s manager gave her 30 days’ warning that she would no longer be allowed to take breaks to express milk. Unlike other recently pregnant employees at Marriott who were permitted paid lactation breaks, Gonzales was told she could only use her lunch period. Gonzales requested to meet with Marriott officials to discuss an accommodation, but Marriott denied that she had any right to the breaks and declined Ms. Gonzales’s offer to bring in a doctor’s note detailing her need for the breaks.

As a result, Gonzales was left with no option but to devote her brief lunch period to expressing milk, instead taking her lunch during her 10-minute morning break. Gonzales suffered clogged ducts, severe breast pain and soreness, blisters, and loss of sleep in order to express milk at night. She was also prevented from having lunch with her colleagues and excluded from midday company social events.

Gonzales, who is jointly represented by Georgetown University’s Institute for Public Representation and San Francisco Bay Area-based Campins Benham-Baker, LLP, filed suit in the United States District Court for the Central District of California in May alleging discrimination and failure to accommodate under federal and state laws.

Though Marriott attempted to have the suit dismissed, Judge Margaret M. Morrow denied its motion on all counts. Her ruling rejected Marriott’s argument that accommodations for pregnancy-related conditions were only required for mothers who were nursing infant children at home.

“Marriott’s dismissal of the ‘personal health benefits’ of lactation—which it compares to ‘exercising during the workday’—is unfounded,” she added.

Judge Morrow found that “a reasonable jury could conclude that Gonzales was subjected to the treatment she was because Marriott perceived she did not conform to stereotypical views of how women act as it relates to motherhood or child bearing.” With this decision, Judge Morrow rejected Marriott’s claim that its treatment of Ms. Gonzales did not constitute sex discrimination because the “stereotype of legitimate motherhood” is not an actionable sex-based stereotype.

“This case is about preventing employers from denying employees their rightful workplace protections on the basis of their reproductive choices,” said Connor Cory, another Georgetown University student attorney representing Gonzales. “The circumstances of a woman’s pregnancy should have no bearing on her right to be free from sex discrimination or her eligibility for a reasonable accommodation."

The case is captioned Gonzales v. Marriott International, Inc. and has the case number CV 15-03301 MMM (PJWx).  Gonzales's complaint is available here and Judge Morrow's decision can be viewed here.

Campins Benham-Baker is proud to be working on such an important case with Georgetown Law students.