Companies Cannot Hide Behind Taxpayer Privilege When Faced with Retaliation Claims

On January 23, 2019, in Siri v. Sutter Home Winery (click here for pdf), a case CBB was honored to co-counsel with Monique Olivier (click here for bio), the 1st appellate district held that a company could still be subject to a whistleblower retaliation suit by a former accountant who reported concerns with tax compliance.

The plaintiff was an accountant at a winery and she reported her concerns that the business was out of compliance with tax laws. Defendant sought and won summary judgment on the premise that "taxpayer privilege" meant that the plaintiff could not prove her case without using protected tax returns. The Court of Appeal rejected this argument rather quickly. Her claims do not require the returns themselves, but instead her report and belief, neither of which Defendant disputed at this stage. Defendant also argued Plaintiff could not sustain a whistleblower retaliation claim because she violated a provision of the Revenue and Taxation Code that makes revealing information learned while preparing taxes a misdemeanor. Again, the Court determined that this section could not prevent her employment claims, and declined even to weigh in on whether she had violated it.

Advocates Sue Secretary of Education Seeking Immediate Debt Relief for Students of Closed Colleges

CBB is cocounsel with the National Student Legal Defense Network, on behalf of Housing and Economic Rights Advocates and thousands of students. Below is NSLDN’s press release.


November 13, 2018


MEDIA CONTACT: | 202-734-7495


Advocates Sue Secretary of Education Seeking Immediate Debt Relief for Students of Closed Colleges

Lawsuit Could Benefit Tens of Thousands of Students Nationwide


Washington, D.C. - Today the National Student Legal Defense Network (NSLDN), on behalf of Housing and Economic Rights Advocates (HERA), filed a lawsuit demanding that the Department of Education immediately fulfill its legal obligations and discharge the loans of tens of thousands of students whose schools or campuses have closed. Housing and Economic Rights Advocates is a California-based non-profit organization that that provides legal aid and counseling for vulnerable student borrowers and other consumers.


Many borrowers who attended approximately 1,400 campuses that closed between November 2013 and November 2015 are now entitled to have their federal student loans immediately discharged without submitting an application, yet the Department is continuing to collect on their loans instead.


“Under current leadership, the Department of Education seems determined to deny student borrowers the financial relief to which they are entitled,” said NSLDN President Aaron Ament. “It has been nearly two years since these rules should have taken effect, and Secretary DeVos is still dragging her feet and hurting tens of thousands of borrowers through her inaction. The students we are trying to help have been doubly victimized – first by the for-profit colleges that deceived them, and now by the federal government that refuses to help.”


“There are very few resources available to student borrowers where they can get help understanding and obtaining their rights,” said Noah Zinner, HERA’s Managing Attorney. “As a result, many former students who should rightfully have had their loans cancelled are still unknowingly and needlessly struggling to pay them. Because the Secretary failed to honor common sense, already-in-place regulations for automatic discharge of loans the Department knows must be cancelled, many borrowers have struggled unnecessarily and the resources available to help them have been even more limited.”


Many for-profit schools close without warning after state or federal government investigations reveal they have been deceiving students to obtain federal funds, leaving students in debt and with nowhere to turn. Students who attend for-profit colleges are particularly vulnerable to ending up deeply indebted without a degree or education of value. According to federal data from 2009, nearly one-third of students who enrolled at a for-profit college, but did not complete their program of study, had federal student loans equal to or exceeding their annual income. 


The Department of Education’s Borrower Defense Rule, a regulation finalized in 2016, instituted a provision known as Automatic Closed School Discharge – in short, the provision requires the Department to automatically discharge the loans of all eligible borrowers harmed by the abrupt closure of their school. The automatic aspect of the relief is especially important because students are often unaware of their rights – fewer than half of eligible borrowers affirmatively apply for relief.


Under Secretary DeVos, the Department delayed the July 1, 2017 implementation of the Borrower Defense Rule three times, and in September 2018, a federal judge held that the delays were unlawful, arbitrary, and capricious. After the judge’s order, the rule went into effect as if the Department’s illegal delays had never happened.  Since that ruling, the Department still has not implemented the automatic discharge provision and continues collecting on loans that it is required by law to discharge.


Since November 2013 nearly 3,600 schools have either closed a campus or stopped operations entirely. In California, there are more than 160 schools where former students may already be eligible for relief under the Department’s 2016 rule. These include campuses of Corinthian Colleges, the University of Phoenix, DeVry University, and many others. In the next three years, students who attended an additional 325 California campuses will also become eligible.


NSLDN and HERA are demanding that the Department take immediate action, so that borrowers who have never been informed of their rights can receive the following benefits:


  • Complete loan discharge: Borrowers who get a closed school discharge are no longer obligated to repay any outstanding loan principal, accrued interest, or collection costs.


  • Refund of payments already made: Borrowers should be reimbursed for any and all payments made to date on the loan, including through wage garnishment or tax refund offsets.


  • Federal aid eligibility: Borrowers should be made eligible for new loans and grants, including Pell grants.


  • Clear credit history: Any adverse credit history due to the loans should be deleted by the credit reporting agencies.


The complaint filed in federal court is available here: 2018-11-13 HERA v DeVos Complaint.pdf


Housing and Economic Rights Advocates is a California statewide, not-for-profit legal service and advocacy organization dedicated to helping Californians — particularly those most vulnerable — build a safe, sound financial future, free of discrimination and economic abuses, in all aspects of household financial concerns. HERA provides free legal services, consumer workshops, training for professionals and community organizing support, creates innovative solutions and engages in policy work locally, statewide and nationally. Learn more at 



The National Student Legal Defense Network (NSLDN) is a non-partisan, non-profit 501(c)(3) organization that works, through litigation and advocacy, to advance students’ rights to educational opportunity and to ensure that higher education provides a launching point for economic mobility.

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.”