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.

Press Release: Wheelchair Users Sue Major Hotel Companies for Inaccessible Transportation

FOR IMMEDIATE RELEASE – January 15, 2015

CONTACT: Julia Campins
Campins Benham-Baker, LLP
julia@cbbllp.com / 415-373-5376

SAN FRANCISCO – The Civil Rights Education and Enforcement Center (CREEC), along with three individuals who use wheelchairs for mobility, today filed federal class action lawsuits against three major hotel owner/operators, RLJ Lodging Trust, Hospitality Properties Trust, and Ashford Hospitality Trust, Inc. Each lawsuit alleges that the hotel owner/operator discriminates against individuals with mobility disabilities in the provision of hotel shuttle transportation. These three entities own or operate more than 500 hotels in the United States, including more than 50 in California.

Specifically, the cases challenge the hotels’ consistent failure to provide accessible options when they choose to offer transportation services to guests, and charge that this failure violates the federal Americans with Disabilities Act and California state law.

“For those of us who use wheelchairs and other mobility devices, it is difficult enough to get around most cities when we travel,” said Ruthee Goldkorn, a plaintiff in two of the cases who uses a wheelchair for mobility. “As it stands at these hotels, all other hotel guests can get shuttled around the city to events, the airport, and downtown attractions, but we just get left at the hotel. I joined this lawsuit to make hotel transportation services accessible for everyone.”

“Hotels that choose to provide transportation services to their guests must include accessible transportation options,” said Timothy P. Fox, Executive Director of the Civil Rights Education and Enforcement Center and one of the lawyers for the plaintiffs in the three cases. “This has been the law under the ADA for more than twenty years, and these three defendants have not complied with it.”

“Offering a service to nondisabled guests while excluding guests with disabilities from that service is the very definition of disability discrimination,” said Kevin Williams, Legal Program Director of the Colorado Cross-Disability Coalition and another of the plaintiff lawyers. “The law requires that hotels welcome all their guests.”

Bill Lann Lee, a lawyer for the plaintiffs and a former head of the Department of Justice’s Civil Rights Division, said, “The law requires equal access, and that is all these lawsuits request. The relief Plaintiffs seek is to have the hotels reform their conduct. They do not seek money damages.”

The cases, CREEC v. RLJ Lodging Trust, CREEC v. Hospitality Properties Trust, and CREEC v. Ashford Hospitality Trust, Inc. were filed in the U.S. District Court for the District of Northern California, San Francisco Division. The case numbers are 3:15-cv-00224, 3:15-cv-00221, and 3:15-CV-00216, respectively.

The plaintiffs are represented by CREEC and the Colorado Cross-Disability Coalition, both of Denver, Colorado; Lewis, Feinberg, Lee, Renaker & Jackson, P.C. of Oakland, California; and Campins Benham-Baker, LLP, of San Francisco, California.
The complaints are at: http://creeclaw.org/hotel-transportation/.

Getting Sandberged: Leaning In, and Getting Pushed Down

Some of us have read Lean In.  Almost everyone has heard about it.  Most of us have an opinion.  Regardless of what you think of Sheryl Sandberg’s advice, however, CBB has noticed a growing, disturbing trend among our current and potential clients.  A young, confident, competent woman decides to try to follow Ms. Sandberg’s advice and she asks for a raise.  Maybe she puts it in explicitly gender-based terms (“I want to be paid the same as my male colleagues.”) or maybe she doesn’t (“I think I deserve $X).  The next thing this woman knows, she’s been kicked out the door.  We’re calling it “Getting Sandberged.”  She has leaned in, and she has been pushed down.  Have you seen this trend?  Have you experienced this trend?  If so, let us know.  

Guidance for submitting your own request for review

Guidance for submitting your own request for review of a denied benefits claim governed by the Employee Retirement Income Security Act of 1974 (ERISA)

(Campins Benham-Baker prepared the following guidance for the Legal Aid Society-Employment Law Center Workers’ Rights Clinic.)

If you have to appeal a denial or termination of short-term or long-term disability benefits (also known as submitting a “request for review”), first, try to find an  ERISA lawyer promptly as you have 180 days from receipt of the denial/termination letter to appeal.  If you do not submit a written appeal within the deadline, you may lose your right to further pursue your claim.  If your appeal is denied and the only recourse left is to file a lawsuit, the claim file at the time the claims decisionmaker responds to your appeal is typically all that a court will review when deciding whether or not you are entitled to benefits.  As such, many lawyers may not take your case after a final denial if they did not assist with the request for review. 

If you cannot find a lawyer, do at least the following:

1)      Request your claim file from the plan.  Review the denial letter and the documents in the claim file for reasons your claim was denied so that you can address those issues in your request for review.

2)      Review the plan document. This is the document setting forth the terms and conditions of receiving benefits.  If you do not have it, it should be in your claim file.  If it is not in your claim file, be sure to request it from the Plan Administrator, who is not always the claims decisionmaker.

a.       Look especially at the definition of “disability.”

b.      Many plans will change the definition of “disability” or “disabled” at 24 or 36 months from being unable to do the material duties of your occupation to unable to do the material duties of any occupation that you could reasonably hold.  Tailor your submission to the appropriate definition.

3)      Gather medical records from all relevant doctors and medical facilities.

a.       For denial of benefits: gather medical records from the first point in time when you began to experience the symptoms of your disability.

b.      For termination of benefits:  gather medical records at least as far back as the date you are deemed no longer disabled and further back if that helps put your disability in context.

4)      Get a job description.  One may be in your claim file.

5)      Gather pharmacy records (for the same time periods outlined above).

6)      If you experience side effects from any medications, research those medications and their side effects and provide that information.

7)      If you have a physical injury that shows up on tests, such as MRIs, get up-to-date tests.

8)      Get your primary doctor(s) to write letters explaining your disability and why you cannot work. 

a.       If the doctor is too busy to write a letter, you can provide a list of questions for him/her to answer.  Pertinent information includes some or all of the following:  1) your diagnoses; 2) your treatment plan; 3) your symptoms; 4) your medication side effects; 5) your restrictions and limitations; 6) your subjective complaints and the objective findings which support the complaints; 7) the doctor’s opinion on surveillance, if any.

b.      If the Plan has consulted an outside doctor, it may be helpful to have your doctor respond to that report.

9)      Have your family members, friends, co-workers, or others who may have first-hand information about your disability to prepare written statements.

10)  If you have an approved claim for Social Security Disability Insurance (“SSDI”) benefits, be sure to submit the decision granting your claim.  Also, request your claim file from your local Social Security Administration office as it may contain helpful medical information.

11)  If you have a Workers’ Compensation case and medical evaluations that support your disability claim, obtain a copy of your Workers’ Compensation case file.

12)  Submit all of these documents together, along with a narrative letter explaining why you are disabled (i.e. your medical conditions and how they affect your ability to work). 

13)  Take your time to do it right.  DO NOT miss your deadline, but do not omit critical information in an effort to get this process done quickly.  Remember, if your appeal is denied, you will likely be prohibited from submitting additional information at a later time.

14)  After it is submitted, watch the calendar.  If you do not hear back in 45 days, send them a letter reminding them of their obligations.  If you do not hear back in 90 days, send them another letter and begin trying to find a lawyer again. 

a.       Their obligations are found at:  29 C.F.R. 2560.503-1(h)(4)(i)(1) & (h)(4)(i)(3)(i):

b.      [T]he plan administrator shall notify a claimant in accordance with paragraph (j) of this section of the plan's benefit determination on review within a reasonable period of time, but not later than [45] days after receipt of the claimant's request for review by the plan, unless the plan administrator determines that special circumstances (such as the need to hold a hearing, if the plan's procedures provide for a hearing) require an extension of time for processing the claim. If the plan administrator determines that an extension of time for processing is required, written notice of the extension shall be furnished to the claimant prior to the termination of the initial [45]-day period. In no event shall such extension exceed a period of [45] days from the end of the initial period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the plan expects to render the determination on review.

If your appeal is denied, try again to find a lawyer.  If the administrator will no longer consider additional information or another request for review, your next recourse is filing a lawsuit in federal district court.  

Treat your employees well

Crosby, Stills, Nash & Young had it partially right – treat your employees well and it will come back to you.[1]  Recent events convince us more than ever that this is true.  Just last week, a local small business owner (Jen Pillat of Zazie) was profiled in the SF Chronicle because she has discovered that generosity results in higher profits.  Although she is in the incredibly difficult restaurant industry, she gives her employees a regular schedule, pays them for times she sends them home when she’s not busy, and offers generous benefits.  In return, her profits have gone up.  How is this possible?  Well, happy employees are better at their job for several reasons: (1) they stay longer, and therefore the need for training is reduced; (2) they get better and better at their jobs; and (3) they want to see their employer succeed.

This week, Governor Brown signed a law ensuring that most employees with 90-days of tenure will get three paid sick days per year.  This is not enough, but it is a wonderful start.[2]  Three days per year—we can afford that as a society and as small business-owners, can’t we?  Sick employees do not perform well.  Instead, they get the rest of the office sick.  Employees with sick children often have no other options.  This seems obvious, but one of the most progressive states for employees in the country took until 2014 to pass this minimal measure.

Studies of places, such as Connecticut and San Francisco, where governments have already implemented mandatory paid sick leave, demonstrate that the costs, if any, to employers are low and there are benefits to both employers and employees.  Let us take the lesson of paid sick leave, and of Zazie restaurant, and experiment with how much goodness we can get away with, rather than the opposite.

[1] We recognize that there are bad employees out there.  But we believe that through progressive discipline and objective processes, underperforming employees can improve, and those who do not can be exited from the employment relationship in such a way as to reduce acrimony and, in turn, potential liability.

[2] Among the items on my wish list for employees are: (1) paid parental leave for all new parents; (2) additional sick leave; (3) better protections for employees with temporary and permanent disabilities; (4) guaranteed retirement benefits; and (5) single-payer health insurance.