Workplace Flexibility: A Reality Check for Romney

By Hillary Benham-Baker

During last night’s town hall debate in Hempstead, New York, Republican presidential candidate Mitt Romney responded to a question about equal pay for women with his now-infamous reference that in seeking greater gender diversity in his cabinet, he acquired “binders full of women” to consider for hire.  Leaving aside this apparent endorsement of affirmative action (but for some interesting reading, see this and this), his comments raise several other important issues.  

Without addressing the issue of equal pay for women, Romney also shared a story about his female chief of staff, who expressed concern about work-life balance issues in Romney’s office:

"I recognized that if you're going to have women in the workforce that sometimes you need to be more flexible. My chief of staff, for instance, had two kids that were still in school. She said, I can't be here until 7 or 8 o'clock at night. I need to be able to get home at 5 o'clock so I can be there for making dinner for my kids and being with them when they get home from school. So we said fine. Let's have a flexible schedule so you can have hours that work for you. . . . What we can do to help young women and women of all ages is to have a strong economy, so strong that employers that are looking to find good employees and bringing them into their workforce and adapting to a flexible work schedule that gives women opportunities that they would otherwise not be able to afford."  (From the October 16, 2012 ABC News Debate Transcript.)

I would agree with Governor Romney’s connection between retaining women workers and workplace flexibility, but that is where our agreement ends.  Romney has made it clear in the debates and on the campaign trail that he is an opponent of regulating employers (i.e. It's not by trickle-down government, saying we're going to take more money from people and hire more government workers, raise more taxes, put in place more regulations. Trickle-down government has never worked here, has never worked anywhere.”).  Perhaps most troubling is the “how” in Romney’s solution—it seems that he believes the way we get to that needed flexibility is by simply having faith in employer largesse, rather than regulation.  Romney’s antiquated notion that women (and only women) need flexibility in the workplace to succeed at work and in their second shift is also problematic.

Admittedly, Plaintiff-side employment lawyers like us do not hear too much about employer largesse.  Our clients call us when something bad has happened, not to praise their particularly generous employers.  Many employers do the right thing and reap the business rewards of increased retention, employee morale, and productivity, among other benefits.  However, history has proven that relying on the goodwill of all employers to do the right thing, and skipping that pesky step where you implement minimum standards (i.e. “regulation”) does not end well.  Even when the minimum standards are in place, employers may not comply, especially if enforcement mechanisms are weak.

But it is also important to have a bit of a reality check about where we stand in the U.S. when it comes to family leave; it is common knowledge that the U.S. lags behind most countries in this arena.  178 countries guarantee paid leave for mothers, and 54 countries guarantee the same for fathers.  In contrast, 48 states do not have any sort of paid maternity leave in place.  In California and New Jersey, the states that provide limited paid leave, the availability of that leave is limited as to when one can take it, who can take it, and how much they can receive.  Few employers voluntarily offer any form of paid family leave and those that do fall along predictable socioeconomic lines—more highly paid workers are more likely to receive this benefit, whereas low-wage, hourly workers are not.  38 percent of workers have access to employer-provided short-term disability insurance and a measly 10% of American workers have access to employer-provided paid family leave to care for a new child. (Data drawn from the National Partnership for Women and Families, Expecting Better: A State-By-State Analysis of Laws that Help New Parents, at 5).

Moreover, even taking a job-protected unpaid leave under the federal Family Medical Leave Act (FMLA) is often detrimental to employees’ careers.  A recent study by Erin Kelly found that in 2010, only half of FMLA-covered employers (only 60% of workers are covered and eligible under FMLA anyway) comply with its provisions.  (Thanks to Joan Williams for her terrific blog post about this study at the Huffington Post last month.)

As a point of contrast, just last week it was announced that fathers in the United Kingdom may be eligible for twelve months of paid parental leave. Yes, months—this is not a typo.  Mothers in the U.K. currently receive 90% of their salaries for the first six weeks after the birth of a child, with an additional 33 weeks of paid leave. Fathers in the U.K. currently get two weeks of leave and mothers can transfer their leave to partners after the first six months.  The proposed change would increase the amount of leave time for male and female workers in the U.K. and provide fathers with the option to take leave earlier than current law allows.

Lawmakers in the U.K. seem to recognize what Mr. Romney does not—that it is sound policy to mandate flexibility for parents, regardless of the gender of the parent, and that regulation is necessary to move the ball forward on issues of equality in the workplace.  We have a long way to go, and a lot of binders to fill with regulations before we can get there.

You can catch more flies with good legislation . . .

By Julia Campins

               Add this to the pile of poorly thought-through legislation:  SB 1186.  This new legislation, pushed by Senator Feinstein and recently signed by Governor Brown, is a response to the perceived problem of frivolous litigation against public accommodations on behalf of people with mobility disabilities.  There are so many problems with the previous sentence.  First, as a plaintiffs’ attorney, I am particularly sensitive to legislation targeting only plaintiffs.  What is the difference between frivolous litigation on behalf of plaintiffs and frivolously advanced defenses?  Both waste time, money and resources.  So why target only plaintiffs?  Second, the legislation, both in its concept and in its final form, ignores that there is pervasive and constant discrimination against people with disabilities.  In the area of public accommodations alone, people with disabilities face barriers multiple times per day, every day.  Next time you enter a store, look around and see how someone using a wheelchair would have gotten in.  Chances are, it’s not the same way you entered, and that’s if he’s lucky.

                But this isn’t a posting about plaintiffs, and it isn’t a posting about how constant discrimination still is, despite everyone’s fervent desire that the civil rights laws have solved all of our problems.  This instead is about California politicians trying to kill a fly with a sledgehammer, missing the fly, and slaughtering a bunch of butterflies. 

                Let’s get out of the way the discussion of the explicit targets of the statute.[1]  The story is that there are individuals, in cahoots with slimy attorneys, who visit small businesses for the sole purpose of finding tiny technical violations of the ADAAG and holding the business hostage for early settlements.  Because California has provisions for statutory damages of $4000 per violation, an individual can visit a hotel for 1 night, spend $50, and make $4000 if the counter is an inch too high.  That is the story.  I refuse to pass judgment on other attorneys here.  I refuse to fall into the trap of considering some violations “tiny” or “technical.”  I also support small businesses (and indeed have just opened my own) and hope that the good ones all succeed.  Finally, I believe that we all should do our part to eliminate barriers to access.  But let us suppose this story is true and that it is a problem.

               SB1186 attacks this perceived problem of disability access cases in the following way:
(1)    Demand letters, not required by statute (but often necessary for other reasons):
a.       May not contain a request for money;
b.      Must include specific barriers, how those barriers interfered with full and equal access or deterred the claimant; and the date(s) of the interference or deterrence;
c.       Must include the attorney’s bar number;
d.      Must be sent contemporaneously to the State Bar – Attention: Professional Compliance; and
e.      Must be sent within 5 days to the California Commission on Disability Access.
(2)    Complaints must:
a.       Include specific barriers, how those barriers interfered with full and equal access or deterred the claimant; and the date(s) of the interference or deterrence;
b.      Be verified by the plaintiff;
c.       Contain an advisory (set out by statute); and
d.      Be sent within 5 days to the California Commission on Disability Access.
(3)    There is a possibility for a stay and early evaluation conference once the lawsuit has been filed.
(4)    There are limits on damages under certain circumstances.

               Others have commented on the First Amendment concerns in the new demand letter requirements, and I will not address those.  What I am concerned with here is how this legislation will work to the detriment of those who need to use courts to protect their civil rights, and will barely cause a ripple in the practices of the targets of this legislation. 

               Let’s return to the story of the problem litigants.  How hard of a requirement is it for them to list the date or dates of their visits?  Indeed, they planned the visit for the purpose of the litigation.  How hard of a requirement is it for them to list the specific barriers?  They went with an eye toward barriers and, like a paid expert, were looking for specific violations.

               Now, compare this problem litigant to a real person visiting a public accommodation because she likes the food or he needs to purchase some clothing.  She may not make a calendar entry every time she goes to Burger King.  Do you?  He may not go clothing shopping on a regular basis.  Both may use cash and not get receipts.  She may remember that there was a problem getting into the restaurant, but not remember until she returns or is reminded that not only was the door impossible for her to open, but there wasn’t enough room for her to open it.  Or, more importantly, if she was unable to get into the restaurant at all, how is she to know that there was no seating for people who use wheelchairs?  The legislation makes her lawsuit difficult or impossible (assuming that it is interpreted to require specific dates of visits), but has done nothing to stop the intended targets. 

Score:  Flies 1 – Butterflies 0

[1] For the purposes of this posting, I’m going to assume that the bill proponents did not carry the malicious intent of preventing all people with disabilities from suing to protect their civil rights.  That may not be true, but it makes me feel better about humanity to assume that it is.