In a move that stunned activists, California's domestic workers bill of rights was vetoed Sunday. But this will not deter the tenacious organizers at NDWA who are both motivated by love and armed with a multifaceted strategy.
Ai-jen Poo, Director of the National Domestic Workers Alliance, has often compared social justice campaigns to great love stories because “you can change policy, but you also change relationships and people in the process.” It follows that heartbreak is inevitable to some of these great love stories.
Poo and her fellow organizers at the National Domestic Workers Alliance (NDWA) had their hearts broken, or at least a bit scarred, most recently this past Sunday when California Governor Jerry Brown vetoed the state’s Domestic Workers Bill of Rights, AB 889, which passed the California legislature several weeks ago. For years the NDWA has been working on passing this law to require protections for California’s 200,000 primarily foreign-born domestic workers who labor as nannies, housekeepers, and home health aides. The law would have required overtime pay, adequate sleeping conditions for live-in workers, and meal and rest breaks. A similar law was vetoed by former California Gov. Arnold Schwarzenegger in 2006.
Had Gov. Brown not vetoed AB 889, California would have been the second state in the country to pass such legislation. (New York was the first, having passed its domestic workers bill of rights in 2010.)
“While we knew the veto was a possibility, we were stunned,” NDWA said in a statement to its allies and friends soon after the veto was announced.
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In his veto message, available here, Gov. Brown suggests that the legislature and/or activists investigate the costs that domestic worker protections could place on disabled or elderly people and their families before a bill is signed. NDWA anticipated partnering with the Governor’s office in ironing out these issues after the bill was signed and sent to the Department of Industrial Relations to promulgate regulations.
“We were surprised he raised those questions, given that it was clear we would work through those questions during the regulatory process,” Poo said.
Brown’s decision is indeed surprising given his progressive leanings on most issues—though immigrant advocates have pointed out other Brown policies that are tough on the state’s immigrant populations.
Regardless, this outcome will not deter the tenacious organizers at NDWA who are both motivated by love and armed with a multifaceted strategy. State laws are only part of their overall plan, and they are neither the beginning or the end of advocacy for domestic workers’ rights.
Aside from their state legislative strategy, advocates have focused on mobilizing the many stakeholders who are affected by the rights of domestic workers, as a means of building awareness and changing hiring practices. NDWA has already brought about change by influencing employers. Jill Shenker, NDWA’s field director, explained to MSNBC’s Lean Forward blog that she and her colleagues have long been partnering with families who employ domestic workers to ensure that the law would be workable for all involved.
Further along in their post-Brown-veto statement, NDWA pointed out that the movement for the California law has been a vehicle for building awareness and changing perceptions about domestic workers.
Our new statewide web of relationships between domestic workers and their families, employers, faith communities, unions, and celebrities is unstoppable; it’s built around the dignity of domestic work. Thousands of Californians are touched by the work of domestic workers; thousands more are now inspired by their advocacy and leadership. This movement will only continue to grow.
In addition, the activist work in California has helped inspire campaigns to launch throughout the country. As as Andrea Mercado, campaign director for AB 889 told me last month, Massachusetts, Washington, Hawaii, and Illinois are all poised to launch domestic workers’ rights campaigns.
And, there is greater attention to domestic workers rights at the federal level. Labor Secretary Hilda Solis is a friend to the movement; most recently NDWA met with Solis about revising federal labor regulations pertaining to home health care aides.
While Poo and her colleagues push forward with their many strategies, codifying domestic workers rights in a state as large as California will continue to be a critical part of their agenda. When media cheer leading and Hollywood attention for the movement eventually ebbs, having a law in place will ensure that domestic workers have a legal basis for raising complaints and a stronger position when negotiating with employers over the long term. California, being the home of so many domestic workers, will continue to be a target of the movement.
This is the third and final article in Rewire’s “Living in the Shadow of Counterterrorism” series. You can read the other pieces in the series here.
In the early hours of May 21, 2009, Alicia McWilliams was woken by a frantic phone call from her sister, saying that the FBI had just raided their other sister Elizabeth’s home. In an interview with Rewire, McWilliams says she couldn’t decipher her sister’s hysterical words, and so switched on the local news, which was blowing up with the alleged ”Bronx Terror Plot,” flashing scenes of her nephew, David Williams—Elizabeth’s son—being led away in handcuffs on terrorism charges.
McWilliams says she knew right away that there was something wrong with that picture, suspicions that only deepened as she learned the details of how an FBI informant had befriended her nephew and three other low-income Black Muslim men and involved them in a convoluted scheme that would include attacking synagogues in New York City and an Air National Guard base in Newburgh, New York.
She tells Rewire on the phone her first thought was that the entire plot smacked of the days of COINTELPRO—the Federal Bureau of Investigation (FBI)’s counterintelligence program that spied on and infiltrated various political groups throughout the 1950s and ’60s. Ushered into existence in 1956 to squash the Communist Party, the program quickly turned its attention to groups like the Black Panther Party in order to “expose, disrupt, misdirect, discredit, or otherwise neutralize” the Black Liberation Movement.
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Feeling a sense of déjà vu during the early days of her nephew’s arrest, she watched as the government and the media spun a narrative of four violent extremists plotting to blow up Jewish houses of worship in the name of jihad, obscuring the vulnerability and desperation of the men involved and the active role played by the informant.
The plot was so outrageous that even Judge Colleen McMahon, who presided over the Newburgh Four trial and ultimately sentenced them to decades in prison after a jury returned a guilty verdict, concluded:
Only the government could have made a terrorist out of Mr. Cromitie [one of the defendants in the case], whose buffoonery is positively Shakespearean in its scope … I believe beyond a shadow of a doubt that there would have been no crime here except the government instigated it, planned it and brought it to fruition.
But for McWilliams, who was “scared to death” at the time, simply acknowledging the injustice of the government’s counterterrorism tactics was not enough. She felt compelled to fight back. The two-month-long trial surrounding the “Bronx Terror Plot” saw her either sitting in the courtroom or standing on the steps of the federal courthouse in White Plains, New York, protesting the war on terror in both its domestic and foreign manifestations.
She talked to the press. She marched in the streets. Even after the trial ended in a guilty verdict, she did not let up: Every waking moment was spent fighting with her sister Elizabeth on David’s behalf.
Before long, she connected with other advocates and began speaking on panels alongside the family members of hundreds of Muslims who have been incarcerated on terrorism charges since 9/11.
She remembers a time when she was the only Black woman and non-Muslim in those organizing spaces. “It was new for me,” she tells Rewire. “I was different: I’m very outspoken, I cuss a lot. But they accepted me as a sister. Because I was saying and doing what they all wanted to—I was standing up and cussing out the government for taking our boys away.”
In the third part of Rewire’s “Living in the Shadow of Counterterrorism” series, we talk to some of the families and activists who have spent the past decade and a half fighting to expose religiously biased federal policies that have fanned the flames of Islamophobia and torn hundreds of American families apart.
This past January Zurata Duka, an ethnic Albanian immigrant whose story Rewire reported on previously, entered a Philadelphia prison where three of her four sons were being held pending a court hearing. There, for the first time in eight years, she held them in her arms.
Dritan, Shain, and Eljvir Duka had been arrested in 2007, in connection with an alleged plot to attack the Fort Dix military base in New Jersey. The plot turned out to be manufactured by the FBI with the help of confidential informants, who worked for months to try and record evidence of the Dukas’ involvement in the plan.
Though the prosecution was unable to establish proof that the brothers had agreed to the plot, and despite the fact that the FBI’s own informant testified that the brothers were ignorant of the plan, a jury found them guilty and sentenced all three to life in prison, with an additional 30-year sentence for the youngest, Eljvir.
Imprisoned far from home—in Kentucky, West Virginia, and Colorado—the three brothers almost never see their parents, siblings, or the children that both Dritan and Eljvir left behind. For years they were even cut off from physical contact with their family as the government shuffled them between multiple high-security federal detention centers, where they were held for long periods in isolation. To this day Eljvir remains in solitary confinement.
The fact that Zurata Duka was able to embrace her sons after nearly a decade was thanks in large part to a coalition of individuals and organizations who have worked for years to keep alive the case of the Fort Dix Five, as the Duka brothers and their two co-defendants came to be known in the media.
Under legal and social pressure, New Jersey District Judge Robert B. Kugler—the same man who presided over the original trial and sentenced the brothers back in 2009—agreed in 2015 to hear a motion for retrial, based on the contention that the brothers had received ineffective counsel. At the time of writing, he had yet to issue a ruling.
A few months ahead of that hearing, a woman named Lynne Jackson drove down to the Camden courthouse in New Jersey along with several other activists and unfurled a huge banner that read ”Free the Fort Dix 5.”
It was a freezing November day, she tells Rewire in a phone interview, but the members of the Fort Dix Five Family Support Committee clustered together, passing out leaflets about the Duka brothers’ case, which had captured national headlines back in 2009.
At one point, Jackson says, two courthouse officials came outside to ask what the protesters were doing.
“I think they were surprised that people hadn’t forgotten about the Dukas, that two months before they were scheduled to appear their supporters were standing around in the freezing cold behind a massive banner,” Jackson says. “How could we forget such an injustice? It keeps me awake at night. So this is what we do: We try to keep these cases alive.”
Jackson’s support for Muslim Americans’ rights dates back to 2007, when she and several other concerned citizens came together around the cases of Yassin Aref, an Iraqi Kurdish refugee, and Mohammed M. Hossain, a Bangladeshi immigrant, who were convicted in 2006 on terrorism charges.
Both men were residents of Albany, New York. Aref had been a well-known imam, and Hossain the owner of a struggling local pizzeria, when an undercover FBI informant named Shahed Hussain showed up in the community with gifts, promises of cash loans, and stories of his involvement with a Pakistani terrorist group, according to court testimony, the New York Times reported.
For months the informant attempted to engage Hossain in discussions about terrorist activity. One such conversation, which was caught on tape and subsequently played at trial, the Times reported, involves the informant claiming that the $50,000 loan he had promised to the pizzeria owner came from the sale of a missile launcher that would eventually be used to assassinate a Pakistani diplomat in New York.
Ultimately, the defendants were tried and convicted on charges of providing material support to a terrorist network.
As Rewire has reported previously, the federal government has used material support statutes to incarcerate hundreds of Muslims since 9/11. Legal scholars contend that while the laws originally sought to prohibit citizens from providing fiscal support, weapons, or intelligence to designated terrorist groups, courts have interpreted the statutes far more broadly in the decade since September 11, convicting individuals whose faith or ideology supposedly “predispose” them to violence.
According to the complaint filed against the two Albany men, Hossain’s only “crime” was to accept a loan from the FBI informant, while Aref did nothing but witness that loan in his capacity as an imam, as per Islamic custom—actions that the prosecution charged amounted to money laundering in the service of a terrorist organization.
Shocked by the extent to which the government had gone to infiltrate their community and ensnare two Muslim men in a bogus scheme, residents like Jackson began to mobilize. She joined the Muslim Solidarity Committee, which had sprung up in 2006 as a kind of hub for supporters of Aref and Hossain.
Activists quickly realized that, far from being an aberration unfolding in their town, the Aref and Hossain case represented a pattern in which federal law enforcement practices were eviscerating the rights and liberties of many Muslim residents, Jackson tells Rewire. Faced with what was clearly a nationwide trend, the committee folded into a larger effort known as Project SALAM (Support and Legal Advocacy for Muslims), becoming just one of several chapters around the country.
Project SALAM now falls under an even broader umbrella group, the National Coalition to Protect Civil Freedoms (NCPCF). The coalition’s legal director, Kathy Manley, tells Rewire in a phone interview: “We work with rights groups and families to defend Muslim residents who are being—or might be—prosecuted, not for something they did, but because of what the government fears they might do.”
She referred to this legal strategy of prosecuting individuals who have not committed a crime as preemptive prosecution. It is a term that neatly sums up the FBI’s post-9/11 counterterrorism program, whose most controversial feature has been the widespread use of confidential informants to involve Muslim residents in government-manufactured terrorist plots.
As of 2014, counterterrorism operations accounted for 40 percent of the bureau’s $3.3 billion operating budget, according to a 2014 report by Human Rights Watch. Informants likely account for a significant portion of those funds: as of 2007 the FBI had about 15,000 confidential informants on its payroll, up from 1,500 in the 1970s.
Families and organizers with the No Separate Justice campaign are all too familiar with this tactic and—in some cases—with the informants themselves.
The Newburgh Four: Sowing the Seeds of Solidarity
In the spring of 2008, Shahed Hussain, the same informant who targeted Aref and Hossain in Albany, showed up in the economically depressed town of Newburgh, about 60 miles north of New York City.
Over several months, he set about infiltrating eateries and houses of worship, including the Masjid Al-Ikhlas, whose congregation counted many Black American Muslims.
As the mosque’s imam, Salahuddin Muhammad, noted in the 2014 HBO documentary The Newburgh Sting, most of the congregation was put off by Hussain’s extremist views, including his conservative attitude toward women and his talk of jihad. But one man, James Cromitie, was taken in by Hussain’s flashy car and promises of money, and the two struck up a friendship.
Over time, Hussain convinced Cromitie and three other men to participate in a plan that involved attacking synagogues in the Bronx and firing missiles at a U.S. air base in Newburgh. Hussain offered the men $250,000 for their efforts. One of the men lured by this extravagant promise was Alicia McWilliams’ nephew, David Williams, a young Black Muslim convert who’d grown up in Brooklyn but had returned to Newburgh in 2009 to help care for his young brother Lord. According to reports, Lord had recently been diagnosed with a terminal liver disease.
As Anjali Kamat reported for Democracy Now! in 2010, Lord needed a liver transplant in order to survive, a medical procedure the Williams family could not afford. In fact, all of the men ensnared in Hussain’s plan were struggling financially. They had also served time in prison, and one of them, a Haitian-born immigrant named Laguerre Payen, was a paranoid schizophrenic.
Kamat added, “[Payen] lived in a one-room occupancy in Newburgh’s crack alley. When he was arrested, there were open containers of urine [in] his room, because he was too afraid to walk down the hall to use the restroom. This man, we’re supposed to believe, is a terrorist.”
On May 20, 2009, as they attempted to carry out the fake operation, all four men were apprehended and three of them, including Cromitie and Williams, were subsequently sentenced to 25 years in prison for conspiring to use weapons of mass destruction in the United States. At least two of the defendants maintain that they had planned to foil the plot all along.
After receiving that fateful call from her sister following the arrest, Alicia McWilliams began connecting with advocates from Project SALAM and NCPCF and speaking out against the policies put into place since 9/11 that were explicitly targeting Muslim Americans.
But organizing around domestic terror cases is no easy task. Family members have told Rewire that the stigma of the word alone has pitched them into poverty and isolation, as relatives, religious communities, and prospective employers disappear from their lives, fearing guilt by association.
McWilliams says that back in 2009 many of the women she met—women who are now at the forefront of the No Separate Justice movement—were still in the shadows, silent for fear of being retaliated against.
“I told them, ‘You gotta come out and let people know you won’t be quiet,’” she tells Rewire.
Two women in particular were deeply affected by McWilliams’ words: Zurata Duka and Shahina Parveen, whose stories Rewire has reported on previously.
In multiple interviews with Rewire, Parveen explains that McWilliams often gave her the courage to speak out in public—something she had never done prior to her son, Matin, being targeted by an informant and sentenced to 30 years in prison on charges of providing material support to terrorism. Parveen says she and McWilliams have sat by each other during the most challenging times. A devout Muslim, Parveen once even accompanied McWilliams to church.
“Now Mama Shahina is out there doing her thing,” McWilliams says, referring to the monthly vigils that the No Separate Justice campaign hosts outside the Metropolitan Correction Center (MCC) in downtown Manhattan, where Parveen can often be heard advocating on behalf of Muslim prisoners.
McWilliams lives too far away to attend the vigils, but she says she remains connected to her “sisters.”
“These are beautiful women,” McWilliams tells Rewire, “And we love each other unconditionally.”
Fighting on Multiple Fronts
McWilliams, who often refers to her nephew’s case as “COINTELPRO all over again,” was not the only person Rewire interviewed for this series to draw parallels between the current counterterrorism effort and the counterintelligence operations of old.
Laura Whitehorn, a former political prisoner who was incarcerated for 15 years in connection with the Resistance Conspiracy—actions undertaken by white anti-imperialists in 1985—recalls speaking about the history of COINTELPRO at one of the earliest conferences of families affected by terrorism prosecutions, back in October of 2011.
“I talked about the number of incarcerated Black Panthers who are still in jail, about the murder of Fred Hampton [a member of the Panther Party], which was engineered by the FBI and carried out by the Chicago police, and about how COINTELPRO framed, arrested, and assassinated so many people who were part of militant movements in the ’60s, ‘70s and ‘80s,” Whitehorn tells Rewire. “Afterwards some of the women, the mothers who had not yet become as active in the movement, came up to me with tears in their eyes, two of them speaking to me through a translator, and said, ‘We never knew that your government did this.’”
She says the No Separate Justice vigils have provided a space for unity between populations that have historically been incarcerated for so-called radicalism—including Black, Puerto Rican, Native American, and white anti-imperial activists—and the Muslims who are now being targeted by the federal government.
The monthly gatherings outside the MCC draw an eclectic crowd, with each case attracting activists from across the political spectrum. Vigils held in honor of the Holy Land Five, for instance—a group of Palestinian men whose charitable contributions to local Palestinian communities was deemed a form of “material support” for Hamas, the governing authority of the Gaza Strip—drew scores of Palestinian rights groups and anti-Zionist Jewish activists, including members of Adalah-NY and Al-Awda NY.
When Shahina Parveen or other South Asian immigrants have been in the spotlight, members of the youth and worker-led Desis Rising Up and Moving (DRUM) have turned out in large numbers.
Meanwhile, cases like that of Shifa Sadequee, a Bangladeshi American who was convicted on terrorism charges in 2009 and whose story Rewirecovered at length earlier in this series, has drawn support from queer activists and groups organizing around political prisoners. According to Shifa’s sister Sonali, supporters of U.S. political prisoners were among the few people who stood by the Sadequee family when Shifa was arrested back in 2006.
“Large parts of the immigrant Muslim community in Atlanta [where the family lived at the time] were completely hands off,” Sonali tells Rewire in a phone interview. “It was heartbreaking: No one wanted to deal with the issue, they didn’t even want to touch it, to come close to it.”
Their support came instead from Black activists, including those involved with the Jericho Movement, a nationwide effort to free political prisoners in the United States. Both sisters had rallied with folks from Jericho, particularly around the case of Mumia Abu-Jamal, a Black journalist and author who has spent over 30 years in prison, almost all of them on death row. While ostensibly convicted for the 1981 shooting death of a Philadelphia police officer, advocates believe that Abu-Jamal was incarcerated for his radical views on Black liberation and his outspokenness as a reporter and radio personality.
The sisters had also participated in efforts to free imam Jamil Abdullah Al-Amin, known in the 1960s as H. Rap Brown, when he was chairperson of the Student Nonviolent Coordinating Committee. A resident of Atlanta, Georgia, Al-Amin has been a “target of the government due to his radical beliefs,” according to reports. His supporters claim he was framed for the shooting deaths of two sheriff’s deputies in 2000.
“There was a powerful Black Muslim community already in place that understood the issues we were dealing with, that took up Shifa’s case and basically gave us whatever support we needed,” says Sonali. As Shifa’s case unfolded, it became clear to his family and his supporters that he, like many Black activists, had been targeted largely for his political views. His sisters say the prosecution relied heavily on Shifa’s religious teachings, his political opinions and his work as a translator of Arabic texts when pressing their case to the jury. The framework within which movements for political prisoners have organized for years became a crucial one for understanding Shifa’s situation, they say.
Activists from Atlanta’s queer community, as well local groups likeProject South, also stood behind the family from day one—even when members of their own Bangladeshi Muslim community shunned them.
“It was such a blessing, such a relief, to have this politically conscious community in place,” Sonali tells Rewire. “They kept us going.”
And yet, while echoes of COINTELPRO shimmer in the current landscape, some say the situation Muslim residents face today is unique.
“Back then the FBI mostly targeted political activity,” Whitehorn tells Rewire. “Now they seem more interested in building a fake narrative that citizens of the United States are at risk of, or endangered by, Muslims—even those without political leanings.”
She points to politicians like Donald Trump, the presumptive Republican presidential nominee, whose inflammatory rhetoric—including his call for a ban on Muslims entering the United States—appears to have fanned Islamophobic sentiment. Since the 2016 presidential election campaigns began, there has been a documented uptick in anti-Muslim violence, from 154 reported incidents between January and December of 2014, to 174 by the end of 2015.
But while families and advocates are alarmed by right-wing rhetoric, they are quick to highlight prevailing policies that have, over the past 15 years, pitched hundreds of families and whole communities into fear and despair.
“If Trump becomes the definition of what Islamophobia looks like, more ‘polite’ or legalized forms of injustice might be made more acceptable in the process ” Jeanne Theoharis, a political science professor at Brooklyn College and co-founder of the NSJ movement, tells Rewire, pointing to controversial counterterrorism tactics that have unfolded, unchecked, under the Obama administration.
“I am heartened by the rising movements pushing back against Trump and Islamophobia but I worry about the ways in which our attention to Republican candidates’ extremism gives a pass to what has already happened, and continues to happen, to many Muslim families in this country,” she says.
In the last two years alone, which saw the November 2015 Paris attacks and the December 2015 shootings in San Bernardino, California, 85 individuals in the United States have been arrested on charges relating to involvement with the Islamic State of Iraq and Syria (ISIS), according to an April 2016 report by George Washington University’s Program on Extremism. The average age of those arrested is 26, and 54 percent of the cases involved an informant or undercover agent.
So the national security apparatus grinds on. The only thing standing between it and scores of Muslim American families under surveillance is this small women-led movement that has taken on the impossible challenge of fighting extreme religious intolerance with interfaith unity.
As Alicia McWilliams says to Rewire: “We’re making some progress but we gotta do more. People need to start showing up for us, speaking out for us. My Muslim sisters and I, we’re fighting—but we can’t do this alone.”
"It's ironic and stunning that, on the one hand, we’ve seen incredible progress for women, yet on the other hand, they’re inundated with little bits of discrimination and people don’t really realize it," said Jenny Schwartz, partner at Outten & Golden, a national employment law firm.
Shortly after receiving a diagnosis of Stage 1 breast cancer in 2012, Janice Page of San Diego was surprised when her boss told her that she should file a claim for workers’ compensation—payments from an employer to compensate a worker who suffers a job-related injury. Page, a county sheriff and first responder to chemical fires, explosions, gas spills, and other emergencies, didn’t know much about it. Still, she took her employer’s advice, and when her state-appointed doctor determined that her cancer would not qualify her to receive any workers’ compensation, something felt off.
Page contacted an attorney, and learned that if she’d been a man diagnosed with prostate cancer, she’d automatically be entitled to substantial benefits.
“I don’t think it’s fair at all, and it’s not right,” said Page, who recently testified to California Assembly members about her experience when the assembly was considering new legislation to ban gendered assessments in workers’ compensation claims. She’d undergone multiple surgeries, a mastectomy, and reconstruction as a result of treating her cancer. “I don’t want another woman to have to deal with what I’m dealing with.”
Despite Page’s story, and evidence that more than 9,000 claimants annually would be affected by this change in the law, California Gov. Jerry Brown vetoed the legislation—called AB 305—on October 6, cowing to pressure from corporate and compensation insurance industry lobbyists threatened by the possible added protection to injured workers. The bill’s veto serves not only as a strike against women, but also a convenient strike against workers in the escalating corporate war on workers’ compensation.
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Introduced by Assemblywoman Lorena Gonzalez (D-San Diego) in March, AB 305 would have amended California’s labor law as it involves state-hired doctors who evaluate workers for workplace compensation claims. Under three amendments, the bill would bar doctors from factoring gendered medical conditions of menopause and pregnancy into their evaluations of an injury when those conditions had no proven impact on their injury. Doctors could also not factor in workplace sexual harassment, menopause, or pregnancy to the case of a worker who suffered a workplace psychiatric injury if that injury arose at the same time of the harassment, menopause, or pregnancy. Finally, it would have forced doctors to rate prostate and breast cancer equally in their evaluations.
Gonzalez and the bill’s supporters, including the California Democratic Caucus, workers’ groups, and many of the state’s women’s groups, believe the administration’s denial reflects a greater war on women in the workplace. While workplace discrimination such as this hardly resembles the explicit forms faced by women workers in the past, it still manifests in various ways, including in workers’ compensation decisions, said Jenny Schwartz, partner at Outten & Golden, a national employment law firm.
“It’s ironic and stunning that, on the one hand, we’ve seen incredible progress for women, yet on the other hand, they’re inundated with little bits of discrimination and people don’t really realize it,” Schwartz said. “In order to achieve gender equity in the workforce, the whole point is to diligently attack each and every occurrence which is perceived to be a smaller type of discrimination. It’s a bit like whack-a-mole.”
AB 305 inspired a heated “boobs and prostate debate” among lawmakers and pundits, as the bill would require workers’ compensation doctors to rate the diagnosis of breast cancer and prostate cancer equally. Under current California law, which is based on a system of guidelines by the American Medical Association (AMA), workers with prostate cancer resulting from their work conditions receive a 16 to 20 percent disability rating. Workers diagnosed with breast cancer “of childbearing age” only receive a 5 percent rating and those of “non-childbearing age,” like Page, have a 0 percent rating, said Christel Schoenfelder, workers’ compensation attorney at Rose, Klein & Marias LLP and president-elect of the California Applicants’ Attorneys Association.
“Imagine a 60-year-old female firefighter who’s been fighting fires and been in the front lines,” Schoenfelder said. “She’s diagnosed with breast cancer and it’s related to toxic exposure. When the doctor goes to calculate her percentage of permanent disability, she’d get nothing, because she’s not a woman of childbearing age. Now, in the same situation, but a man [with prostate cancer], he gets 16 percent to 20 percent. If he’s incontinent, he gets another percent increase. If sexual dysfunction, another.”
To AB 305 supporters, this gendered distinction indicates that AMA guidelines only value breasts in the context of child-rearing; they have no other purpose, and in turn, their loss has little effect. It ignores the side effects of breast cancer and mastectomies, Page said, including physical pain, numbness, reduced range of motion, psychological anguish, post-traumatic stress disorder, and loss of sense of self and identity.
“If a man had his balls removed and had plastic ones put there, how would he feel?” Page said. “If they had been removed, I’m sure it would be psychologically [damaging] to them, too.”
AB 305’s second proposed change to the California labor code sparked far less excitement, but the need behind it feels equally infuriating to supporters. Under current state workers’ compensation law, a person who cannot work at all because of the job injury is considered permanently disabled. State-appointed doctors examining a woman worker who has been injured are entitled to credit—or apportion—some of their injury to menopause and pregnancy, even if that person never felt any side effects or health problems from these conditions before their on-the-job injury, Schoenfelder said. In turn, these women receive less compensation from their employer. In other words, male workers facing certain injuries would receive full benefits, but injured women workers would automatically have their benefits reduced if it is possible their injury results from menopause or pregnancy, even if there is no indication of these conditions. AB 305 would forbid doctors from apportioning injuries to these conditions. It would also prevent them from factoring in psychiatric disabilities caused by these conditions, and sexual harassment resulting from these conditions.
“It’s when something is asymptomatic, and maybe the person doesn’t even know she has it, and it hasn’t even hampered your job,” Schoenfelder said. “These are not actual causes [of an injury], but risk factors. That’s what makes it discriminatory.”
Schoenfelder, rifling through files in her office during one recent phone call, read aloud from one report from 2014 where a doctor evaluated a worker with “common gender nonoccupational risk” and reduced her rating by 20 percent. In another 2015 report of a worker with a shoulder rotator cuff injury, she said, the doctor observed “calcium deposits in a rotator cuff,” but blamed 50 percent of it on “genetic predisposition,” as women are more likely to have such deposits. Then 50 percent of her disability was reduced.She added that other reports include doctors tying workplace injury symptoms to pregnancy and breastfeeding, even when symptoms occurred before workers became pregnant.
“I have never seen a report where a doctor has specifically said, ‘men get this more often, so I’ll apportion about 50 percent because I know statistically men get this more,'” Schoenfelder said. “When conditions cited by doctors are exclusive to women, then it becomes that being female is a preexisting condition.”
Gov. Brown rejected this thinking, however, claiming that these sorts of evaluations are valid. He wrote in his “veto message” that AB 305 “is based on a misunderstanding of the American Medical Association’s evidence-based standard, which is the foundation for permanent disability ratings, and replaces it with an ill-defined and unscientific standard.”
It’s a curious position, given that doctors in California and many other states make these evaluations based on the AMA guidelines, which is an inherently man-made system. Individual body parts receive greater “worth” and compensation, with required surgeries and “hardware” earning more. (Other states, including New York and Florida, have created their own system to evaluate disability.)
“That system is not really all that scientific to begin with,” said Julius Young, partner at Boxer & Gerson, LLP in Oakland, explaining that the guidelines are built around a conception of ‘whole person impairment” and ability to perform daily life activities with a certain injury, and this is given an arbitrary percentage. “[Brown’s] saying that it’s undefined and unscientific is a little ironic. People who were putting these things together maybe didn’t believe in certain conditions. They probably didn’t think about women losing their breasts. [It’s] changed over time with different editions.”
Young, who followed AB 305 since its introduction at his blog WorkersCompZone.com, believes the veto makes sense in the current California political climate around workers’ compensation. After a spike in workers’ comp claims in 2003, he explained, the state passed some reforms that were quite popular with insurance providers. Under those reforms, a doctor was required to express an opinion of all the possible causes for injury. This led to doctors “splitting up a pie,” as Young explained, for example, attributing one-third of the injury as a direct result to what happened while on the job, one-third to a prior injury, and one-third to aging process and osteoporosis. Subsequent rising costs, however, led to greater reforms in 2012, but no one remains satisfied.
“It’s really an issue that keeps coming back,” Young said. “[And I think] Jerry Brown doesn’t want to see this [workers’ compensation bill] become a front-page issue.”
The veto, then, represents another strike by businesses in their campaign against workers’ compensation.
“Employers are doing everything they can to reduce costs of workers’ comp,” said Paula Brantner, executive director of Workplace Fairness, a nonprofit public education and advocacy organization that provides workers’ rights information. “If they can screw their workers, keep wages flat, keep benefits flat, cut health care, they will,” she said. To fight it, advocates and workers must step forward and bring the most egregious examples to light.
Left to Fend for Themselves
States nationwide have slashed workers’ compensation benefits within the past ten years, according to a recent ProPublica and NPR investigation of insurance industry data, state laws, and court and medical records. Employers pay less in compensation today than any time in the past 25 years, and California and Oklahoma tied for the most cuts since 2014, the study found. Federal workers’ compensation mandates put in place in 1972 are mostly dissolved: Gone are the years where injured workers could pick their own doctors, receive compensation for all the years of their disability, or, if they died due to their injury, ensure that their spouses would receive death benefits until remarriage and their children would receive tuition benefits through college graduation.
According to the ProPublica study, legislators from California, West Virginia, North Dakota, and Oklahoma have imposed two-year time limits on claims made by temporarily disabled workers, even if they still cannot work after those two years. In another ProPublica investigation that NPR released in October, Oklahoma and Texas—and possibly soon Tennessee and South Carolina—have passed laws allowing employers to “opt out” of workers’ compensation completely. Employers then create their own workplace injury plans, which, according to the investigation, “generally cover fewer injuries, cut off benefits payments sooner, control access to doctors and even impose mandatory settlements.” Employers in those states, including Costco, Taco Bell, and Sears, have “opted out” of workers’ compensation to create their own plans when workers become injured. Under their opt-out plans, employers may refuse to cover the cost of basic injuries, like work-related infections, and deny benefits if injuries are not reported within the same shift when the injury occurs, preventing workers from making a claim if they only realize later on the full scope of their injury. They also require that company representatives accompany injured workers to doctor’s appointments so as to monitor or interpret what doctors say. Even worse, these plans do not provide an option to appeal to a third party or court, unlike in the current system, which has due process protections built in. Opponents consider it a return to the Industrial Revolution “when workers and their families had to sue their employers or bear the costs of on-the-job injuries themselves.”
Workers receiving less are now turning to welfare and other government programs, including disability benefits through Social Security, which opponents to these plans argue puts a greater burden on the government, and in turn, taxpayers. Today, families and their own private health insurance pay for about 63 percent of their lost wages and medical costs of work injuries, while workers’ compensation payments covers only about 21 percent of lost wages and medical costs of work injuries and illnesses, according to a 2015 study by the U.S. Department of Labor’s Office of Safety and Health Administration. Taxpayers cover the rest. In addition, 97 percent of workers with occupational illnesses receive no compensation, mostly because doctors do not diagnose them as work-related.
Left to fend for themselves in court based on the current law, many injured women workers could not effectively challenge workers’ compensation decisions for their injuries when doctors unfairly factored in menopause, pregnancy, or sexual harassment, or minimized their breast cancer. They typically must hire an attorney. But not all workers can afford legal help, leaving these individuals to face discrimination at a disproportionate disadvantage.
“Any employee in California can be subjected to the workers’ comp system at any moment,” Schwartz said. “If you’re poorly educated or from a lower socioeconomic group, or struggling with economic issues, and you’re not represented by counsel, you’ll have to accept what happens through the system.”
CORRECTION: A previous version of this article misspelled the Workplace Fairness executive director’s name. It’s Paula Brantner, not Branter. We regret the error.