Gender bias suit targets California workers’ compensation system

computer, with blocks in front "Work Injury"
Suit alleges systemic gender bias in California Workers’ Compensation program

In a first-of-its-kind lawsuit [PDF], the Service Employees International Union and three individuals filed a discrimination suit, July 6, against the California workers’ compensation system, accusing it of discriminating against women with work-related disabilities.

“California’s workers’ compensation system treats gender as a preexisting condition, further penalizing women workers with injuries solely because they are women,” Kathryn Eidmann, staff attorney with Public Counsel, in a news release. “California sides with insurance companies and employers, letting them off the hook for workplace injuries to female employees and contributing to the impoverishment of women workers and their families. Women workers in California neither receive equal pay for equal work, nor equal payouts when they’re injured on the job.”

Workers in California classified as having permanent disabilities in California’s workers’ compensation system are given a rating, based on the type of injury and how much of it is attributable to the person’s employment.

The class-action complaint, filed in Los Angeles Superior Court, accuses the state Division of Workers Compensation of systematically providing low scores to uniquely female injuries and reducing benefits by attributing them to “risk factors” based on “gender, menopause and pregnancy.”

One of these women, Janice Page, worked as a police officer for 26 years. During the course of her career, she developed breast cancer, as a result of work-related exposures to cancer-causing toxins. Similar to many other women diagnosed with breast cancer, she nonetheless was assigned a permanent disability rating of zero and thus denied benefits.

Another woman, Leticia Gonzalez, developed carpal tunnel working as a technician for a telecommunications company. Nonetheless, the state Qualified Medical Examiner apportioned just 20 percent of her injury to her employment, highlighting the significantly higher presence of the disability in women than men.

“Medical reports apportion women workers’ permanent impairment rating to female reproductive biology—for example, the consequences of menopause or pregnancy—on the basis of stereotypes about women as a group and their capacities as workers. For example, medical examiners attribute depression or other psychiatric injuries in women to menopause, ‘perimenopause,’ or ‘gynecological issues’ in cases where the record lacks any individualized basis for such a finding.”

The lawsuit accuses the state Department of Workers’ Compensation of not punishing Qualified Medical Examiners who discriminate, even overtly, on the basis of gender. In addition, it highlighted the agency’s lack of any training to avoid gender bias, as further evidence of its “deliberate indifference” to the systematic bias.

Allegations were brought under the California Constitution’s Equal Protection Clause and implementing regulations, as well as for the tort of negligent training supervision. Further claims were brought under the federal Equal Protection Clause.

Along with Public Counsel, the plaintiffs are represented by Caldwell Leslie & Proctor PC, Equal Rights Advocates and Professor Catherine Fisk of the University of California, Irvine School of Law.