Contra Costa Lawyer - March 2023 Fragile Progress: Women’s Rights in 2023

Contra Costa LAWYER

Fragile Progress Women’s Rights in 2023

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2023 BOARD OF DIRECTORS

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The Contra Costa Lawyer (ISSN 1063-4444) is published six times in 2023 by the Contra Costa County Bar Association (CCCBA), 2300 Clayton Road, Suite 520, Concord, CA 94520. Annual subscription of $25 is included in the membership dues. Periodical postage paid at Concord, CA and additional mailing offices. POSTMASTER: send address change to the Contra Costa Lawyer, 2300 Clayton Road, Suite 520, Concord, CA 94520. The Lawyer welcomes and encourages articles and letters from readers. Please send them to contracostalawyer@cccba.org.

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We’ve Come So Far… Or Have We?

by Renée Welze Livingston, Guest Editor

Generally speaking, the only thing that can derail my naturally optimistic outlook on life is uncertainty. Even bad news can beat the uncertainties of “what if?” “when?” and “how long?” While optimism is certainly a part of my DNA, it is also the by-product of starting my own law firm and managing it through a financial crisis and global pandemic, juggling the demands of a 36-year full-tilt law career with those of raising three children, and most recently navigating the delicate shift in roles with an aging parent who has battled cancer not once, but twice. I am inclined to find the positive in most every situation, move past bias, unfairness and inequality, not let adversity get me down, and trust in the decisions I make.

With optimism and gratitude, I accepted the honor of serving as the guest editor of this issue of the magazine, where we explore the status of women’s rights and equality in 2023. From where I sit - at the helm of a successful civil

trial firm I started 23 years agowomen’s equality has always been a reality. Yes, I started the firm when I had three children under the age of six and wanted to redefine my vision of what a working mother could be and do, and be compensated fairly for it. Yes, I wanted to create my own legal opportunity free from parochial concepts of what a “normal” workday looked like to male partners. Yes, I set out to align myself with other women and minority-owned firms to help forge a path to greater diversity, equity and inclusion in the legal field. That was in 2000. It is now 2023. Things have surely improved, haven’t they?

a deeply personal and delightful tribute to her mother Dr. Bernice “Bunny” Sandler, a non-lawyer known as the Godmother of Title IX, who revolutionized how girls and women were treated in academe and athletics in 1972 with pure grit and determination. Together we can celebrate the great advances that have been made in women’s rights over the last decades as a direct result of Title IX.

Beth Mora, a fierce advocate for women’s rights in the workplace, shares staggering statistics about the continued pay inequity between men and women, including the legal profession. She challenges us as lawyers and business owners to do our part as role models to curb this trend.

The article by Audrey Gee, David Marchiano and Marissa Boyd of Brown, Gee & Wenger, LLP summarizes significant new legislation

The contributors to this issue –thought leaders, disrupters, daughters, mothers and real-life storytellers – remind us that while we have made progress, it is fragile and fragmented. They educate, share and thought provoke with great transparency, honesty, and passion but with cautious optimism. Deborah Jo Sandler provides Continued on page 6

We’ve Come So Far

Continued from page 5

and laws in 2023 that specifically address equality issues. As leaders in their field, they inform us of the affirmative steps California is taking, steps to protect against pay and other inequities.

Women continue to find themselves burdened with the bulk of domestic responsibilities, even when working full-time and advancing their legal careers. This is especially true for women in the “sandwich generation” – those juggling the needs of children and aging or sick parents. In very personal and touching articles, Jennifer Wallis and Alice Cheng give us a unique glimpse into how the COVID pandemic actually helped them both find new strategies for dealing with the demands of family and work.

Whether you agree or disagree with the Dobbs decision, there can be no mistake that it radically and fundamentally altered women’s reproductive freedom and unleashed legislation that impacts, for better or worse, equal access to medical care depending on the state in which you live. Beth Parker, who has served as General Counsel to three Planned Parenthood affiliates, and John Yoo, the Emanuel S. Heller Professor of Law at UC Berkeley School of Law, have vastly different perspectives on the reasoning behind the decision itself but agree on one thing: rather than end the legal debate on abortion, the decision is guaranteed to spark considerably more litigation and, once again, place the courts front and center in the controversy.

I feel uncertain about the future of women’s reproductive and other rights. Raise the issue of women’s equality to a group of 20 women, and you are likely to get 20 different

answers, none of which would express confidence or certainty about the future. Something about the Dobbs decision made everything feel less certain, less inalienable. I find myself side-tracked by “what if?” “when?” and “how long?” and despite my usual optimism, I feel the progress we have made over the last 50 years is fragile indeed.

Renée Welze Livingston As the Founding Member of Livingston Law Firm‚ Renée had the vision and resolve to build a preeminent civil trial firm in the San Francisco Bay Area in 2000. The firm is committed to increasing diversity, equity and inclusion in the legal profession. Renée served on the Board of Directors for the National Association of Minority and Women Owned Law Firms from 2003 - 2012 and the Contra Costa County Bar Association from 2012 - 2018. An accomplished trial lawyer and member of ABOTA, Renée is a Past President of the Association of Defense Counsel of Northern California and Nevada and currently serves on the Board of Directors for DRI. She is a graduate of the University of California‚ Santa Barbara, USF School of Law, A-V (5.0) rated by Martindale-Hubbell and a multi-year Northern California Super Lawyer.

Local Solutions. Global Reach.

“You Come On Too Strong for a Woman”

Bernice Sandler, Godmother of TITLE IX

By Deborah Jo Sandler

My mother, Dr. Bernice Sandler (“Bunny”), was a crusader for women’s rights. By the time she died in 2019, she was known as “The Godmother of Title IX,” a small but mighty piece of legislation that revolutionized how girls and women were treated in academe, and in athletics. Although she never became a lawyer, her impact on the law as it affects women’s rights was enormous.

Bunny was born in Brooklyn, just before the Great Depression. Although neither of her parents attended college, Bunny was encouraged to excel in school. She loved research and writing. Sex discrimination was widespread and legal. As a young girl, she was not allowed to clean the erasers, open the windows or fill the inkwells because she was a girl, and she resented it. Though she graduated with high honors, she was expected to stay home. She married my father in the early 1950s and then my sister and I were born. My mother was quiet and conscientious, working as a nursery school teacher, guitar teacher and caring for her daughters. On the surface, she seemed like all the other quiet women: relegated to the house and denied interesting or high-paying work because they were women.

When my sister and I were older, Bunny got her Doctorate in Counseling from the University of Maryland. She had to convince the depart-

ment to let her in because they rarely accepted women. She planned to become a professor, having done extremely well in the program. However, she was rejected for every job. One interviewer said they didn’t hire women because women have to stay home when their kids are sick (my sister and I were in high school at the time). Another told her she was “just a housewife who went back to school.” One told her she didn’t need the job because she was married. When she asked a colleague why no one would hire her, she was told “Let’s face it, Bunny – you come on too strong for a woman.”

Bunny went home and cried. She blamed herself. My father asked her, “Are there any strong men in your department?” She said, “Of course there are.” My father replied, “Then it isn’t you. This is sex discrimination.”

Bunny was shocked, but she realized he was right. Then she got mad. Being an excellent researcher, she assumed sex discrimination in education was illegal, and she started researching it so she could do something about it. Bunny was dismayed to discover that sex discrimination in academe was legal. The Equal Pay Act of 1963 exempted professional and educational women. Title VII of the Civil Rights Act of 1964 excluded employees of educational institutions. Title VI of the Civil

Rights Act of 1964 protected against discrimination based on race, color and national origin, but not sex. The Fourteenth Amendment had never been considered applicable to sex discrimination.

Bunny read further and found a report regarding enforcement of civil rights legislation, which had an obscure Executive Order prohibiting federal contractors from discriminating based on race, color, religion and national origin. She found a footnote in the order, and literally shrieked aloud. The order had been amended to outlaw discrimination based on sex for institutions receiving federal funding. She realized at that moment that most colleges and universities had federal contracts, so this Executive Order could be used to fight sex discrimination in academe.

Bunny joined the Women’s Equity Action League (WEAL) and became Chair of the “Federal Action Contract Compliance Committee.” With Bunny’s help, WEAL filed the first administrative class action complaint in 1970 against all colleges and universities that had federal contracts. Following that milestone, my mother filed administrative charges of sex discrimination against about 250 colleges and universities. Other women’s organizations began filing charges.

Continued on page 10

Too Strong

Continued from page 9

My mother then began collecting data about sex discrimination in academe, comparing the percentages of female students to the percentages of female doctorates. Letters and stories poured in. The numbers were stark and showed pervasive sex discrimination. This formed the basis of the administrative complaints. In the 1960s, 22% of the doctorates granted in psychology were to women. By 1970, the last woman hired by the Department of Psychology at UC Berkeley was in 1924. Of the 42 members of the Cal faculty, all were male.

Complainants were requested to contact Congress and ask for enforcement of the Executive Orders. Their letters were also sent to the Departments of Labor, Health, Education and Welfare. So much mail began arriving that the departments had to hire several full-time employees just to deal with the letters and the complaints.

Within a few months, the first federal investigations of sex discrimination in academe began. The floodgates were opened, and more investigations would follow.

Congresswoman Edith Green was on WEAL’s advisory board and my mother sent her copies of all the complaints. Representative Green was the Chair of a Subcommittee on Education and she introduced legislation that eventually became Title IX. She also convened the first Congressional hearings on sex discrimination at colleges and universities. My mother testified at the hearings and suggested many of the witnesses. She was also hired after the hearings to assemble the written record, becoming the first person appointed to the staff of a

Congressional Committee to work on women’s issues.

Title IX provides: “No person shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any educational program receiving Federal financial assistance.” Just 37 words, but they would have a gigantic impact.

Representatives of educational institutions were invited to testify, as the legislation would affect their work. They knew of no sex discrimination on campuses so they did not think this legislation would be a big deal.

As the legislation neared passage, several people offered to lobby for it, but Representative Green counseled against that, because if people paid too much attention, they might realize the impact this legislation would have, and oppose it.

Title IX was shepherded through Congress by Representative Green, Senator Birch Bayh, and Representative Patsy Mink. President Nixon signed it into law in June 1972. Very few people noticed. There was one sentence about it in the Washington Post.

After Title IX became law, regulations were released which made clear the impact that the new law would have on educational institutions and athletics. The male athletic establishment suddenly became aware that Title IX was poised to upend the system and require that women be treated equally – and they fought back hard, trying to weaken or overturn Title IX, or at least exempt football. These efforts failed.

Similarly, very few people expected this legislation to have any impact on athletics because the amount of sex discrimination in athletic programs in academe was not widely known. Surprisingly, very few people had any idea of the impact Title IX would have. There was no mention of sports in this legislation, or at these hearings, yet Title IX drastically changed the world of sports, opening up countless opportunities for women to have equal funding and equal representation. My mother’s initial understanding of the impact of Title IX on athletics was that on Field Day, girls might participate in a few extra games. My mother had no idea of what was coming.

In 1974, my mother and her colleague Margaret Dunkle conducted the first national study of sex discrimination in athletics in academe. The disparities between men’s and women’s athletic programs were huge –some men’s departments had over a million dollars in funding while the women had zero. Most men’s programs had supplies, locker rooms, clean fields, and paid staff. Most women’s programs had nothing. And women were getting angry about it – One example was the 1976 protest by the Yale Women’s Crew, which painted “Title IX” on their bodies and appeared nude before the athletic director, after being denied showers and changing rooms in sub-freezing weather.

The Government adopted a threepronged set of criteria schools could use to develop more equitable

“No person shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any educational program receiving Federal financial assistance.”

athletics programs: (a) accommodate the abilities of the discriminated group, (b) have a continuing pattern of increasing the athletic opportunities of the discriminated group, or (c) provide proportional numbers of opportunities based on the percentage of the discriminated group in the school’s population. Schools began to struggle with these criteria and began to change.

Title IX’s passage in 1972 gave millions of girls and women the opportunity to compete and excel in athletics. The numbers of female athletes is growing at every level. By 2007, my mother observed that participation of girls and women in athletics had skyrocketed by 800% or more. The numbers have risen since then.

Title IX also applies to sex harassment. Bunny began speaking and writing about the “chilly climate” in classrooms, some of which came

from sex harassment, and some of which came from discrimination against women students and women faculty. She became an educational policy expert, traveling all over the country to give speeches at colleges and universities, and to advise on anti-discrimination and anti-harassment policies. She frequently served as an expert witness, gave over 2,500 speeches (two to the CCCBA), received many honorary degrees and awards, and in 2013 was inducted into the National Women’s Hall of Fame. Near the end of her life, she said that at first she thought it would only take a year or two to get rid of sex discrimination, but finally realized it would take many lifetimes to get it done. Her work continues.

Deborah Jo Sandler has practiced family law in Contra Costa County for 37 years. Her practice emphasizes consensual out-of-Court dispute resolution such as mediation, co-mediation with other professionals, collaborative divorce, cooperative outof-Court family law cases, and consulting attorney work for clients undergoing mediation. She serves on the Steering Committee of Collaborative Practice East Bay, and on the Board of Directors of the Contra Costa County Bar Association Senior Lawyers’ Section. She also mediates family law contempts at Court through a program administered by The Congress of Neutrals.

Confronting Systemic Pay Bias in the Legal Community with New Legislation

By Beth Mora

As new legislation is implemented in workplaces throughout California, the legal community, which enforces justice, has a unique opportunity to be a positive role model in confronting systemic bias with the implementation of new pay data disclosures and reporting requirements found in Cal. Labor Code § 432.3 and Cal. Government Code §12999. See New Equity Labor and Employment Laws, by Audrey Gee, David Marchiano and Marissa Boyd on page 17.

Driven in part by national social movements including #MeToo and #BlackLivesMatter, pay equity has been a part of significant advocacy to address systemic bias. Despite efforts by movement advocates, systemic disparities remain, including pay disparities within the very workspaces which are entrusted to enforce them, the legal community.

Differences based on sex and race/ ethnicity is outlawed by state and federal law. Recent additional California initiatives have been sought to reduce the pay gap by increasing transparency around employee pay along with other proactive measures. In September 2020, California passed SB 9731 which required employers with 100 or more employees to provide (former) Department of Fair Employment and Housing (DFEH) now California Civil Rights Department (CRD) EEO-1 pay data reporting. In 2021, employers submitted their first pay equity data reports; in March 15, 2022, the CRD published its inaugural report on the overall results. The CRD summary report concluded that among workers in the highest pay bands (earning $128,960 or more in 2020), women were underrepresented at 36%2 of workers. Further, the data showed an annual gender pay gap in 2020 of $46 billion3 and an even higher race/ethnicity annual gender pay gap of $61 billion. In a continued effort to remedy these systemic pay disparities, SB 1162, effective January 1, 2023, expanded upon SB 973’s efforts through extended reporting, pay scale disclosures, and record retention.

As of end of January 2023, the California State Bar had just over 196,000 active members. Women, who are currently over half of California’s adult population, are just 44% of California’s attorneys.4 The California State Bar 2022 data confirms this gender gap exists for women within the legal profession from the inception of their career and continues to widen.

In 2022, women earned only $0.82 for every dollar a man made5, according to the Gender Pay Gap Report, (hereinafter “PayScale Report”). This gender pay gap is more significant for women of color. For example, Black women typically make just $0.67 for every dollar paid to white, non-Hispanic men6. The gender pay gap is wider for several cities close to our county, including an uncontrolled wage gap⁷ in San Francisco/ Oakland/Fremont at $0.82 and San Jose/Sunnyvale/Santa Clara at $0.81. Further, a predominant gender norm impacting the pay gap is the “motherhood penalty” or “childbearing penalty.” These are beliefs that women are meant to or will eventually become mothers and homemakers, which can also result in assumptions about their proficiency, productivity levels, or commitment to their careers. When women return to the workforce after having children, they incur a wage penalty. When women indicated they were a parent or primary caregiver, it resulted in an uncontrolled pay gap of $0.74 for every dollar earned by a male parent.8

The gender wage gap during an individual’s career follows them into retirement. For women who earned $0.83 for every dollar earned by a male, she suffers a yearly gap of $10,435. By the end of her career, a full-time working woman would have lost $417,400 of income. The lifetime loss for women of color is more dramatic, $976,800 for Black women and $1.2 million for Hispanic women. These yearly and lifetime losses further negatively impact the ability for women to save for retirement contributing to the wealth gap.

The pay gap also expands as women progress in their education. Women with law degrees earn $0.89 for every dollar earned by men with a law degree.9 Women hold the majority of legal occupations at 52% women and 48% men. However, legal had the largest uncontrolled gender wage gap in the study at $0.63.

The gender pay gap in the legal field is prevalent from the inception of legal practice both in law firms as well as in-house. A 10-year study issued in September 2020, showed that by 2018 the pay gap had widened from 24% to 35% between male and female partner income. Male partners’ average compensation increased 42% over the past decade while female partners increased only 22%.10 In a 2019 tracking of median salaries, women in general counsel positions made roughly $100,000 a year less than men. The larger the company, the larger the gap between male and female in-house counsel. A female in-house counsel at a public company with over $10 billion in revenue made nearly 34% less than her male peer in the same role.11 Highlighting the “motherhood penalty,” in January 2023, a publicly disclosed text by a senior male attorney at an employment defense firm was sent to a female attorney who advised she was departing the firm following her maternity leave. This text read in part,

“…What you did – collecting salary from the firm while sitting on your ass, except to find time to interview for another job–says everything one needs to know about your character. Karma’s a bitch. Rest assured regarding anyone who inquires, they will hear the truth from me about what a soul-less and morally bankrupt person you are.”12

Further, female in-house counsel explained during a Spring 2018 legal conference that her salary had never caught up from maternity leave taken years ago because her prorated bonus that year became the baseline from which subsequent bonuses were based. As future bonuses were based upon a percentage increase from year to year, it became impossible for her to catch up with her peers.13 These recent events have caused a decent amount of discussion, including the reality that the gender pay gap – as

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Confronting Systemic Pay Bias

Continued from page 13

well as the “motherhood penalty”impacts salary, bonus, other benefits of employment, potential promotions, and much more, thus highlighting the need for the present pay data legislation.

Even before SB 1162 became effective, a number of private employers including California-based giants Airbnb, Apple, Cisco, Door Dash, Dropbox, Google, Headspace Health, LinkedIn, Netflix, Nextdoor, Salesforce, Snap Inc., Twitter, and Uber, pledged to publish aspects of their workplace demographic data publicly in order to demonstrate commitment to eliminating disparities.14 In supporting these new transparencies, California Labor Federa tion explained, “…good employers are already doing it. SB 1162 simply codifies existing best practices to ensure a fair and equal playing field for all workers.”15

When looking at the pay gap statistics for female attorneys as fractions of a dollar, it can be difficult to understand the impact on earnings over a lifetime, thus difficult to understand the importance of the present new legislation and the importance of implementation. However, these long-term significant pay gaps are not only detrimental to women and workers of color, but also harm the families they support and the state’s overall economy, resulting in a harmful “wealth gap.”16

There is a good deal of available data to guide employers, small and large, as well as law firms, to ensure

compliance with the new disclosures, including:

• California Department of Industrial Relations, California Equal Pay Act, Frequently Asked Questions. https://www.dir.ca.gov/ dlse/california_equal_pay_act. htm

• California Commission on the Status of Women and Girls, Equal Pay https://women.ca.gov/equalpayca/

• California Civil Rights Department, Pay Data Reporting https:// calcivilrights.ca.gov/paydatareporting/

The legal community can be a positive role model for implementation of the new pay reporting requirements within our communities as we work together to break the cyclical wage and wealth disparities have held on women and people of color.

Attorney Beth W. Mora at MORA EMPLOYMENT LAW has successfully represented employees for over 20 years throughout the state in a wide range of employment matters. Beth’s current volunteer activities include Executive Committee of the California Lawyers Association Labor & Employment Law Section; California Employment Lawyers Association’s Legislative Committee; Co-Lead for Legal Aid at Work’s (LAAW) Workers’ Rights Clinic in Antioch; and, Beth regularly volunteers with the Berkeley Law, Berkeley Center on Comparative Equality & Anti-Discrimination Law, Gender-based Harassment law work group.

1 SB 973, Jackson, Chapter 363, Statutes of 2020 https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB973

2 California Pay Data Reports Show Women, Latinos, and Other Groups Overrepresented Among Low-Wage Workers Department of Fair

Employment and Housing, March 15, 2022

https://calcivilrights.ca.gov/wp-content/uploads/ sites/32/2022/03/DFEH-Pay-Data-ResultsPress-Release-2022-03-15-1.pdf

3 Trussaic, October 13, 2021 https://trusaic.com/ press-center/statewide-gender-and-race-ethnicity-pay-gaps-in-california-exceed-46-billion-2/

4 See Diversity 2022 California Licensed Attorneys, The State Bar of California (“State Bar”.) https://publications.calbar.ca.gov/2022diversity-report-card/diversity-2022-californialicensed-attorneys

5 Gender Pay Gap Report, PayScale, March 2022 https://www.payscale.com/compensation-trends/ the-gender-pay-gap-is-real-and-employers-havethe-power-to-do-something-about-it/

6 U.S. Census Bureau, Current Population Survey, 2022 Annual Social and Economic Supplement, Table PINC-05, CPS, 2022 ASEC https://www.census.gov/data/datasets/ time-series/demo/cps/cps-asec.html

7 The “uncontrolled” pay gap compares the average pay of all women and all men in the workforce. This gap is called the “uncontrolled” gap because it doesn’t control for any factors that might affect pay except sex. The “controlled” pay gap accounts for variations including occupations, education, race, etc.

8 Gender Pay Gap Report, PayScale, March 2022 https://www.payscale.com/compensation-trends/ the-gender-pay-gap-is-real-and-employers-havethe-power-to-do-something-about-it/

9 The Gender Wage Gap Could Cost Women Millions When They Retire, CNBC, March 30, 2022 Gender wage gap could cost women millions in retirement savings (cnbc.com)

10 ibid

11 ibid

12 Major, Lindsey & Africa’s Partner Compensation Surveys: A Decade of Perspective, Partners, Major, Lindsey & Africa, September 2020 https:// www.mlaglobal.com/en/insights/research/2020partner-compensation-report

13 Gender Pay Gap Wide Atop In-House Counsel Ladder, May Be Closing, Bloomberg Law, June 29, 2020 https://news.bloomberglaw.com/esg/ gender-pay-gap-wide-atop-in-house-counselladder-may-be-closing

14 ‘Collecting Salary From the Firm While Siting On Your Ass’ Is Certainly ONE Way For A Senior Lawyer To Describe Maternity Leave, Above the Law, January 9, 2023. https:// abovethelaw.com/2023/01/collecting-salary-fromthe-firm-while-sitting-on-your-ass-is-certainlyone-way-for-a-partner-to-describe-maternityleave/

15 The Motherhood Penalty - Alive and “Well” or on Its Way Out? American Bar Association, by Alise Henry, Esq., June 29, 2018 https://www. americanbar.org/groups/litigation/committees/ woman-advocate/practice/2018/motherhoodpenalty/

17 Senate Judiciary Committee, 2021-2022, SB 1162, (Limón) at page 16, April 25, 2022 Bill Analysis - SB-1162 Employment: Salaries and Wages. (ca.gov)

18 “The pay gap also contributes to the wealth gap. It makes it difficult for women to amass savings, build wealth and achieve economic security. Overall, the average American woman has a net worth of $5,541, less than half of the $12,188 average net worth of a man. In terms of overall wealth, a single woman has only 32 cents for each dollar a single man has. And the wealth gap is even wider for women of color, who have just pennies for every dollar a white male has. The Gender Pay Gap, AAUW, https://www.aauw.org/ issues/equity/pay-gap/

We Are Proud to Announce Christopher “Toby” Erickson has been elevated to Partner

We congratulate this extraordinary attorney on the achievement. Our firm provides exceptional service and value to our clients in the field of family law and all aspects of domestic relations. Toby’s outstanding work has played a pivotal role in the success and growth of our firm.

Congratulations Christopher “Toby” Erickson!

101 Ygnacio Valley Road, Suite 250, Walnut Creek • 925-296-6000 • www.disso.com

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Probate &

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• Ritzi Lam, Partner

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Estate Planning PRACTICAL. PRINCIPLED. PASSIONATE.

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Edward G. Weil Presiding Judge

Christopher Bowen Assistant Presiding Judge

Criminal

Supervising Judge: David Goldstein

Š Hon. Charles (Ben) Burch

Š Hon. John Kennedy

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Misdemeanor Depts.

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Open Judicial Position

Supervising Judge: Jill Fannin

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Family Law

Supervising Judge: Benjamin Reyes

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Š Hon. Kirk Athanasiou (50%)

Š Hon. Wendy Coats (DVRO calendar)

Š Comm. Alexandria Quam

Juvenile

Supervising Judge: Barbara Hinton

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Probate

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PITTSBURG

Supervising Judge: Rebecca Hardie

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Š Hon. Shara Beltramo

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Š Comm. Palvir Shoker

Civil MARTINEZ RICHMOND

Supervising Judge: Christopher Bowen

Š Hon. Patricia Scanlon

Š Hon. Glenn Kim

Š Comm. Jill Lifter (afternoon) Open Judicial Position

2023 Labor and Employment

UPDATE

by Audrey Gee, David Marchiano and Marissa Boyd

In a time of great social change, 2023 brings some key new equity-focused employment legislation:

Reproductive Rights

In the wake of the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S.Ct. 2228 (2022) last June (overturning Roe v. Wade, limiting the federal constitutional right to abortion, and leaving legislation on such reproductive rights to the states), California amended its State Constitution to explicitly provide for the right to reproductive freedom and abortion.

Dobbs also spurred California to further expand protections for reproductive rights explicitly in the workplace:

• SB 523: Beginning on January 1, 2024, the new “Contraceptive Equity Act” will, among other things: (1) amend the Fair Employment Housing Act (the “FEHA”) to prohibit discrimination against employees and job applicants for their “reproductive health decision-making”; (2) require that employer-provided

healthcare plans cover overthe-counter contraceptives and prohibit those plans from imposing cost-sharing methods, such as deductibles or copayments, for vasectomies.

• AB 2223: Beginning on January 1, 2023, a person can no longer be subject to criminal or civil liability based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome, or be liable for aiding a pregnant person in exercising their rights under the Reproductive Privacy Act.

• AB 2134: Beginning on January 1, 2023, if a religious employer provides healthcare coverage that does not cover abortion and contraceptives, employees must be provided with written information about the abortion and contraceptive services that may be available to them through the California Reproductive Health Equity Program.

Pay Data Reporting

Over the past years, California has made efforts to address pay equity

in gender and race, through legislation such as Labor Code section 432.3, which prohibits asking for applicant’s prior salary history and Government Code section 12999, which requires providing pay scales upon an applicant’s reasonable request, and is now mandating more transparency in pay scales. Beginning on January 1, 2023, SB 1162 significantly expands these pay scale disclosures and pay data reporting obligations and requires:

• All employers, upon request, to provide a pay scale to current and prospective employees.

• Disclosure of pay scales in job postings (for companies with 15+ employees).

• The wage data reports (for companies with 100+ employees) (including employees through labor contractors) must include the median and mean hourly rate for each combination of race, ethnicity, and sex within each job category for employees (reporting requirements begin May 2023).

Continued on page 18

Labor & Employment Law Updates

Continued from page 17

• The retention of records of job titles and wage rate histories for each employee for the duration of the employee’s employment and three years after the end of employment.

Since 1966, large employers (over 100 employees) have EEO-1 reporting requirements for pay data showing gender and ethnic representation in different occupational classifications. According to the EEOC, such data has been invaluable in enforcing workplace anti-discrimination laws. Labor contractors, however, were not covered, which led to the increase of the use of such contractors due to the less stringent requirements. SB 1162 closes this loophole and now requires reporting by labor contractors.

Pre-Dispute Non-Disparagement and Non-Disclosure Provisions in Sexual Assault and Sexual Harassment Cases

On December 7, 2022, President Biden signed the “Speak Out Act,” which makes pre-dispute non-disparagement and non-confidentiality clauses unenforceable in connection with sexual assault or harassment disputes. Blanket provisions entered into “before a dispute arises” (often found in non-disclosure agreements, assignment and invention confidentiality agreements, employment, arbitration, and pre-dispute severance agreements) will not be enforceable in sexual assault or sexual harassment cases brought under federal, tribal, or state law. The Speak Out Act applies to all claims filed on or after December 7, 2022.

The Speak Out Act is the latest in the string of “Me-Too” in the workplace laws passed by Congress. In 2022, the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act” was also enacted under federal law, which bans pre-dispute arbitration agreements and joint-action waivers covering sexual assault or sexual harassment disputes.

California has already been a leader in this area. Last year’s Silenced No More Act (SB 331) prohibits confidentiality in severance agreements (except for the severance amount) and prevents gags on discussing unlawful acts in the workplace, such as harassment or discrimination following the earlier STAND Act prompted by the #MeToo movement.

Pregnant and Nursing Employee Protections

On December 29, 2022, as part of the 2023 Omnibus Spending Bill, President Biden signed two new federal laws expanding the rights of pregnant and breastfeeding employees.

Effective June 27, 2023, the Pregnancy Workers Fairness Act, requires employers with 15+ employees to provide reasonable accommodations to “qualified employees” (i.e., those who can perform the essential functions of the position) with the “known limitations” related to pregnancy, childbirth, or related medical conditions, unless the employer can show the accommodation would impose an undue hardship.

Effective April 28, 2023, the Providing Urgent Maternal Protections for Nursing Mothers (PUMP) Act, amends the Fair Labor Standards Act and requires employers with 50+ employees to provide a reasonable break time for nursing employees to express breast milk each time the employee needs to express milk, for up to one year after the child’s birth. Employers must provide a clean and

private space (other than a bathroom) to express milk. Both hourly and salaried employees are now protected.

Discrimination & Harassment

Beginning on January 1, 2023, AB 2282 expands the definition of hate crimes in places of employment to include the display of hate symbols.

Protections for Off-Duty Marijuana Use

As of January 1, 2024, AB 2188 will amend FEHA to prohibit employers from discriminating against employees’ use of cannabis off the job and away from the workplace. Employers may take adverse action against applicants for failing a preemployment drug screen, but only so long as the test does not screen for “nonpsychoactive cannabis metabolites.” Employers may continue to take adverse action against an employee (i.e., terminate, write up, suspend, warn, send home) for on-the-job possession, impairment, or use of cannabis. These provisions do not apply to employees in building and construction trades, and do not preempt state or federal laws requiring employees to be tested for controlled substances.

Protected Time Off: Expansion of “Family Member”

Under the California Family Rights Act (“CFRA”), covered employers must provide eligible employees up to 12 workweeks in any 12-month period for family care and medical leave. Under the Healthy Workplaces, Healthy Families Act of 2014 (California Paid Sick Leave), California employers must provide paid sick leave to eligible employees for care, or treatment of an existing health condition, or preventive care for, an employee or an employee’s family member.

Effective January 1, 2023, AB 1041 expands the protection of these laws, to care for a “designated person.” Under CFRA, this is defined as “any individual related by blood or whose association with the employee is the equiva lent of a family relationship.”

Under California Paid Sick Leave, a designated person is defined as “a person identified by the employee at the time the employee requests paid sick days” and does not require that the person be related by blood or affinity (as under some local paid sick leave laws) or be “the equivalent of a family relationship.” Under both laws, the employee may identify the designated person at the time they request leave (they do not have to designate the person in advance) and employers may limit an employee to one designated person per 12-month period.

The DFEH is Now the “Civil Rights Department”

In July 2022, the Department of Fair Employment and Housing changed its name to the “Civil Rights Department” (“CRD”) (SB 189) https:// calcivilrights.ca.gov. While the Department will retain its existing powers, this change was implemented to create more public awareness of its mission, and “to more accurately reflect the Department’s powers and duties, which include enforcement of laws prohibiting hate violence, human trafficking, discrimination in business establishments, and discrimination in government-funded programs and activities, among others.” According to CRD Deputy Director of Executive Programs Adam Romero, the pandemic gave rise to an increase of hate violence and its prior name was an obstacle to people accessing its services.

& Wenger, LLP in Walnut Creek and defend employers in wage and hour class actions and PAGA cases, individual discrimination and harassment cases, in addition to providing advice and counsel on HR policies and risk management workplace matters. www.bgwcounsel.com and (925) 943-5000.

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Elder Law is

The average survival rate is eight years after being diagnosed with Alzheimer’s — some live as few as three years after diagnosis, while others live as long as 20. Most people with Alzheimer’s don’t die from the disease itself, but from pneumonia, a urinary tract infection or complications from a fall. Until there’s a cure, people with the disease will need caregiving and legal advice. According to the Alzheimer’s Association, 10% of the population age 65 and older has Alzheimer’s disease. Of the 5.5 million people living in the U.S. with Alzheimer’s disease, the majority live at home — often receiving care from family members.

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Caught When the Roles are Reversed: Caring for Our Parents

by Alice Cheng

Caretaking duties generally refer to caring for children, but as our parents age, they also need support and care from their children. According to Encyclopedia Brittanica, Haau3 seon6 (Cantonese) or xiao shun (Mandarin) is the term for filial piety. In Confucianism, this concept is the attitude of obedience, devotion, and care toward one’s parents and elder family members that is the basis of individual moral conduct and social harmony. Filial piety consisted of putting the needs of parents and family elders over self, spouse, and children, deferring to parents’ judgment, and observing toward them the prescribed behavioral proprieties. This is especially true of women, who are expected to bear the brunt of the family care, from the young to the elderly.

Is this fair? Of course not, especially in this day and age. However, growing up in a Chinese family from Hong Kong, the expectation is that I will care for my parents when they become ill or elderly. That time came much sooner than expected for my father, who was diagnosed with cancer. In late 2019, when Dad insisted we come home for dinner, I knew something was wrong.

With the big C came consultations with many doctors, chemotherapy, and surgery. My parents were not

fluent in English and Dad could no longer drive, so I was the scheduler, chauffeur, and navigator of the complex medical system.

Also, there were stories about a highly contagious airborne illness. Forced into working remotely, our team was able to adapt quickly. My boss told me to do whatever I needed to do. This was the blessing I needed to survive that year. I worked from anywhere – my parents’ home in San Francisco, Dad’s hospital room, the cafeteria, even my car when the hospital did not let me stay. Many hours of work were completed on my laptop and even on my cell phone. I relied heavily on tethering on my hotspot. The cloud was my friend. I spent a lot of time passing instructions to my staff. I would do anything if it meant being able to accompany him to appointments or to visit or even stay with him when he was admitted.

I was a lawyer, manager, wife, daughter, bar leader, and teammate. By the end of Dad’s journey, I had also evolved into a hospice nurse, COVID funeral planner, and Mom’s manager. Dad passed away peacefully on January 20, 2021. The most unfair part? He was only 67. Along with managing everything else, I could not manage myself. So, I buried my grief in my responsibilities and work. I became a manic billing machine. I even presented at an Inn of Court program on January 20th because I convinced myself that Dad would have wanted me to

Continued on page 22

Caught Middle

Fragile Balancing Act: Juggling Motherhood and a Career in

a Post COVID World

By Jennifer L. Wallis, Esq.

When I was approached to write this article, my initial reaction was “no, thank you.” I did not want my colleagues to see behind the curtain of my life as a mother. At work, I am organized, confident, and highly caffeinated. At home, toys are strewn about, my hair is almost always in a mom-bun, and my clothes are covered in milk, food, and various mystery stains.

I also hesitate to let my clients see this side of my “mom life.” If clients ask, I will tell them about my son, who is 15 months and my daughter, who is 2. It’s not that I am ashamed to be a mom. My kids are my pride and joy and I love bragging about them just as much as the next mom. What I dread is my clients’ and colleagues’ follow-up questions. “How do you have time to run your own practice and have two babies at home?” They know that society hasn’t made this easy. It is a fragile balancing act.

While the pandemic has caused so much grief, pain, and loss, some of the unexpected effects have been a blessing for my family. For example, our family life has been transformed by my husband’s ability to work remotely.

Before COVID, my husband commuted to San Francisco and had to fly across the county with little notice multiple times per month. Since March 2020, he has not traveled once for a work meeting. Now, he walks the dog twice a day, unloads the dishwasher, prepares

dinner, keeps the “laundry train” moving and helps with bedtime.

If my husband was still in the office, I would have to shoulder significantly more of the burdens of raising our children. With his increased presence at home, I am able to pursue my career full-time. I know that my husband’s involvement in our family life is not unique as more dads are working remotely. Since COVID, I see dads everywhere. They are at daycare drop off and pick up. They are doing the grocery store run. They are at the pediatrician’s office.

With that being said, the benefits that my family receives from my husband working remotely is a direct result of a global pandemicnot from intentional societal change to support families. Employees were only allowed to work remotely to stop the spread of a virus; not to help our families.

Everyone benefits when fathers can share the day-to-day responsibilities of child-rearing. I hope that we can be more intentional about further progress to help working families rather than waiting for a pandemic. I am the first to admit that change is hard. As a legal community, however, we can make

Continued on page 22

Roles are Reversed

Continued from page 20

persevere. I burned the candle at both ends.

I reflect a lot about “what if” and how I should have spent more time with Dad. Despite the regrets, I will always be thankful for 2020. While it was a nightmare, there was a silver lining. Working remotely allowed me to be there for my family while juggling work and other responsibilities. I have heard that if there was ever a lesson that the pandemic has taught lawyers, it is that we should all embrace technology to make things easier. But, in my opinion, there is a different lesson to embrace: the power to say no when others such as children or ailing parents must take priority. Even superheroes must take a break sometimes. Be kind to yourself.

Alice P. Cheng, Managing Attorney at Candelaria PC, represents clients throughout the Bay Area in family law litigation, mediation, and premarital planning. She currently serves on the CCCBA Family Law Section Board, is a co-editor for the Contra Costa Lawyer Editorial Board, and receives court appointments to act as Minor’s Counsel in county family law cases. She is also the President of Alameda County Bar Association and on the Earl Warren American Inn of Court Executive Board.

Fragile Balancing Act

Continued from page 21

small changes.

Going forward, one small change that I would like to propose is to make networking events more inclusive of working parents. Since becoming a mom, I have missed numerous before-work and after-work events because of “kid stuff.” But lunch is much easier (unexpected doctor’s appointments and school closures notwithstanding). I understand that not all events are suitable for lunch and everyone (including me!) loves a good happy hour event. However, if we could offer 25% of our work events at lunch, I know that many working moms and dads would be eager – and able – to attend!

Jennifer L. Wallis is an attorney based in Walnut Creek specializing in estate planning, trust administration and probate. Jennifer started her own practice in 2020. Jennifer lives in Pleasant Hill with her husband, daughter (2) and son (1) and Labradoodle, Maisy.

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Welcome to the Contra Costa County Superior Court Bench Judges Shara Beltramo, Frank Riebli and Commissioner Jill Lifter

Shara Beltramo, 44, of Contra Costa County, has been appointed to serve as a Judge in the Contra Costa County Superior Court by Governor Gavin Newsom on December 23, 2022. Beltramo has served as a Deputy District Attorney at the Alameda County District Attorney’s Office since 2018. She was an Associate at the Morrill Law Firm from 2016 to 2017 and served as a Deputy District Attorney at the Alameda County District Attorney’s Office from 2004 to 2016. Beltramo earned a Juris Doctor degree from the University of San Francisco School of Law. She fills the vacancy created by the retirement of Judge Steven K. Austin.

Jill J. Lifter was appointed Commissioner of the Contra Costa County Superior Court, assuming her role effective November 28, 2022. She presides over Department 54, handling traffic, unlawful detainer, small claims, and domestic violence and civil harassment restraining order matters at the Walnut Creek and Richmond courthouses. She replaces the Hon. Ayana Young, who was assigned to Department 26 following her appointment to the bench.

Commissioner Lifter earned her Juris Doctor degree from the University of Southern California and her Bachelor of Arts degree, cum laude, from University of California, Los Angeles. She was previously an associate, shareholder, and ultimately managing shareholder of Ryan & Lifter, specializing in civil litigation with a particular focus on complex matters. She has been a frequent author and speaker in seminars and

Frank Riebli, 51, of Contra Costa County, has been appointed to serve as a Judge in the Contra Costa County Superior Court by Governor Gavin Newsom on January 31. Riebli has served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Eastern District of California since 2022. He served as an Assistant U.S. Attorney at the U.S. Attorney’s Office, Northern District of California from 2012 to 2022. Riebli served as a Deputy District Attorney at the Marin County District Attorney’s Office from 2011 to 2012. Riebli was an Associate at Farella Braun + Martel LLP from 2004 to 2011 and at Kirkland & Ellis LLP from 2003 to 2004. He served as a Law Clerk for the Honorable Joseph T. Sneed at the U.S. Court of Appeals, Ninth Circuit from 2002 to 2003. Riebli earned a Juris Doctor degree from the University of California, Hastings College of the Law and a Master of Arts degree in Philosophy from Columbia University. He fills the vacancy created by the retirement of Judge Lewis A. Davis. Continued on page 33

The Problem with Dobbs

By Beth Parker

In his majority opinion in Dobbs, Justice Samuel Alioto repeatedly asserts that it is time to return the authority to regulate abortion to the people and their elected representatives. He suggests that this will end the contentious litigation over abortion restrictions that has plagued the courts since Roe and Casey were decided. In reality, Dobbs promises to open the floodgates to protracted litigation between states over whose rights will prevail.

Since Dobbs was decided in June 2022, eighteen states have banned abortion, either in whole or in part. Twelve have enacted a near-total ban, four have gestational bans and, in two, abortion is unavailable because enforcement is unclear. At least 66 clinics across 15 states have ceased offering services since the ruling, forcing patients to travel long distances to access care. These laws disproportionately impact the most vulnerable among us: people of color and low-income women. The states with total bans and no remaining clinics are primarily clustered in the South, states with a larger proportion of both populations compared to the U.S. as a whole. These patients are the least likely to be able to travel due to cost, lack of health care benefits, paid time-off or available childcare.

increased travel creates greater outof-pocket costs, higher likelihood of follow-up care in an emergency room, negative mental health outcomes, delayed care and decreased use of medical services. Also troublesome is that this dynamic almost guarantees additional litigation.

The potential legal risks for abortion providers are immense. What if a woman from a ban state travels to an access state for an abortion and travels home with mifepristone, the second pill used in a medication abortion, which typically is taken at home 24-48 hours after visiting a clinic? What if she ends up having excessive bleeding and goes to her local emergency room? What if she needs a follow-up aspiration abortion, a known complication when medications are used to end a pregnancy after 10 weeks? Will the provider in the access state, that performed a legal procedure, be accused of “aiding and abetting” the abortion? Will the provider be extradited to the ban state to face criminal prosecution? Will the provider lose their license or be barred from treating Medicaid patients? Will fear surrounding this uncertainty dissuade them from providing much-needed legal health care?

California, as well as other states that respect their residents’ rights to make personal healthcare decisions, have passed legislation designed to protect providers for performing services that are legal in their home states. But many of these laws are untested. The case law on extradition and long-arm jurisdiction is decades

Despite the new state restrictions, Dobbs has witnessed only a marginal decrease in the number of abortions. What the Guttmacher Institute found when it studied the issue is that women traveled, often long distances, to other states to find an abortion provider. Of course, Continued on page 28

In Support of Dobbs

By John Yoo

The hope was that the Dobbs opinion would finally represent an end to the contentious politics of abortion. Rather, it has signaled the beginning of a new and likely much more intense phase of bitter controversy. While Justice Samuel Alito may hope that Dobbs will lower the temperature of the issue by removing it from the control of the federal judiciary and placing it with the political branches in the 50 states, the likelihood is that the issue will now heat up in several ways. The centripetal forces of American politics are likely to see the issue front and center again in Washington DC, and the Supreme Court may well be dragged back into to fray whether it wants to or not. Rather than defusing the issue, we may be on cusp of a “big bang” in abortion politics.

The question in Dobbs was whether Mississippi could ban all abortions after 15 weeks of pregnancy. Under Roe, as reaffirmed in Casey v. Planned Parenthood (1992), the Court generally had allowed states to regulate abortions, so long as they did not place an “undue burden” on a woman’s right to choose (though the Court failed to clearly define “undue burden”). But before viability, which occurs at about 22–23 weeks of pregnancy, the Court has held that the Constitution’s due-process clause protects a virtually unrestricted right to an abortion. The Dobbs opinion overturned Roe and placed abortion policy back into the hands of the states.

The Dobbs decision does not innovate. It merely restates the main line of argument developed over

decades by conservative jurists, led by Justice Scalia and Judge Robert Bork. The Constitution creates a governing system that privileges positive law — law made by legislatures, executives and agencies, and constitutional conventions — rather than unwritten rights provided by sources external to the written text. The Scalia/Bork approach takes the Constitution as neutral on most moral questions and favors judicial restraint so that Americans acting through their legislatures can provide the answers.

Dobbs’ critics accuse the reported majority of radicalism. But the opinion rejects Roe on the same grounds raised by distinguished liberal scholars. John Hart Ely of Harvard Law School, one of the most influential constitutional scholars of the late 20th Century, called Roe “bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” Laurence Tribe, another of America’s most important constitutional law thinkers, observed, “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Scholars criticized Roe and its progeny because abortion does not appear anywhere in the constitutional text. For Roe to assert that a right to abortion lurks in the phrase “nor shall any State deprive any person of life, liberty or property, without due process of law,” twists words beyond their meaning. Even if abortion rests within the under-

Continued on page 29

The Problem with Dobbs

Continued from page 25

old. New technology enabling easy access to medical records across hospitals and providers is creating new risks, as is the ability to use social media platforms such as Facebook, Instagram or Google to track individuals who may be seeking “illegal” care. Eventually, these issues will end up in the courts, which will need to decide the thorny issue of which state’s law controls in the absence of a guaranteed federal right.

Justice Alioto’s view that stare decisis did not dictate adherence to Roe and Casey because there was no reliance on those decisions is equally misguided and ill-informed. According to the Dobbs majority, “because getting an abortion is generally ‘unplanned activity,’ and ‘reproductive planning could take virtually immediate account of any sudden restoration of state authority to ban abortions,’” traditional reliance interests are not implicated. However, most people are not tracking their state’s legislation when they decide to have sex. Even if they did, contraception is still not entirely effective. More than half of unwanted pregnancies occur due to contraceptive failure.

More importantly, abortion has been legal for the past 50 years; no individual of reproductive age has experienced a time when abortion was not safe, legal and accessible. Several generations now have made decisions about when to marry, whether to pursue higher education, what jobs to take and how to follow a career path based on having control over if, when and how many children to have. Before the Supreme Court legalized contraception in Griswold and abortion in Roe, only 5.8% of women held college degrees, 4.2% attended law school, 42% were in the

workforce, and 15% boasted management positions. Women’s wages were 60% of men’s.

This lack of historic understanding undergirds another key argument Justice Alito makes. As a basis for unraveling a 50-years-old constitutional right, he claims “a right to abortion is not deeply rooted in the Nation’s history and traditions.” But the history he cites is history from the nineteenth century when legislatures were comprised exclusively of white males. Women and Blacks did not have the right to vote. Surgery, including that used to terminate a pregnancy, was incredibly dangerous. Surgeons did not know how to control infection, and mortality was high.

Because abortion is significantly safer than childbirth, maternal morbidity and mortality rates dropped under Roe. By the 1960s, techniques of antisepsis and asepsis had advanced considerably. Antibiotics had been introduced. Curettage, used for abortion in the first trimester, had become a safe, accepted and routinely used medical technique. The chance of dying from an abortion was consider ably less than delivering a child. The real risk was illegal abortions. By 1967, criminal abortions had become “the most common single cause of maternal deaths in California.” As a result, the deans of all California medical schools, chairmen of medical school departments and professors of medical schools advocated for its legalization. When Roe went before the Supreme Court in 1973, most religious organizations and public health advocates similarly pressed for its legalization. They had seen the death that resulted when women were denied this simple right.

Contrary to the view of the current Supreme Court, “constitutional concepts are not static.” Prior Supreme Courts repeatedly have recognized that the Constitution

should “not be shackled to the political theory of a particular era.” Nor should constitutional rights be left to the legislatures in individual states to sort out. Instead, fundamental rights should be analyzed in the context of where the country stands at a particular point in time. When advances in medicine have made abortion far safer than carrying a pregnancy to term, contraceptive failure and human error result in unwanted pregnancies, and women and their families have made life decisions based on the ability to control if and when to have children, abortion should be preserved as a constitutional right. Rather than removing courts from adjudicating these difficult decisions, Dobbs all but guarantees the courts will remain in the thick of this controversy.

Beth H. Parker is founder and Principal of Parker Law & Mediation. She is an Adjunct Professor at UC Law San Francisco. She has served as the General Counsel of three Planned Parenthood affiliates and their separately incorporated 501(c)(4) Action Funds, where she has advised Senior Management and the Boards on a wide array of health care, regulatory compliance, nonprofit governance and political advocacy issues, handled government investigations, and managed litigation. Between 2013 and 2018, she was Chief Legal Counsel of Planned Parenthood Affiliates of California, the state-wide entity that coordinates the legal, legislative, advocacy, regulatory and electoral work for Planned Parenthood’s seven California affiliates. A graduate of Harvard Law School, Beth was a member of Harvard’s Legal Aid Bureau. She earned her BA in Architecture and Urban Studies magna cum laude with Honors in her Major from Yale University.

In Support of Dobbs

Continued from page 26

standing of “liberty,” the Fourteenth Amendment allows states to deprive “persons” of it so long as they receive fair process. To believe in “substantive” due process, as some scholars, judges, and lawyers do, means entertaining two contradictory characteristics for the same thing, such as dry water or dark light.

Justice Samuel Alito’s majority opinion in Dobbs proceeds beyond this basic argument to reject any idea that precedent, history, or tradition would allow abortion to join a list of other rights not enumerated in the text, but nonetheless are so “fundamental” as to deserve constitutional protection. The 20th Century Supreme Court, for example, held that the Fourteenth Amendment “incorporated” most of the Bill of Rights against the states. The Court has also added a few rights to this list because they are “deeply rooted in history and tradition” and essential to our “scheme of ordered liberty.” In holding that Americans have an individual right to possess firearms, for example, the Court (Justice Scalia writing for the majority) found that a large majority of states that had ratified the Fourteenth Amendment in 1866 also had laws protecting the right to keep and bear arms.

History, however, also explains why the Justices have refused other rights entry into the constitutional canon. In Washington v. Glucksberg Rehnquist Court held that euthanasia did not count as a “liberty interest” protected by the Fourteenth Amend ment because it was not “objectively, deeply rooted in the Nation’s history and tradition.” A similar analysis has turned aside efforts to limit or end the death penalty. Justice Alito carefully explained in

this same logic requires the Court to reject a constitutional right to abortion. Before, after, and at the time of the ratification of the Fourteenth Amendment, Anglo-American law treated abortion as criminal. If the framers and ratifiers of the Fourteenth Amendment had understood it to protect abortion, Dobbs reasoned, the historical record should have shown states at the time treating it as a constitutional right of some kind. But, according to the Court, there is no evidence of such an understanding. “Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion,” Justice Alito concludes. “Zero. None.”

Finally, there is one aspect of Justice Alito’s opinion that has so far drawn little comment. He wrote that the Supreme Court should get out of the “rights-creation” business except when rights are rooted in long-established historical tradition. This was the concern of one of abortion’s great defenders, Justice Ruth Bader

Ginsburg, who observed that Roe had short-circuited the broad acceptance of abortion rights through the political process. In 1992, before she joined the Court, she argued that Roe had “halted a political process that was moving in a reform direction and thereby, I believed, prolonged divisiveness and deferred stable settlement of the issue.” If Dobbs restores the political process’s control over unenumerated rights, it will complicate and perhaps foreclose both liberals and conservatives who advocate “judicial engagement,” which is a byword for “judicial activism.” But conservatives can’t have it both ways. If they think abortion should be subject to legislative deliberation, they have to admit that other areas of contentious public policy should as well.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a nonresident senior fellow at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

Embrace Wellness

CCCBA’s Wellness Committee is bringing back the fun in 2023! Activities ranging from roller skating to rock climbing are on the calendar. Now’s the time to start thinking about showcasing your talent for the Talent Show on August 17.

Take a look at the CCCBA calendar for all the details at www. cccba.org/attorney-events. We are looking forward to seeing you!

Installation Lunch and Diversity Award Luncheon

The CCCBA got together in person with a virtual option at Contra Costa Country Club in Pleasant Hill on Friday, January 27 to induct the new Board Officers, Directors and Section Leaders. The 2022 Diversity Awards were presented to a very deserving group of winners. David Erb, CCCBA President for 2023 gave a speech, and Presiding Judge Ed Weil gave a State of the Judiciary presentation. This was the first Installation and Diversity Awards event in person since the covid shutdown.

Pictured top right: Barbara Arsedo with Kristen Tabone, Jennifer Spalding and Anne Wolf (standing). Jody Iorns with Esther Kim and Jonathan Lee.

CCCBA

Leaders front row: Patricia Ruiz Calzada, Hon, Richard Flier(Ret.), Anina Dalsin, Esther Kim. Back row: Stephen Bonkowski, Marta Vanegas, Randy Sullivan, Kathryn Schofield and Indy Colbath

Front row: CCCBA Executive Director Jody Iorns with CCCBA Board members Dorian Peters, David Erb, Michael Pierson, David Ratner. Back row: Andrew Verriere, Dean Christopherson, Ann Battin, Marta Vanegas, David Pearson, Pa’tanisha Davis Pierson, Ariel Brownell Lee and Jonathan Lee

Past President Oliver Greenwood works a little magic with Ariel Brownell Lee’s sons.

Pictured above:

Section

Judges Leonard Marquez, Shara Beltramo, Rebecca

and recently retired Anita Santos.

Mika Domingo, of MS Domingo Law Group accepts the Platinum Diversity Award from Renee Livingston

Past President Steve Steinberg with Judge Steve Austin (Ret.) and Michael Abraham

Taking the Oath of Office, standing Ann Battin, Anina Dalsin and Indy Colbath

CCCBA Board President David Erb with his wife Justine, his mother Cynthia Hull and brother Michael Erb

Hardie

Patricia Ruiz Calzada, Pa’tanisha Davis Pierson and Brandy Gray

CALENDAR

UPCOMING EVENTS | OVERVIEW

The Contra Costa County Bar Association certifies that the MCLE activities listed below have been approved for the specific MCLE credit indicated, by the State Bar of California, Provider #393.

March 2 | CCCBA

Trust Accounting and Your Responsibilities under the New Client Trust Account Protection Program, (CTAPP) Encore Presentation (Zoom Meeting )

Speaker: Diane L. Camacho

4:30 pm - 5:30 pm | 1 hour General MCLE credit | $20 CCCBA members, $40 non members

March 3 | Barristers Section

BRIDGING THE GAP 2023

New Lawyers | Young Lawyers | New to the County Lawyers

Take this opportunity to get acquainted with the Contra Costa County Bar Association, the CCC Superior Court and local practitioners.

10:00 am - 4:30 pm | 4 hours General MCLE credit | DA Community Room, 900 Ward Street (entrance is on Court Street) Martinez | Free for CCCBA New Admittees

March 9-11 | CCCBA

Learning by Doing:

An Experiential Trial Practice CourseA Three-Day Practicum

March 9 & 10 1:00 pm - 5:00 pm | March 11, 9:00am – 5:00 pm | CCCBA First Floor Building Conference Rooms, 2300 Clayton Road, Concord | 10-13 hours MCLE credit | $595 CCCBA members, $795 non members

March 15 | Solo/Small Firm Section

Breakfast for the East County Solos!

7:30 am - 9:00 am | Free for members of the Solo/Small Firm Section, $20 others | MJ’s Cafe & Bakery, 655 First Street, Brentwood

March 16 | Solo/Small Firm Section

Solo Section Happy Hour at Hops & Scotch, Walnut Creek

5:30 pm - 7:30 pm | Free for members of the Solo/Small Firm Section, $15 Barristers, $25 CCCBA members, $45 non members | Hops & Scotch, 7001 Sunne Lane, #100, Walnut Creek

March 19 | Wellness Committee

Let’s Go Indoor Rock Clumbing!

Details to follow. Please check the calendar.

March 22 | DEI Committee

Cesar Chavez Townhall Program Celebration

Noon - 1:15 pm | Details to follow. Please check the CCCBA calendar.

March 23 | ADR Section

ADR Roundtable

4:30 pm - 5:30 pm | 1 hour General MCLE credit | Details to follow. Please check the CCCBA calendar.

April 16 | Wellness Committee

Let’s Go to the Farmer’s Market and Let’s Go Cook

10:00 am – Noon | Details to follow. Please check the CCCBA calendar.

April 19 | Solo/Small Firm Section

Breakfast is Back for the Solos

7:30 am – 9:00 am | Sunrise Bistro, 1375 S. California Blvd., Walnut Creek | Free for members of the Solo/Small Firm section, $20 others

April 21 | Real Estate Section

Real Estate Section Breakfast Program (In Person/ Hybrid)

8:00 am - 9:30 am | 1 hour General MCLE credit | Details to follow

April 22 | Wellness Committee

Let’s Go Hiking

Time TBA | Black Diamond Mines Regional Preserve, 5175 Sommersville Road, Antioch | Details to follow. Check the calendar.

April 26 | DEI Committee

Accessibility Technology

Training Program (In Person/Hybrid)

Noon – 1:15 pm | CCCBA Building First Floor Conference Room, 2300 Clayton Road, Concord

For more information on these programs, please contact Anne Wolf, CCCBA Education & Events Director at awolf@cccba.org or (925) 370-2540 or check the calendar www.cccba.org/attorney-events

April 26 | Women’s Section

Women’s Section Annual Scholarship Fundraiser

5:30 pm – 8:00 pm | Roundhill Country Club, 3169 Round Hill Road, Alamo | Details to follow. Please check the calendar.

May 1 | DEI Committee

Racial Reconciliation Program Townhall

Noon - 1:15 pm | Details to follow. Please check the calendar.

May 12 | Solo/Small Firm Section

Solo/Small Firm Section

Summit – Working Smarter not Harder

Speaker: Judge Ayana Young

11:30 am – 5:00 pm | Lafayette Library, 3491 Mt. Diablo Blvd., Lafayette | Details to follow. Please check the calendar.

May 16 | Criminal Section

Criminal Q&A –

Bench/Bar Luncheon 2023

(In Person / Hybrid)

Speakers: Meet the Martinez Criminal Division Judges

Noon – 1:00 pm | A F Bray Courthouse, 1020 Ward Street, Martinez | Includes box lunch | Cost TBA

May 25 | CCCBA

Civil Q&A –

Bench/Bar Luncheon 2023

(In Person / Hybrid)

Speakers: Meet the Martinez Civil Division Judges

Noon – 1:00 pm | A F Bray Courthouse, 1020 Ward Street, Martinez | Includes box lunch | Cost TBA

CCCBA Drives Effort to Exonerate the Port Chicago 50

The Contra Costa County Bar Association formed the Port Chicago Task Force after the CCCBA DEI Committee presented a November 2021 program about the Port Chicago Disaster that occurred near Concord in 1944 and the historical injustice of the mutiny trial.

The CCCBA Port Chicago Taskforce is comprised of CCCBA member attorneys as well as non-attorneys from the community with an interest in the Port Chicago 50. The Port Chicago Task Force was formed with two goals:

• Seek to raise awareness of this injustice in the legal and broader community and

• Advocate for the setting aside of the mutiny convictions of the Port Chicago 50.

How you can help

• Sign the petition at www. change.org/p/exonerate-theport-chicago-50. So far over 1,100 signatures have been gathered.

• Call or write to the Secretary of the Navy, Carlos Del Toro urging support for the exoneration of the Port Chicago 50.

• Share the information with your family, friends, colleagues.

In February 2023, local Representatives

Mark DeSaulnier, Barbara Lee and John Garamendi introduced another House Resolution recognizing the victims of the disaster. The bill has yet to pass in the Senate. Support from the legal community and the public is vital to restore the integity and honor to the legacies of these sailors. For more information on the CCCBA’s efforts, visit cccba. org and search Port Chicago.

Welcome Commissioner Lifter

Continued from page 25

publications concerning civil litigation and trials, construction defect matters, and insurance issues.

Commissioner Lifter also brings an extensive record of volunteer service. For nearly a decade while in private practice, she served in the Contra Costa Superior Court’s Temporary Judge Program, hearing many of the same case types she now oversees in Department 54. For eight years, she was a volunteer in the Court Appointed Special Advocates program supporting abused and neglected children in the foster care system. In 1995, she received the State Bar of California Wiley W. Manuel Certificate for Pro Bono Legal Services, an award which recognizes the contributions of the those who volunteer their time and expertise on behalf of low-income clients.

CLASSIFIEDS

2 OFFICE SPACES AVAILABLE

Where: 3445 Golden Gate Way, Lafayette

Law firm since 1955.

Details: Creekside setting with ample free parking, excellent law library, easy access to intercity jogging trail. Reasonable rent.

Interested? Call Stan Pedder or MacKenzie Bush at (925) 283-6816.

Advertising Space Available

Did you know that you can run classified ads in Contra Costa Lawyer and also on the CCCBA website? Classified ads run on the CCCBA website for 30 days. Members pay just $75 per month for online classified ads that can include photos or graphics. For information, please contact Carole Lucido, CCCBA Communications Director at (925) 370-2542 or clucido@ cccba.org.

Advertiser Index

Advertising Opportunities

Contra Costa Lawyer MagazinePrint and Online

Contra Costa LAWYER

The Contra Costa Lawyer is the official publication of the Contra Costa County Bar Association. It is published every other month for an audience of more than 1,500 attorneys, judges and court officials, law libraries and public officials involved with the administration of justice in Contra Costa County and has a readership of approximately 4,500 online.

Both the print and online editions of Contra Costa Lawyer have won awards of excellence from the National Association of Bar Executives.

.

Cost effective display and classified advertising opportunities are available in the print magazine. Online ads are available on the CCCBA’s website: www.cccba.org. View and download the complete media kit www.cccba.org/flyer/2023/cccbaadkit-2023.pdf

Contact CCCBA Communications Director Carole Lucido if you have questions, clucido@cccba.org or (925) 370-2542.

Fragile Progress Women’s Rights in 2023

We gratefully acknowledge our

2023 SUSTAINING LAW FIRMS

Firms with 30+ attorneys:

Miller Starr Regalia

Firms with 20-29 attorneys:

Bowles & Verna, LLP

Littler Mendelson, P.C.

Firms with 11-19 attorneys:

Brothers Smith, LLP

Clapp Moroney Vucinich Beeman Scheley

Doyle Quane

Gagen, McCoy, McMahon, Koss, Markowitz & Fanucci

Greenan Peffer Sallander & Lally LLP

Kilpatrick Townsend & Stockton

McNamara, Ambacher, Wheeler, Hirsig & Gray, LLP

Whiting, Ross, Abel & Campbell, LLP

Firms with 5-10 attorneys:

Acuna Regli

Brown, Gee & Wenger, LLP

Casper, Meadows, Schwartz & Cook

Candelaria PC

Craddick, Candland & Conti

Donahue Fitzgerald, LLP

Edrington, Schirmer & Murphy

Ferber Law, APC

Galloway, Lucchese, Everson & Picchi

Gillin, Jacobson, Ellis, Larsen & Lucey

Hartog Baer Zabronsky & Verriere, APC

Law Offices of Joseph H. Wolch

Livingston Law Firm, P.C.

Morrill Law

Patton Sullivan Brodehl LLP

Temmerman Cilley & Kohlman LLP

2300 Clayton Road, Suite 520

Concord, CA 94520

www.cccba.org

Congratulations to 2022 Diversity Award Winners

PLATINUM

Candelaria PC

Law Offices of Natasha S. Chee

Ferber Law, A Professional Corporation

Hanson Bridgett LLP

Key Counsel, P.C.

Littler

GOLD

Law Office of Ariel Brownell

M.S. Domingo Law Group, P.C.

Hartog, Baer, Zabronsky & Verriere, APC

Livingston Law Firm

Miller Starr Regalia

Womble Bond Dickinson (US) LLP

SILVER

Law Office of Marjorie A. Wallace

The 2022 Diversity Award recipients were recognized on January 27, 2023 at the CCCBA Installation and Diversity Awards Luncheon.

Your firm can be recognized for its diversity efforts next year. Check CCCBA’s Diversity web page in mid March for the Diversity Award Checklist for 2023. The completion deadline is the first week of December 2023.

The CCCBA Diversity Equity & Inclusion Committee plans monthly DEI events. Check our website events calendar to see what’s coming next!