Wednesday, March 7, 2007
C.A. Rejects Claim County Was Biased Against Women Lawyers
By KENNETH OFGANG, Staff Writer
Los Angeles County did not violate anti-discrimination statutes by establishing a county-run corporation that employed lawyers, generally women, who did the same work as deputy county counsels but received lesser pay and benefits, the Court of Appeal for this district has ruled.
In a Feb. 22 decision, certified yesterday for publication, Div. One held that lawyers who were employed by Auxiliary Legal Services Inc. were not discriminated against in violation of the federal Equal Pay Act or the California Fair Employment and Housing Act.
The ruling upheld a decision by Los Angeles Superior Court Judge Carl J. West, who granted the county’s motion for summary judgment. County lawyers Danna Hall, Nydia Bonazzola, Sheila Kurnetz, and Sabrina Eslamboly brought the class action in 1999 on behalf of about 200 women attorneys described in the complaint as having been “channeled by the County into the predominantly female [ALS] unit while receiving substantially less pay and benefits than the predominantly male . . . ‘official’ [County Counsel] employee unit.”
The dispute goes back to 1984, when the Board of Supervisors authorized the contracting out of a portion of the responsibility for juvenile dependency work performed by the county counsel. Between 1984 and 1989, the county contracted with a number of lawyers, including Hall, to provide such services on an as-needed basis.
In 1989, the County Counsel’s Office recommended that instead of contracting with individual attorneys, it would be more efficient to create a single entity to handle that work. The board then created ALS as a nonprofit corporation, and entered into a contract whereby ALS would provide the necessary lawyers to work “under the direction and control of County Counsel.”
The status of ALS attorneys became the subject of several legal actions, including the Hall suit, following an independent management audit. The 1998 study found lower pay, older equipment, heavier workloads and poor morale among county lawyers who handle juveniles dependency cases.
The division of the office that handles juvenile dependency cases for the county was widely seen as a “dumping ground” for lawyers who don’t work out well in other divisions, according to the auditors, Barrington-Wellesley Group, Inc. and Altman Weil.
In 2001, the district director of the Equal Employment Opportunity Commission made a non-binding determination that the county had violated the Equal Pay Act. And West last year rejected a suit, in which county lawyer Robert Shiell is the lead plaintiff, alleging that a sham employment scheme is being used to deny employees benefits.
That ruling is now on appeal.
Over the years of litigation, a number of ALS attorneys have been integrated into the County Counsel’s Office, where Hall is now a senior deputy. But most, like Hall, have been denied pension credit for the years they worked on the ALS payroll.
Justice Miriam Vogel, writing for the Court of Appeal, acknowledged that ALS’ attorney workforce was as much as 71 percent female, while up to 78 percent of the deputy county counsels were male during the years at issue.
But the evidence, the jurist said, showed that all county counsel hires were made through competitive examinations, that 58 percent of the hires between 1989 and 1999 were women, and that ALS lawyers were paid less not because they were women, but because the purpose of ALS’ existence was to save money.
That female ALS lawyers were paid less than male deputy county counsels for substantially identical work does not establish an Equal Pay Act violation, Vogel said, because a male deputy county counsel was not a “proper comparator.”
The justice cited a federal case from New York holding that a female state employee classified as a psychiatric social worker, of whom 70 percent were women, could not make out a case of discrimination based on a disparity between the pay of psychiatric social workers and psychologists, who were 67 percent male, even if the work was substantially the same.
“Because undisputed evidence establishes that, at any given time, ALS and County Counsel both employed a substantial number of women and that, within ALS, women were paid the same as men, there is no basis for Hall’s use of a male County Counsel lawyer as a comparator,” Vogel wrote. “For this reason alone, Hall’s claims fail as a matter of law.”
In any event, the justice said, the county’s desire to assure the continuing availability of lawyers to do dependency work on a cost-effective basis was a legitimate business reason for the wage disparity between deputy county counsels and ALS lawyers.
“At a time when there were few job openings at County Counsel due to hiring freezes and other budgetary constraints (only about 180 openings between 1989 and 1999), ALS provided an employment option for more than 250 people — who in accepting positions with ALS knew they were not becoming civil service employees,” Vogel wrote.
The case is Hall v. County of Los Angeles, 07 S.O.S. 1116.
Copyright 2007, Metropolitan News Company