Gender Bias, Lawmakers, Semantics, and Workers’ Comp

In October, governor Jerry Brown vetoed the bill AB 570. This bill would have made an amendment to Labor Code Section 4663, saying “No percentage of an apportionment in the case of a physical injury occurring on or after January 1, 2018, shall be based on pregnancy, childbirth, or other medical conditions related to pregnancy or childbirth.”

This is the third year in a row that a bill rolling back apportionment laws when considering pregnancy and childbirth has been written, and then vetoed.

The amendment that AB 570 proposes is simple enough, but the politics surrounding the decision to veto the bill are more complex. Bear with us, it’s not all black and white.

This story begins in the early 2000s.

Taking Advantage of the System

At the turn of the new millennium, California’s lax work comp regulations were being exploited. Audits proved that an impressive number of claims did not even happen at work.

Employers were being played, and this would come back to bite all workers, not just the ones doing the playing.

The volume of the claims, legitimate or not, caused the work comp premiums to climb astronomically, reaching a peak around 500% in the early 2000s.

The Point of No Return

Premiums this high forced a remarkable amount of industry and skilled labor out of California. Entire companies packed up and went to other states and even overseas.

As companies began to leave California in droves, the state’s economy began to suffer. Manufacturing jobs with high rates of injury found the work comp laws elsewhere much more accommodating.

The jobs that stayed were focused on labor that couldn’t quite leave. Primarily, service jobs were the ones that stuck around. This marked the transition of California as an industrial economy into a service economy.

Although California was not the only state with economies suffering due in large part to exploited work comp practices, it was one of the worst.

Workers’ Compensation Reform Package

In 2004, California as well as 24 other states changed their workers’ compensation laws in an effort to reduce the soaring premiums faced by stakeholders.

This move ‘reset’ how adjusters and employers handled work comp claims, in an attempt to taper off the extreme costs. The DWC announced that no injury would be a work comp injury unless it happened to “arise out of or in the course of employment.”

These ground rules were set for everybody, regardless of job title, location, and gender, to be as fair as possible for all workers, as well as for the employers.

While this action did much to ensure that work comp premiums did not ascend at the same rate, the cost remained quite high. Suffice to say that the jobs that California lost didn’t come flooding back, and they still haven’t.

Gender Discrimination in Workers’ Comp

Any way you look at it, gender discrimination has always been a complicated matter for workers’ compensation.

This article from our blog details a specific court case regarding how fewer benefits are rewarded to women in workers’ compensation due to their injuries. The details from this story can be extrapolated onto the state of gender discrimination in workers’ compensation today.

This brings us back to the bill AB 570.

In a classic game of political semantics, the bill’s author and the opposing governor Brown use the terms ‘gender bias’ and ‘gender discrimination’ respectively, to defend their arguments.

Lorena Gonzales Fletcher, the assembly member who introduced the bill, states that it is a case of gender bias not to rollback apportionment laws for women, since biological males cannot get pregnant. By being held to the same standards as men, women may not get proportional benefits to injuries sustained at work before, during, or after pregnancy.

Brown argues that passing the bill would cause gender discrimination in the workplace, since it would open up the possibility that men would begin to demand laws defending injuries that women could not suffer.

It’s All for the Votes

It’s in the best interest for a publicly voted lawmaker to please their constituents, so that they may be voted again in the future. A lawmaker might even sponsor a bill that they know will not pass, in order to show consistency to the people who vote for them.

This happens all the time in politics.

When put this way, it may sound like a scheme, a way for the lawmaker to stay on top and fool people. It’s not as nefarious as it may sound. In order for a chairperson, a congressman, senator, etc. to continue to work in the best interest of the people, they sometimes have to put on a show. It’s the mark of being a public figure.

Tying It All Together

Imagine AB 570 passed.

A job in California is hiring. It could be any job, like a factory or an office job. Due to soaring property taxes, operating fees, and work comp premiums, the company is hanging on by a thread just to stay in the state.

An employer interviews two workers, a man and a woman. At the time of the interview, the woman informs the employer that she is pregnant. Although the hiring position isn’t necessarily high risk, there is an inherently higher risk of certain injuries that could arise from complications due to the woman’s pregnancy.

Due to the new law put into place from the passing of AB 570, if the woman got hurt at work, the injury would not be apportioned due to her pregnancy. The injury could be the development of carpal tunnel due to repetitive manual tasks, it could be tearing of the stomach along a previous path of incision. She would receive just as much compensation for an injury that may have stemmed from the pregnancy as the man would for suffering the same injury. From this standpoint, she’s on equal footing with the man interviewing for the job.

Unfortunately, due to the greater statistical likelihood of an injury arising due to complications from pregnancy or childbirth, the employer foresees a higher risk for a work comp claim with the woman, which would impact the company, already struggling to stay in California.

Though the interview proved that she was more qualified for the position, the employer decides to hire the man. Ironically, in this scenario bill AB 570 has created an incentive for the employer to discriminate based on gender in the workplace.

Conclusion – Finding the Right Way To Do It

As in any matter in workers’ compensation, there is no easy solution to this problem.

We can see that California’s diminishing work sector, due in no small part to work comp premiums, makes it a tough place to operate for a multitude of businesses. Many companies literally cannot afford to take additional risks for on-site injuries. Lawmakers have judged that the laws in place regarding apportionment actually secure the position of all people in the workplace, and are meant to be fair to all genders.

The author does not conclude that the current method is the best or only solution. Workers’ compensation in California is a system that needs improvement. It is the RateFast mission to do its part in making improvements.

Any improvements that you feel should be made to workers’ compensation can be directed to your lawmakers. It is their job to listen, as it is because of you that they are there.

Would you like to quickly make workers' compensation a more profitable and streamlined part of your medical practice? We've got you covered. Click here to check out RateFast Express.

Have a question? Want to see a specific topic covered? We'd love to hear from you.

Message us on Facebook, Twitter, or email us at info@rate-fast.com