This lawsuit challenges systemic gender discrimination in California’s workers’ compensation system. In particular, it alleges that the State agencies that administer the system permit and condone women to receive less compensation than men for no other reason than impermissible and outdated stereotypes about a woman’s capacities, bodies, and reproductive biology.

2.     What is workers’ compensation?

Workers’ compensation is a statewide program that provides financial assistance and medical care for workers injured on the job. California enacted its workers’ compensation system in 1911 in response to the inequities brought about by the industrial revolution. Such systems represent an acknowledgement that the burdens of the often-unsafe workplace should not be disproportionately borne by workers. Before workers’ compensation, employees could sue their employers, but it was often difficult to succeed in court. In turn, employers were occasionally required to pay significant damage awards, but, more often than not, the worker was left with zero compensation for medical costs and lost wages. Thus, workers’ compensation is described as a “grand bargain”: workers surrendered the right to bring a lawsuit against employers for injuries that occurred on the job and, in exchange, workers were guaranteed financial compensation for the hardships wrought by workplace injuries.

3.     Who pays for workers’ compensation?

Under California law, all employers must either purchase workers’ compensation insurance or secure a certificate of consent to self-insure from the California Department of Industrial Relations. However, when a worker submits a workers’ compensation claim, the insurance company steps in and the employer generally has no role in the future proceedings. As such, when a worker disagrees with the amount of money or medical care they have received, they generally deal with the insurance company, not the employer. In fact, the employer may fully support the worker’s claims but have no say in the final award determination.

4.     What types of benefits does workers’ compensation provide?

California’s workers’ compensation system provides five different types of benefits for injuries that occur on the job: 1) medical care, 2) temporary disability benefits to compensate for lost wages while recovering from a work-related injury, 3) supplemental job displacement benefits “to help pay for retraining or skill enhancement” if the employee is unable to return to her pre-injury employment, 4) death benefits for dependents of an employee who dies from a work-related injury or illness, and 5) permanent disability benefits for permanent physical loss and the long term impact of a work-related injury on future earning capacity. This lawsuit concerns gender discrimination in the award of permanent disability benefits.

5.     What does “permanent disability” mean in the workers’ compensation system?

Within workers’ compensation terminology, the employee’s “injury” is distinct from her “disability.” “Injury” is used in the workers’ compensation context much as we use it in everyday speech: when for example, a worker breaks her leg on the job, the broken leg is the injury, and the x-rays, doctors’ appointments, surgery, etc., that result from the injury fall under the provisions of the Labor Code that are concerned with medical treatment. However, when the leg has reached a point at which it will no longer improve, with or without medical treatment, the fact that the worker can no longer put her weight on that leg, for example, or a hold a job that requires her to stand for more than five minutes at a time, is referred to as the “permanent disability.” As the California Supreme Court explained, “permanent disability payments are intended to compensate workers for both physical loss and the loss of some or all of their future earning capacity.”

6.     How is “permanent disability” calculated?

Put simply, the amount of money an injured worker gets for “permanent disability” is based on two factors: 1) the extent to which that worker is permanently disabled (the “impairment rating”) and 2) the extent to which that permanent disability was caused by the work-related injury (the “apportionment”). These factors are both expressed as percentages. Based on this combined rating, the worker is assigned a compensation award. When the worker and the workers’ compensation insurance company have a disagreement over the amount of compensation to which the worker is entitled, the worker must be evaluated by a doctor that is specially trained and certified by the state, known as a Qualified Medical Evaluator (“QME”). The QME then makes a recommendation for a “permanent disability” rating.

7.     What is an “impairment rating” and how is it calculated?

The impairment rating represents how disabled the individual is as a result of the injury and is expressed as a percentage—0% indicating no long-term physical loss or impact on future earning capacity, 100% indicating a disability that will prevent the employee from ever working again. In 2004, the California legislature passed SB 899, which mandates that all impairment ratings rely on the percentage assigned to the relevant impairment under the 5th Edition of the American Medical Association (AMA) Guides to the Evaluation of Permanent Impairment (the “AMA Guides”). So, if a worker loses a toe at work, she would be given an impairment rating of 20-30 %, because that is the amount the AMA Guides assigns to an amputated toe.

8.     What is “apportionment”?

Put simply, “apportionment” is the legal concept used to determine what percentage of the permanent disability was caused by the work-place injury. After the medical evaluator has assigned the impairment rating described above (which quantifies the extent of the disability), the evaluator must then determine how much of that disability is attributable to the work-related injury, and what percent is attributable to “non-industrial” factors. This determination, called “apportionment,” is then used to reduce the total disability award accordingly. In other words, the insurance company only has to pay for the portion of the long-term disability that the medical evaluator determines to have been caused by the work-related injury. 

For example, imagine a woman breaks her arm at work and it never fully heals. But five years before she even worked for the company, the woman had broken the same arm in a car accident. If the medical evaluator determines that the total impairment rating for the unhealed arm is 40%, but determines that the work-related injury is only 50% responsible for the disability, and the other 50% is due to the prior car accident, then the worker will only be compensated as if she were 20% disabled. This determination is made at the discretion of the medical evaluator, and evaluators are required to assign an apportionment percentage in order for a workers’ compensation medical report to be considered complete.

9.     What is a Qualified Medical Evaluator?

Whenever there is a question concerning appropriate workers’ compensation benefits, including permanent disability benefits, the worker must be examined by a qualified medical evaluator (“QME”).¹ These doctors are ultimately responsible for generating reports that include an impairment rating and apportionment determination. These reports then become the primary basis for most permanent disability awards.

QMEs are certified by the Division of Workers’ Compensation Medical Unit, and the Administrative Director of the Department of Workers’ Compensation is responsible for QME appointments. To receive QME certification, a physician must meet educational and licensing requirements, pass the state-administered QME Competency Examination, complete at least twelve hours of training in report writing, and participate in ongoing education on the workers' compensation evaluation process. In order to be reappointed as a QME, a medical evaluator must complete at least 12 hours of continuing education in workers' compensation-related evaluations every few years.

10.  How does an injured worker choose a QME?

If an injured worker and the workers’ compensation insurance company disagree over the disability award the worker should receive, the insurance company or the worker must request an evaluation by a QME. When a QME is requested, the State of California assigns a computer-generated, random list of three potential QMEs within a 25-mile radius of the injured worker’s zip code. The worker then chooses a QME from this list. While QMEs are supposed to be neutral parties, they are usually paid by the employer’s workers’ compensation insurer.

11.  How is there gender discrimination in California’s workers’ compensation system?

California’s workers’ compensation system discriminates against women workers in at least two ways. First, the amount of permanent disability compensation women receive is frequently less than that awarded to men for no other reason than gender. For example, a mechanical designer’s award was reduced by 40% because her carpal tunnel syndrome and arthritis were attributed to “preexistent non-industrial factors” including her “female gender” and “post-menopausal status.”  In contrast, men’s benefits are not reduced on the basis of gender. 

The second way that California’s workers’ compensation system discriminates against women is by assigning a scientifically and legally indefensible impairment rating to breast cancer. If a woman past childbearing age undergoes a double mastectomy due to work-induced breast cancer—an all-too-common occurrence for female firefighters and peace officers—the workers’ compensation system presumes that she is entitled to no permanent disability benefits at all for the loss of her breasts and all of the attendant consequences, including numbness, scarring, and psychological harm. In other words, California’s workers’ compensation system presumes that a post-menopausal woman who has experienced cancer and undergone a double mastectomy has experienced no physical loss and no impact to her future earning capacity, despite substantial evidence to the contrary. Even if she is still capable of bearing children, the AMA Guides presume a disability rating no greater than 5%. But cancers that disproportionately or exclusively impact men are assigned a substantially higher presumption. For example, prostate cancer is assigned a 16-20% disability rating.

12.  How can you get breast cancer from your work?

Multiple studies have documented the disproportionate rates of cancer in firefighters and police officers due to the extensive exposure to known carcinogens and toxic materials that such work often entails. In turn, the California Labor Code instructs participants in the workers’ compensation system to presume that when a firefighter or police officer manifests cancer that it is consequence of his or her employment. Although the presumption does not extend to other occupations, other workers may well experience similar toxic exposure and manifest cancer as a result.

13.  Who is bringing this case?

This case was filed by a group of women workers from across the state, as well as the Service Employees International Union’s (SEIU) California State Council, on behalf of all women who have faced or will face gender discrimination in the provision of permanent disability benefits in California’s workers’ compensation system.

14.  Who are the defendants?

The California state agencies and officials responsible for administering the workers’ compensation scheme, including the Department of Industrial Relations, the Department of Workers Compensation, the Workers’ Compensation Appeal Board, and the Labor and Workforce Development Agency.

15.  What laws are the defendants violating?

California state agencies’ failure to address sex discrimination in California’s workers’ compensation scheme violates state and federal anti-discrimination laws, including the equal protection guarantees found in the California Constitution, the U.S. Constitution, and California Government Code § 11135. 

16.  Who are the lawyers?

This lawsuit was filed on behalf of the plaintiffs by Public Counsel, a nonprofit law firm in Los Angeles, Caldwell Leslie & Proctor, a litigation firm in Los Angeles providing pro bono services for this case, Equal Rights Advocates, a nonprofit law firm in San Francisco, and Professor Catherine Fisk of University of California, Irvine School of Law.

17.  Why are the defendants the state agencies?

The Defendant state agencies, including the Department of Workers’ Compensation and the Workers’ Compensation Appeals Board, both of which are housed within the Department of Industrial Relations, are responsible for regulating, administrating, and ensuring the legality of California’s workers’ compensation system. In particular, state administrators are responsible for training, certifying, testing, providing ongoing education to, and disciplining the QMEs that make permanent disability determinations. Yet these agencies hardly mention the impermissibility of gender discrimination in the hundreds of pages of training guides, study material, and how-to pamphlets that they provide to QMEs and injured workers. 

What’s more, the state agencies are well aware that this discrimination is widespread and have taken no action to remedy it. Gender discrimination in the workers’ compensation system, including many of the specific incidents described in the lawsuit, has been the subject of substantial legislative testimony and media coverage.  During the 2015-2016 legislative session, the State legislature considered AB 305, proposed legislation introduced by Assemblymember Lorena Gonzalez that would have addressed much of the gender discrimination in the workers’ compensation system identified in the lawsuit.  The bill was passed by both houses of the state legislature, but vetoed by the Governor. During the extensive legislative testimony put forth in support of the potential legislation, substantial evidence regarding gender bias in the workers’ compensation system, as well as numerous specific incidents of sex discrimination, were made known to the State. 

18.  What are the goals of the lawsuit?

The lawsuit asks the court to grant declaratory and injunctive relief to redress these ongoing civil rights violations. In particular, the suit seeks a declaration that the failure to address gender discrimination in the workers’ compensation system violates federal and state anti-discrimination law, as well as an order that the State take reasonable and effective steps to reform the workers’ compensation system—including training employees and implementing a system of monitoring, accountability, and discipline—to eliminate such discrimination.

19.  Isn’t this something the legislature should be dealing with, not the courts?

In March, 2015, Assemblymember Lorena Gonzalez introduced legislation that would have addressed much of the gender discrimination in the workers’ compensation system identified in the lawsuit.  The bill was passed by both houses of the state legislature, but vetoed by the Governor. While Assemblymember Gonzalez has introduced a similar bill in the 2016-17 legislative session, AB 1643, there is no guarantee that it will pass again, nor, if it does pass, that the governor will not veto it again. Women workers cannot continue to wait as the legislative system fails to protect their right to equal pay.

20.  How do these policies contribute to the wage gap?

For each dollar that men earn in California, women receive eighty-four cents.² This disparity falls even more heavily on women of color: African American women earn only sixty-three cents on the dollar and Latina women earn only forty-three cents on the dollar when compared to white men.³ Because workers’ compensation disability benefits are meant to compensate for lost earnings, they function as a form of wages. California’s workers’ compensation system thus causes women to be doubly-penalized: women start out on unequal footing, earning less than men for comparable work, and then, when they are injured on the job, receive awards that are systemically reduced, increasing and reinforcing the gender pay gap.

21.  How do these policies impact low-wage workers?

When the workers’ compensation system fails to cover the full costs of workplace injuries, injured workers must look elsewhere to cover the loss. For many low-wage workers, there are few, if any, alternatives, and the burden of lost, uncompensated wages can significantly impair their ability to cover the minimal costs of living for both themselves and their families. As such, many low-wage workers are forced to depend on welfare, social security, and other public benefits.

22.  I’m not a woman, and I don’t need workers’ compensation, do these policies have any impact on me?

When the worker’s compensation system fails to cover the full costs of workplace injuries, those costs fall on the shoulders of the injured workers, their families, and taxpayers. In fact, the United States Occupational Safety & Health Administration (OSHA) has found that the legislative reforms of the past few decades have so undermined the worker-protective origins of workers’ compensation schemes that employers and insurance companies only cover about 20% of the overall costs of workplace injury. Researchers at UC Davis have found that the remaining 80%—estimated at $198 billion nationally—are paid by other forms of health insurance, employees, and taxpayer-funded social services.⁴ The implications of this trend extend beyond the financial. In 2015, the director of OSHA, David Michaels, expressed concern that this redistribution of costs disincentivizes employers from preventing workplace injuries from occurring in the first place.⁵ 

23.  Where is the case being filed?

The case was filed in Los Angeles Superior Court on July 6, 2016.

24.  How can I get involved?

If you or someone you know has experienced gender discrimination in California’s workers’ compensation system, please contact us at info@workerscomppaygap.org. You can also get involved by contacting your local state assembly member or senator and asking him or her to vote in favor of AB1643.



¹ If the worker has an attorney and the attorney is able to reach an agreement with the claims administrator, the worker may instead be evaluated by an agreed upon medical evaluator (“AME”). AMEs often serve as QMEs as well.

² National Partnership for Women & Families (Dec. 2015).
³ Id.
⁴ “Most occupational injury and illness costs are paid by the government and private payers rather than workers' compensation insurance, UC Davis study shows,” UC Davis Health System Newsroom (May 25, 2012), available at http://www.ucdmc.ucdavis.edu/publish/news/newsroom/6621.
⁵ Michael Grabel, “OSHA Report Echoes ProPublica and NPR’s Workers’ Comp Findings,” ProPublica, March 6, 2015.