Health Care Providers:  Click Here

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TRAINING IS ROUTINELY PART OF SETTELEMENT AGREEMENTS AND CONSENT DECREES - DON'T WAIT TO EDUCATE - IT COULD BE EXTREMELY COSTLY!____________________________________________________________

Big Lots to Pay $400,000 for Race Harassment

EEOC UPDATE:  February 2010

EEOC Alleged Black Employees Were Subjected to Racial Jokes and Slurs By a Hispanic Supervisor and Co-Workers

The EEOC settled arace harassment and discrimination lawsuit against Big Lots, Inc., the nation’s largest broadline closeout retailer. The settlement included total monetary relief of $400,000 to be paid to least five employees along with a group of unidentified class members. Big Lots also agreed to a two-year consent decree that calls for the implementation of a new policy, training, procedures and court monitoring to address harassment and discrimination in the workplace.

The EEOC originally filed suit against Big Lots in September 2008 in the U.S. District Court for the Central District of California (EEOC v. Big Lots, Inc., CV-08-06355-GW(CTx)). The agency alleged that Big Lots violated Title VII of the Civil Rights Act of 1964 when it subjected a black maintenance mechanic and other black employees to race harassment and discrimination at its Rancho Cucamonga, Calif., distribution center. Specifically, the EEOC alleged that an immediate supervisor and co-workers, all Hispanic, made racially derogatory jokes, comments, slurs and epithets, including the use of the words “n----r” and “monkey.” Despite learning of the harassment, the company took no steps to prevent or correct it.

“Working in a job that they valued highly, the employees in this case rightfully expected to earn a living free of discrimination,” said Anna Park, regional attorney of the EEOC’s Los Angeles District Office. “They should not have had to endure harassment or discrimination based on their race. The EEOC will continue to take all steps necessary to ensure that employees at all workplaces are respected and free from harassment, discrimination and retaliation.”

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$6.2 Million Distribution in EEOC v. Sears Disability Settlement

EEOC Update:

 235 Former Employees Terminated at End of Workers’ Compensation Leaves of Absence to Share Settlement Proceeds After Participating in Claims Process 

February 2010 - The U.S. EEOC announced court approval of the distribution of a $6,200,000 compensation fund in the landmark Americans With Disabilities Act (ADA) litigation between the EEOC and Sears, Roebuck & Co.  The distribution is being carried out pursuant to the terms of a consent decree approved by Federal District Judge Wayne Anderson.  In its lawsuit against Sears, the EEOC had alleged that Sears maintained an inflexible workers’ compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, in violation of the ADA.  The case resulted in the largest ADA settlement in a single lawsuit in EEOC history.  

Under the terms of the decree, the EEOC provided claim forms to certain Sears employees who had been terminated under Sears’ workers’ compensation leave policy.  The claimants were asked to report to the EEOC, among other things, the extent of their impairments, their ability to return to work at Sears, and whether Sears had made any attempt to return them to work.  Based on these criteria, the EEOC found that 235 individuals were eligible to share in the settlement.  The average award was approximately $26,300.  More than twenty claimants were found to be ineligible by the EEOC.  As with all EEOC litigation, none of the settlement fund will retained by the EEOC; all of it will be distributed. 

“It is a satisfying day indeed when victims finally receive compensation for the wrongful discrimination they have endured,” said EEOC Acting Chairman Stuart J. Ishimaru.  “The EEOC is pleased and proud that we fought long and hard on this case to protect the rights of workers with disabilities, and that many Sears employees will now benefit from our law enforcement efforts.” 

Chicago Regional Attorney John Hendrickson said, “The Sears case has been a long haul, but now it’s over—this is it. The court has enjoined future discrimination by Sears and approved the amount of money each class member will receive for the particular discrimination he or she suffered.  Their day for compensation is here, and as far as the EEOC is concerned, that makes it a good day for everyone involved.” 

EEOC Trial Attorney Aaron DeCamp noted that, in addition to the disbursement of settlement funds, the EEOC is seeing positive effects from the consent decree.  “As a result of the decree, we believe Sears has an improved workers’ compensation leave process, and it has posted notices regarding the decree.  We know that employees have been seeing the notices because we’ve been receiving inquiries as a result.  So we think it’s pretty clear that our lawsuit genuinely benefited the employees of Sears and strengthened the company’s human resources processes.” 
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EEOC Update:   April 2009

NORDSTROM WILL PAY $292,500 TO SETTLE EEOC HARASSMENT LAWSUIT

The National department store Nordstrom, Inc. will pay $292,500 to 10 former employees and furnish other remedial measures to settle a harassment lawsuit filed by the EEOC.  EEOC charged that the Nordstrom manager harassed Hispanic and black employees based on their national origin, race, and color, and retaliated against those who complained about the harassment.

According to the EEOC’s lawsuit, an alterations department manager complained that she “hate[d] Hispanics,” and Hispanics were “lazy” and “ignorant.” Hispanic tailors were chastised by the alterations manager for speaking to each other in Spanish. The same manager made other derogatory remarks such as “I don’t like blacks” and “you’re black, you stink.” The alterations manager harassed the alterations staff at Nordstrom stores in two stores in Florida.

The employees complained to Nordstrom about the harassment, but the harassment did not stop. The alteration’s manager retaliated against those who complained by continuing the racially offensive comments, unfairly berating employees and citing them for alleged performance problems.

Nordstrom will pay $292,500 in damages under the terms of the consent decree. Nordstrom also agreed to distribute its policy addressing unlawful harassment to all employees in the Florida stores; provide harassment training, post a notice on the resolution of the lawsuit, and submit a semi-annual report to EEOC on all harassment complaints received during the next two years.

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EEOC Update:  April 2009

SILLED HEALTHCARE GROUP, INC. WILL PAY UP TO $450,000 FOR NATIONAL ORIGIN DISCRIMINATION

Skilled Healthcare Group, Inc., Skilled Healthcare, LLC, and other affiliated companies, will pay up to $450,000 and provide significant remedial relief to a class of Hispanic employees at its nursing homes and assisted living facilities who were subject to harassment, different terms and conditions of employment, promotion, compensation, and treatment through the implementation of an English-only rule that was only enforced against Hispanics, according to the EEOC.

The EEOC filed suit against Skilled Healthcare Group Inc., alleging national origin discrimination on behalf of Hispanics under Title VII of the Civil Rights Act in the U.S. District Court for the Central District of California.

“As our country’s workforce becomes increasingly diverse, employers must be vigilant in ensuring that if English-only rules are necessary, they are not discriminatory,” said EEOC Acting Chairman Stuart J. Ishimaru. The lawsuit arose from a charge of discrimination by a monolingual janitor, Jose Zazueta, who was fired from defendants’ Royal wood Care Center in Torrance, Calif., for violating the company’s English-only policy. By contrast, other employees at defendants’ facilities who spoke Tagalog were not disciplined or terminated for speaking that language at work.

The EEOC identified a total of 53 current and former Hispanic employees at facilities in California and Texas who were subjected to disparate treatment and harassment based on their national origin and shared Spanish language. The EEOC alleged that some workers were prohibited from speaking Spanish to Spanish-speaking residents of the facility, or disciplined for speaking Spanish in the parking lot while on breaks. Additionally, the EEOC alleged that defendants gave Hispanic employees less desirable work than non-Hispanic counterparts, paid them less, and promoted them less often.

As part of the, monetary relief for class members, the consent decree provides for the employers to offer English language classes to the 53 claimants. The three-year consent decree also requires that employees receive annual training regarding national origin discrimination; that defendants educate facility residents and patients regarding the rights of the employees under Title VII; that defendants designate an EEO monitor so that future discrimination complaints are closely monitored; and that defendants report annually to the EEOC regarding their employment practices.

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EEOC Update:  April 2009

 

 

                                                                                 JUDGE FINDS AGAINST SUNFIRE GLASS FOR SEXUAL HARASSMENT OF FEMALE WORKERS BY OWNER

A federal district court today entered a judgment for over $267,000 and significant injunctive relief in favor of the EEOC in a discrimination lawsuit against Sunfire Glass, Inc. The suit charged that the company’s owner subjected a class of female employees to severe physical and verbal sexual harassment.

The Judge found that Sunfire owner Paul McBride sexually harassed two female glassblowers by touching the women on their breasts and between their legs, hitting the women on the buttocks, making obscene gestures, and verbally harassing the women by talking about their bodies and using vulgar language.  At times, the court also found McBride would touch the women while they were working with hot glass and were unable to defend themselves against McBride’s advances.  The two women, Tineke Meyer and Karina Mercado, complained repeatedly to management, and no action was taken.  As a result of the abuse, both Meyer and Mercado were forced to resign.

The EEOC’s suit was filed in U.S. District Court for the District of Arizona in September 2008. Despite receiving notice of the lawsuit, McBride failed to submit an answer to the litigation or otherwise appear in the case, and the court entered a default judgment against the company.

The court, in making very specific findings of fact and conclusions of law, awarded Tineke Meyer the equitable remedy of back pay plus prejudgment interest through March 12, 2009, in the sum of $60,287; compensatory damages in the sum of $50,000; and punitive damages in the sum of $50,000; totaling $160,287 in damages against Sunfire Glass, Inc. The court also ordered post-judgment interest at the legal rate until paid in full. Additionally, the court awarded Karina Mercado the equitable remedy of back pay plus prejudgment interest through March 20, 2009, in the sum of $6,781; compensatory damages in the sum of $50,000; and punitive damages in the sum of $50,000; totaling $106,781 in damages against Sunfire Glass, Inc.

The judge ordered Sunfire enjoined from engaging in sex discrimination, ordered Sunfire to train employees on sexual harassment, ordered Sunfire to post notices about sex discrimination, and ordered Sunfire to create anti-discrimination policies and procedures.

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EEOC Update:  April 2009

MARJAM SUPPLY COMPANY TO PAY $495,000 TO SETTLE EEOC RACE DISCRIMINATION SUIT

Marjam Supply Company, Inc., a building materials supplier, will pay $495,000 to five former employees to settle a race discrimination lawsuit brought by the EEOC.  

Civil Action No. 03-cv-5413-SCR in the U.S. District Court for the Southern District of New York, White Plains Division

The EEOC’s lawsuit charged that Marjam discriminated against African American employees in its Newburgh warehouse facility on the basis of their race by subjecting them to differential discipline and termination, creating a hostile work environ­ment, and retaliating against employees who objected to the discrimination.

The EEOC charged that a Marjam supervisor and other Marjam employees made unwelcome racial slurs and comments. The racially hostile workplace included repeatedly calling an employee the N-word, talking about the Ku Klux Klan and referring to burning crosses in front of African American employees. An employee who complained was fired, the EEOC’s lawsuit charged.

The consent decree was sub­mitted to the district court judge for approval after the parties reached a settlement agreement in mediation. In addition to the $495,000 in back pay and compensatory damages to be paid to five former employees, the three-year consent decree includes the following injunctive relief:

• Adopting non-discrimination and complaint procedures;
• Appointing an Equal Employment Office Coordinator;
• Establishing a toll-free number for reporting discrimination complaints;
• Providing anti-discrimination training;
• Issuing a memorandum to all employees on Marjam’s commitment to abide by all federal laws prohibiting employment discrimination;
• Posting a notice about the EEOC, the lawsuit, and Marjam’s non-discrimination and complaint procedures; and
• Monitoring and reporting on carrying out the settlement terms.

ADEA, the NLRA, and the Supreme Court – April 1, 2009

14 Penn Plaza, LLC v. Pyett, No. 07-581, 556 U.S.

By a narrow (5-4) vote, the Supreme Court held that a collective bargaining agreement that clearly requires union members to arbitrate claimed violations of the Age Discrimination in Employment Act (ADEA) is enforceable. The decision, however, leaves more questions than answers, such as whether a union can waive a federal forum for discrimination claims if the union has the power to block individual employees from arbitrating such claims, as often is the case.   

To read more about this case, go to:  http://www.abanet.org/publiced/preview/briefs/pdfs/07-08/07-581_Petitioner.pdf

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EEOC News:  March 2009

 

 

     

N-M VENTURES TO PAY $457,500 TO SETTLE EEOC RACE DISCRIMINATION / RETALIATION SUIT

N-W Ventures, the corporate owner of several restaurants in three states, will pay $457,500 to settle a race discrimination lawsuit filed by the U.S. EEOC. The EEOC charged that N-W Ventures, LLC in Las Vegas subjected a class of African American employees to discrimination, including racial harassment and retaliation. N-W Ventures owns several bars, steakhouses and lounges in Las Vegas, Chicago and Dallas.

According to the EEOC’s suit, eight black employees and other similarly situated individuals were forced to endure racist epithets and insults on many occasions. When some employees complained, managers retaliated against them by instructing supervisors to “get something on them, whether true or not,” and then firing them because of their race and as retaliation for the complaints.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (No. CV-07-1197-PMP-GWF in U.S. District Court for the District of Nevada) after first attempting to reach a voluntary settlement.

Besides paying $457,500 to the discrimination victims, N-M Ventures LLC is prohibited from discriminating based on race, and from retaliating against any employee because he or she opposed discrimination. Further, the company must establish an appropriate and effective mechanism for handling complaints of discrimination, and provide training for its managers and employees with respect to the law against racial discrimination and harassment and retaliation at its Las Vegas facility.

Lucy V. Orta, the EEOC’s local director in Las Vegas, said, "To counter these race discrimination trends, employers must be more proactive in preventing and eliminating racist behavior in the workplace."

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EEOC News:  March 2009

EEOC OBTAINS $290,000 FOR FEMALE WORKERS WHO WERE SEXUALLY HARASSED BY MALE NURSE

First Street Surgical Center Settles Discrimination Lawsuit; Remedial Relief Included

First Street Surgical Center, L.P. and First Surgical Partners, LLC., a Houston-area surgical center, will pay $290,000 and provide significant remedial relief to settle a sexual harassment and retaliation lawsuit filed by the U.S. EEOC under Title VII of the Civil Rights Act.  The EEOC charged the surgical center with subjecting several female workers at their Bellaire, Texas, facility to a sexually hostile work environment and that the center retaliated against women who complained about the unlawful conduct.

The EEOC’s lawsuit (Civil Action No. 4:08cv2894, filed in September 2008 in U.S. District Court for the Southern District of Texas, Houston Division) asserted that a male nurse, who eventually was promoted to a supervisory position, made unwanted sexual advances and sexual jokes and innuendos to female colleagues and subordinates. The EEOC said that women who rejected the advances or complained about harassment were then burdened with more difficult job assignments and had their work performance unfairly disparaged. A nurse who made a written complaint detailing acts of alleged sexual harassment by the supervisor was fired the following day. Another woman was given a poor evaluation because she complained about harassment.

“Employers must be vigilant in preventing and addressing discrimination or risk a lawsuit filed by the EEOC,” stated EEOC Acting Chairman Stuart J. Ishimaru.

The settlement terms, set forth in a consent decree require the center to pay $210,000 in relief to compensate three women who filed charges of discrimination with the EEOC. Additionally, $80,000 will be distributed among other current and former employees and contract workers who may have been subjected to sexual harassment or retaliation, and the male nurse whose actions provoked complaints will be permanently barred from working for the center. The decree also requires other corrective actions, including the demotion of the director of nursing, the hiring of a human resources specialist, and training designed to prevent future acts of sexual harassment or retaliation.

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EEOC News:  March 2009

UNITED AIRLINES TO PAY $850,000 FOR DISABILITY DISCRIMINATION

United’s Policy Denied Employees With Disabilities Opportunity to Work Overtime

United Airlines agreed to settle a federal lawsuit alleging that the Chicago-based company’s overtime policy violated the Americans With Disabilities Act (ADA). According to the EEOC’s suit and settlement (CV 09 0784 EMC) filed in U.S. District Court, United will pay $850,000 to a class of employees with disabilities and has agreed not to enforce such a policy in the future.

The suit arose from a charge filed by Samuel Chetcuti, a storekeeper working for United at the San Francisco International Airport. The EEOC’s suit asserted that United’s policy of denying the opportunity to work overtime to anyone placed on light or limited duty had greater repercussions for employees with disabilities, since these workers were more likely to be assigned to light duty. For example, Chetcuti, who has epilepsy, was under medical restrictions that prevented him from operating heavy machinery and working at heights, but did not restrict the number of hours a week he could work. Chetcuti was given light duty for his regular work schedule, and as a result, United had barred him from an overtime schedule despite the fact that he was medically cleared to work overtime.

EEOC San Francisco Regional Attorney William R. Tamayo said, “This blanket policy barring employees working with restrictions from overtime work had a disproportionate impact on workers with disabilities. It runs counter to the ADA’s goal that each employee be evaluated individually on whether they can get the job done, with or without an accommodation.”

The settlement also requires United to notify all current and former employees at the San Francisco Airport who were subject to the rescinded policy and invite them to submit claims to share in the $850,000. Claims may also be submitted to EEOC attorney David Offen-Brown at 350 The Embarcadero, Suite 500, San Francisco, CA 94105 or david.offen-brown@eeoc.gov.

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EEOC NEWS:  March 2009

WHEELER CONSTRUCTION TO PAY $325,000 TO SETTLE EEOC SUIT FOR NATIONAL ORIGIN HARASSMENT, RETALIATION

The EEOC announced that Wheeler Construction, Inc., a Phoenix-based construction company, has agreed to settle a national origin harassment lawsuit for $325,000 and other relief on behalf of Mexican workers.

The EEOC’s complaint charged that employees Leonard Lopez and Juan Campos were subjected to harassment based on their national origin (Mexican) and retaliation for complaining about it. The harassment included comments by a supervisor referring to employees as “wetbacks” and “s--cs” and telling Latino employees to “go back to Mexico.” Lopez was born and raised in Glendale, Ariz., and had 20 years of service with Wheeler Construction at the time of the harassment. When Lopez complained to management about the harassment he was fired.

Campos also attempted to complain about the harassment and Wheeler failed to take any action to address it. After an EEOC investigation, the agency found that two additional employees alerted management of the discrimination and no action was taken.

Wheeler Construction agreed to settle the case for $325,000 and substantial remedial relief, including an injunction, posting an anti-discrimination notice, and training its employees on anti-discrimination laws.

“These victims attempted to speak out and address their unlawful treatment, and their complaints were ignored,” said Chester V. Bailey, director for the EEOC’s Phoenix District Office. “Employers need to take action when alerted to illegal discrimination in the workplace. No employee should be subjected to such intolerable work conditions.”

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BASIC ENERGY SERVICES WILL PAY QUARTER MILLION TO SETTLE EEOC SEX DISCRIMINATION, HARASSMENT AND RETALIATION SUIT

Oil Contractor Fired Woman for Complaining About Sexual Harassment and Unequal Treatment, Federal Agency Charged

Basic Energy Services, L.P. agreed to pay $250,000 and consented to substantial injunctive relief to settle a sex discrimination and retaliation suit brought by the U.S. EEOC. The EEOC charged in its suit that the Midland, Texas-based company, a major oil well servicing contractor, had discriminated against a former field attendant because of her sex and then fired her because she complained about a discriminatory promotion denial and sexual harassment.

According to the EEOC’s suit (No.5:08-CV-1361 in U.S. District Court), Basic Energy Services denied Tawnya Smith, who worked for the company as a field disposal attendant, a promotion to field supervisor in 2006 because of her gender. Further, the EEOC asserted, Smith also was subjected to months of sexual harassment by her immediate supervisor, Roger Caldwell. After Smith filed a charge of discrimination with the EEOC and made an internal complaint about the sexual harassment, the suit said, the company terminated her in March 2007 in retaliation.

The EEOC’s suit was resolved by a consent decree, entered into the record of U.S. District Court for the Western District of Louisiana on March 6, 2009.

Although the company denied wrongdoing, it agreed to pay Tawnya Smith $250,000 in damages. Basic Energy also agreed to post and disseminate new or revised anti-discrimination and anti-retaliation policies and have many of its corporate officers and managers undergo annual training on sex discrimination and the anti-retaliation provisions of Title VII. The company will also develop and implement a recruiting and/or job training program

designed to increase a pool of female candidates for promotion in all the company’s Ark-La-Tex Division field positions, excluding those positions typically held by females, for the decree’s three-year term. The company also agreed to report its compliance with the decree terms to the EEOC.

Keith Hill, field director of the EEOC’s New Orleans Field Office, said, “The EEOC’s New Orleans Field Office remains committed to the vigorous pursuit of employers who have denied women equal opportunities to which they are entitled under the law -- especially when the employer then retaliates against women who complained about discrimination.”

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EEOC NEWS:  March 2009

INVESTMENT FIRM SETTLES EEOC PREGNANCY DISCRIMINATION LAWSUIT

MayfieldGentry Fired Woman Right After Maternity Leave, Federal Agency Charged

MayfieldGentry Realty Advisors, L.L.C., a Detroit securities investment firm, agreed to settle a pregnancy discrimination lawsuit filed by the U.S. EEOC. The EEOC charged that MayfieldGentry violated Title VII of the Civil Rights of 1964 when it fired an employee because of her pregnancy.

According to the lawsuit (Case No. 2:08-cv-14105 filed in the U.S. District Court), in October 2006 Yvette Williams was hired as a receptionist / administrative assistant. The EEOC said that on the second day of her employment, Williams advised her supervisor that she was pregnant. A few months later, the EEOC said, MayfieldGentry hired Williams’s replacement and required her to train the new employee. Within a day after Williams returned from maternity leave, MayfieldGentry told Williams that her position had been eliminated and terminated her employment.

Under the consent decree settling the suit, MayfieldGentry agreed to train its managerial staff on Title VII’s prohibition of pregnancy discrimination. In addition, Williams will receive $25,000 in monetary compensation.

“Title VII clearly protects every woman’s right to be free from pregnancy discrimination,” said Laurie Young, regional attorney for the EEOC’s Indianapolis District Office, whose jurisdiction includes Michigan. “No woman should lose her job simply because she decided to have a child.”

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NASHVILLE WAFFLE HOUSE SETTLES EEOC SEXUAL HARASSMENT LAWSUIT

Night Shift Cook Harassed Servers While Managers Ignored Complaints, Federal Agency Charged

A Nashville Waffle House restaurant has been ordered to allow unsecured claims in its Chapter 11 bankruptcy action totaling $45,000 for several women who EEOC claims the company subjected to a sexually hostile work environment.

The EEOC’s lawsuit (Civil Action No. 3:07-cv-00690), charged that SouthEast Waffles, LLC subjected several servers on the night shift at a Waffle House restaurant in Nashville to sexual harassment by a cook who was in charge of the night shift. The suit said the sexual harassment included unwelcome sexual touching, frequent requests for sexual conduct, other frequent sexual comments and other sexual conduct. The EEOC said the women made several complaints to their managers about the sexual harassment, but the managers failed to take prompt and appropriate corrective action to end the harassment.

Under the terms of the three-year consent, SouthEast Waffles is enjoined from subjecting women employees to sexual harassment, and from discriminating against employees because they have opposed employment discrimination made unlawful by Title VII or participated in an investigation or proceeding under Title VII. The settlement also requires anti-discrimination training, corrective action affecting one of the managers who was involved in the alleged illegal conduct, modification of the company’s policies prohibiting harassment, and reporting to the EEOC for three years about all complaints concerning sexual harassment.

"Sexual harassment, and managers’ failure to stop sexual harassment, has been a very serious problem for employees for far too long,” said Faye Williams, the EEOC’s regional attorney for its Memphis District. “We obtained appropriate remedies and corrective action, and we are confident this will help prevent sexual harassment in the future. All employers must respond quickly and effectively to stop this kind of abuse when it occurs.”

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EEOC News:  March 2009

EEOC REPORTS JOB BIAS CHARGES HIT RECORD HIGH OF OVER 95,000 IN FISCAL YEAR 2008

Commission Obtains $376 Million for Victims of Discrimination

The U.S. EEOC announced that workplace discrimination charge filings with the federal agency nationwide soared to an unprecedented level of 95,402 during Fiscal Year (FY) 2008, which ended Sept. 30. This level is a 15 percent increase from the previous fiscal year. The FY 2008 enforcement and litigation statistics, which include trend data, are available online at http://www.eeoc.gov/stats/enforcement.html.

“The EEOC has not seen an increase of this magnitude in charges filed for many years. While we do not know if it signifies a trend, it is clear that employment discrimination remains a persistent problem,” said the Commission’s Acting Chairman, Stuart J. Ishimaru. “The EEOC is committed to vigorously enforcing federal laws prohibiting employment discrimination and will continue to invest in programs such as its systemic litigation program to maximize its effectiveness.”

According to the FY 2008 data, all major categories of charge filings in the private sector (which includes charges filed against state and local governments) increased. Charges based on age and retaliation saw the largest annual increases, while allegations based on race, sex and retaliation continued as the most frequently filed charges. The surge in charge filings may be due to multiple factors, including economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of the law, EEOC’s focus on systemic litigation, and changes to EEOC’s intake practices.

The FY 2008 data also show that the EEOC filed 290 lawsuits, resolved 339 lawsuits, and resolved 81,081 private sector charges. Through its combined enforcement, mediation and litigation programs, the EEOC recovered approximately $376 million in monetary relief for thousands of discrimination victims and obtained significant remedial relief from employers to promote inclusive and discrimination-free workplaces.

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AMERICANS with DISABILITIES ACT and THE STRENGTH OF A SENIORITY SYSTEM

In the past, the Department of Labor/OFCCP has taken the stand that an employer’s seniority system typically takes precedence over accommodating the needs of disabled employees….and according to the Supreme Court, that is correct interpretation of the ADA and other disability related laws/regulations. 

At least this was the ruling by the Supreme Court involving a baggage handler for US Airways who injured his back on the job.  The baggage handler wanted a job in the mailroom but two co-workers with more seniority were placed in the positions before the employee with a disability. The disabled employee filed a discrimination suit charging that US Airways didn't make a "reasonable accommodation" under the Americans with Disabilities Act. (US Airways v. Barnett, No. 00-1250, April 29, 2002)

Although seniority will typically rule, please understand that the employer should be consistent with actions.  If the employer has allowed an accommodation to take precedence over seniority in the past, then that employer has changed the policy and should consider all requested in the same manner. 

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FOR INFORMATION RELATING TO RELIGIOUS ACCOMMODATIONS AND REQUIRING EMPLOYEES TO WEAR UNIFORMS (and other Dress Code related issues that can clash with some religious beliefs...see Government Issues of this section)

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Filipino Nurses Entitled to Back Pay After Pay Disparity

Alden Mgt. Servs. Inc. v. Chao, 7th Cir., No. 07-3828

June 25, 2008

The 7th U.S. Circuit Court of Appeals ruled that several Chicago-area nursing homes owe a group of Filipino nurses more than $1 million in back pay because they were paid less than nurses who are U.S. citizens.

Alden Management Services, paid Filipino nurses less than it paid registered nurses who are U.S. citizens. The focus was on whether Alden violated the Immigration Nursing Relief Act and it was decided that Alden had paid the nurses less because of the fact that they were non-citizens.  Alden was ordered to pay the difference for the time they were employed under H-1A visas.

Alden argued that the back pay order was invalid because the complaint had not been filed by neither a nurse nor a union. The district court entered judgment for the secretary.

Employers should note that the back-pay in this case extended beyond the typical two-year limit.  Victims of pay disparity may be awarded back-pay for as long as workers continue to receive less pay than the law requires.

 

ADEA:  Supreme Court Decides on Age Discrimination Disparate Impact Case

6/19/08  Meacham v. Knolls Atomic Power Laboratory, No. 06-1505

The U.S. Supreme Court placed the burden of persuasion on employers in Age Discrimination in Employment Act (ADEA) disparate impact claims, making it more difficult for employers to defend themselves from ADEA impact claims.   

This decision encourages employers to take an analytical approach when deciding the factors for reductions in force (RIFs).

During a layoff, Knolls Atomic Power Laboratory, a contractor with the U.S. Navy allowed a buyout for 100 employees; however, Knolls continued to have 31 salaried jobs which needed to be eliminated.

To make their selections, employees were evaluated based upon three factors (performance, flexibility, and critical skills), along with total years of service.  Thirty of the thirty-one employees RIFed were over 40 and a disparate impact class action was filed. 

The decision of the Supreme Court was the burden of persuasion falls on the person who wants an exemption (to the ADEA) in the law to apply. 

Bottom Line:  If an employer is considering a RIF, it would behoove that employer to carefully review the criteria for selecting those who will be released.  Ensure that a criterion is objective, with little room for subjective evaluation.  Also, it would be beneficial to conduct an Impact Ratio Analysis on the statistics prior to taking action. 

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ADEA:  Supreme Court Rules:  Basing Disability Benefits on ‘Pension Eligibility,’ is not discriminatory

June 2009   Ky. Ret. Sys. v. EEOC, U.S., No. 06-1037

The Supreme Court ruled that a state’s disability retirement plan that disqualifies employees in hazardous jobs from receiving disability retirement benefits if they become disabled after reaching age 55 does not violate the Age Discrimination in Employment Act (ADEA).  

The Supreme Court held that awarding disability benefits based on pension status is not age discrimination unless pension status is a “proxy for age.”

A benefit program will be reviewed independently, apart from the impact it may have on people who are over 40.  If it benefits younger people, the court will look at it further to decide if the distinction is age-determined.

The Court noted that an employee claiming disparate treatment must prove that age motivated the employer’s decision.  The Court added that ADEA permits an employer to condition pension eligibility upon age, thus it must be decided whether a plan that lawfully makes age in part a condition of pension eligibility and treats workers differently in light of their pension status, automatically discriminates because of age.

The Court found that in the Kentucky case, pension status did not serve as a proxy for age, and the disparity in treatment had a clear non-age-related rationale of treating a disabled worker as if he/she had become disabled after becoming eligible for normal retirement benefits, rather than before.

The Court concluded,” The rule we adopt today for dealing with this sort of case is clear.” “Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must come forward with sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.”

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SUPREME COURT DECIDES ON RETALIATION CASES

May 27, 2008

The U.S. Supreme Court issued two opinions relating to illegal retaliation, as it pertains to EEO issues.  The Court decided retaliation is a valid issue and should be allowed protection, even in Age Discrimination in Employment Act (ADEA) cases.

In Gomez-Perez v Potter, Postmaster General, a45 year old postal worker claimed she was retaliated against after she filed an administrative ADEA complaint.  The First Circuit Court of Appeals said that the ADEA prohibits discrimination based on age; however, it does not cover retaliation.  The Supreme Court reversed the ruling of the appeals court.  For a copy of the decision, go to: 
http://www.supremecourtus.gov/opinions/07pdf/06-1321.pdf

In CGOCS West, Inc. v. Humphries, a minority employee complained to his managers that a co-worker was dismissed because of discrimination (race/black). Soon following his allegations Humphries was terminated and he claimed illegal EEO retaliation for his
expression of concern.  The Supreme Court agreed with Humphries.  For a copy of the decision, go to: 
http://www.supremecourtus.gov/opinions/07pdf/06-1431.pdf

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EEOC SETTLES CASE INVOLVING DISCHARGE OF SEVEN MIDDLE EASTERN CREW MEMBERS FROM THE CRUISE SHIP PRIDE OF ALOHA

May 2008

The EEOC announced the settlement of a federal lawsuit against NCL America, Inc. for $485,000 to seven former employees and remedial relief. The EEOC alleged NCL America discharged seven Middle Eastern crew members from various positions on the cruise ship “Pride of Aloha.” NCL America denied that it had acted improperly against these crew members in agreeing to resolve the lawsuit.

 

“We are very pleased with this outcome, and NCL America should be applauded for its commitment to prevent discrimination by agreeing to the comprehensive injunctive relief in this case,” said Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, which includes Hawaii.

 

As part of the two year consent decree resolving the case, NCL America agrees to pay the crew members $485,000. With respect to the injunctive relief, NCL America further agrees, among other things, to revise its policies to ensure a workplace that promotes EEO, to hire an EEO consultant, and to provide training to its managers and employees on the company’s equal employment policy and complaint procedure.

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This is a federal case; however, it is a good lesson on how to handle pregnancy leave.

EEOC SETTLES SEX BIAS CASE WITH STATE CORRECTIONS DEPARTMENT FOR ALMOST $1 MILLION

May 2008

 

Corrections Department Provided Lesser Benefits to Female Corrections Officers Who Gave Birth While on Workers’ Compensation Leave

 

The New York State Department of Correctional Services will pay nearly $1 million to settle a sex discrimination lawsuit filed by the EEOC and the U.S. Attorney for the Southern District of New York, the two offices announced today. The EEOC and the United States had charged the Corrections Department with violating federal law by providing inferior benefits to female employees on maternity leave.

 

The EEOC suit, filed under the Equal Pay Act of 1963 (Case No. 07-CV-2587 in U.S. District Court for the Southern District of New York), charged that the Corrections Department gave male employees with work-related injuries up to six months of paid workers’ compensation leave. Female employees could be granted the same leave, but pregnant employees on such leave were involuntarily switched to maternity leave at or around the time they gave birth. The Corrections Department’s maternity leave policy requires that women first use their accrued sick or vacation leave with pay; then, if approved, sick leave with half pay and then sick leave without pay.

 

The EEOC charged that switching women from workers’ compensation leave to maternity leave resulted in lesser benefits for those women due to their sex, violating the Equal Pay Act (EPA). The EPA is a federal law requiring that employers pay men and women equally for equal work.

 

The U.S. Attorney for the Southern District of New York joined the lawsuit by adding claims under Title VII of the Civil Rights Act of 1964. The U.S. Attorney’s Office alleged that the Corrections Department engaged in a pattern and practice of employment discrimination on the basis of sex as a result of its categorical determination that a female employee who gives birth to a child should be transferred from workers’ compensation leave and benefits without making a determination whether, on an individual basis, an employee continues to be eligible for workers’ compensation leave and benefits.

 

The court granted final approval of an Order and Stipulation Providing for Injunction and Affirmative Relief, which provides $972,000 in compensatory damages, liquidated damages, back pay and interest to 23 female Corrections employees. The back pay, which includes the value of leave some women were forced to take, has already been paid.

 

The Corrections Department agreed to several elements of injunctive relief as to all its facilities statewide. It has amended its workers’ compensation directive to provide that no female Corrections officer shall be removed from workers’ compensation benefits due to pregnancy or the birth of a child, and it will provide anti-discrimination training to employees across the state, along with training in the administration of workers’ compensation benefits to its personnel employees. The Corrections Department will also give to each female employee preparing to take a maternity leave a packet of all applicable policies, procedures and benefits.

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SUPREME NORTHWEST LLC TO PAY $427,000 TO SETTLE EEOC NATIONAL ORIGIN DISCRIMINATION SUIT – For more information, go to:  http://www.eeoc.gov/press/1-7-08.html

 

LOCKHEED MARTIN TO PAY $2.5 MILLION TO SETTLE RACIAL HARASSMENT LAWSUIT - EEOC Says African American Electrician Subjected to ‘N-Word’ and Threats of Lynching at Worksites Across the Country – For more information, go to:  http://www.eeoc.gov/press/1-2-08.html

 

L.A. WEIGHT LOSS TO FACE TRIAL FOR SEX BIAS AND RETALIATION

EEOC Class Suit Charges Company with Discrimination Against Men

September 2007 – (Synopsized from the EEOC web site):  A federal court  ruled that the EEOC may proceed to trial with its class sex discrimination lawsuit against L.A. Weight Loss Centers, Inc. (LAWL) on behalf of qualified male applicants nationwide.

The U.S. District Judge rejected LAWL’s court filed motions to dismiss the case. The court held that the testimonial evidence alone that was presented by the EEOC, including discriminatory admissions by various high-level LAWL officials, entitled the EEOC to present its case at trial. The court also granted partial summary judgment to the EEOC regarding LAWL’s failure to maintain relevant employment records.

The EEOC sued LAWL under Title VII of the 1964 Civil Rights Act alleging the company engaged in a pattern or practice of disparate treatment against men in its recruiting, hiring, and assignment of employees. In its suit (Civil Action No. WDQ-02-0648), the EEOC also charged that LAWL disciplined and ultimately terminated employee Kathy Koch, a trainer with the company, in retaliation for attempting to hire male applicants and for her complaints that LAWL failed to hire qualified male applicants because of their gender.

“We are pleased by the court’s ruling allowing the EEOC to proceed to trial,” said EEOC Regional Attorney Jacqueline McNair. “This case is an example of the EEOC’s focus on systemic litigation. Employers should be mindful that Title VII’s prohibition against sex discrimination protects men, as well as women, from being denied employment opportunities based on their gender.”

On March 9, 2007, LAWL filed a motion for summary judgment to dismiss the case, arguing that the EEOC could not establish a prima facie case that LAWL engaged in a pattern or practice of sex discrimination. LAWL also contended that Title VII’s limitations period for filing an individual charge of discrimination limited the scope of relief that the EEOC could obtain in a pattern or practice discrimination lawsuit.

The EEOC also filed a motion for partial summary judgment, arguing that LAWL failed to comply with the statutory obligation to preserve records relevant to the retaliation claim on behalf of Koch, and to preserve hiring and other employment records relevant to the pattern or practice claim. The EEOC requested that the court issue an injunction requiring LAWL to preserve relevant records and give an adverse inference jury instruction regarding the destruction of these employment records.

The court held that in a pattern or practice case under Section 707 of Title VII, the EEOC's remedies are not limited by the 180 or 300-day period for filing an individual charge of discrimination. The court also granted an injunction and adverse jury instruction against LAWL based on its failure to preserve relevant evidence regarding EEOC's retaliation claim.

The EEOC litigation team in the case, added, “The court's ruling is noteworthy because it reaffirms the important principle that the EEOC possesses broad statutory authority to remedy systemic violations of Title VII in their entirety, not simply portions of a systemic violation that happened to occur within the charge filing period applicable to individual plaintiffs. We’re pleased that a jury will have an opportunity to hear the evidence and decide this case.”

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Non-minority Male Discrimination Case Moves Forward

Decorte v. Jordan, 5th Cir. No. 05-31042, 8/15/07.

 

In a much publicized Title VII case, a federal appeals court affirmed a decision against New Orleans' black district attorney who was charged with discrimination by terminating a group of white employees.

 

The lawsuit was filed shortly after the District Attorney won the election and appointed a transition team to evaluate non-attorney staff. According to the lawsuit, within 72 days of his election, the composition of the non-attorney staff changed from 77 whites and 56 blacks to 27 whites and 130 blacks. The district attorney's defense was he was attempting to surround himself with people, regardless of their race, who he knew was supportive.

 

The District Attorney had also pledged during his campaign to hire a staff reflective of New Orleans' racial composition.  Evidence that damaged the District Attorney's case was a "Cultural Diversity Report," prepared by his transition team. The court treated the report as an affirmative-action plan "to focus on race in employment decisions and an intent to achieve a desired racial balance." This violates Supreme Court precedent and EEOC regulations that prohibit an employer's voluntary efforts to achieve or maintain racial balance absent specific findings of past discrimination and manifest imbalance through a court ordered consent decree.

 

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CAESARS PALACE TO PAY $850,000 FOR SEXUAL HARASSMENT AND RETALIATION

Supervisors Forced Sex on Hispanic Female Workers, EEOC Charged

August 2007

EEOC:  Caesars Palace will pay $850,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. EEOC. The EEOC had charged that the Las Vegas resort/casino’s Latina kitchen workers were subjected to repeated and sometimes severe sexual harassment.

In its 2005 lawsuit against Desert Palace, Inc., doing business as Caesars Palace, the EEOC asserted that male supervisors would demand and/or force female workers to perform sex with them under threat of being fired. Women, predominantly monolingual Spanish speakers, were forced to have sex in makeshift sex rooms. In addition, EEOC claimed that supervisors performed other lewd acts on or in front of women, including unwanted sexual touching.

The EEOC also charged that management failed to address and correct the unlawful conduct, even though women complained about it. Further, the EEOC said, when workers complained about the unlawful conduct, they were retaliated against in the form of demotions, loss of wages, further harassment, discipline or discharge.

Sexual harassment and retaliation for complaining about it violates Title VII of the Civil Rights Act of 1964.  “In a case like this where many of the workers were monolingual Spanish speakers, victims of sexual harassment often feel further isolated, marginalized and unable to vindicate their rights,” said Anna Park, Regional Attorney for the EEOC’s Los Angeles District. “This case also illustrates that employers need to ensure their policies and procedures provide adequate avenues for complaint and redress to non-English speakers.”

Under the three-year consent decree resolving the case, Caesars Palace agreed to pay $850,000 to the employees identified by the EEOC to have been sexually harassed or retaliated against. As part of the injunctive relief, Caesars Palace further agreed: (1) to provide training to all employees in English or Spanish; (2) to provide semi-annual reports to the EEOC regarding its employment practices for a period of three years; and (3) to revise its employment policies and procedures to conform to its obligations under Title VII. The EEOC filed the suit and consent decree in U.S. District Court for the District of Nevada (EEOC v. Caesars Entertainment, Inc., et al., 2:05-CV-0427-LRH-PAL).

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Ignoring Sexual Harassment Claims Can Result In Rewards To Include Punitive Damages.

June 2007

Parker v. General Extrusions Inc.

A federal appeals court upheld a $50K punitive-damages award against General Extrusions, Inc., because of inappropriate sexual comments made to the female employee by her coworkers rather than by management staff. When the female (Parker) complained about the sexual harassment to supervisors and HR personnel, she received no guidance or assistance, resulting in the court’s decision that a reasonable jury would find that General Extrusions Inc. chose to ignore sexual harassment against Parker and showed a reckless disregard for her rights under Title VII.   

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Starbucks Settles Disability Discrimination Case With Mental Disability (Bipolar Barista).

June 2007

EEOC v. Starbucks Coffee Company

In addition to paying the employee with a mental disability (Bipolar Disease) $75,000, Starbucks will be donating $10,000 to the Disability Rights Legal Center, along with training all managers and supervisors about disability discrimination.  They also were required to inform the EEOC about internal disability claims received over the next year. The employee alleged that despite receiving extra training and support while satisfactorily performing her job for two years, new management refused to provide reasonable accommodations and then terminated her employment because she was not "Starbucks material."

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IS IT  ILLEGAL TO DENY CARE GIVER ACCOMMODATIONS

For the most part, previous guidance by the EEOC meant there was no requirement under the ADA that an accommodation be provided to a person who is giving care to a close friend or family member who has a disability.  At the most, it has addressed the requirement not to discriminate against that employee. 

You may want to think again about the ADA interpretation.  The EEOC has provided a fact sheet on this subject:  http://www.eeoc.gov/policy/docs/caregiving.html

 
Commissioner Stuart J. Ishimaru said, "This guidance recognizes the
connection between parenthood, especially motherhood, and employment
discrimination.  An employer may violate Title VII [of the Civil
Rights Act of 1964] when it takes actions or limits opportunities for
employees because of beliefs that the employer has about mothers and
caregivers..."

This new guidance goes to the core of work/family balance issues.
According to Dr. Anika Warren, research director of Catalyst, Inc.,
"women of color are the fastest growing segment of the workforce."
Employers that make use of "diverse talent...through effective and
inclusive organization policies and practices [will have a]
competitive advantage..."

Two social trends in the United States have been driving this type of
guidance from the Commission.  The first is that women continue to
be the primary caregivers within the population, and there are many
more working mothers than in the past.

Employers should avoid inquiring about caregiver responsibilities during
the employment screening process.  If an employer provides child care
leave to women, it should not deny the same leave, under the same
circumstances, to men.  Pregnant employees should be treated no differently
from other workers with similar work restrictions or disability
accommodation requests.  Requests for accommodation based on the need
to take care of a disabled family member should be taken seriously and
reviewed individually. 

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Sexist  Comments By Co-workers Can Create A Hostile Working Environment.

June 2007

Boumehdi v. Plastag Holdings LLC

The federal appeals court for the Seventh Circuit reversed a ruling that had dismissed a female press-department worker's claims of a hostile work environment, constructive discharge, retaliation and sex discrimination in pay and other conditions of employment. The female complainant alleged her supervisor made multiple sexist comments as opposed to comments to sexual comments or sexual advances. The court ruling favored the complainant, concluding the employee should not be required to produce evidence of misconduct of a sexual nature to support the hostile-work-environment claim, adding that comments revealing "anti-female animus" can be severe enough to support a hostile-environment claim under Title VII and Equal Pay Act.  

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$287,640 AWARDED TO FIRED MUSLIM WOMAN IN EEOC LAWSUIT
May 2007
A Phoenix jury awarded $21,640 in back pay, $16,000 in compensatory damages (pain and suffering), and $250,000 in punitive damages to a Somali Customer Service Representative with Alamo Car Renter, Bilan Nur.

The company fired her for wearing a head scarf during the Muslim
holy month of Ramadan.  The Commission called the case a backlash to
the events of September 11, 2001, when America was attacked and the
World Trade Center destroyed.

Alamo refused to permit Nur to continue to cover her head, as she had
done in previous years, even if she wore an approved Alamo-logo scarf.
The case was prosecuted as religious discrimination under Title VII
of the Civil Rights Act of 1964.   (CIV 02-1908-PHX-ROS, U.S. District Court for the District of Arizona)
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8th Circuit Court Rejects Pregnant Nurse’s Discrimination and Retaliation Claims

6/15/07  - An employee who was pregnant and involved in reporting alleged misconduct was found to not be protected by the Pregnancy Discrimination Act or whistleblower prohibitions, according to the 8th U.S. Circuit Court of Appeals.

Tanya Fjelsta was one of two registered nurses working for Zogg Dermatology in Albert Lea, Minn. She received  a “guardedly positive” probationary evaluation and was offered permanent employment.  Her employer and supervisors were Brian Zogg, medical director, and Deanne Zogg, office manager.

Soon after being hired, the only other Zogg nurse became pregnant and announced her plans to take a leave of absence. According to Fjelsta, in response to Medd’s announcement, Deanne Zogg said, “Tanya, you better take precautions so both you girls don’t end up pregnant. We can’t have both nurses gone at the same time.”

On July 10, Fjelsta told Deanne Zogg that she was also pregnant. Two weeks later, Deanne Zogg gave Fjelsta a poor evaluation and, citing an alleged failure to follow proper surgical procedures, placed her on a 90-day probation.

Fjelsta submitted a written rebuttal to her evaluation. Instead of addressing the basis for her poor evaluation,  she reiterated a previously voiced opinion that a certain procedure of Zogg—allegedly reusing syringes with new sterile needles attached when using multi-dose vials with multiple patients—was inappropriate and in violation of a rule established under state law. Within 30 minutes of submitting the letter, she was asked to leave for the day due to “insubordination.” Deanne Zogg consequently told employees that Fjelsta had been discharged.

Citing Deanne Zogg’s alleged comment about becoming pregnant, Fjelsta sued Zogg Dermatology, alleging that her termination violated Title VII. She also brought a claim under the State (Minnesota) Whistleblower Act. The district court granted summary judgment to Zogg on both claims, and the 8th Circuit affirmed.

The 8th Circuit determined that Deanne Zogg’s comment, made one month before the termination, was considered a stray remark in the workplace. The court noted, the statement reflected no negative attitude toward pregnancy and did not forecast how Zogg would respond if Fjelsta became pregnant. The court concluded that a statement that merely mentions a protected characteristic is insufficient to maintain a discrimination claim.

As for the whistle-blowing claim, the court noted that an essential element of the claim is that the employee make the report “for the purpose of blowing the whistle; to expose an illegality.” The court found Fjelsta’s report lacking in this regard because Fjelsta had previously raised and discussed the same issue with Deanne Zogg. The court concluded that Fjelsta was simply revisiting her dissatisfaction with the policy in an effort to rebut her performance appraisal and that, given her prior raising of the issue, “there was no whistle to blow.” Fjelsta v. Zogg Dermatology, 8th Cir., No. 06-1965 (May 29, 2007).

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9th Circuit: Discrimination Claim Against Kelly Services Corp. (‘Fourth Way’ Members) Will Move Forward

June 2007

Claims of religious discrimination are typically based on the beliefs of the alleged victim or victims.  However, a claim also can be based on the absence of a religious belief, as demonstrated by a decision by the 9th U.S. Circuit Court of Appeals.

Lynne Noyes, a full-time software developer for Kelly Services Corp., sued alleging she was the victim of religious discrimination under Title VII and California law when she was denied a promotion to a manager’s position.

The basis of the claim had nothing to do with her personal religious belief.  Her claim was that she was discriminated based upon the fact that she was not a member of the selecting official’s religious organization called “Fourth Way.”

While a plaintiff typically needs to show he/she is a member of the protected group, that requirement is flexible and could be met by a claim of discrimination based on the non-belief in the same religious tenets as the decision-maker’s. In this case, the individual receiving the promotion, like the alleged decision-maker, was a believer in the “Fourth Way.”

While the district court issued a summary judgment for the employer, the appeals court indicated that a plaintiff, to defeat summary judgment, had to show only that the employer’s asserted reason was a pretext and that she could do so with either direct evidence of discriminatory motive or indirect evidence that undermined the credibility of the employer's reasons.

In finding that there was sufficient evidence of pretext, the appeals court noted the evidence of ongoing favoritism toward members of the Fourth Way, including past favorable treatment of the woman who obtained the promotion. The court reversed the district court summary judgment, which will likely result in either a trial or settlement.

This reveals that discrimination claims can be pursued even if the alleged victim is not a member of a traditional protected group.   Noyes v. Kelly Services, 9th Cir., No. 04-17050 (May 29, 2007).

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F

rom the EEOC.gov site: 

GERIATRIC CENTER TO PAY $900,000 FOR RACE BIAS, NATIONAL ORIGIN DISCRIMINATION, RETALIATION

May 2007 - EEOC Says Benenson Rehabilitation Pavilion Harassed Black and Caribbean Workers

A New York geriatric center will pay $900,000 to settle a class race and national origin discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today (Civ. No. 05-4601).

The EEOC charged that Flushing Manor Geriatric Center, Inc., doing business as William O. Benenson Rehabilitation Pavilion, subjected 29 black and Caribbean employees (specifically, Haitian and Jamaican) to harassment and retaliation.

According to the EEOC’s lawsuit, the Pavilion permitted harassing comments based on race and/or national origin by its managers and residents against the workers, who served in the nursing, food service, housekeeping, and recreation departments. The EEOC said the Pavilion also prohibited Haitian employees from speaking in Creole while allowing other non-English languages to be spoken at the facility; subjected black and/or Caribbean employees to stricter disciplinary actions as compared to others; and retaliated against those who brought these issues to management.

Employees at the facility formally complained about discrimination to management in 2002, 2003 and 2004 without any effective remedy, the EEOC said. This case also involved egregious retaliation in that the owner attempted to force the charging parties to withdraw their EEOC charges through harassing telephone calls to one of the claimant’s family members. All of this alleged conduct violates Title VII of the 1964 Civil Rights Act.

In addition to monetary payment to the claimants, the settlement requires the facility to hire a qualified human resources professional, implement anti-discrimination polices and procedures, conduct extensive anti-discrimination training, and report internal complaints of discrimination to EEOC over a five-year period.

EEOC New York District Director Spencer H. Lewis, Jr. added, “Employers must be warned that retaliation, such as discouraging employees from filing discrimination charges, is itself illegal.”

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April 2007

FEDEX EXPRESS TO PAY $53.5 MILLION TO SETTLE RACE CLASS ACTION

FedEx Express will pay $53.5 million to settle a racial-bias class action suit if a district court approves the proposed settlement this week.  The race based discrimination lawsuit was filed in November 2003 on behalf of black/Hispanic/ Latino employees and includes charges of compensation bias, discrimination in performance evaluations, promotion, and unfair disciplinary actions.

 

If the FedEx Express settlement is approved by the U.S. District Court for the Northern District of California, the award could benefit 20,000 hourly and entry-level employees who have worked in FedEx's western region since October 1999, and would be among the 10 largest bias settlements in U.S. courts.  However, in the consent decree, FedEx Express denies having discriminatory practices.

 

8TH CIRCUIT UPHOLDS $3.4 MILLION EMPLOYMENT TESTING AWARD AGAINST DIAL CORPORATION


Three judges upheld the District Court ruling in the case of the EEOC v. Dial Corporation (8th Cir, Nos. 05-4183/4311, November 17, 2006), awarding $3.4 million to 50 women who were screened out from employment through discriminatory testing.

Dial is a meat packing company and was experiencing exceptionally
high rates of workers' compensation accidents.  In an effort to
help control expensive job-related back injuries, the company devised
an employment screening tool that would determine if job candidates
could perform the lifting required for particular positions.

The job which showed disparate impact against women was at the Fort Madison, Iowa canned meat plant.  They required workers to daily lift and carry up to 18,000 pounds of sausage, walking up to four miles a day.  They are also required to carry approximately 35 pounds of sausage at a time, lifting the load to heights between 30 and 60 inches above the floor. This job had their highest accident rate.

As part of an effort to control the accident rate, Dial devised a new employment strength test to evaluate job applicants.  In this test, the Work Tolerance Screen (WTS), job applicants were asked to carry a 35 pound bar between two frames, approximately 30 and 60 inches off the floor, and to lift and load the bar onto these frames.  The test was monitored by an occupational therapist who documented how many lifts each applicant completed, and recorded her comments about the applicant's performance.

The case was tried before a jury which found that the physical
performance test did not prove to be a determining factor in job success and had an illegal disparate impact against women.

Does your company conduct an Impact Ratio Analysis or statistical analysis on employment selections at each step in your screening process to
determine if potential problem exist with disparate impact against minorities or women?  If not, you could be one of the EEOC or OFCCP's statistics.  Give us a call or send an email to find out how we can help keep your company in compliance.    For the complete opinion on the Dial case, go to: 

http://caselaw.lp.findlaw.com/data2/circs/8th/054183p.pdf

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Amerigroup Fined $48M for Discrimination

October 2006

Insurance company Amerigroup Corp. (a company that specializes in healthcare for low income patients) and its Illinois affiliate were held liable for what may ultimately total $144 million in damages for discriminating based upon sex - against pregnant women.

A federal court jury returned a verdict against Amerigroup, calling for $48 million in damages.  Lawyers believe this would be tripled under state and federal laws.

Besides the damages, Amerigroup, a company that had revenue of $2.3 billion in 2005 could be penalized with additional fines reaching well into the millions.

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Sexual Harassment Costs The Source $14.5 Million

When will we take this subject seriously?  This complaint came from a top level official...read on...

 

A federal judge in Manhattan ruled in favor of The Source's former editor, Kimberly Osorio, and has ordered the magazine, dubbed the bible of hip hop, to pay $14.5 million in damages.

Osorio, who was The Source's first woman editor in chief, took the publication to court after she was fired last year following a complaint about a workplace that was unfriendly to women employees. Osorio claims she repeatedly was verbally abused, sexually harassed and physically threatened.

 

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RETALIATION FURTHER DEFINED

The Supreme Court could soon clarify the question, "What constitutes a retaliatory employment practice?" The Court's ruling in Burlington Northern Santa Fe Railway Co. v. White, No. 05-259, may answer some crucial questions regarding retaliation for filing EEO claims. How the Supreme Justicies choose to define retaliatory treatment will have a significant effect on discrimination claims against both private industry employers and also government agencies. A strict standard could potentially discourage targeted employees from speaking up about retaliation; however, a broad interpretation could open the EEO door to a signficant increase in unjustified retaliatory complaints.

Southwest Airlines Will Pay $27.5M
April 2006

Samantha Carrington of Santa Barbara, California was awarded $27.5 million in damages by a jury who agreed who with her allegations that she was racially profiled when Southwest Airlines Co. accused her of assaulting a flight attendant. Carrington is of Iranian descent. Her suit alleged false imprisonment and malicious prosecution. Federal authorities arrested her in 2003 after her Houston-to-Los Angeles flight made a scheduled stop in El Paso; however, she was not charged with a crime.

Southwest claims that three flight attendants said Carrington, a naturalized citizen from Iran, became verbally abusive, grabbed a flight attendant's arm and threatened to go to the cockpit if the captain was not summoned. Carrington said that the flight attendants were lying and she was the one mistreated. "In the evidence it came out that one of the flight attendants stated that Ms. Carrington reminded her of a terrorist, and in our views she was the victim of profiling stereotypes and discrimination," her lawyer, Enrique Moreno, told the El Paso Times.

A Southwest spokesperson stated they will appeal the verdict.

 

Commercial Coating Service, Inc. PAYS $1 MILLION TO BLACK MAN CHOKED WITH HANGMAN’S NOOSE BY WHITE CO-WORKERS

March 2006

The EEOC announced the settlement of a racial harassment lawsuit against Commercial Coating Service, Inc. for more than $1 million on behalf of a black employee who was subjected to a barrage of racial epithets, culminating in an incident where white co-workers placed a noose around his neck in the company bathroom and choked him in October 2002.

In its lawsuit, filed in 2003 (EEOC et al. v. Commercial Coating Service, Inc., civil action no. H-03-3984), the EEOC asserted that Commercial Coating did not stop its employees, including managers, from harassing charging party Charles Hickman on the basis of his race (black) and subjecting him to a racially hostile work environment – including verbal and physical abuse. The company, located in Conroe, Texas, specializes in internal and external application of various coating bends, fittings, fabricated spools, valves, and short runs of straight pipe. In addition to the monetary relief for Mr. Hickman, who worked as a sandblaster, the company agreed to enter into a consent decree that will overhaul its employment practices to improve the corporate culture and further equal employment opportunities.

EEOC’s Houston Regional Attorney, Jim Sacher noted, “In addition to being choked with a hangman’s noose, Mr. Hickman was called the N-word and a monkey. The facts showed that the company was aware of the unlawful conduct and did not stop it, which only caused a bad situation to get much worse.”

From EEOC web site data

Employers Charged with Imposing English-Only Rule, Harassing Hispanics and Forcing Out Some Employees After New Company Took Over Hotel

March 2006

The former Melrose Hotel New York and Berwind Property Group, Ltd. (Berwind) will pay $800,000 for national origin discrimination against Hispanic employees and take substantial steps to prevent future workplace bias as part of a major litigation settlement announced today by the EEOC.

The EEOC's lawsuit charged the companies with subjecting Hispanic employees to a hostile work environment; subjecting Hispanic employees to an English-only rule requiring them to speak only English at all times, including while on breaks; firing Hispanic employees; and retaliating against employees for complaining of discrimination. The Melrose Hotel New York was a luxury hotel located on Manhattan's Upper East Side until it closed in July 2005. Berwind is a real estate management company located in Philadelphia.

A consent decree resolving the case (Civil Action No. CV-04-7514), was filed with Judge Alvin Hellerstein of the U.S. District Court for the Southern District of New York. Pursuant to the consent decree, the companies will pay $800,000 in damages to 13 former employees of the hotel.

The consent decree also prohibits the companies from maintaining an English-only rule for employees and requires them to amend and reissue their non-discrimination policy, train employees and managers in equal employment law, and provide periodic reports to the EEOC concerning any new discrimination complaints. The suit was filed by the EEOC on September 23, 2004, after the agency first attempted to reach a voluntary, pre-litigation settlement.

LITHIA CAR DEALERSHIP TO PAY $562,500 FOR RACE BIAS AGAINST BLACK SALESMEN TARGETED BY MANAGER

March 2006

The EEOC announced that a federal district court approved a $562,500 settlement of a race discrimination lawsuit brought by the federal agency and private counsel against Lithia Motors, Inc. and Lithia Cherry Creek Dodge on behalf of three African American former employees who were targeted for harassment and retaliation. Lithia is a national car dealership with headquarters in Medford, Ore.

In the case, James Witherspoon filed a charge of discrimination with the EEOC’s Denver office in 2003 after he received no response to filing an internal complaint with Lithia. Witherspoon alleged that the general manager, who transferred to Cherry Creek Dodge from another Lithia dealership, told him that he would not tolerate “B-P” (“black people”), and that he had fired “some of you people” already. This general manager had in fact fired three black salesmen at his first staff meeting. The discrimination against Witherspoon, including racial slurs, only increased after he filed the internal complaint, forcing him out of his job. However, Lithia’s internal investigation found no problems.

“Too often, employers use their resources to wear down employees financially and emotionally when they seek a remedy for discrimination,” said Witherspoon, commenting on the case. “I am extremely appreciative that the EEOC has worked so hard to compensate me for the losses I suffered.” In addition to the monetary relief, the four-year consent decree provides significant injunctive relief, including the review and implementation of company anti-discrimination policies and procedures, and the provision of training on equal employment opportunity law. The EEOC’s suit was filed under Title VII of the Civil Rights Act of 1964 in September 2005, after the agency first attempted to reach a voluntary settlement through its conciliation process. Federal District Court Judge Phillip S. Figa approved the consent decree in the case, EEOC v. Lithia Motors, Inc. and Lithia Cherry Creek Dodge, Inc. case (CIV 05-cv-01901-PSF-MJW).

According to its web site (www.lithia.com), “Lithia Motors, Inc. is one of the largest full-service new vehicle retailers in the United States with 94 stores and 186 franchises in 12 states in the Western United States.”

 

Yes, Virginia, There Really Is Such A Thing As 'Frivolous' Legal Action

A federal judge ruled that the EEOC must pay more than $1 million to the law firm, Robert L. Reeves & Associates. In 2001, the EEOC sued the firm unsuccessfully for allegations of sexual harassment and pregnancy discrimination. The law firm practices immigration law.

Reeves maintained that EEOC should have known that the harassment and discrimination allegations the agency was pursuing were part of a plan by two former law associates to destroy the firm. EEOC Regional Attorney (LA District Office), Anna Park advised the EEOC has appealed the judge's finding.

Before the EEOC sued Reeves, Tevrizian said, commission staffers only interviewed the two former Reeves associates and a third person who was romantically involved with one of them. One of the former associates, Tevrizian added, was also a decision maker in the firm's dismissal of an employee who complained she was fired after she became pregnant.

No illegal Bias Against Flight Passenger Who is Overweight
February 13, 2006
Southwest Airlines was found not guilty of "racially" discriminating against an overweight flight passenger when she was required to purchase two seats side by side. The federal court jury didn't deliberate long before coming to this conclusion against Nadine Thompson. Thompson alleged she was singled out because of her race (black), indicating the arilines (Southwest) policy on customer's size was applied to her unfairly. She filed the complaint in June of 2003.

Southwest argued their only mistake was to tell Thompson she had to purchase a second ticket after she had already boarded the plane. The airline employees stated they were not aware of the provision that allowed her to sit in two seats if she had already boarded the plane. The airline employees said they simply misunderstood the policy and made a mistake; however, they claimed the mistake was not made because of race. "Is everyone who makes a mistake a racist?" asked Southwest's Garry Lane in his closing arguments. "They didn't know they were doing it wrong."

The "customer of size" policy for Southwest Airlines applies to customers who can't sit in a seat without having the armrest raised and are sitting on part of the adjacent seat. Thompson, who said she doesn't consider herself a "customer of size," didn't challenge the policy; however, she stated that it allows any employee to operate "in a discriminatory way about the policy."

 

Dept. of Justice Settles Case Against AMC Over Theater Design

January 12, 2006