EEOC: Employer Ousted Employee Over TB Test

Nobody wants to mess with tuberculosis, but the fear that an employee has the disease isn’t a lawful reason to deny her a job, especially if the employee’s doctor has OK-ayed her for work.

Educational after-school camp Cooking Round the World (CRTW) violated federal law when it relieved an employee of her duties after she tested positive for latent tuberculosis, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Sept. 25.

According to the EEOC’s investigation, Alexis Le successfully worked for CRTW as a chef educator for several months before she received a positive test result for an inactive form of tuberculosis (TB) in March 2017. Although Le explained that she was not contagious and had received a doctor’s certification permitting her to work in a school environment and as a medical assistant, CRTW director and owner Mindy Myers refused to allow Le to continue to work as a chef educator, claiming that she could never again work with children or in schools. The alternative leafleting job Myers offered Le paid less per hour and provided few hours per week, forcing Le to find other work to support herself.

The EEOC also charged that CRTW breached Le’s confidentiality by disclosing her diagnosis to a co-worker and failing to segregate employee medical records from non-confidential personnel records.

The Americans with Disabilities Act (ADA) prohibits employers from discriminating against employees based on a disability or a perceived disability. It also requires that all medical information about a disability must be kept confidential, and maintained in separate medical files. The EEOC filed suit (CIV# 4:18-cv-05880) in U.S. District Court for the Northern District of California after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s lawsuit seeks compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future.

“Ms. Le loved her job working with children and was shocked when her boss would not accept her medical certification,” said William Tamayo, the EEOC’s San Francisco District Office director. “The ADA protects qualified workers who are perceived as having a disability, in addition to those who actually do have a disability or a record of one.”

EEOC Regional Attorney Roberta Steele noted, “While it’s true that California law requires that staff working with students be free of infectious TB, Ms. Le had been certified by her doctor as non-contagious and safe to work in a school environment. When Meyers relied on her own misperceptions over medical expertise to remove Le from her position, this employer violated the ADA.”

EEOC Trial Attorney Debra Smith added, “No employer, no matter how small or well-intended, is above the law. By disbelieving Ms. Le’s medical proof that allowed her to work children, this employer caused her emotional distress and limited employment opportunity.”

According to company information, CRTW is an educational, after-school and summer cooking camp with programs in the San Francisco Bay Area and San Diego, with headquarters in Oakland.

OSHA: Fla. Company Ignored Manufacturer’s Safety Instructions, Employee Burned as a Result

This employer faces a nearly six-figure fine for exposing its worker to safety hazards, resulting in burn injuries.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited L.A. Disaster Relief and Property Maintenance LLC after an employee suffered burn injuries at a McDavid, Florida, worksite. The property maintenance and land clearing company faces $94,415 in penalties.

OSHA investigators determined that the company owner directed the injured employee to ignite wood and debris inside an air burn box using a torch and gasoline, which caused an explosion. OSHA cited the company for failing to implement a hazard communication program to familiarize employees with flammable and combustible dust hazards.

“This owner’s intentional disregard of the manufacturers’ safety instructions and failure to take proper safety measures resulted in serious injuries to an employee,” said OSHA Jacksonville Area Office Director Michelle Gonzalez.

The company has 15 business days from receipt of the citations and proposed penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit https://www.osha.gov.’

Post-script: My thanks to Jon Hyman for posting this blog in this Friday’s weekly roundup of the Ohio Employer Law Blog.

EEOC Sues Texas Health Care System Over Denial of Light Duty for Pregnant Worker

It’s textbook Title VII law that an employer must accommodate pregnant workers to let them continue working. One popular accommodation is light duty assignments.

Nix Hospitals System, LLC d/b/a Nix Healthcare System (“Nix Hospital”), a provider of comprehensive medical services, including a full-service hospital and various medical facilities in San Antonio, discriminated on the basis of pregnancy when it fired an employee after denying her request for light duty accommodation for her pregnancy-related medical restrictions, but allowed such accommodation for nonpregnant employees similar in abilities or inabilities to work, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed September 25.

According to the EEOC’s suit, Civil Action Number 5:18-cv-01004, filed in U.S. District Court for the Western District of Texas, San Antonio Division, Nix Hospital violated Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (PDA), by refusing to accommodate the employee’s pregnancy-related medical restrictions, and instead immediately placed the employee on leave. The employee applied for two open desk positions which would have allowed her to work even with her medical restrictions, but Nix Hospital continued to deny her such light duty positions, resulting in her termination. Nonpregnant employees injured on the job with medical restrictions were, however, granted light duty.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended the Pregnancy Discrimination Act of 1978 (PDA). Under the PDA, employers are prohibited from engaging in sex discrimination on the basis of pregnancy, including making employment decisions based on pregnancy-related medical conditions. It is a violation of federal law to deny work accommodations to employees with pregnancy-related medical restrictions but grant such accommodations to non-pregnant employees similar in their ability or inability to work. After the EEOC’s San Antonio Field Office found reasonable cause to believe that Nix Healthcare System had violated the PDA, the agency attempted to reach a pre-litigation settlement through its conciliation process. The remedies sought by the EEOC include back pay, compensatory and punitive damages for the victim, as well as injunctive relief.

EEOC Senior Trial Attorney David Rivela of the EEOC’s San Antonio Field Office said, “Women affected by pregnancy or related medical conditions should be treated the same for all employment-related purposes as other persons not so affected, but similar in their ability or inability to work.”

EEOC Supervisory Trial Attorney Eduardo Juarez added, “The law is clear – an employer is required to treat an employee temporarily unable to perform the functions of her job because of her pregnancy-related condition in the same manner as it treats other temporarily disabled employees. Employers must fairly and carefully consider the accommodation requests of pregnant employees with medical restrictions and not reject such requests simply because the restrictions are not the result of work injuries.”

The San Antonio Field Office is part of the EEOC’s Dallas District Office which is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Texas and parts of New Mexico.

Sexually Hostile Environment at Maryland Store, EEOC Charges in Suit Against Dollar General

We had hoped in the #MeToo era that this kind of behavior would be no more, but, alas it continues, according to federal investigators.

Dollar General violated federal law when it subjected a store manager to a sexually hostile work environment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced September 25.

According to the EEOC’s suit, within a week of Dollar General hiring an assistant store manager for its Rock Hall, Md., location on May 28, 2016, the store manager began sexually harassing her. He frequently made crude comments about her appearance or sexually charged innuendoes. The EEOC also charges that the store manager repeatedly subjected the assistant manager to unwelcome touching, including once grabbing her head and forcing it to his crotch while making a sexual innuendo; rubbing her shoulders; and grabbing her and ripping her blouse.

The EEOC said that after the assistant manager complained to Dollar General management, they transferred her to its Chestertown store, which required earlier, less convenient hours and added an hour to her daily commute. Dollar General refused to return her to the Rock Hall location and even permitted the harasser to go to the Chestertown store once while she was working there. The EEOC said that the assistant manager was compelled to resign on July 31, 2016, based on Dollar General’s inadequate response to her sexual harassment complaint.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 (Title VII), which prohibits discrimination based on sex. The EEOC filed suit (EEOC v. Dolgencorp, LLC, t/a Dollar General Stores Inc., Civil Action No. 1:18-cv-02965) in U.S. District Court for the District of Maryland, Baltimore Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

“No one should be forced to endure sexually offensive comments or unwelcome physical touching to earn a living,” said EEOC Regional Attorney Debra M. Lawrence. “The EEOC stands ready to protect workers from this kind of misconduct, including litigation if necessary, if employers allow managers to abuse employees in this way.”

EEOC Philadelphia District Director Jamie R. Williamson added, “As the #MeToo movement has demonstrated, far too many women are subjected to sexual harassment at work. The EEOC is committed to preventing sexual harassment and recently reconvened its Select Task Force on the Study of Harassment in the Workplace. The Select Task Force’s report, issued on June 20, 2016, provides employers with detailed recommendations on preventing harassment, including recommendations regarding leadership, accountability, policies and procedures, training, and developing a sense of collective responsibility.”

The EEOC’s Baltimore Field Office is one of four offices in the EEOC Philadelphia District Office, which has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the EEOC Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

EEOC: Walmart Wouldn’t Refer Amputee For Job

The passing of the 41st president George H.W. Bush is an occasion to recall his great domestic achievement of signing the Americans With Disabilities Act into law.

This lawsuit filed in late September is further illustration of the law’s relevance.

Wal-Mart Stores Texas, LLC violated federal law when they interviewed a female applicant who is a congenital amputee but refused to refer her for hiring because they assumed she could not perform the job duties, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed Sept. 24.

According to the EEOC’s suit, Jesse Landry worked as a stocker for another retailer when she applied to work at Wal-Mart. She was able to perform all the duties of that position, without accommodation, despite being a congenital amputee.

Wal-Mart’s alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities. The EEOC filed suit in U.S. District Court for the Southern District of Texas, Houston Division (Civil Action No. 4:18-cv-03407) after first attempting to reach a pre-litigation settlement through its conciliation process.

The federal agency is seeking a permanent injunction prohibiting Wal-Mart Stores Texas, LLC from engaging in any future disability discrimination. The EEOC is also seeking back pay and compensatory and punitive damages and other relief, including placing Landry in a suitable position at Wal-Mart.

“When workers have a disability that does not impede them from doing their jobs capably, an employer cannot refuse to hire them based solely on assumptions and stereotypes,” said Rayford O. Irvin, district director of the EEOC Houston District Office.

“Enforcement of the ADA is a top priority of this agency. Companies must live up to their responsibility to interview and hire job applicants without bias based solely on a disability or perceived disability,” said regional attorney Rudy Sustaita of the EEOC Houston District Office.

Harassment Rampant at Employer, EEOC Alleges

Male and black employees suffered grievously from harassment at this workplace, according to federal officials.

Riddle Painting and Coatings, an Arizona industrial and commercial painting company, violated federal law when it subjected employees to a hostile work environment based on race and sex, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on September 21.

According to the EEOC’s lawsuit, employees at Riddle Painting frequently used the N-word and one employee in particular repeatedly called a black employee the N-word. The EEOC also charged that male employees at Riddle Painting used sexually derogatory language and repeatedly inappropriately touched other male employees’ legs, buttocks and genitals. According to the EEOC, at least one employee complained about the harassment, and Riddle Painting knew or should have known of the racial and same sex sexual harassment but failed to take any actions to stop or remedy the abuse. The EEOC further charged that the racial and same sex sexual harassment made working conditions so difficult that an employee was forced to resign.

Sexual and racial harassment are forms of discrimination which are prohibited by Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the District of Arizona (EEOC v. Michael L. Riddle Painting, Inc., d/b/a Riddle Painting & Coatings Case No. 2:18-cv-02990-DLR) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks monetary damages for the harassment victims, as well as injunctive relief intended to prevent and correct discrimination.

“The EEOC remains vigilant in its fight to identify, remedy, and ultimately eradicate racial and sexual harassment in the workplace,” said Mary Jo O’Neill, regional attorney for the EEOC’s Phoenix District Office. “Racial expletives should never be used in any workplace – they’re demeaning, offensive and unacceptable. Employers are legally required to stop this kind of abusive language and behavior.”

Elizabeth Cadle, the EEOC’s Phoenix District director, added, “Employers may think allowing sexual harassment in the workplace is acceptable as long as it is labeled as horseplay. It isn’t, and employers that allow their employees to be bullied in this way will be held accountable.”

The EEOC’s Phoenix District Office is responsible for processing discrimination charges, administrative enforcement and the conduct of agency litigation in Arizona, Colorado, New Mexico, Utah and Wyoming. The Phoenix District Office conducted the investigation resulting in this lawsuit.

EEOC: Limiting Time Workers Could Sit on Stools During Food Demonstrations Violates the ADA

Workers who show off different foods at giant retailers like Walmart and Sam’s Clubs were unlawfully denied the opportunity to sit down because of their disability, federal law enforcement has charged.

Crossmark, Inc., a Plano, Texas-based sales and marketing services company that provides food demonstrators to Walmart and Sam’s Clubs, violated federal law by discriminating against disabled employees, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Sept. 24 The suit claims that Crossmark’s failure to accommodate a nationwide class of qualified disabled workers who needed to use a stool violated the Americans with Disabilities Act (ADA).

According to the EEOC’s lawsuit, Crossmark established a qualification standard permitting its ubiquitous employees who offer shoppers food samples at Walmart and Sam’s Clubs stores to sit on stools for no more than ten minutes every two hours. For example, during the four years that Kathryne Guilfoyle worked directly for Sam’s Club, doing food demonstration events part-time, she was permitted to use a stool as necessary because of her disability. However, when Crossmark took over doing such events in Guilfoyle’s store and she asked for the same accommodation, Crossmark denied her request and she was fired. In addition to the illegal qualification standard, the EEOC also charges that Crossmark’s policies for considering an employee’s request to use a stool violated the ADA. During its investigation, the EEOC identified hundreds of employees, in addition to Guilfoyle, who were discriminated by Crossmark’s qualification standard and procedures.

The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. Crossmark, Inc., Civil Action No. 3:18-cv-1760), in U.S. District Court for the Southern District of Illinois after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks monetary relief for each class member as well as a judgment and order requiring the company to implement policies and practices to prevent future discrimination.

“The ADA’s mandates are clear,” said EEOC St. Louis District Director James R. Neely, Jr. “Crossmark’s failure to accommodate its employees with disabilities, when Walmart and Sam’s Clubs were able to do so, is especially unacceptable.”

Andrea G. Baran, the EEOC’s regional attorney in St. Louis, added, “People with disabilities have the ability to contribute greatly to our workplaces and economy. When employers fail to give them the opportunity to do so, everyone suffers.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.