EEOC Files Title VII Sexual Orientation Harassment Lawsuit Against Arizona Business

Will the Equal Employment Opportunity Commission stick to its view formulated in recent years that sex discrimination under Title VII of the 1964 Civil Rights Act includes discrimination against employees based on their sexual orientation?

We will have to see what the Trump Administration’s view is, but as of today the EEOC is sticking to its enforcement guns, announcing it has filed a Title VII lawsuit alleging that a wine bar and restaurant in Scottsdale, Arizona, subjected two of its male employees to a hostile work environment based on sexual orientation.

According to the EEOC, 5th & Wine allowed its management and line staff to harass two male servers based on their actual and perceived sexual orientation. The alleged harassment included egregious name calling, comments, innuendos and touching. Although the two employees complained to their supervisors, the supervisors did nothing about the conduct, and, in some instances, actually participated in the harassment, according to the federal agency. When one of the employees mentioned that he planned on taking legal action against 5th & Wine, the company fired him.

Oracle in Hot Seat With DOL, Which Complains Company Favors White Men in Pay and Hiring

Oracle, a leading technology company that provides services to the federal government, has a systemic practice of paying Caucasian male workers more than their counterparts in the same job title, which led to pay discrimination against female, African American and Asian employees, the Labor Department charged in a new lawsuit filed last week.

The suit filed with the Office of Administration Law Judges also challenges Oracle’s systemic practice of favoring Asian workers in its recruiting and hiring practices for product development and other technical roles, which resulted in hiring discrimination against non-Asian applicants.

Oracle designs, manufactures, and sells software and hardware products, as well as offers services related to its products to the federal government.

The alleged violations supposedly took place at the company’s Redwood Shores headquarters in California.

Oracle has received hundreds of millions in federal government contracts. As a federal contractor, Oracle is prohibited from engaging in employment discrimination on the basis of race, color, sex, sexual orientation or gender identity or national origin and is required to take affirmative action to ensure that equal employment opportunity is provided to applicants and employees in all aspects of employment. If Oracle fails to provide relief as ordered in the lawsuit, OFCCP requests that all its government contracts be canceled and that it be debarred from entering into future federal contracts.

During the investigation – which began in 2014 – Oracle also refused to comply with the agency’s routine requests for employment data and records, the DOL said.  For example, Oracle refused to provide prior-year compensation data for all employees, complete hiring data for certain business lines, and employee complaints of discrimination.

But now that there is a new administration in town, it’s possible that some of this may be obselete.

At the top of the DOL announcement page is this “Please note:  As of January 20, 2017, information in some news releases may be out of date or not reflect current policies.”


Fired Amtrak Agent To Receive $892K For Blowing Whistle Under U.S. Rail Safety Law

Joe Biden, the nor former vice president, is riding Amtrak back to Delaware today to begin his return to civilian life. Biden has long been an Amtrak supporter, riding the train daily to and from Washington and Delaware when he was in the Senate.

I think he would be pleased with the news that an Amtrak agent who was fired for helping another agent blow the whistle on safety violations has been ordered reinstated with back pay to his former job.

The total bill, including damages, is $892,000

The Occupational Safety and Health Administration found that national passenger rail service violated the Federal Railroad Safety Act retaliated against a supervisory special agent in its inspector general’s office when he raised concerns about railroad safety, fraud and abuse involving an Amtrak contractor and when he supported a fellow agent’s safety concerns during an internal investigation.

According to OSHA findings, in early to mid-2010, the agent was investigating an Amtrak contractor that had been convicted in a New York state court for fraud in examining and testing concrete at building projects in the New York City area. This Amtrak contractor had performed testing on certain Amtrak tunnel projects. Strongly believing it was necessary for safety and security reasons, the agent raised safety concerns regarding work performed by this contractor on Amtrak projects.

Then, in October 2010, the agent gave Amtrak’s Dispute Resolution Office information and provided support for a fellow employee who had received a letter of reprimand after he raised safety concerns in a separate matter. The following month, the agent received his first-ever negative performance review. In March 2011, Amtrak notified him that – as a part of an overall reorganization – his position was being eliminated. In the course of the next few months, the agent applied for other positions, but was told that he lacked the required law enforcement training, despite a 40-year law enforcement career that included equivalent training. In June 2011, Amtrak notified the agent that he would be terminated due to his not being placed in a new position.

Amtrak can appeal the order, but for now here is what OSHA has ordered it to do:

  • Reinstate the employee to his former or a similar position with all rights, seniority and benefits he would have received had he not been discharged.
  • Pay him a total of $892,551, which is comprised of $723,332 in back wages plus $34,218 in interest; $100,000 in punitive damages; $35,000 in compensatory damages; plus reasonable attorney’s fees and costs.
  • Expunge from Amtrak’s records all references related to his discharge and exercise of his FRSA rights; make no adverse statements concerning his employment at Amtrak; and not retaliate or discriminate against him in any manner.
  • Post a notice to all railroad employees about their FRSA rights.


$482 Million Recovered by the EEOC For Employment Discrimination Victims in 2016

The final stats are in for 2016 and it was a good year for the Equal Employment Opportunity Commission in obtaining relief for victims of employment discrimination.

For fiscal year, the agency recovered $482 million for victims of discrimination in private, federal and state and local government workplaces. The EEOC says it resolved 97,443 charges.

For the first time the commission include charges of discrimination based on LGBT status. EEOC resolved 1,650 charges and recovered $4.4 million for LGBT individuals who filed sex discrimination charges with the agency in fiscal year 2016.

The EEOC is also getting through its charge backlog at a quicker pace, reducing the workload of pending charges by 3.8 percent to 73,508–the lowest pending charge workload in three years.

And here’s the breakdown of charges in descending order:

  • Retaliation: 42,018 (45.9 percent of all charges filed)
  • Race: 32,309 (35.3 percent)
  • Disability: 28,073 (30.7 percent)
  • Sex: 26,934 (29.4 percent)
  • Age: 20,857 (22.8 percent)
  • National Origin: 9,840 (10.8 percent)
  • Religion: 3,825 (4.2 percent)
  • Color: 3,102 (3.4 percent)
  • Equal Pay Act: 1,075 (1.2 percent)
  • Genetic Information Non-Discrimination Act: 238 (.3 percent).

Read more about last year’s performance here.

Walmart Sued by EEOC for Denying Preferred Schedule of Employee With Down Syndrome

Walmart denied an employee’s request to continue on his current schedule as an accommodation to her intellectual disability, the Equal Employment Opportunity Commission charged in an Americans With Disabilities Act lawsuit filed today.

According to EEOC’s lawsuit, Marlo Spaeth, who has Down syndrome, was disciplined for absenteeism after her schedule of 15 years was changed by management. Managers at Walmart ignored Spaeth’s repeated requests to work her usual shift of 12:00 pm-4:00 pm shift.

Instead, the managers insisted that she work the longer and later shifts that were assigned to her by a new computerized scheduling system. Because of Spaeths’s disability, she was unable to adapt to the change in routine.

Spaeth’s sister, Amy Stevenson, who acts as her guardian, became involved after disciplinary actions resulted in Spaeth’s termination. Ms. Stevenson tried to protect her sister’s ADA rights demanding that Walmart rehire Spaeth and allow her to work her preferred schedule of 12:00pm to 4:00pm as a reasonable accommodation. Walmart refused, failing again to accommodate Spaeth, the EEOC alleged.

Marlo Spaeth had a long record of successful employment with Walmart, receiving multiple pay raises and satisfactory performance reviews over the years. Gregory Gochanour, regional attorney for the Chicago District, said, “Walmart’s refusal to accommodate such a simple scheduling request here is not only a violation of the ADA, it’s also an example of how easily a successful 15-year career can be harmed by disability discrimination.”

“Even the nation’s largest private employer must comply with the law’s requirement to make a good faith effort to accommodate an employee with a disability,” said Julianne Bowman, district director of the Chicago District.

The lawsuit is seeking Spaeth’s reinstatement with backpay and damages.

Stiffer Mine Examination Rule Issued; Plan Allows For Safety Checks Before Shift Begins

Three days and counting until the Obama administration leaves office, and the regulations keep coming in the last gasp effort to cement the administration’s priorities into policies that the Trump administration will find hard to overturn.

A case in point was today’s announcement by the U.S. Department of Labor that it will issue a final rule next Monday to improve safety for 250,000 workers in metal and metal mines.

The U.S. Department of Labor’s Mine Safety and Health Administration announced today it will issue its Final Rule for Examination of Working Places in Metal and Nonmetal Mines. The new rule will be published in the Federal Register on Jan. 23, 2017, and go into effect on May 23, 2017.

DOL’s Mine Safety and Health Administration said in that announcement that the final rule improves miner safety and health in three primary areas, requiring that:

  • The examination be conducted before miners are exposed to adverse conditions.
  • Affected miners be notified when a hazardous condition is found.
  • A record of the examination include the locations examined, the adverse conditions found and the date of the corrective action.

Nearly 250,000 miners work at more than 11,800 U.S. metal and nonmetal mining operations.

Under the existing standards, an examination could be conducted at any time during the shift – even at the very end of the shift – exposing miners to hazardous conditions. Currently, there are no provisions for miners to be notified of the hazards found during the examination, or for noting the hazards found in the examination record.

“MSHA has taken a common sense approach with this rule,” said Joseph A. Main, assistant secretary of labor for mine safety and health. “Effective examinations will improve working conditions and practices in the nation’s mines, ultimately preventing accidents and injuries.”

Main noted that a number of mining operations already have these measures in place.

“The additional required communication – notifying miners of hazardous conditions – will encourage prompt corrective action and save lives,” he said. “Miners deserve nothing less.”

From January 2010 through mid-December 2015, 122 miners were killed in 110 accidents at metal and nonmetal mines. In 16 of those accidents, MSHA issued citations for the mine operator’s unwarrantable failure to comply with provisions of the Federal Mine Safety and Health Act of 1977.

“Unwarrantable failure violations involve serious conditions of which the mine operator was aware or should have been aware,” said Main. “Had the individual conducting the examination recorded these adverse conditions, mine operators would have taken prompt corrective action, which would have protected miners from serious injury.”

MSHA plans to develop outreach and compliance assistance materials related to the final rule and provide these materials to stakeholders at seminars and on its website. To ensure consistency, the agency will conduct enforcement training for its inspectors and managers.

Adult Entertainment Clubs Fighting Losing Legal Battle on Denial of Minimum Wage to Dancers

Adult entertainment clubs are fighting a headwind of court victories by dancers claiming they are the club’s “employees” and thus entitled to a minimum wage.

If the club owners had their way, the dancers would be considered “independent contractors” who have to get by on the tips they receive from customers..

The case that caused shockwaves throughout the industry was an FLSA lawsuit brought by more than 2,000 dancers who worked at Rick’s Cabaret in New York City between 2005 and 2012.

Those women were awarded $10.9 million in their class action lawsuit against their employer.

Seeking to ride the momentum of that victory, plaintiffs’ attorneys in other states have taken up the dancers’ cause.

Among them Gregg C. Greenberg, an attorney in Silver Spring, Maryland who has represented about 60 dancers in lawsuits against clubs across the state.

The minimum wage in Maryland is $8.75 in jobs where employees don’t get tips; that’s more than twice the tipped $3.63 an hour wage.

One of Greenberg’s suits was on behalf of six women who sued two adult clubs in Prince George’s County, Maryland, in 2012, alleging that the clubs did not pay them the minimum wage required under the Fair Labor Standards Act.

The women prevailed in U.S. district court, after which the clubs appealed to the U.S. Court of Appeals for the Fourth Circuit

As evidence that they were employees, the women argued that they “were closely regulated by defendants, from their hours to their earnings to their workplace conduct.”

The club, on the other hand, argued that the dancers were “free agents that came and went as they pleased,” and used the clubs as a rented space.

Affirming the lower court;s ruling,  Judge J. Harvey Wilkinson III, wrote for the court: The “relzed working relationship represented by defendants–the kinds that perhaps ever worker dreams about–fimds little support in the record.”

The FLSA rules and do’s and dont’s are discussed here.