EEOC Issues Retaliation Enforcement Guidance

Any questions on what behaviors constitute retaliation under federal employment discrimination laws and what recourse is available to persons who believe they’ve been retaliated against were answered today when the Equal Employment Opportunity Commission released its final enforcement guidance on retaliation and related topics.

Among the highlights, from a Q&A sheet issued along with the guidance:

Retaliation occurs when an employer takes a materially adverse action because an applicant or employee asserts rights protected by the EEO laws. Asserting EEO rights is called “protected activity.”

Sometimes there is retaliation before any “protected activity” occurs. For example, an employment policy itself could be unlawful if it discourages the exercise of EEO rights.

In a case alleging that an employer took a materially adverse action because of protected activity, legal proof of retaliation requires evidence that:

  • An individual engaged in prior protected activity;
  • The employer took a materially adverse action; and
  • Retaliation caused the employer’s action

Taking adverse action for discussing compensation may implicate a number of different federal laws, whether the action is pursuant to a so-called “pay secrecy” policy or is simply discipline of an employee in an individual case.

Under EEOC-enforced laws, when an employee communicates to management or coworkers to complain or ask about compensation, or otherwise discusses rates of pay, the communication may constitute protected opposition under the EEO laws, making employer retaliation actionable based upon the facts of a given case. Moreover, talking to coworkers to gather information or evidence in support of a potential EEO claim is protected opposition, provided the manner of opposition is reasonable.

In addition, there are also other federal protections for discussions related to compensation. For example, under Executive Order (E.O.) 11246, as amended by E.O. 13665 (Apr. 8, 2014), enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs, federal contractors and subcontractors are prohibited from discharging or otherwise discriminating in any way against employees or applicants who inquire about, discuss, or disclose their compensation or that of other employees or applicants. See https://www.dol.gov/ofccp/. Moreover, the National Labor Relations Act protects non-supervisory employees who are covered by that law from employer retaliation when they discuss their wages or working conditions with their colleagues as part of a concerted activity, even if there is no union or other formal organization involved in the effort. See https://www.nlrb.gov/.

Even if protected activity and a materially adverse action occurred, evidence of any of the following facts, alone or in combination, may undermine a claimant’s ability to prove it was caused by retaliation. For example:

  • The employer was not, in fact, aware of the protected activity.
  • There was a legitimate non-retaliatory motive for the challenged action, that the employer can demonstrate, such as:
    • poor performance;
    • inadequate qualifications for position sought;
    • qualifications, application, or interview performance inferior to the selectee;
    • negative job references (provided they set forth legitimate reasons for not hiring or promoting an individual);
    • misconduct (e.g., threats, insubordination, unexcused absences, employee dishonesty, abusive or threatening conduct, or theft); and
    • reduction in force or other downsizing.
  • Similarly-situated applicants or employees who did not engage in protected activity were similarly treated.
  • Where the “but-for” causation standard applies, there is evidence that the challenged adverse action would have occurred anyway, despite the existence of a retaliatory motive.

The guidance itself is found here.

EEOC Sues Car Company Saying It Withdrew Job Offer Because Applicant Used Prescription Drug

Employers have to make reasonable accommodations to their drug use policies just like any other policy that prevents a qualified employee with a disability from working.

That’s what the Equal Employment Opportunity Commission is alleging that a car dealership company in Scottsdale, Arizona, failed to do.

The EEOC filed this Americans With Disabilities Act lawsuit against the dealership, claiming it withdraw a job offer to a job applicant after a pre-employment drug test revealed she had used a prescription drug to treat a disability.

As the EEOC’s announcement of the lawsuit explained it:

[applicant] Thorholm explained to Bell Lexus that the substance was legally prescribed to treat a disability and would not affect her ability to perform the duties of the job. Bell Lexus refused both Thorholm’s offer of proof and her offer to change medications.

“Even when drug tests are permitted under the ADA, they cannot be used to discriminate against qualified people with disabilities,” said EEOC Phoenix Regional Attorney Mary Jo O’Neill. “Com­panies need to be mindful that they may need to make exceptions to drug use policies as a reasonable accom­modation.”

EEOC Gets $60K for Claustrophobic Hair Stylist Denied Reasonable Accommodation by Salon

In denying a reasonable accommodation to a hair stylist who has claustrophobia, a Texas  hair salon cost itself $60,000.

That’s the price it took for Minnesota-based Regis Corporation, doing business as SmartStyle, to settle an Americans With Disabilities Act lawsuit brought against it by the Equal Employment Opportunity Commission on behalf of former hair stylist Nora Jacquez.

According to EEOC, Regis denied Jacquez an accommodation for her claustrophobia and then fired her.

EEOC said Jacquez was hired as a hair stylist in January 2014 at the company’s Midland location.  Due to her claustrophobia, Jacquez could not work at a salon station if it was in a confined space located between others.  Although at first she was assigned to a more open station at the salon, the company later moved her to work between other stylists.

Despite repeated requests to continue working in her original spot, Regis refused to move her back to a station that would allow her to not feel claustrophobic and increase the potential for episodic anxiety attacks.  This decision by Regis resulted in a physical reaction that sent Jacquez to the hospital emergency room for treatment for her claustrophobia.

EEOC also claimed when Jacquez needed two months off from work to undergo medical treatment, the company failed to follow through to assist her with the necessary paperwork for medical leave and fired her.

Read more about the lawsuit and settlement here.

Illinois Home Builder Serial Violator of Construction Site Safety Rules, OSHA Says

You know those pictures on TV that accompany the latest report on new home construction? Where they show smiling workers hammering nails in a new home and putting on the siding?

TV viewers wouldn’t be mistaken for thinking that the workers are toiling away in safe working conditions.

Turns out that the safety hazards are so bad at one construction contractor in Illinois that it has been cited 19 times by the Occupational Safety and Health Administration for safety violations.

Barringer Brothers Roofing showed “callous disregard” for its employees’ safety, denying them adequate fall protection, OSHA said on Aug. 17.

The agency opened an inspection on May 18, 2016, after inspectors observed five roofers working at a height of 13 feet without adequate fall protection. In this case, the contractor faces proposed penalties of $89,100.

Statistics show falls cause four of every 10 deaths in the industry, OSHA said

Other hazards including employees without eye protection using nail guns, the absence of a competent person to provide regular job site inspections to monitor for safety hazards and a lack of fire extinguishers. The company has also failed to initiate and maintain an accident prevention program, a hazard cited by OSHA in 2013.

This post was featured in the Aug. 26 weekly wrap-up of employment blogs listed with the Ohio Employer’s Law Blog.

 

 

EEOC: Employer Violated ADA in Denying Light-Duty Assignment to Employee Injured Off Work

The duty to reasonably accommodate an employee with a disability by considering a light duty assignment applies whether the injury occurs on or off the job, according to the Equal Employment Opportunity Commission.

A food services company that failed to make that accommodation is now a defendant in an Americans With Disabilities Act filed by the EEOC.

The EEOC announced yesterday that it is suing the company, American Blue Ribbons Holding, LLC, dba Legendary Baking, for violating the Americans With Disabilities Act in its treatment of Patricia Hall, a long-term employee at Legendary Baking’s Oak Forest, Ill., baking facility,.

According to the EEOC, Hall developed CSP myelopathy  a condition affecting the spinal cord, as a result of injury outside of work. This condition required Hall to take a leave of absence in order to have surgery. While recuperating, Hall sought to return to work with restrictions in a temporary light-duty capacity, but was told that she was ineligible because such work was reserved for employees injured on the job. As a result, Hall remained on leave and was terminated for failure to return to work at the expiration of 180 days, pursuant to Legendary Baking’s leave policy. When Hall was released to full duty a month later, she sought rehire, but was denied, EEOC said.

The ADA prohibits discrimination on the basis of disability, which can include denying reasonable accommodations to disabled employees, terminating their employment, and failing to hire or rehire disabled individuals.

NLRB Rules Grad Students Can Unionize

Graduate research and teaching assistants at private universities now have the legal winds at their backs in their drive to negotiate better wages and working conditions for themselves, courtesy of today’s ruling by the National Labor Relations Board in a case brought against Columbia University.

Those researchers and assistants are “employees” under the National Labor Relations Act, the board declared.

In this 3 to 1 ruling, the NLRB overturned a 2004 ruling denying graduate students at Brown University the right to unionize. This should make this right available to graduate students in private universities across the United States.

Past bans on the unionization of graduate students at private universities “deprived an entire category of workers of the protections of the act without a convincing justification,” the NLRB decision says.

Republicans in Congress were quick to condemn the decision as another what they see as an example of NLRB activism. A statement issued by Health, Employment, Labor, and Pensions Subcommittee Chairman Phil Roe (R-TN) and Higher Education and Workforce Training Subcommittee Chairwoman Virginia Foxx (R-NC) said in part:

Teaching and research programs for graduate students are important learning opportunities that help individuals gain knowledge and skills to succeed in the future. Not only will today’s decision limit these programs, but it will increase college costs and impose new obstacles on hardworking men and women trying to build their careers. We will continue working to push back on the NLRB’s activist agenda and to make it easier—not harder—for more Americans to pursue the dream of higher education.

You can access the NLRB’s ruling here.

Employer Violated ADA in Maintaining Inflexible Attendance Policy, EEOC Alleges in New Lawsuit

A poultry producer is the latest company to be sued by the Equal Employment Opportunity Commission under the Americans With Disabilities Act for allegedly having an inflexible medical leave policy.

The EEOC last week filed suit against Wayne Farms, a poultry producer with operations in 11 facilities throughout the Southeastern United States, alleging that it violated the rights of class of workers under the ADA by maintaining an inflexible attendance policy. The policy capped the number of allowable employee absences in a manner that made little to no allowance for disability-related absences. For example, the suit said that an employee, Latonya Hodges, provided medical excuses for absences related to her asthma, yet was fired upon reaching the maximum number of allowable absences.

“The ADA requires that employers provide reasonable accommodations, including time off, to workers with disabilities,” said Delner-Franklin Thomas, district director of EEOC’s Birmingham District Office, which has jurisdiction over Alabama, portions of Mississippi and Florida. “Attendance policies that categorically limit an employee’s absences, without consideration of the individual circumstances of disabled employees, can run afoul of federal law.”

Here’s today’s EEOC’s announcement of the lawsuit.

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