$85K Settlement Closes EEOC ADA Suit Against Restaurant Over Harassment of Autistic Worker

Allowing harassment to go unchecked can prove costly.

Charlotte, N. Jax, LLC, which operates a Golden Corral  restaurant in Matthews, N.C., has agreed to pay $85,000 and provide other  relief to settle a lawsuit filed by the U.S. Equal Employment Opportunity  Commission (EEOC), the federal agency announced today. The EEOC had charged  that Jax discriminated against an employee when it subjected  him to a hostile work environment based on both his disability (autism) and  his sex (male). The EEOC had also charged that the  employee was forced to resign because of the harassment.

According  to the EEOC’s suit, Sean Fernandez worked as a dishwasher at the Matthews  Golden Corral. Fernandez has high-functioning autism, which limits his ability  to communicate and interact with others. The EEOC alleged that, from around  March or April 2014 until January 2016, a male assistant manager created a  hostile work environment by repeatedly referring to Fernandez as “retard,”  calling him “stupid,” and using profanity. The assistant manager also asked for  oral sex from Fernandez, threatened to sexually assault him, and subjected him  to unwanted physical contact, the EEOC said. Fernandez filed a complaint with  the general and district managers, but the company failed to take effective  action to prevent and correct the hostile work environment. Fernandez resigned  his employment because he was fearful of encountering the assistant manager  again, the EEOC said.

Such alleged conduct violates the Americans with  Disabilities Act (ADA), which protects employees from discrimination based on  their disabilities, as well as Title VII of the Civil Rights Act of 1964, which  prohibits sexual harassment. The EEOC filed suit in U.S. District Court  for the Western District of North Carolina, Charlotte Division (EEOC v. Jax,  LLC d/b/a Golden Corral, Civil Action No. 3:17-cv-535) after first attempting  to reach a pre-litigation settlement through its conciliation process.

In addition to providing monetary  relief to Fernandez, Jax, LLC entered into a two-year consent decree requiring  the company to implement an anti-discrimination policy that prohibits  disability-based and sex-based discrimination. The decree further requires the  company to conduct annual training for its Matthews employees and managers on  the ADA and Title VII. Jax must also post an employee notice about the lawsuit  and about employee rights under federal anti-discrimination laws at its  Matthews facility, and must provide periodic reports to the EEOC.

“Employers must take appropriate action to stop employees  from harassing other employees,” said Kara G. Haden, acting regional attorney  for the EEOC’s Charlotte District. “It is particularly problematic when the  harassment is perpetrated by a supervisor. The EEOC takes the conduct and an  employer’s failure to stop it seriously, and will prosecute cases where this  kind of abuse occurs.”

OSHA Rips Tex. Contractor for Trench Collapses

This is a company people might want to avoid working for or patronizing until it can provides workers adequate safety protections.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited El Paso Underground Construction for failing to protect its employees from trench collapse hazards. The pipe-laying company faces proposed penalties of $190,642.

OSHA conducted an inspection after observing employees working in an unprotected trench. OSHA cited the company for failing to provide employees a safe means of entering and exiting a trench, not protecting employees against cave-ins, and for failing to train employees in safe work practices. OSHA cited the company four times in 2017 for failing to protect employees from trench collapse hazards. The Agency has placed El Paso Underground in OSHA’s Severe Violator Enforcement Program.

“This company has once again put their employees at serious risk by failing to provide training and implement required trenching protections,” said OSHA Area Office Director Diego Alvarado, in El Paso. “Unprotected trenches can be fatal and it is fortunate that no one was injured.”

El Paso Underground Construction has 15 business days from receipt of the citations and 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 http://www.osha.gov.

$832K Settlement Closes ADA Reasonable Accommodation Suit Against Utah Grocery Chain

Employers across the country should take a lesson from this case that they must take their reasonable accommodation obligations towards disabled employees seriously.

A Salt Lake City-based grocery store chain will pay $832,500  to resolve a group of disability discrimination charges filed with the U.S.  Equal Employment Opportunity Commission (EEOC), the federal agency announced July 12.

The EEOC’s investigation revealed that  a qualified individual with a disability and a group of other aggrieved  individuals with medical conditions were denied reasonable accommodations to  perform their jobs. These accommodations include additional leave, working with  restrictions and reassignment. The investigation revealed a practice of  disciplining and/or firing employees because of their need for reasonable  accommodation under the Americans with Disabilities Act (ADA).

AFM’s policies and procedures  revealed a practice of denying reasonable accommodations under the ADA;  requiring employees to have no restrictions or be 100% ready to return to work;  denying leave as a reasonable accommodation; and refusing to provide  reassignment to a vacant position as required by the ADA. AFM’s practices  resulted in the termination or resignation of a group of qualified individuals  with disabilities, the EEOC found.

On July 12,  2018 Associated Fresh Market, Inc. (AFM), owned wholly by Associated Retail  Operations, Inc. (formerly known as Associated Retail Stores) agreed to pay a  total of $75,000 to an employee to resolve his disability discrimination charge. In addition, AFM agreed to pay $757,500 to other aggrieved individuals  identified by the EEOC during the investigation who were also adversely  impacted by AFM’s policies and practices due to their medical conditions.

While denying it violated the ADA,  AFM has acknowledged a need to improve in working with applicants and employees  with disabilities. In addition to monetary payments to the discrimination  victims, AFM agreed to make changes to its ADA policies and procedures and to  conduct training for its human resources team as well as for all store  directors, assistant store directors and employees.
“I  am very pleased with the resolution of this matter without having to go through  the litigation process,” said EEOC Phoenix District Director Elizabeth Cadle. “AFM  has worked closely with the EEOC to resolve these allegations and do what is  best for these individuals, their company, applicants and employees.”

The EEOC’s Phoenix District Office has jurisdiction  for Arizona, Colorado, Utah, Wyoming and part of New Mexico (including  Albuquerque).

Good Number: Phone Co. Settles ADA Suit

A deaf employee at a west coast phone company is getting a new chance to do his job with a reasonable accommodation from the company.

Pacific Bell  Telephone Company, formerly known as AT&T Pacific Bell, will pay $15,000  and furnish other relief to settle a disability discrimination lawsuit brought  by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced July 12.

According to the EEOC’s lawsuit,  Pacific Bell violated federal law when it did not effectively accommodate a  deaf employee at its Fresno, Calif., location. Despite the employee’s numerous  requests for a sign language interpreter, managers chose to provide inadequate  accommodations for the worker by standing close to him during meetings so he  could read their lips, or by jotting down notes explaining the contents of the  meeting after the fact. The EEOC contends that such behavior deprived the  worker of equal employment opportunities, privileges and benefits of  employment, which negatively affected him as an employee.

Such alleged conduct violates the  Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District  Court for the Eastern District of California (EEOC v. AT&T Pacific Bell  Telephone Company, Case No. 1:17-cv-01059-LJO-EPG) after first attempting to  reach a pre-litigation settlement through its conciliation process.

In addition  to monetary relief, Pacific Bell agreed to a two-year consent decree to provide  effective accommodations to the employee, and to ensure against future  incidences of discrimination against workers with disabilities. As part of the  decree, the company will provide the employee with an interpreter; ensure a  work environment free from disability discrimination, especially as it pertains  to reasonable accommodation of hard-of-hearing and deaf employees; provide  training to the employee’s immediate supervisor, subsequent supervisors, and  human resources personnel; and ensure appropriate record keeping, reporting and  monitoring of disability complaints.

“Subjecting workers to different  terms, conditions and privileges of employment because of deafness is a direct  violation of the ADA,” said Melissa Barrios, director for EEOC’s Fresno Local  Office. “The EEOC is here to fight for the rights of employees with disabilities.”

Anna Park, regional attorney for  the EEOC’s Los Angeles District, whose jurisdiction includes California’s  Central Valley, added, “We commend Pacific Bell for its willingness to put in  place meaningful relief that will allow all employees with disabilities to  participate in all aspects of the work environment.”

EEOC Comes to Data Clerk’s Aid In Suit Over Employer’s Policy on Medication Disclosures

Beware policies that make employees disclosure what medications they are taking.

Dallas-based  Oncor Electric Delivery Company, LLC violated federal law by terminating a data  entry clerk who would not agree to abide by a medication disclosure policy that  oversteps employees’ rights, the U.S. Equal Employment Opportunity Commission  (EEOC) charged in a lawsuit filed July  12 in federal court. The employee was  required to sign a document promising to reveal all medications that “could”  affect her job performance. When she refused, she was sent home and ultimately  received a termination letter in the mail, the EEOC said.

According  to the EEOC’s suit, Delores McCraney, who had been on medical leave for carpal  tunnel syndrome, was confronted with a “Return to Work Agreement” when she reported  back to work. The “agreement,” which reflects a companywide policy that every  Oncor employee must follow, required that the employee report to her supervisor  each and every medication she is taking, over the counter and prescribed, that  “could” affect her work performance.  McCraney felt that requiring her to sign such  an agreement was a violation of her rights. In addition to requiring  that all such medications be disclosed to management, all Oncor employees can  only take the medication if the supervisor “clears” it first.

Such alleged conduct violates the  Americans with Disabilities Act (ADA), which prohibits discrimination based on  disability in the workplace. The EEOC investigated the case and then filed suit  in U.S. District Court for the Northern District of Texas, Dallas Division, Civil  Action No. 3:18-CV-01786-C, after first attempting to reach a pre-litigation  settlement through its conciliation process. In this case, the EEOC seeks back  pay, plus compensatory and punitive damages, as well as injunctive relief,  including an order barring similar violations in the future.

“Before the ADA  was enacted decades ago, employees could be asked any medical question at all,  and then be fired for the response if the company simply didn’t want a person  with even a possible disability on board,” said EEOC Trial Attorney Toby Wosk  Costas. “That was then, this is now. Congress told the nation, in enacting the  ADA, that employees are protected from this kind of medical inquiry since it  can reveal a hidden disability that there is simply no need to disclose.”

Robert  A. Canino, regional attorney for the EEOC’s Dallas District Office, added, “Blanket  requirements of disclosure like the one presented here result in unlawful  overreaching, eliciting information about an employee’s disabilities that may  not otherwise be disclosed. By so broadly inventorying and examining  medications, an employer ignores prohibitions in the federal law against  eliciting information about a worker’s health.”

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

Short-Sighted: Medical Center Violated ADA in Barring Employee After Vision Loss, Says EEOC

Selective application of a return-to-work policy has landed this employer in federal court opposite the EEOC.

Dignity Health, operating Mercy Medical Center in Redding, Calif., violated federal law when it refused to provide accommodations to allow a 10-year employee to return to work after she suffered a sudden loss of vision, and instead fired her by selectively applying a previously unused vision requirement, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed July 11.

According to the EEOC’s investigation, Alina Sorling worked as a food service technician in Mercy Medical Center’s cafeteria for over ten years, performing tasks that included cashiering, grilling, cleaning and stocking. Surviving a severe illness that left her with vision loss, Sorling took an unpaid leave of absence to rehabilitate and learn non-visual techniques necessary for independent living.

After she successfully mastered everyday tasks, including cooking in her own kitchen and excellent proficiency with knife skills, Sorling sought to return to work and informed her employer of multiple accommodations that she or the California Department of Rehabilitation could provide to allow her to perform the duties of her job. Making unsupported assumptions about safety and her capacity, Dignity Health unilaterally rejected the suggestions, and cited a 20/40 vision requirement when they fired her in June 2015 – even though they had never administered a vision test in the ten years she had worked there.

The Americans with Disabilities Act (ADA) prohibits employers from discriminating based on disability and requires employers to provide reasonable accommodations to employees absent an undue hardship. The EEOC filed suit (CIV# 3:18-cv-04135) 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 lost wages and expenses, front pay, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future.

“After unexpectedly losing her vision and working incredibly hard to rehabilitate herself and learn new skills, Ms. Sorling was ready to go back to work without restrictions for an employer she had served loyally for over a decade,” said William Tamayo, the EEOC’s San Francisco District Office Director. “Instead of allowing her to demonstrate her abilities, Dignity Health excluded her due to fixed assumptions about her disability and limitations. Congress enacted the ADA to combat exactly this type of injustice.”

EEOC Regional Attorney Roberta Steele noted, “Rather than relying on stereotypes, we should consider the successful examples of blind and low-vision individuals employed in food service workplaces such as through the California Business Enterprise Program, authorized and funded by federal legislation, and which trains and places blind and visually impaired participants in food service environments.”

EEOC Trial Attorney Ami Sanghvi added, “The ADA requires a two-way interactive process between the employer and employee. Yet, without providing alternatives, Dignity Health rejected the multiple possibilities Ms. Sorling proposed. Even when she offered to bring in a paid analyst to assess the job site and recommend accommodations, Dignity Health turned her down, and instead chose to fire her based on her impairment and an unjustifiable vision standard. The EEOC is empowered and proud to fight for the rights of people like Alina Sorling.”

According to company information, Dignity Health, headquartered in San Francisco, is the fifth-largest health system in the United States and comprises more than 60,000 caregivers and staff, delivering care to communities across 21 states. Dignity Health is the largest hospital provider in California and operates Mercy Medical Center in Redding, where Sorling worked for ten years before she was fired.

Halliburton on Hook for $280K For Violating Mediation Settlement Agreement, Says EEOC

Six figures may seem like pocket change to a multinational company, but in this case it’s also meant to send a signal to other employers that settlement agreements with the government are not to be trifled with.

Halliburton Energy Services, Inc., an oil and gas exploration services company with headquarters in Houston, has agreed to pay $280,000 to settle a lawsuit for breach of a mediation settlement agreement brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced July 11.

According to the EEOC’s suit, Halliburton entered into a mediation settlement agreement with the EEOC and a rejected job applicant on Feb. 4, 2014, resolving a disability discrimination charge brought by the EEOC against the company. Among other things, Halliburton promised to rehire the applicant into a position, subject to successful employment screening. Despite the applicant’s successfully passing such screening, Halliburton failed to hire him for any position. The EEOC contended that Halliburton’s actions constituted a breach of the settlement agreement. The EEOC filed suit (EEOC v. Halliburton Energy Service, Inc. and Boots & Coots, LLC, Civil Action No. 3:16-cv-00233-CWR-FKB) in U.S. District Court for the Southern District of Mississippi, Northern Division.

In addition to the $280,000 in monetary relief, the consent decree settling the suit also requires Halliburton to provide the applicant with a positive employment reference signed and printed on Halliburton’s letterhead.

“When the EEOC settles with an employer to resolve a matter, whether through litigation or its alternative dispute resolution process, the agency fully expects the employer to fulfill the terms of the agreement,” said Marsha L. Rucker, regional attorney for the EEOC’s Birmingham District Office. “This case should serve as an example that when an employer refuses to abide by the terms of a mediated settlement agreement, the EEOC will not hesitate to seek the courts’ assistance to bring the employer into compliance.”

District Director Bradley Anderson of the EEOC’s Birmingham District Office added, “An employer’s refusal to comply with the terms of a mediation settlement agreement is a rare occurrence. After reasonable efforts to obtain voluntary compliance, the EEOC had no choice but to seek court intervention to enforce the agreement. We believe this suit and its resolution will remind employers that settlement agreements with the EEOC must be honored.”

The EEOC’s Birmingham District Office has jurisdiction over Alabama, Mississippi (all but 17 counties in the northern part of Mississippi), and the Florida Panhandle.