Nonaccommodation of Employee With Food Allergies Was ADA Violation, EEOC Charges

Employers have to reasonably accommodate an employee with food allergies just like anyone else with a disability.

So says the Equal Employment Opportunity Commission, which is suing a Maryland company under the Americans With Disabilities Act for allegedly refusing to accommodate an employee who is allergic to peanuts and pine nuts.

The suit is on behalf of a field representative at Cosmic Concepts, Ltd., trading as Media Star Promotions, headquartered in Baltimore. According to the EEOC, the woman’s duties included traveling to outdoor festivals to distribute free product samples and gather customer contact information.

The employee has several allergies, including a severe allergy to peanuts and tree nuts. If she is exposed to peanuts or tree nuts, she will go into anaphylactic shock, and must be immediately injected with medication and hospitalized to prevent death, according to the suit.

The employee requested that Media Star reasonably accommodate her disability by providing vinyl gloves for her to handle a small number of items at company headquarters that may have been exposed to peanuts and to alert hotels and airlines about her allergies when making her travel arrangements, the EEOC said.

But rather than accommodate her disability, the employer  instead improperly asked her to sign a form purporting to waive her rights under the ADA, the EEOC alleges. When she refused, the company terminated her because of her disability and in retaliation for, and in interference of, her exercise of her rights under the ADA, the lawsuit claims.

Read more about the lawsuit filed in the U.S. District Court for the District of Maryland.

EEOC: Coca Cola Plant Favored Men Over Women for Vacant Jobs in Warehouse

A lot of media focus in sex discrimination of late has been in whether women can get a fair shot at advancement to top positions. But a lawsuit filed last week by the Equal Employment Opportunity Commission shines a new spotlight on sexism on the factory floor.

The EEOC against the Coca Cola Bottling Company of Mobile, Alabama, says that it violated Title VII of the 1964 Civil Rights Act by hiring less qualified men over more qualified women for vacant warehouse positions.

EEOC’s suit alleged that Coca-Cola Bottling Company of Mobile, owned and operated by Coca-Cola Bottling Company Consolidated, and CC Beverage Packing, Inc. refused to hire Martina Owes, an applicant for two vacant warehouse positions, because she is female.

Although Owes had the required warehouse and forklift experience, the company chose to hire less qualified men for the available positions. EEOC also charged that by not preserving all application materials related to those positions, the company violated federal record-keeping laws.

It could be that this is one-off violation. Or the evidence might show that the plant doesn’t like hiring women to work on the warehouse floor. We’ll have to await the EEOC’s evidence to see if the problem is more widespread than a single female applicant.

However the lawsuit plays out, use this as an opportunity to review your hiring procedures to make sure that all employees and applicants get fair consideration of employment regardless of gender.

Read more about the lawsuit here.

Cincinnati Enacts Paid Leave Law

Cincinnati now excels at football (The NFL Bengals are 3 and 0 starting play today) and in having a paid leave law.

Under the law passed last Wednesday in a 7-2 city council vote, employees may take two weeks of sick or vacation time followed by four weeks of paid leave at 70 percent of their base pay. They can then borrow against their sick or vacation time for the remaining 30 percent.

Cincinnati can boast at becoming the second major city in Ohio to have a paid leave laws. Akron was the first, passing such a law in late August. Under that law, all permanent full-time or permanent part-time employees who work 35 or more hours per week to take up to six weeks of continuous leave in order to provide parental care immediately following the birth or adoption of a child.


EEOC: Pizza Place Didn’t Accommodate Mentally Disabled Worker in Recording His Work Time

A Texas-based amusement park is in the legal hot seat with the Equal Employment Opportunity Commission because allegedly it refused to give an employee with intellectual disabilities an alternative means of recording his time worked.

According to the EEOC, Austin’s FEC, LLC and Austin Entertainment Center, LP d/b/a Austin’s Park N Pizza, rather than provide the employee with an accommodation, terminated him several months later.

The EEOC said that the employee, who had  mental impairments caused by traumatic brain injuries experienced as a child, worked for Austin’s for approximately four years performing maintenance and custodial work. It wasn’t until Austin implemented a new computerized timekeeping system that experienced difficulties logging in and out of work.

Fortunately the employer, his mother and legal guardian noticed he had not been paid for several months. She contacted the general manager to find out why he was not being paid. After the general manager informed her that her son was having difficulties using the time-keeping system, she requested the company consider alternative methods for keeping track of his hours. The company refused to consider such accommodations and terminated him several months later.

“There was a very simple solution for keeping track of the employee’s time that was rejected by the company,” said David Rivela, EEOC senior trial attorney in the San Antonio Field Office. “Austin’s Park N Pizza made a conscious decision to terminate him instead of accommodating his disability.”

The EEOC filed the suit last week in the U.S. District Court for the Western District of Texas. You can read more abut it here.

Hiring Based on Appearance

Donald Trump’s comments about fellow candidate Carly Fiorina’s face got our resident blogger Robin Paggi to consider whether employers can–or should–make hiring decisions based on someone’s appearance. Here’s her take on that question.

Hiring Based on Appearance

by Robin Paggi

“Look at that face! Would anyone vote for that? Can you imagine that, the face of our next president? I mean, she’s a woman, and I’m not s’posedta say bad things, but really folks, come on. Are we serious?” According to Rolling Stone magazine, presidential candidate Donald Trump said all of that about rival Carly Fiorina.

Trump has since said he was talking about Fiorina’s persona and not her appearance, but his comments bring up an interesting question in the employment world: while voters may choose not to vote for Fiorina based solely on how her face looks, may employers choose not to hire people based solely on their appearance?

The answer is “it depends.”

Federal law says that employers with fifteen or more employees may not refuse to hire based on race, national origin, religion, or any other protected class that might relate to appearance. Therefore, it is illegal for employers to refuse to hire applicants because they appear to be a certain race, or from another country, or to practice a certain religion. (Protected classes vary from state to state, so be sure to find out what they are in your state).

Other than that, in most of the U.S. it is not illegal for employers to refuse to hire someone because they don’t like how they look (there are some exceptions. For example, here in California San Francisco has an ordinance prohibiting weight and height discrimination and Santa Cruz has an ordinance prohibiting weight, height, and physical characteristics discrimination. Again, check to see if your state has exceptions.) Additionally, applicants who are disabled because of weight are protected from discrimination in every part of the U.S.

Thus, employers may generally refuse to hire people because they are not pretty enough. They may also refuse to hire people because they are too pretty. But, they can’t require that women be more attractive than men. That was something else worth noting about Trump’s statement about Fiorina–he singled her face out among all of the male candidates, which makes it look like he is holding Fiorina to a higher appearance standard than the men. Again, that might be allowable in politics, but it’s not allowable in business.

Those of you who think it is unfair that employers may refuse to hire people based on their looks are not alone. There has been some discussion about making appearance a protected characteristic; however, it probably won’t happen because ugliness is in the eye of the beholder, so who would decide whether someone was unattractive enough to be protected?

In sum, employers may generally refuse to hire someone because of his or her face. But, does it make good business sense to do so? It does if you make money because of how your employees look. Otherwise, it probably makes more sense to hire people based upon their ability to do the job.

Robin Paggi is the Training Coordinator at Worklogic HR.

Robin last wrote for us on constant swearing in the workplace . She’s also written about the virtues of requiring hourly employees to clock in and out at work. Prior to that she wrote about HR issues in entertainment news and before that on lessons learned from a recent high-profile retaliation lawsuit. Before that she wrote about a Facebook photo that promoted a firing and before that on making it OK for employees to ask for your help and before that on working in Family-Run Businesses. Before that she wrote on There’s More to Motivating Than Money;  Love at Work: How Should Employers Respond, and prior to that about lessons for employers in the Brian Williams matter.  Prior to that she wrote about giving employees a second chance. Before that she wrote about making sure the applicant is a good fit for the job and before that about  cure for inappropriate behavior at work. Before that she wrote about cyberloafing, on business lessons from a Christmas story and before that about cell phone policies at work. She has also written for us on rules for holiday parties at work and before that about preventing workplace bullying.

Home Depot, U.S. Settle Sex Bias Allegations

Women who apply or seek promotion to sales jobs at a Southern California Home Depot store now have a fighting chance of actually getting selected over men who tended to be favored for those positions by the hiring managers.

The Office of Federal Contract Compliance Programs learned of the situation and investigated. And as a result of that investigation, the store has agreed to do right by the women who were denied the fair opportunity for those better-paying jobs.

OFCCP investigators examined personnel records and employment applications, interviewed rejected female job applicants and managers, and found that management at the Pomona store had routinely channeled or placed equally or more qualified females into cashier positions while male hires were put into sales associate positions with higher pay and promotion opportunities, the agency said.

Under terms of the settlement, 46 women who either were not hired or were placed into the lower-paying cashier jobs will share in $83,400; five women will be or hired promoted to sales positions as part of the settlement.

Home Depot is a federal contractor with multiple contracts north of $2 billion. And that means it can’t discrimination in employment on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability or status as a protected veteran.

There’s a lesson here for all employers, noncontractors and contractors alike. Review your hiring and promotion procedures to make sure that all qualified candidates get a fair consideration. And never routinely route members of a protected class to a particular job or job category.

Read more about the settlement.


EEOC Accuses Subway Franchise of Firing Employee Because He Was HIV-Positive

A Subway franchise in Indiana violated the Americans With Disabilities Act when it fired an employee after he told his manager that he was HIV-positive, the Equal Employment Opportunity Commission charged in a lawsuit filed in the U.S. District Court for the Southern District of Indiana.

According to EEOC’s lawsuit, Subway terminated an employee of its Sheridan store (identified as John Doe for purposes of the filing) after he disclosed to his manager, Maria Manawat, that he was HIV-positive.

“John Doe was a good employee who wanted to work, was fully capable of working and was experienced in the restaurant industry,” said Laurie A. Young, regional attorney for EEOC’s Indianapolis District Office. He was terminated solely because of stereotypes his employer had regarding persons with HIV. This is unlawful, and EEOC is here to fight such discrimination.”

What could Subway’s defense be in this situation? It might argue that retaining the employee would pose a “direct threat” to his safety or the safety of others. As part of a series of Questions and Answers on The Americans With Disabilities Act and Persons with HIV/AIDS, the U.S. Department of Justice’s Civil Rights Division laid out what the employer has to prove to make that case.

Can an employer consider health and safety when deciding whether to hire an applicant or retain an employee who has HIV or AIDS?

Yes, but only under limited circumstances. The ADA permits employers to establish qualification standards that will exclude individuals who pose a direct threat—i.e., a significant risk of substantial harm—to the health or safety of the individual him/herself or to the safety of others, if that risk cannot be eliminated or reduced below the level of a “direct threat” by reasonable accommodation. However, an employer may not simply assume that a threat exists; the employer must establish through objective, medically-supportable methods that there is a significant risk that substantial harm could occur in the workplace. By requiring employers to make individualized judgments based on reliable medical or other objective evidence—rather than on generalizations, ignorance, fear, patronizing attitudes, or stereotypes—the ADA recognizes the need to balance the interests of people with disabilities against the legitimate interests of employers in maintaining a safe workplace.

Transmission of HIV will rarely be a legitimate “direct threat” issue. It is medically established that HIV can only be transmitted by sexual contact with an infected individual, exposure to infected blood or blood products, or perinatally from an infected mother to infant during pregnancy, birth, or breast feeding. HIV cannot be transmitted by casual contact. Thus, there is little possibility that HIV could ever be transmitted in the workplace. For example:

  • A restaurant owner may believe that there is a risk of employing an individual with HIV as a cook, waiter or waitress, or dishwasher, because the employee might transmit HIV through the handling of food. However, HIV and AIDS are specifically not included on the Centers for Disease Control and Prevention (CDC) list of infectious and communicable diseases that are transmitted through the handling of food. Thus, no direct threat exists in this context.
  • An employer may believe that an emergency medical technician (“EMT”) with HIV may pose a risk to others when performing mouth-to-mouth resuscitation. However, the use of universal precautions among emergency responders means that the EMT will be using a barrier device while performing resuscitation.

Having HIV or AIDS, however, might impair an individual’s ability to perform certain functions of a job, thus causing the individual to pose a direct threat to the health or safety of the individual or others. For example:

  • A worker with HIV who operates heavy machinery and who has been experiencing unpredictable dizzy spells caused by a new medication he is taking might pose a direct threat to his or someone else’s safety. If no reasonable accommodation is available (e.g., an open position to which the employee could be reassigned), the employer would likely not violate the ADA if it removed the employee from the position until a physician certified that it was safe for the employee to return to the job.

As noted above, the direct threat assessment must be an individualized assessment. Any blanket exclusion—for example, refusing to hire persons with HIV or AIDS because of a perceived risk—would violate the ADA as a matter of law.

For more information on the lawsuit, click here.


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