Archive for January, 2016

Bartender Awarded $687K for Illegal Firing; Evidence Owner Favored Hiring Whites Only

Want to start a national conversation on race in the workplace? Then maybe the place to begin is with the Redline bar in Washington, D.C.

That’s where, according to a federal jury, the owner illegal discriminated against a former employee because she is African American, supposedly refusing to shake her hand or speak with her and firing her within an hour of her hiring.

For that violation of the law, the jury awarded Briggitta Hardin $687,000 under federal and D.C. anti-discrimination laws.

The jury’s award broke down to $175,000 in compensatory damages, $510,000 in punitive damages under Title VII, and $2,000 in punitive damages under the District’s Human Rights Act.

But this apparently wasn’t just an isolated incident at this particular workplace.

Several white ex-employees testified during trial about the absence of black bartenders and the owner’s racially charged hiring preferences. “Witnesses testified at trial that he wanted to hire white blonde chicks or girls, as bartenders,” according to Hardin’s attorney.

The defense presented a rosier picture of race relations at the establishment, calling as witnesses two African American patrons and friends to testify about the demographics of Redline’s patrons and employees and the owner’s treatment of black and other minority customers.

But the evidence on the whole on which the jury found liability paints a disturbing picture of this particular workplace-and should trigger soul searching on race relations in the workplace.

EEOC Seeks Pay Data From Employers

If you’re an employer with more than 100 employees, get ready to turn over “summary” pay data on your employees to the Equal Employment Opportunity Commission.

Under the EEOC proposal unveiled today, any employer or federal contractor with more than 100 employees would be required to provide aggregate data on pay ranges and hours worked when filing their annual EEO-1 report. That’s the report that requires these employers each year to provide information on the racial, gender, and ethnic composition of their workforce.

From the EEOC’s announcement:

“The new pay data would provide EEOC and the Office of Federal Contract Compliance Programs (OFCCP) of the Department of Labor with insight into pay disparities across industries and occupations and strengthen federal efforts to combat discrimination. This pay data would allow EEOC to compile and publish aggregated data that will help employers in conducting their own analysis of their pay practices to facilitate voluntary compliance. The agencies would use this pay data to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.”

Employers would have to start providing this information with the September 2017 report.

Proposed changes are available for inspection on the Federal Register website and will be officially published in the Federal Register on Monday, February 1, 2016. Members of the public have 60 days from that date April 1, 2016, to submit comments.

Here’s the EEOC’s announcement.

EEOC Recovers $35K for Fired Pregnant Worker

It may be 2016, but some employers still have paternalistic notions about what work a woman can or cannot do when she is pregnant.

That kind of thinking doesn’t sit well with women or the Equal Employment Opportunity Commission.

A moving company will pony up $35,000 to settle a lawsuit alleging it fired a female employee because she was pregnant, the EEOC announced last week.

The EEOC charged DeHaven’s Transfer & Storage, Inc., a residential and commercial moving company in North Carolina, with violating Title VII of the 1964 Civil Rights Act when it fired the worker after the owner told her crew leader “that he should not bring [the employee] to work any longer because of her size, and stated that she looked terrible.”

“Pregnancy discrimination continues to be a problem in the American workplace,” said Lynette Barnes, regional attorney for EEOC’s Charlotte District Office. “The law ensures that a woman cannot be forced to leave her employment because of her pregnancy, or because of her employer’s paternalistic notions regarding pregnancy. This settlement serves as a reminder to employers that EEOC will continue to actively pursue cases where an employee is subjected to discriminatory treatment because she is pregnant.”

Here’s the EEOC’s announcement of the settlement.

EEOC: Employer Violated ADA by Imposing Irrelevant Qualification Standards on Workers

If you are going to require your workers to pass qualification standards for a particular job, make sure they are relevant to the job and not applied to screen out qualified individuals with disabilities.

Because it allegedly had qualification standards that didn’t fit that description, a manufacturing company in York, Pennsylvania, finds itself $180,000 poorer.

That’s the price for global paper manufacturer P.H. Glatfelter to settle a lawsuit by the Equal Employment Opportunity Commission claiming that it violated the Americans With Disabilities Act by requiring equipment operators to pass a physical examination and comply with U.S. Department of Transportation standards, the EEOC announced yesterday.

According to the EEOC, company required all individuals who applied for or worked in positions involving operation of forklifts or similar motorized industrial equipment to undergo a medical exam­ination and pass DOT physical qualification standard operating  commercial motor vehicles. Federal law does not require drivers of forklifts or similar equipment to pass the DOT standards for commercial motor vehicles. According to the suit, Glatfelter nonetheless applied the DOT standards in a manner that screened out qualified individuals with disabilities.

EEOC further maintained that Glatfelter failed to conduct individualized assessments of applicants’ and employees’ ability to operate the equipment at issue or to determine whether a reasonable accommodation would enable them to do so. EEOC said that Glatfelter rescinded job offers to two qualified applicants with disabilities, thus violating the ADA.

Here’s the EEOC’s announcement of the settlement.

DOL Proposes Updates to 2014 Job Training Law

The U.S. Department of Labor is proposing to update nondiscrimination and equal opportunity rules in financially assisted programs and activities under the Work Innovation and Opportunity Act, a job training reform bill enacted two years ago.

Signed by President Obama in 2014, the WIOA unifies and streamlines federal job training programs. Regulations governing those programs haven’t changed since 1999.

WIOA requires DOL to issue regulations to implement Section 188 of the law, the provisions that require equal opportunity and nondiscrimination in the workforce development system. Section 188 prohibits discrimination because of race, color, religion, sex, national origin, age, disability, political affiliation or belief, and for beneficiaries, applicants, and participants only, citizenship status, or because of an individual’s participation in a program or activity that receives financial assistance under Title I of WIOA.

Highlights of the proposed rules include:

  • Update the nondiscrimination and equal opportunity provisions to align them with current law and legal principles;
  • Ensure protection from discrimination based on pregnancy;
  • Safeguard meaningful access to the workforce system for persons with limited English proficiency (LEP);
  • Ensure access to the workforce system by people with disabilities by bringing the regulations in line with updated disability civil rights law;
  • Ensure that recipients and partners are aware of the full scope of their obligations;
  • Outline protections for transgender and gender non-conforming people;
  • Improve the effectiveness of the Department’s enforcement program to support compliance.

A fact sheet on the proposed rules is available here.


Tech Workers Charge Disney, Outsourcing Firms With Conspiracy to Violate U.S. Immigration Law

Disney World is being sued by former tech workers who claim that the company and two outsourcing firms conspired to replace U.S. workers with less costly foreign workers holding H-1B visas.

In addition to Disney, the lawsuit names outsourcing firms HCL Inc. and Cognizant Technologies.

The lawsuits assert the companies violated federal law because the outsourcing firms were misleading when filling out forms to sponsor workers for the visas. The outsourcing firms said in forms under oath that working conditions of “similarly situated employees would not be adversely affected,” according to the lawsuits.

Two laid off Disney technicians filed the lawsuit in the U.S. District Court for the Middle District of Florida, seeking to represent a class of 250 Disney tech workers laid off about a year ago.

The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations.


EEOC Recovers $36K for Applicants Required to Reveal Their Names, Birthdates on Applications

Employers should never ask include in their job applications questions requiring applicants to reveal their names or dates of birth.

A Popeye’s restaurant in Coatesville, Pa., that did that faced age discrimination claims from the Equal Employment Opportunity Commission, filed on behalf of three applicants allegedly denied employment based on that information.

Two applicants were military veterans. All three were over age 40.

According to the EEOC, during interviews of two of the applicants, the restaurant’s general manager asked them how old they were and told them that they were “too old” to work for the restaurant.

The EEOC said that the restaurant has agreed to settle the Age Discrimination in Employment Act lawsuit by paying $36,000, and revising its job application to no longer require applicants to state their age and birth dates.

Here’s the EEOC’s Jan. 21 announcement of the settlement.

EEOC Opens Retaliation Guidance to Public Input

It’s not every day that the Equal Employment Opportunity Commission requests public input on an enforcement guidance.

But the commission has taken that unusual step for its draft guidance on retaliation and related issues under federal employment discrimination laws.

Why the push for public input? According to yesterday’s announcement, the Commission’s last guidance update on the subject of retaliation was issued in 1998. Since that time the Supreme Court and lower courts have issued numerous significant rulings regarding retaliation under employment discrimination laws.

And over that nearly two-decade timeframe, the number of retaliation charges has gone way up.

The percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation raised with EEOC. Nearly 43 percent of all private sector charges filed in fiscal year 2014 included retaliation claims. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation violations comprised 53 percent of all violations found in the federal sector in fiscal year 2015.

The percentage of retaliation charges has roughly doubled since 1998, making retaliation the most frequently alleged type of violation raised with EEOC. Nearly 43 percent of all private sector charges filed in fiscal year 2014 included retaliation claims. In the federal sector, retaliation has been the most frequently alleged basis since 2008, and retaliation violations comprised 53 percent of all violations found in the federal sector in fiscal year 2015.

The draft guidance is available for review at!docketDetail;D=EEOC-2016-0001.

The 30-day input period ends on February 24, 2016. EEOC wants input in narrative form rather than submitting redlined versions of the document. The public is invited to submit its input using in letter, email, or memoranda format. Alternatively, hard copies may be mailed to Public Input, EEOC, Executive Officer, 131 M Street, N.E., Washington, D.C. 20507.

EEOC Recovers $150K For Transgender Employee in Settlement of Title VII Lawsuit

Congress hasn’t said that transgender discrimination is sex discrimination under Title VII of the 1964 Civil Rights Act, and neither has the U.S. Supreme Court, but that isn’t holding back the Equal Employment Opportunity Commission.

And, as a result, a transgender employee who allegedly suffered discrimination and harassment at her workplace secured a monetary settlement.

The EEOC said today that Deluxe Financial Services Corp. (Deluxe), a Shoreview, Minn.-based check-printing and financial services corporation, has agreed to pay $115,000 as part of the settlement of a sex discrimination and harassment lawsuit on behalf of a transgender employee.

According to EEOC’s complaint, Britney Austin was assigned the male sex at birth and presented as male when hired by the company. Ms. Austin performed her duties satisfactorily in the com­pany’s Phoenix offices throughout a lengthy tenure. However, after she informed her supervisor that she was transgender and began to present as a woman at work, Deluxe refused to let her use the women’s restroom. According to the suit, supervisors and coworkers subjected Austin to a hostile work environment, including hurtful epithets and intentionally using the wrong gender pro­nouns to refer to her.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, including that based on transgender status and gender stereotyping. This includes subjecting an employee to different terms and conditions or a hostile work environment because of sex.

In other Title VII lawsuits on behalf of transgenders, the EEOC recovered $150,000 for a transgender employee who was fired by an eye clinic in Florida.

EEOC also filed suit seeking relief for an employee of a Detroit area funeral home fired for transitioning from male to female, which is still pending.

Here’s the EEOC’s announcement of the settlement.


EEOC: Health Center Leave Policy Violated ADA

Having a too strict leave policy is a red flag that could ensnare the employer in a disability discrimination lawsuit.

A Michigan-based federally funded health center will pay $31,000 to settle an ADA lawsuit over its denial of extended unpaid leave to an employee following his surgery, the Equal Employment Opportunity Commission announced today.

According to the EEOCA , Downriver Community Services, headquartered in New Haven, Michigan, refused to extend additional unpaid leave to a peer counselor after surgery for a herniated disc, fired her based on her disability, and then refused to rehire her.

“The goal of (Title I of) the Americans with Disabilities Act is to provide equal employment opportunity for people with disabilities,” said EEOC Trial Attorney Dale Price. “Employers must make decisions based on the law and an employee’s ability to do the job, not on stereotypes and assumptions.”

Enough said. But if you need a refresher on the ADA’s requirement of reasonable accommodation, the EEOC has a web page just for you.

Here’s more on the lawsuit and settlement.