Archive for February, 2016

$125K Payment Ends Harassment Lawsuit Against Manager of Florida Beach Resort

For the second time in recent weeks, a resort will have to pay big bucks to extricate itself from an Equal Employment Opportunity Commission lawsuit.

This time it is Vacation Resorts International (VRI), a provider of management and marketing services to resorts, condominiums, and timeshares. The company will pay $125,000 to settle claims that it allowed a manager at one of its resorts to sexually harass a groundskeeping/housekeeping employee and then unlawfully fired her when she resisted and reported the harassment.

According to EEOC’s lawsuit, a male manager subjected Katrina Archer to repeated and egregious sexual harassment, including grabbing her breasts, exposing his penis to her, attempting to pull her onto his lap and repeatedly propositioning her for sex. The lawsuit also alleged that the male manager touched other female employees without their consent and made inappropriate comments about their bodies.

Archer repeatedly complained to the harassing manager’s supervisor, who also witnessed some of the harassment herself. Nevertheless, no corrective action was taken. As the harassment worsened, Archer threatened to complain to the harasser’s second-level supervisor and to his wife. Shortly thereafter, she was fired.

To read more about the lawsuit and settlement, go here.

In mid-February, the EEOC reached settlement in a sexual harassment lawsuit on behalf of Mexican female employees allegedly subjected to harassment at Vail Run Community Resort Association, Inc., a condominium complex in Vail, Colo. That settlement set back the employer $1.020 million.

Texas Bills Would Erode LBGT Protections

Bills pending in the Texas legislature would give what LBGT supporters describe as a “statutory right to discriminate.”

HR 2553 would give any business in the state a right to violate local non-discrimination laws if the business owner believes that serving a customer whose marriage the business owner dislikes would violate that business owners religious beliefs.

A second bill being considered, HR 3602,  creates a new class of law suits that may be brought against governments or employers that require work environments that do not discriminate on the basis of sexual orientation or gender identity or expression. The bill allows an employee to sue their employer if they are disciplined for creating a hostile work environment or discriminating against LGBT customers, so long as the employee claims a religious basis for the discrimination. HB 3602 also allows lawsuits to be brought against governments for requiring equal access to services.

A group called Equality Texas is fighting this legislation.

Fifth Circuit: Rehab Act Allows Employment Discrimination Suits by Independent Contractors

Section 504 of the Rehabilitation Act authorizes employment discrimination suits by independent contractors, the U.S. Court of Appeals for the Fifth Circuit ruled earlier this month.

The plaintiff in this case is a pediatrician who provided services at Lakeland Air Force Base in San Antonio, Texas, under contract through a staffing agency.

The doctor is suing the staffing agency, and its predecessor that originally had her contract, for discrimination on the basis of disability, a hostile work environment based on her disability, and denial of a reasonable accommodation.

As an independent contractor–and not an employee–the doctor can’t sue the staffing agencies under Title I of the Americans With Disabilities Act, the appeals court said. But Section 504 of the Rehabilitation Act, which applies to recipients of federal financial assistance, doesn’t incorporate that prohibition.

As a result, the doctor can pursue her lawsuit against the agency even though she isn’t its employee.

The case is Flynn v. Distinctive Home Care, decided February 1, 2016.


Retailer at Brooklyn Navy Yard Hit With Multi-Count Discrimination Lawsuit by DOL’s OFCCP

A retailer that operates at the Brooklyn Naval Yard has hit the trifecta, accused by the U.S. Department of Labor of discriminating against Hispanic employees and female, black and Asian jobseekers.

The accused is B&H Foto & Electronics Corp., a photo, video, audio and digital imaging retailer headquartered in Manhattan, The company has supply contracts with the General Services Administration and the Department of Justice’s Federal Bureau of Investigation valued in excess of $46 million.

The bill of particulars against the company is a long one as detailed in a lawsuit filed by the Office of Federal Contract Compliance Programs, the DOL unit that enforces discrimination requirements against federal contractors.

According to the lawsuit, B&H Foto committed these violations of nondiscrimination rules during 2011-2013.

  • B&H’s Brooklyn Navy Yard warehouse exclusively hired Hispanic men into its entry-level laborer job group, contributing to the complete exclusion of female employees at the warehouse and the near exclusion of black and Asian employees at the facility.
  • B&H promoted and compensated its Hispanic workers at a significantly lower rate than comparable white workers, leading to lower pay, fewer opportunities to advance and a near-total exclusion of Hispanic workers from higher level clerical, managerial and supervisory positions. Hispanic employees were also subjected to racist remarks, degrading comments and harassment at the worksite.

In addition to its findings regarding hiring, compensation and promotion discrimination and harassment, OFCCP found that B&H’s Brooklyn Navy Yard warehouse:

  • Failed to keep and preserve required personnel and employment records.
  • Relegated Hispanic warehouse workers to separate, unsanitary and often inoperable restrooms.
  • Failed to provide designated restroom or changing facilities for females.

For more on the lawsuit, click here.

Proposed Rehab Act Rule Sets Numerical Goals for Agencies’ Hiring of Persons With Disabilities

Proposed regulations published yesterday implementing the federal government’s commitment to hiring more persons with disabilities include hiring percentage goals.

The Equal Employment Opportunity Commission published for public comment proposed regulations “describing specific actions that federal agencies must take to comply with their obligation to engage in affirmative action in employment for individuals with disabilities,” under Section 501 of the Rehabilitation Act of 1973, the commission said yesterday.

Under the rules, federal agencies would have to adopt the goal of achieving a 12 percent representation rate for individuals with disabilities, and a 2 percent representation rate for individuals with targeted/severe disabilities.

Targeted disabilities are those that the government has, for several decades, placed aspecial emphasis on in hiring because they pose the greatest barriers to employment. The goals would apply at both higher and lower levels of federal employment. Hiring efforts would be further improved through focused recruitment efforts and simplified access to disability hiring programs and services.

Federal agencies would also have to provide personal assistance services to employees who, because of a disability, need these services to help with activities such as eating and using the restroom while at work.

The proposal would also collect into a single rule, longstanding requirements found in a variety of sources, including management directives and Executive Orders. This will provide clarity for federal agencies for the development of their affirmative action plans.

The proposed rule does not impose any obligations on private businesses or state and local governments.

The rule is open for public comment through April 25.

Here’s the EEOC’s announcement, including link to a question and answer document on the proposed rule and a summary of the proposed rule.


EEOC: Staffing Agency Violated Title VII in Not Assigning Pregnant Worker to Job at Warehouse

Another employer has crossed swords with the Equal Employment Opportunity Commission for not hiring a woman because she was pregnant. Guess who got the better of that confrontation.

The EEOC filed this Title VII lawsuit on behalf of Kayla Medeiros, who it said had sought a temporary job assignment through Quality Solutions, LLC, a Dalton, Ga., staffing company. The company called Medeiros about a job opening, but when she told them she was interested, a company manager allegedly refused to assign her because the job in a warehouse where she could get hurt.

To settle the lawsuit, the company agreed to pay $22,500, the EEOC announced.

“An employer cannot make hiring decisions based on what it thinks is in the best interests of a pregnant applicant,” said EEOC Regional Attorney Lynette Barnes. “Every woman has the right to make decisions about her health and ability to work when she is pregnant.”

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


Alleged ADA Violations on Medical Inquiries Lands Staffing Agency in Court Opposite EEOC

A temporary staffing agency is in hot water with the Equal Employment Opportunity Commission, which alleges that the agency violated the Americans With Disabilities Act prohibition against asking job applicants about their health conditions.

According to the Equal Employment Opportunity Commission, Two Hawk Employment Services, LLC, which operates a temporary staffing agency based in Lumberton, N.C., violated the ADA when it asked an applicant illegal medical questions during its application process and then refused to hire the applicant because of her responses to those illegal medical inquiries.

The allegations are particularly chilling and evince blithe ignorance or disregard of the ADA requirements:

The EEOC said that Nicole Bullard applied for employment with Two Hawk in May 2013 and was required to fill out a medical history form during the application process. The form asked Bullard to identify medical conditions she has or had in the past, as well as to disclose whether she was taking any medications that might affect her ability to perform the essential functions of the job. The form further asked Bullard to state whether she had physical or mental conditions that require accommodation, and whether she had any restrictions in activity. In response to the application’s questions, Bullard disclosed that she was taking two prescription medications.

Thereafter, EEOC said, Bullard received a conditional job offer from Two Hawk. During her orientation for work with Two Hawk, Bullard was questioned about her medications, and provided information in response to those questions. The following day, Bullard’s job offer was rescinded and Bullard was told she had not passed a “pre-screening test.”

The questions asked during the application process, as well as the alleged refusal to hire Bullard due to the medical information disclosed, violate the Americans with Disabilities Act (ADA). EEOC’s complaint also charges that Two Hawk failed to retain applications and other documents related to hiring as required by the Commission’s record-keeping regulations, in violation of 29 C.F.R. § 1602.14.

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


Vermont Poised to Enact Paid Leave Law

One of the frequent tropes of Vermont Senator Bernie Sanders’ presidential campaign is that the United States is one of the few industrialized countries that doesn’t have mandatory national paid sick leave for all workers. At least he can now point to his home state of Vermont as having come on board to write that guarantee into law.

Under the bill (H. 187), which Governor Peter Shumlin has said he will sign,  full-time workers will get three paid sick days a year for the first two years after it goes into effect, increasing to five days after the third year.

Employees accrue one hour of paid sick leave for every 52 hours worked. Employers can require newly hired employees to wait up to one year before using their accrued leave.

Employees can use their earned leave for their own care or to care for family members.

The law does not cover workers younger than age 18 or those working fewer than 18 hours a week or 21 weeks a year. It also doesn’t apply to substitute teachers.

The law does not exempt small businesses from compliance.

Vermont now becomes the fifth state to pass paid sick leave, joining California, Connecticut, Massachusetts and Rhode Island.

Pharmacy Settles Pregnancy Discrimination Lawsuit Brought on Behalf of Fired Pharmacists

It will cost a compounding pharmacy $85,000 to put behind it a discrimination lawsuit brought on behalf of two female pharmacists fired–within weeks of each other–by the pharmacy’s owner after he found out they were pregnant.

That the price that the Equal Employment Opportunity exacted from Tomeldon Company, Inc., dba Pharmacy Solutions, an Arlington, Texas pharmaceutical compounding business, to settle a Title VII lawsuit brought on behalf of ex- pharmacy employees  Arian Lemon and Emilee Stephens.

In this Title VII lawsuit the EEOC alleged that charged that after Lemon, a pharmacist, started making visits to her doctor, the owner made negative remarks about her pregnancy. The suit also alleged that after Stephens, a former pharmacy technician, informed the owner that she was pregnant and requested to switch her days off to see her doctor, the owner made negative comments about her pregnancy. The owner fired both employees in the same month.

“It is unfortunate that in a medical-related business like a pharmacy, there would still be such an outdated approach to pregnancy in the workplace,” said Regional Attorney Robert A. Canino of EEOC’s Dallas District Office. “Exclusion of women who simply seek to earn a living as well as have a family can certainly run afoul of the anti-discrimination statutes.”

Here’s the announcement of the settlement.

Cessna Settles ADA Suit on Use of Workers’ Comp Guidelines to Make Hiring Decisions

“Workers’ compensation guidelines are not a proxy for the ability of an employee or conditional employee to perform the essential functions of the job,” said the Equal Employment Opportunity Commission in announcing the settlement today of an Americans With Disabilities Lawsuit against Cessna Aircraft Company.

In its lawsuit, the EEOC charged that Cessna relied on workers’ compensation standards to make decisions on whether to hire conditional employees, rather than make an individual assessment of each employee’s ability to perform the essential functions of the job.

The violations were found in Milwaukee and Wichita based on what appeared to be a company-wide policy, the EEOC said. In one case, Cessna required a conditional employee to meet national maximum medical improvement standards to be eligible to work, despite the employee providing medical documentation that he could work without restriction. Cessna rescinded the job offer of this employee on the basis that he would not reach maximum medical improvement within a specified time period.

In another case, EEOC said, Cessna withdrew its job offer from an employee with a history of workers’ compensation restrictions without regard for his subsequent improvement and ability to provide medical documentation of his ability to work without restriction.

EEOC said that Cessna agreed to pay $167,500 to settle the lawsuit.

The settlement also requires that a “Cessna executive-level employee will personally address the staff before every training session with a message that Cessna takes its obligation under all equal employment opportunity laws seriously and will state Cessna’s non-retaliation policy.” OUCH!

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