Archive for August, 2016

Sex Bias Alleged in NIH Tenure Process

Many of our best scientists and researchers toil away every day at the National Institutes of Health, helping to make life better for us. Many women among them.

But women comprise just 22 percent of the tenured research scientists at NIH, compared to 19 percent in 2011. Just under 2 in 5 (38 percent) are now on track toward tenure, up from 36 percent in 2011.

What is to account for this plodding progress of these women? It’s gender bias, overt and unconscious from the men who govern the institution, according to a complaint filed by Bibiana Bielekova, a female neuro-immunologist who has helped identify a treatment for multiple sclerosis.

Bielekova says she was the victim of retaliation and discrimination based on gender resulting from a “power struggle” following the retirement of her mentor, who was chief of the neuro-immunology branch.

In contrast, male scientists were provided numerous advantages in the aftermath and she was harmed by groundless accusations from male colleagues of unprofessional conduct.

Stay tuned here for more developments in this matter.

DOL: Hispanic, African American Employees Were Victims of Discrimination by Md. Contractor

A Maryland company that does demolition and abatement work will have to answer U.S. Department of Labor allegations that it discriminated against Hispanic and African American employees.

In a lawsuit filed with the Office of Administrative Law Judges, the DOL is alleging that Potomac Abatement violated the civil rights of more than 150 Hispanic and African-American workers and allowed harassment of employees based on race and national origin.

The suit follows an investigation by the department’s Office of Federal Contract Compliance Programs that found Potomac Abatement, Inc., forced at least 145 Hispanic employees into lower-paying jobs and subjected them to ongoing harassment because of their race or national origin, and discriminated against at least 17 African Americans by terminating them because of their race. The Hispanic and African-American workers were employed as skilled field technicians and unskilled laborers at construction sites in the Washington, D.C., metropolitan area in 2011-2012. The complaint alleges that these violations have continued to the present.

The company mistreated its Hispanic employees by denying them basic on-the-job necessities that were provided to other workers; allowed supervisors to illegally harass Hispanic employees, including sexual harassment of Hispanic female workers; and retaliated against Hispanic employees who complained about their treatment. It also alleges a number of other violations of Potomac’s obligations as a federal contractor, including failure to recruit minorities, women, protected veterans, and qualified individuals with disabilities, and failure to maintain required personnel and employment records.

The company has served as a subcontractor on several federal construction contracts and performed work for the Marine Corps, the Smithsonian Institution, Internal Revenue Service, and the U.S. Departments of Labor and Veterans Affairs.

Read DOL’s announcement of the lawsuit and investigative findings here.

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 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

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.