Archive for August, 2017

Bad Suds: Carwash Subjected Hispanics to Hostile Work Environment, EEOC Alleges

A Maryland carwash ran roughshod over its Hispanic employees, the Equal Employment Opportunity Commission is alleging

Maritime Autowash, Inc. violated federal law when it subjected a class of workers to a hostile work environment and disparate treatment based on their race and national origin (Hispanic) at its Edgewater, Md., facilities, the EEOC charged in a lawsuit it announced on Aug. 28.

According to the EEOC’s lawsuit, Maritime segregated a class of Hispanic workers into lower-paying jobs as laborers or detailers because of their race and national origin, and did not offer them promotion or advancement opportunities to key employee or cashier positions, despite their tenure and outstanding job performance. Maritime paid many class members only the minimum wage despite years of service, but paid non-Hispanic workers higher wages or promoted them to key employee positions.

The EEOC also charged that Maritime discriminated against the Hispanic class members in their terms and conditions of employment. These discriminatory practices included forcing them to perform other duties without additional compen­sation and denying them proper safety equipment or clothing. Maritime also required Hispanic workers to perform personal tasks for the owner and managers, such as routinely assigning the female Hispanic class members to clean the houses of the owner or manager and assigning the male Hispanics to perform duties at their homes, such as landscaping, cleaning the pool, picking up dog excrement, painting or helping with moves.

In addition, the EEOC charged that Maritime further violated the law by firing class members for complaining about the harassment and discriminatory working conditions.  In the course of the EEOC’s investigation of this matter, the U.S. Circuit Court of Appeals for the Fourth Circuit enforced the agency’s authority to subpoena evidence, in a published opinion available at: http://www.ca4.uscourts.gov/Opinions/Published/151947.P.pdf.

All this alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits dis­crim­ination and harassment based on race and national origin. The EEOC filed suit (EEOC v. Phase II Invest­ments, Inc., formerly known as Maritime Autowash, Inc. and Maritime Autowash, II, et. al, Civil Action No. 1:17-cv-02463) in U.S. District Court for the District of Maryland, Northern Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking compensatory and punitive damages on behalf of the class members, as well as broad injunctive relief to prevent discrimination in the future.

“Sadly, more than 50 years after the passage of the Civil Rights Act, this employer thought it could get away with subjecting Hispanic workers to separate and unequal pay, job opportunities and working conditions,” said EEOC Regional Attorney Debra M. Lawrence. “The EEOC is dedicated to protecting vulnerable workers from such discrimination and harassment and ensuring that all employees receive equal pay for equal work.”

Spencer H. Lewis, Jr., district director of the EEOC’s Philadelphia District Office, added, “Exploiting workers based on national origin and race is despicable and unlawful. The class members courageously opposed the harassment and discrimination. Unfortunately, Maritime again failed to do the right thing and made a bad situation worse by firing the discrimination victims. Now the EEOC will take vigorous action to rectify this situation.

EEOC Takes Estee Lauder to Court Over Paid Parental Leave More Generous to Its Women

The Equal Employment Opportunity Commission has targeted another employer over a parental leave policy more generous to one gender than the other.

Estée Lauder Companies, Inc., one of the world’s leading manufacturers and marketers of skin care, makeup, fragrance and hair care products, violated Title VII of the Civil Rights Act and the Equal Pay Act when it implemented and administered a paid parental leave program that automatically provides male employees who are new fathers lesser parental leave benefits than are provided to female employees who are new mothers, the  EEOC alleged in a lawsuit it announced today.

According to the suit, in 2013 Estée Lauder adopted a new parental leave program to provide employees with paid leave for purposes of bonding with a new child, as well as flexible return-to-work benefits when the child bonding leave expired. Under its parental leave program, in addition to paid leave already provided to new mothers to recover from childbirth, Estée Lauder also provides eligible new mothers an additional six weeks of paid parental leave for child bonding.  Estée Lauder only offers new fathers whose partners have given birth two weeks of paid leave for child bonding.  The suit also alleges that new mothers are provided with flexible return-to-work benefits upon expiration of child bonding leave that are not similarly provided to new fathers.

The case arose when a male employee working as a stock person in an Estée Lauder store in Maryland sought parental leave benefits after his child was born.  He requested, and was denied, the six weeks of child-bonding leave that biological mothers automatically receive, and was allowed only two weeks of leave to bond with his newborn child.  Such conduct violates Title VII of the Civil Rights Act of 1964 (Title VII) and the Equal Pay Act of 1963, which prohibit discrimination in pay or benefits based on sex.  The suit seeks relief for the affected employee, and other male employees who were denied equal parental leave benefits because of their sex.

The EEOC’s Washington Field Office investigated the charge of discrimination that led to this suit. The EEOC filed suit (EEOC v. Estée Lauder Companies, Inc., Civil Action No. —) in U.S. District Court for the Eastern District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process. As part of the suit, the EEOC is seeking back pay and compensatory and punitive damages on behalf of the aggrieved class members, as well as injunctive relief.

“It is wonderful when employers provide paid parental leave and flexible work arrangements, but federal law requires equal pay, including benefits, for equal work, and that applies to men as well as women,” said EEOC Washington Field Office Acting Director Mindy Weinstein.

EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence added, “Addressing sex-based pay discrimination, including in benefits such as paid leave, is a priority issue for the Commission.”

EEOC Sues Illinois Employer for Denying Cancer Patient’s Request for Additional Medical Leave

Employers should know by now that federal law requires some flexibility on granting leave to give an employee time to treat a disabling medical condition.

Illinois Action for Children fired an employee who was on leave receiving treatment for breast cancer rather than granting her request for additional leave for more treatment, the Equal Employment Opportunity Commission EEOC charged in a lawsuit filed yesterday.

Such alleged conduct violates under the Americans with Disabilities Act (ADA), which prohibits disability discrimination in employment. The EEOC brought the suit (EEOC v. Illinois Action for Children, Civil Action No. 17-cv-6224) in U.S. District Court for the Northern District of Illinois, Eastern Division on Aug. 28, after first attempting to reach a pre-litigation settlement through its conciliation process. The case has been assigned to U.S. District Judge Rebecca R. Pallmeyer.

EEOC Chicago District Director Julianne Bowman said, “Our investigation revealed that Illinois Action for Children fired Myrnie Brown while she was receiving treatments for breast cancer rather than granting her request from her doctor for a short period of additional leave to receive additional treatment. Ms. Brown had been employed with Illinois Action for Children for almost two and half years at the time of her termination. Although Illinois Action for Children eventually rehired Ms. Brown, because of her termination over breast cancer leave, she was denied the opportunity to work at her job for over six months.”

EEOC Chicago District Regional Attorney Greg Gochanour pointed out that employers have a duty to provide reasonable accommodations to people with disabilities that enable them to perform the essential functions of their job. Courts have repeatedly found that in certain circumstances, a leave of absence may constitute a reasonable accommodation under the ADA. EEOC guidance states than an employer may have to accommodate an employee who is unable to work while she is undergoing chemotherapy or other treatments, Gochanour added.

Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness.  When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

The EEOC is seeking full make-whole relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Illinois Action for Children’s practices going forward.

Staffing Firm Settles ADA Suit Alleging It Made Applicants Answer Health, Disability Questions

Tread lightly when asking job applicants for health information before you make them an offer of employment.

KB Staffing LLC, a staffing firm servicing central Florida, will create a class damages fund and furnish other relief to settle a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission, the federal agency announced today. The EEOC had charged that the company made unlawful pre-offer health inquiries of applicants in violation of federal law.

According to EEOC’s lawsuit, from 2011 to 2013, KB Staffing asked all applicants to complete a paper application package with a detailed medical questionnaire before the company offered the applicant a position or placement. The suit further alleged that although KB Staffing represented that it changed its process in 2013, it still required applicants to complete a medical questionnaire prior to any job offer in some instances after that date. The medical questionnaires asked for sensitive health information and included numerous disability-related questions.

Last week the court approved a consent decree resolving the case in which KB Staffing agreed to provide a $22,500 class fund, representing compensatory and punitive damages, designed to compensate applicants who were forced to disclose their sensitive medical and disability-related information in the application process. The three-year decree requires the company to affirmatively recruit individuals with disabilities, adopt and distribute a policy regarding disability discrimination, and train its management on the ADA’s prohibition against disability discrimination, including its requirements regarding medical examinations and screenings. KB Staffing must certify each year that it has not made disability-related inquiries which are not consistent with business necessity and that it has maintained the confidentiality of its employees’ medical information. The company must also report detailed information concerning any disability discrimination complaints and post a notice concerning the lawsuit.

This resolution closely follows several court orders entered in the EEOC’s favor in this case, which includes an order permitting the EEOC to file an amended complaint. The court recognized that applicants who completed the intrusive pre-offer medical questionnaire could be awarded damages in the absence of being denied employment. The court explained the damages suffered by the class, saying “[i]t is reasonable to infer that emotional or other damages may have been caused by the embarrassment or distress of answering the specific question alleged in the proposed Amended Complaint regarding private and/or sensitive medical information, which include questions about mental health conditions and/or treatment, or disabilities.” The amended complaint was filed on Aug. 10.

“Congress recognized that prohibiting pre-offer medical inquiries was necessary to prevent applicants from being subjected to harmful and unfounded stereotypes on the basis of an actual or perceived disability,” said EEOC Regional Attorney Robert Weisberg. “As staffing agencies now play a large role in our nation’s workforce, eliminating any discrimination in their screening practices is increasingly important to ensuring that workers with disabilities have equal access to work opportu­nities.”

EEOC Tampa Field Director Evangeline Hawthorne added, “As a result of this resolution, applicants in Central Florida should have less concern that their employer will improperly collect and potentially use sensitive and private medical information, unfairly excluding them from jobs they can readily perform with or without accommodation.”

EEOC: Senior Center Forced Seventh Day Adventists to Work on Sabbath, Violating Title VII

As we approach the Jewish High Holidays and with other religious observance looming, remember your obligations as an employer to make reasonable accommodation for your employees’ faith requirements.

Century Park Associates, LLC, dba Garden Plaza at Greenbriar Cove, which operates a senior and assisted living community in Ooltewah, Tenn., violated federal law by demanding that two employees work on the Sabbath, the Equal Employment Opportunity Commission charged in a lawsuit filed on Thursday.

According to the EEOC’s lawsuit, Century Park required two employees to work on their Sabbath in violation of their religious beliefs. The two employees, members of the Seventh-Day Adventist Church, observe the Sabbath from sundown Friday to sundown Saturday. The company told the employees they had to agree to work on Saturdays as part of a new work schedule. Although the employees offered to work on Sundays, Century required they agree to work on Saturdays. When the two employees refused due to their religious beliefs, the company asked them to resign, and the two employees resigned at Century Park’s request. The two employees sought reinstatement to work and religious accommodations, but the owner denied their request.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from denying reasonable accommodation of an employee’s sincerely held religious beliefs. The EEOC filed suit (EEOC v. Century Park Associates, LLC, d/b/a Garden Plaza at Greenbriar Cove, Civil Action No. 1:17-cv-00231) in U.S. District Court for the Eastern District of Tennessee, Southern Division, after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks injunctive relief prohibiting Century Park from denying religious accommodations in the future, as well as back pay and compensatory and punitive damages, which will go to the two discharged employees.

“Employers should not force employees to choose between their job and their religious beliefs,” said Katharine Kores, director of the EEOC’s Memphis District Office. “Making reasonable accommodations to employees’ religious beliefs — except where it poses an undue hardship — is not just reasonable – it’s required by federal law.”

According to its website, Century Park operates over 40 retirement communities in 20 states. It provides seniors with a comfortable and active place to call home.

Here’s the EEOC’s webpage discussing religious accommodation under Title VII.

OSHA: Paperboard Mill Repeat Safety Offender

Working conditions aren’t safe for workers at this paperboard mill.

A New York paperboard mill faces $357,445 in proposed penalties for exposing workers to 61 safety and health hazards.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) in Syracuse opened an inspection of Carthage Specialty Paperboard Inc., on Dec. 27, 2016, in response to a complaint alleging unsafe working conditions. Inspectors discovered employees exposed to serious safety hazards, including more than 20 instances of machinery lacking safety guards to prevent employees from the risk of amputation.

Machinery in the mill did not have safety locks to prevent the accidental start-up of machinery during maintenance, and employees did not receive required training or Personal Protective Equipment (PPE) to work on electrical systems with up to 2,300 volts. Metal catwalks did not have restraints to help protect employees from falls, some as high as 13 feet. Employees also entered confined spaces without prior atmospheric testing, or means to rescue persons overcome by fumes.

OSHA also issued citations for exposing workers to struck-by hazards when the company failed to inspect  cranes and hoists.

“The violations found during this investigation put employees at serious risk of injury or even worse,” said OSHA Area Director Christopher Adams. “This is a significant number of hazards for a single workplace. Carthage Specialty Paperboard must implement corrective measures to protect their employees’ safety and health.”

The Carthage-based company has notified OSHA of its intent to contest the findings before the independent Occupational Safety and Health Review Commission.

Read more about the citations for inspection number 1207843, totalling more than $256,000.
Read more about the citations for inspection number 1199680, totalling more than $101,000.

To ask questions; obtain compliance assistance; file a complaint; or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Syracuse Area Office at 315-451-0808.

Grave Matters: EEOC Says Cemetery Retaliated

Never fire an employee for cooperating in an investigation of alleged employment discrimination. If you do you are apt to draw unwanted attention from the Equal Employment Opportunity Commission

Lincoln Cemetery, Inc., an Atlanta corporation specializing in interment arrangements, violated federal law when it fired an employee because she participated in an EEOC investigation, the EEOC charged in a lawsuit it recently filed.

According to the EEOC’s lawsuit, Peggy Knox had worked for Lincoln Cemetery as an administrative assistant since October 1983. In July 2015, Knox was interviewed by the EEOC during its investigation into an EEOC charge filed against Lincoln Cemetery by another employee. On Sept. 17, 2015, Lincoln Cemetery’s owner and president attended a conference at the EEOC’s Atlanta District Office related to the same EEOC investigation. Within hours of attending the conference, Knox was fired because of her cooperation with the EEOC.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Northern District of Georgia, Atlanta Division (Civil Action No. 1:17-cv-3165-ELR-AJB) after first attempting to reach a pre-litigation settlement through its conciliation process. The federal agency seeks back pay, compensatory damages and punitive damages for Knox, as well as injunctive relief designed to prevent such discrimination in the future.

“This suit sends a message that employees should never be punished for speaking to government officials when they investigate discrimination claims,” said Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office.

Antonette Sewell, regional attorney for the Atlanta District Office, added, “Trying to take revenge against employees for speaking to government investigators and engaging in protected activity is a clear violation of the anti-retaliation provisions of Title VII and hinders an employee’s ability to work in a discrimination-free environment as well as the government’s ability to do its job.”

Employer Denied Light-Duty Work to Pregnant Employee, EEOC Alleges in New Title VII Lawsuit

Another employer has gotten on the the Equal Employment Opportunity Commission’s bad side by allegedly firing a pregnant employee rather than accommodate her pregnancy-related medical restrictions.

The employer is Residential care provider Silverado, which the EEOC announced it had filed suit against today on behalf of Shaquena Burton

The lawsuit was filed against Silverado Menomonee Falls, LLC, dba Silverado Oak Village, where Burton worked, as well as Silverado’s home office, called Silverado Senior Living, Inc.

“What our investigation indicated,” said Julianne Bowman, the EEOC’s district director in Chicago who managed the federal agency’s pre-suit administrative investigation, “is that Silverado fired its employee, Shaquena Burton, once it learned of her pregnancy and her need to perform light-duty work, rather than give her the light duty tasks it made available to its employees injured on the job.”

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), which prohibits pregnancy discrimination in employment. The EEOC filed suit (EEOC v. Silverado Menomonee Falls, LLC d/b/a Silverado Oak Village and Silverado Senior Living, Inc., Civil Action No. 2:17-cv-1147 ) in U.S. District Court for the Eastern District of Wisconsin on Aug. 22 after first attempting to reach a pre-litigation settlement through its conciliation process.

The case has been assigned to U.S. District Magistrate Judge William E. Duffin. The EEOC is seeking full relief, including reinstatement, back pay, compensatory and punitive damages, and non-monetary measures to correct Silverado’s practices going forward.

Gregory Gochanour, regional attorney of the EEOC’s Chicago District Office, said, “The Supreme Court made clear in Young v. UPS that if an employer provides light duty or other accommodations to a large proportion of non-pregnant workers while denying those opportunities to a large percentage of pregnant workers, the employer may be violating our nation’s civil rights law prohibiting pregnancy discrimination. In this case, Silverado deprived Ms. Burton of an accommodation that it consistently offered to its non-pregnant workers.”

Jean Kamp, associate regional attorney of the EEOC’s Chicago District Office, added, “Shaquena Burton was willing and able to perform light-duty work. Instead, Silverado fired her, depriving her of an income at a time when she was growing her family and wanted to work. In terminating Ms. Burton, Silverado lost a talented worker committed to caring for Silverado’s residents, and also violated the law.”

According to company information, Silverado is a network of memory care, at-home and hospice care centers. The network, based in Irvine, Calif., has facilities in eight states across the country. Silverado operates two centers in Wisconsin, where Shaquena Burton worked.

EEOC: Macy’s Violated ADA in Firing Asthmatic Employee Who Needed Day Off for Emergency

Macy’s apparently got a little bent out of shape over an employee’s need for a single day off–and that may land it opposite the Equal Employment Opportunity Commission in court.

Macy’s, Inc., violated the Americans With Disabilities Act when it fired an employee rather than excuse a one-day absence the employee needed to address serious complications arising from her disability, the EEOC charged in a lawsuit it filed Aug 16.

“What our investigation indicated,” said Julianne Bowman, the EEOC district director in Chicago who managed the federal agency’s pre-suit administrative investigation, “is that Macy’s fired its long-term employee, Letishia Moore, rather than excuse a single day’s absence she needed to address complications related to her asthma, which required emergency care. Ms. Moore had been employed by Macy’s at its State Street store for close to eight years when Macy’s fired her.”

The EEOC brought the suit under the Americans with Disabilities Act (ADA), which prohibits disability discrimination in employment, after first attempting to reach a pre-litigation settlement through its conciliation process. The case (EEOC v. Macy’s Inc./Macy’s Retail Holdings, Inc., Civil Action No. 17-cv-5959) was filed in U.S. District Court for the Northern District of Illinois, Eastern Division on August 16, 2017. It has been assigned to U.S. District Judge John J. Tharp, Jr. The EEOC is seeking full relief, including back pay, reinstatement, compensatory and punitive damages, and non-monetary measures to correct Macy’s practices going forward.

Greg Gochanour, regional attorney of the EEOC’s Chicago District Office, said, “Employers have a legal duty to provide reasonable accommodations to people with disabilities that enable them to perform the essential functions of their job. Reasonable accommodations can include time off. Here, Macy’s acted unreasonably – and unlawfully – when it denied Ms. Moore a single day’s absence to address her disability-related health complications. Macy’s refusal to allow Moore’s absence prevented her from continuing to do the job she had done well for many years.”

According to company information, Macy’s, Inc. is one of the nation’s premier retailers. With fiscal 2016 sales of $25.778 billion and approximately 140,000 employees, the company operates more than 700 department stores under the nameplates Macy’s and Bloomingdale’s, and about 150 specialty stores that include Bloomingdale’s The Outlet, Bluemercury and Macy’s Backstage. Macy’s, Inc. operates stores in 45 states, the District of Columbia, Guam and Puerto Rico, as well as macys.com, bloomingdales.com and bluemercury.com. Bloomingdale’s stores in Dubai and Kuwait are operated by Al Tayer Group LLC under license agreements. Macy’s, Inc. has corporate offices in Cincinnati and New York City.

Mass. Psych Ward Operator Hit With Steep OSHA Fines For Ignoring Workplace Violence Risk

The operators of psychiatric wards should take note of recent activity by the Occupational Safety and Health Administration to penalize those operators that fail to take adequate steps to protect ward employees from violence.

A Massachusetts behavioral health facility faces $207,690 in proposed penalties from the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) for violations found while conducting a follow-up inspection.

On June 29, 2017, OSHA issued UHS of Westwood Pembroke, Inc. – doing business as Lowell Treatment Center – a notification for failure to abate violation involving workplace violence. This follows a serious violation related to the same hazards that federal safety and health inspectors found on May 19, 2015. As a result of the 2015 inspection, the employer and OSHA entered into a Formal Settlement Agreement on April 12, 2016, which outlined specific provisions of a workplace violence prevention program.

OSHA opened a follow-up inspection on Jan. 5, 2017, after Lowell Treatment Center failed to provide documentation to show that it had implemented a workplace violence program, and the agency’s Andover Area Office received a complaint alleging employees remained at risk. OSHA found the center had failed to comply with multiple terms of its agreement, and that – despite previous citations and worker injuries – the risks for workers to suffer fatal injury or serious harm still existed. OSHA also cited the company for one repeat violation and three other-than-serious violations related to recordkeeping.

“Our inspectors found that employees throughout the Lowell Treatment Center continued to be exposed to incidents of workplace violence that could have been greatly reduced had the employer fully implemented the settlement agreement,” said Galen Blanton, OSHA’s regional administrator in Boston.

UHS of Westwood Pembroke, Inc., is one of the nation’s largest health-care management companies. Through its subsidiaries, UHS operates 350 behavioral health facilities, acute care hospitals, ambulatory centers, and freestanding emergency departments throughout the U.S., the United Kingdom, Puerto Rico, and the U.S. Virgin Islands. With approximately 130 workers, the Lowell Treatment Center is a 41-bed satellite facility of Westwood Lodge. The center is a psychiatric hospital that offers inpatient hospitalization and partial hospitalization for adolescents and adults.

UHS of Westwood Pembroke has notified OSHA of its intent to contest the findings before the independent Occupational Safety and Health Review Commission.

To ask questions; obtain compliance assistance; file a complaint or report amputations, eye loss, workplace hospitalizations, fatalities or situations posing imminent danger to workers, the public should call OSHA’s toll-free hotline at 800-321-OSHA (6742) or the agency’s Andover Area Office at (978) 837-4460.

Click here for information on OSHA’s guidelines for preventing workplace violence in the health-care industry.