Archive for February, 2018

EEOC: Company Tripped Over ADA in Fitness-for-Duty Tests for Employees With Disabilities

Employers must consider an employee’s individual circumstances in a return-to-work situation and not act on the basis of unfounded assumption.

That’s the message federal law enforcement is seeking to drive home in this lawsuit against a Texas-based company.

Zachry Construction Corporation, a San Antonio-based construction and industrial contractor, violated federal law when it fired several employees whose post-offer medical questionnaires and subsequent medical examinations revealed they had disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced on Feb. 21.  At the time of termination, all these employees were already performing their job duties in a satisfactory manner, the EEOC said.

According to the EEOC’s lawsuit, in June 2015, Reginald White applied for a Boilermaker I position at the Chevron refinery in Pascagoula, Miss. Around the time he was hired, Zachry required White to complete a medical questionnaire. On Aug. 25, a month after White began work, the company required White to undergo a fitness-for-duty examination. After a brief examination and review of White’s medical information, the examining physician found White unable to perform his job duties, even though he had satisfactorily performed those duties for the past month. Zachry fired White the next day.

Similarly, Zachry terminated two other employees after it learned that they had disabilities, the EEOC said. On May 17, 2016, the company required Jasper Johnson to undergo a fitness-for-duty examination. During the examination, Zachry’s physician learned of a past surgery and lingering neck pain. The company refused to allow Johnson to return to work and fired him.

Further, Zachry hired Parker Isaacson as a skilled laborer on July 6, 2015. Isaacson had undergone surgery on his right shoulder and had multiple right shoulder dislocations post-surgery. On April 4, 2016, the company required Isaacson to undergo a fitness-for-duty examination. During the examination, Zachry’s physician learned of Isaacson’s past surgery and multiple shoulder dislocations. The company refused to allow Isaacson to return to work and then terminated him.

The Americans with Disabilities Act (ADA) protects employees and job applicants from discrimination because of their disabilities. If an employee requires a reasonable accommodation, an employer must engage in a good-faith interactive process with the employee to determine if he or she can perform the essential functions of the job with or without a reasonable accommodation.

The EEOC filed suit (EEOC v. Zachry Construction Corporation, Case No. 1:18-cv-00058-HSO-JCG) on February 20, 2018 in the U.S. District Court for the Southern District of Mississippi after the EEOC’s Birmingham District Office completed an investigation and first attempted to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks monetary damages, including back pay, compensatory and punitive damages, and injunctive relief.

“If an employer has a concern about employee’s ability to perform his or her job duties, it needs to conduct individualized assessments and not make decisions based on assumptions,” said EEOC District Director Delner Franklin-Thomas.

EEOC Regional Attorney Marsha Rucker added, “Treating employees with disabilities fairly is not just common sense, it’s federal law, and the EEOC is proud to enforce it.”

According to the company’s website, Zachry Construction Corporation specializes in large, technically unique projects around the world. Zachry maintains offices in Texas, North Carolina, Colorado and California.

Employer Out $10K in Settlement of ADA Suit Filed by EEOC on Fired Asmathic’s Behalf

All this employer had to do was accommodate an employee’s request for accommodation for his breathing disorders and it would have saved itself $10,000.

InsideUp Inc., a San Diego-based marketing company, will pay $10,500 and provide other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Feb. 20.

According to the EEOC’s lawsuit, a marketing consultant with chronic obstructive pulmonary disease (COPD), emphysema and asthma requested a reasonable accommodation. The consultant requested to work on the ground floor of an office building without an elevator, so he would not have to walk up and down the stairs with his condition. InsideUp not only refused his request but thereafter fired him due to his disability.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. InsideUp, Inc., Case No.: 3:17-cv-01961-CAB-JMA) after first attempting to reach a pre-litigation settlement through its conciliation process.

As part of the four-year consent decree settling the suit, InsideUp will pay $10,500 to the discrimination victim. In addition to the monetary relief, InsideUp agreed to significant injunctive relief, including, but not limited to, training all its employees; revising its anti-discrimination and retaliation policies and procedures; centrally tracking requests for reasonable accommodations as well as complaints of discrimination and/or retaliation; regularly reporting to the EEOC; and posting a notice about the consent decree and settlement.

“We commend InsideUp for resolving this complaint early and agreeing to put in place measures to help prevent future disability discrimination in its workplace,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes San Diego County in its jurisdiction. “Small businesses should regularly review their policies and procedures to ensure that they are in compliance with the ADA.”

Christopher Green, director of the EEOC’s San Diego Local Office, added, “It is important that employers appreciate their obligation to engage in the interactive process with, and provide a reasonable accommodation to, their disabled employees.”

Receptionist’s Refusal of Flu Shot Illegally Cost Her Job Under Title VII, EEOC Alleges in Lawsuit

The federal government isn’t buying a hospital’s rationale for firing an employee who objected on religious grounds to getting a flu shot.

The U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today that a health care provider in Owosso, Mich., violated federal law when it rescinded a job offer because of the applicant’s religion and need for a religious accommodation.

According to the EEOC’s suit, Memorial Healthcare revoked its employment offer to Yvonne Bair to work as a medical transcriptionist due to her religious objection to an influenza shot or spray. The company denied the job to Bair, who would eventually be working from home, even though she offered to wear a mask, and the company had a policy authorizing the use of masks for those who could not take a vaccine.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which protects employees against discrimination based on religion, and requires employers to provide employees with reasonable accommodations to allow them to practice their sincerely held religious beliefs. The EEOC filed suit in U.S. District Court for the Eastern District of Michigan (Case No. 2:18-cv-10523) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking an injunction to prohibit the company from engaging in this type of discrimination in the future, as well as monetary relief on the behalf of the victim.

The EEOC’s Indianapolis District Office oversees Indiana, Michigan, Kentucky and parts of Ohio.

 

EEOC: Oil Refinery Dumped Three Siblings Because They Have Genetic Blood Disorder

Here’s one you don’t see often: Multiple family members being barred from jobs because of an inherited family medical condition.

Signature Industrial Services, LLC (SIS) unlawfully fired three laborers – all of whom were brothers – because of a blood disorder that runs through their family, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Feb 13.

According to the EEOC’s suit, Drew West and Anthony West had been working at the Exxon / Mobil refinery in Beaumont, Texas when SIS took over a contract to perform mechanical services at the plant. Drew West and Anthony West were hired on SIS’s payroll around December 2011. Both have hemophilia A, a blood disorder that does not impede their performing their jobs, but which requires expensive medicine for treatment should they sustain an on-the-job scrape or injury that causes bleeding.

According to the project manager who was responsible for the SIS workers at the plant, SIS’s president and vice president of operations instructed him to fire the Drew and Anthony West once they learned how the SIS’s insurance costs could spike by having the West brothers on the payroll. Because the West brothers had an excellent work history, as evidenced in part by Anthony West earning a promotion and substantial raise during his employment with SIS, the project manager refused to fire them.

A third West brother, Raymond, who also has hemophilia A, began working for SIS at the Beaumont Exxon/Mobil refinery around January 2013. After the plant manager who refused to fire the West brothers stopped working at the plant in April 2013, SIS upper management advised the West brothers’ immediate supervisor that if he didn’t fire the brothers, SIS would fire him. On July 3, 2013, all three West brothers were advised by their direct supervisor that they were being fired, effective immediately, supposedly due to a reduction in force, although no workers other than the West brothers were laid off on that day.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities. The EEOC filed suit in U.S. District Court for the Eastern District of Texas, Beaumont Division (Civil Action No. 1:18-cv-00070) after first attempting to reach a pre-litigation settlement through its conciliation process.

The federal agency is seeking a permanent injunction prohibiting Signature Industrial Services from engaging in any future disability discrimination. The EEOC is also seeking back pay on behalf of the West brothers, and compensatory and punitive damages and other relief on their behalf, including rightful- place instatement to a suitable position at SIS.

“When workers have a disability that does not impede them from doing their jobs capably, an employer cannot discriminate against them based on fears that treating them fairly may hurt the company’s bottom line,” said EEOC Houston District Director Rayford O. Irvin.

EEOC Houston District Office Regional Attorney Rudy Sustaita added, “Enforcement of the ADA is a top priority of this agency. Workers should never be mistreated simply because they have a medical history or condition.”

Fine Whine: Italian Restaurant Violated Pregnant Employee’s Rights, EEOC Alleges in Title VII Suit

Some employers still don’t get that they have to treat pregnant workers in a nondiscriminatory manner.

Maurizio’s Trattoria Italiana, LLC, a fine-dining Italian restaurant in Encinitas near San Diego, violated federal law when it discriminated and fired a female employee after learning of her pregnancy, the Equal Employment Opportunity Commission (EEOC) charged in a pregnancy discrimination lawsuit filed Feb. 13.

According to the EEOC’s lawsuit, an employee who worked at Maurizio’s Trattoria Italiana notified the owner of her pregnancy. The EEOC contends that the restaurant subsequently discriminated against her by scheduling her to work fewer hours, resulting in much less pay, refusing to return her to her server position after she gave birth, and finally firing her.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. Maurizio Trattoria Italiana, LLC, Case No. 3:18-cv-00338-MMA-BLM) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks back pay, compensatory and punitive damages for the female employee, as well as injunctive relief intended to prevent further discrimination at the business.

“Pregnancy discrimination remains an ongoing problem in our nation’s workplaces,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, whose jurisdiction includes San Diego County. “Employers are encouraged to evaluate their obligations under Title VII relating to employees who are pregnant.”

Christopher Green, director of the EEOC’s San Diego Local Office, added, “Women should not have to choose between their job or having children. Employers need to be aware that the EEOC takes pregnancy discrimination seriously and will continue to protect the rights of pregnant employees.”

 

EEOC Strategic Plan Set for 2018-2022

What are the EEOC’s priority enforcement areas for the next five years? You can now see them for yourselves.

The EEOC announced Feb. 12 that it has approved its Strategic Plan for fiscal years 2018-2022. The Strategic Plan serves as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace. Implementation of the new Strategic Plan will begin in February 2018.

“Through the plan announced today, the EEOC is taking a significant step toward realizing our vision of respectful and inclusive workplaces with equal opportunity for all,” said EEOC Acting Chair Victoria A. Lipnic. “I am pleased with the hard work of staff across the agency who provided assistance throughout the development of the plan, and I look forward to its successful implementation. I especially want to thank our Chief Operating Officer, Cynthia Pierre, for leading the work group in developing our plan. I also want to thank the external organizations who provided helpful comments to the agency during the public comment period. I said one year ago that the agency would be committed to increased transparency in development of our policies and procedures, and the process for the Strategic Plan contributed to that goal.”

The Commission voted unanimously to approve the FY 2018-2022 Strategic Plan. The EEOC is the leading federal law enforcement agency dedicated to preventing and remedying employment anti-discrimination laws and advancing equal opportunity for all in the work­place since 1965. The plan serves as a framework for the Commission in achieving its mission through the strategic application of the EEOC’s law enforcement authorities, preventing employment discrim­ination and promoting inclu­sive workplaces through education and outreach, and organizational excel­lence. These three strategic objectives have associated performance measures detailing outcomes to be achieved during the four-year period the plan is in effect. The outcomes are designed to demonstrate the Commis­sion’s progress in carrying out its mission in a time of shrinking resources and an increased demand for its services.

The process for developing this plan has been highly inclusive and collaborative. The plan was created by working groups comprised of staff from the EEOC’s headquarters and field offices, with a broad range of internal and external expertise and understanding of the programs and activities con­ducted within the agency. The Commission also solicited public and stakeholder comments in the development of the plan. Every four fiscal years, Congress requires executive departments, government corporations and independent agencies to develop and post a strategic plan on their public websites. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets and related program performance information in the future.

Blunder on Religious Accommodation Costs Employer $38K to Settle EEOC Title VII Lawsuit

Sometimes all it takes is a new supervisor to come on board and gum up the works to put the employer in trouble with the law.

Decostar Industries, Inc., a manufacturer and supplier of automotive parts based in Carrollton, Ga., will pay $38,500 and provide other relief to settle a religious discrimination lawsuit filed by the Equal Employment Opportunity Commission (EEOC), the agency announced Feb. 9.

The EEOC charged in its suit that Dina Lucas Velasquez made numerous requests to be excused from Decostar’s requirement that all employees work overtime hours on designated Saturdays because her religious beliefs prohibited her from working during the Sabbath, which she observed from sundown on Friday until sundown Saturday. The EEOC claims that Decostar initially approved Velasquez’s request for accommodation until January 2014, when a new supervisor took over her department and repeatedly denied her ongoing request for a religious accommodation. Decostar eventually discharged Velasquez on Oct. 27, 2014, after she refused to violate her religious beliefs.

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, Newnan Division after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to providing monetary damages to Velasquez, the consent decree settling the lawsuit requires Decostar to adopt and implement a new policy for employees to request a religious accommodation for their bone fide religious beliefs. The decree also requires that the company provide annual equal employment opportunity training to its managers. The two-year decree further requires the company to post a notice to its employees about the lawsuit and to provide periodic reporting to EEOC about disability discrimination complaints.

“It is unconscionable and unlawful for employers to force members of their workforce to choose between their livelihood and their religion,” said Antonette Sewell, regional attorney for the agency’s Atlanta District Office. “This settlement shows the EEOC’s dedication to the protection of religious freedom in the workplace as well as the company’s commitment to prevent similar circumstances from arising in the future.”