Archive for April, 2018

$100K Settlement Ends EEOC Case Against Car Dealership That Fired Gay Worker With Disability

This dealership in the future will probably be more respectful toward gay employees who also have disabilities.

Chicago car dealership Evergreen Kia will pay $100,000 and provide other relief to settle a sexual orientation and disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s suit, Evergreen Kia harassed a car salesperson for suffering from Crohn’s disease and for being gay. The EEOC alleged that the dealership’s owner subjected the employee to a continuing course of unwelcome and offensive conduct which became so intolerable that the employee was forced to quit.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 and the Americans with Disability Act of 1991 (ADA). Title VII prohibits discrimination because of sex (including sexual orientation, gender identity, and pregnancy), and the ADA prohibits disability discrimination. The EEOC filed suit (EEOC v Evergreen Motors, dba Evergreen Kia, Case No. 17-cv-07084) in U.S. District Court for the Northern District of Illinois on Oct. 2, 2017, after first trying to reach a pre-litigation settlement through its conciliation process.

The consent decree settling the suit, entered by U.S. District Judge Blakey on April 26, 2018, prohibits future discrimination and retaliation in the future, requires an outside monitor to investigate complaints of sex or disability discrimination or harassment, and provides that Evergreen Kia will pay $100,000 to the aggrieved individual. Evergreen Kia must also post notices of the settlement, revise its anti-discrimination and record-keeping policies, report complaints of sex or disability discrimination periodically to the EEOC, and train its managers regarding their obligations under the law.

“We thank Evergreen Kia for its commitment to settle this case before the parties incurred significant costs and for its willingness to modify its policies, provide training to its employees, and to have an outside monitor investigate complaints of discrimination,” said EEOC Chicago Regional Attorney Gregory M. Gochanour.

Julianne Bowman, the EEOC’s District Director for the Chicago District Office, added, “The EEOC will continue to enforce the federal laws so that all gay and disabled employees have the same opportunities as everyone else to work in environments free from harassment.”

$5.1M Recovered by EEOC for Employees Coerced Into Religious Practices at Workplace

You’d be wise to keep religion out of the workplace based on this seven-figure damages verdict against this New York health care plan provider.

Following a three-week trial, on April 25, a unanimous Brooklyn federal jury found that United Health Programs of America, Inc, which provides discount medical plans, and its parent Cost Containment Group, Inc. (“CCG”), violated federal law by coercing 10 employees to engage in religious practices at work and by creating a hostile work environment for nine of them, the Equal Employment Opportunity Commission announced on Thursday. The jury also found CCG violated federal law by firing one employee, Faith Pabon, who opposed these practices.

The jury awarded $5.1 million in compensatory and punitive damages to the 10 individuals for whom EEOC was seeking relief. The EEOC will also seek injunctive relief against CCG to prevent future violations of federal law and back pay to be awarded to Ms. Pabon for her wrongful termination, to be determined by the District Court Judge, Kiyo A. Matsumoto.

According to the EEOC, CCG employees were forced to engage in a variety of religious practices at work, including prayer, religious workshops, and spiritual cleansing rituals. These practices were part of a belief system called “Harnessing Happiness” or “Onionhead,” created by the aunt of CCG’s CEO’s. The judge previously ruled such practices constituted a religion, for purposes of Title VII. The aunt, employed by CCG as a consultant and fully supported by CCG’s upper management, spent substantial time in the company’s offices from 2007, implemented the religious activities at the workplace and had a role in employee hiring and firing. Nine victims said the religiously-infused atmosphere created a hostile work environment for them, and the jury unanimously agreed. The jury also found Faith Pabon was fired for opposing these practices.

Title VII of the Civil Rights Act of 1964 forbids employers from coercing employees to engage in religious practices at work. It also bars employers from firing or taking other adverse action against those who oppose such practices.

The EEOC was represented at trial by Trial Attorneys Chinyere Ezie and Charles Coleman, Jr., supervised by Supervisory Trial Attorney Nora Curtin. In addition to EEOC counsel, Anthony Mango of Mango & Iacoviello represented three claimants, Faith Pabon, Francine Pennisi, and Elizabeth Ontaneda.

EEOC Trial Attorney Chinyere Ezie said, “This verdict makes clear how federal law bars employers from imposing religion on employees in the workplace.”

EEOC Trial Attorney Charles Coleman, Jr., said, “This case featured a unique type of religious discrimination, in that the employer was pushing its religion on employees. Nonetheless, Title VII prohibits religious discrimination of this sort and makes what happened at CCG unlawful. Employees cannot be forced to participate in religious activities by their employer.”

The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement, and conducts agency litigation in New York, northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire, and Maine.

Walmart’s Failure to Reassign Employee to Another Store Violated ADA, EEOC Charges

Walmart’s failure to think outside the box–or in this case outside the particular store–could cost it under federal disability discrimination laws.

Walmart, Inc. violated federal law by failing to reassign a long-term employee to a vacant position in another location after she became disabled while working at its Augusta, Maine store, the Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on Wednesday.

According to the EEOC’s complaint, Veronica Resendez, who had worked for Walmart since 1999, developed a disability that, according to Walmart, prevented her from working in her sales associate position in Augusta. Walmart determined that the only positions that could accommodate her disability were fitting room associate and people greeter. While there were no such positions vacant in Augusta, there were two fitting room associate positions open in Waterville, Maine. Walmart’s policy, however, was to search for open positions only in the store in which the employee had been working. Because of this, it never transferred Resendez to the position in Waterville, which she would have happily accepted. In fact, Resendez had told Walmart about her willingness to work at other Walmart stores in Maine. As a result, and after Walmart’s self-imposed search period of 90 days expired, Resendez never worked for Walmart again.

The Americans with Disabilities Act (ADA) prohibits employers from discriminating based on disability and imposes a requirement that employees with disabilities be provided a reasonable accommodation, absent undue hardship on the employer. The ADA states that one of these accommodations can be reassignment to a vacant position.

The EEOC filed suit in U.S. District Court for the District of Maine (EEOC v. Wal-Mart Stores, Inc., and Wal-Mart Stores East, LP, Civil Action No. 1:18-cv-00170 (JDL) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay, compensatory and punitive damages, and injunctive relief.

“Federal law requires employers to reassign disabled employees to vacant positions as the reasonable accommodation of last resort,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office. “Despite this obligation, Walmart’s policy refuses to take the simple step of looking beyond the store in which a disabled employee works.”

The EEOC’s New York district director, Kevin Berry, added, “Employers cannot refuse to offer a reasonable accommodation required by law absent undue hardship. For Walmart to look beyond one store for a vacant position would cause it no hardship at all.”

EEOC’s New York District Office oversees New York, Northern New Jersey, Connecticut, Massachusetts, Rhode Island, Vermont, New Hampshire and Maine.

EEOC: Distribution Company Violated ADA in Refusal to Hire Truck Driver With Shoulder Injury

To¬† deny an applicant a job because you “regard” him is just as bad under the Americans With Disabilities Act as is rejecting him because he actually has a disability.

Ashley Distribution Services, Ltd., a Wisconsin corporation doing business in Advance, North Carolina, violated federal law when it refused to hire a truck driver because the company regarded him as disabled, the Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s complaint, Farrell Welch applied for a position as a yard driver at the Ashley Distribution Services, Ltd. facility in Advance, North Carolina around July 30, 2016. The EEOC alleges Ashley Distribution offered Welch the position on the condition that he obtain a Department of Transportation (DOT) medical certification, meet the physical requirements for the job, and show that he could perform the required job duties. Although Welch already had a valid DOT medical certification at the time of his application, he successfully completed a second DOT medical exam at Ashley Distribution’s request and successfully completed the company’s driving test. The company was concerned that Welch could not safely enter and exit a truck due to a rotator cuff injury Welch disclosed during his DOT medical exam, and the company required Welch to undergo a fit-for-duty exam. The EEOC said that Ashley Distribution did not hire Welch even though he was capable of performing the yard driver job.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities, including perceived disabilities. The EEOC filed suit in U.S. District Court for the Middle District of North Carolina, (EEOC v. Ashley Distribution Services, Ltd., Civil Action No. 1:18-cv-00338) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay, compensatory damages and punitive damages, as well as injunctive relief.

“An employer cannot refuse to hire an applicant based on fears or other assumptions about the applicant’s ability to safely perform the duties of the job, simply because the employer presumes an applicant has a disability,” said Lynette A. Barnes, regional attorney for EEOC’s Charlotte District. “The EEOC will continue to litigate cases where disabled persons, including those who are regarded as being disabled, are denied jobs for which they are qualified.”

Fox’s Ingraham Sued For Pregnancy Bias

A noted conservative TV commentator is under the gun for allegedly forcing out her personal assistant after she became pregnant.

The lawsuit filed in superior court in Washington, D.C. alleges that Laura Ingraham and her company, Ingraham Media Group, violated federal and state law in their treatment of Karolina Wilson after she announced she was pregnant with her first child.

According to the complaint filed in February, the conservative talk show host became hostile toward her when she became pregnant and then fired her on her first day back from maternity leave.

Ingraham’s attorney filed a motion to dismiss the claim that Ingraham’s company violated the Family and Medical Leave Act, arguing instead that the law doesn’t cover Ingraham’s company because it had fewer than 20 employees.

The state caue of action alleges violation of the District’s Protecting Pregnant Workers Fairness Act.

A hearing on the motion is scheduled May 11 in front of Judge John Mott of the D.C. Superior Court.

Complaint Seeks $100M in Wages Denied to Call Center Workers Misclassified by U.S. Contractor

A complaint filed by the union Monday alleges that a leading federal contractor underpaid about 10,000 workers who help run hotlines for public health insurance programs, including the Affordable Care Act marketplace.

According to the complaint filed with the Labor Department, General Dynamics Information Technology misclassified employees at call centers in Kentucky, Florida, Arizona, and Texas to suppress their wages.

The underpayments amounted to over $100 million over the past five years, the complaint said.

The complaint was filed by the Communications Workers of America. According to the union, which does not represent the workers, the contractor hired or promoted workers into roles that require special training but paid them below government-set rates for the jobs they performed.

The complaint covers the period since 2013, when GDIT started a $4 billion, 10-year contract with the Centers for Medicare and Medicaid Services.

NYC Mulls Proposed Law Allowing Private Sector Employees to Shun After-Hours EMails and Texts

Even in the city that never sleeps, employees should have some built-in down time when they can ignore emails and texts from their employers after their work shift ends.

That’s the premise behind a bill proposed on March 22 by New York City Councilman Rafael L. Espinal Jr.

The bill makes it unlawful for private employers to require workers to check and respond to email and text messages during nonwork hours, except in emergencies.

Among questions the proposed law raises are how would workers answer questions from co-workers overseas and would it applied to salaried workers who aren’t due overtime.

According to Espinal, the bill is intended to cover workers paid on salary as well as those paid hourly. The law wouldn’t ban employers from sending email to workers after hours or employees from responding and working on nights and weekends.

Rather, the goal is to ensure that employees who chose not respond won’t be retaliated against.

An emergency is a “sudden and serious event, or an unforeseen change in circumstances, that calls for immediate action to avert, control or remedy harm.”

Employers with fewer than 10 employees, and government employers, would be exempt from the law.

Espinal said he hopes the bill will get a hearing at the council this summer.

#MeTooMan: Male Employee Alleges His Employer Tolerated Harassment by Co-Worker

A male employee at BWX Technology has sued the Lynchburg, Va. company claiming it allowed him to be harassed daily by a co-worker, including regular sexual comments and propositions.

The lawsuit is just the latest example of a man claiming sexual harassment against his employer. Men account for 17 percent of harassment complaints filed with the Equal Employment Opportunity Commission.

An EEOC investigation into Perry Funk’s complaint found that his co-worker engaged in harassing behavior but that BWX did not discriminate against Fund because it took swift action to correct the behavior once it was reported.

BWX manufactures nuclear reactors used in submarine and aircraft carriers for the U.S. Navy.

Macy Settles ADA Suit For $75K; Asthmatic Employee Had Sought 1-Day Leave For Condition

Why Macy’s couldn’t accommodate an employee’s request for 1-day leave to treat her asthma is a mystery. And a costly one for the retailer.

Macy’s will pay a former long-term employee $75,000 to settle a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission, the federal agency announced on Wednesday. The EEOC’s lawsuit charged Macy’s with firing an asthmatic employee, rather than excuse a one-day absence the employee needed to address emergency complications arising from her disability. This alleged conduct violated the Americans with Disabilities Act (ADA).

The EEOC filed suit in the U.S. District Court for the Northern District of Illinois, Eastern Division (Equal Employment Opportunity Commission v. Macy’s, Inc/Macy’s Retail Holdings, Inc.; Civil Action No. 17-cv-05959) on Aug. 16, 2017 after first attempting to reach a pre-litigation settlement through the EEOC’s conciliation process.

According to the EEOC’s lawsuit, the asthmatic employee worked for Macy’s for nearly eight years, but she was fired after a one-day absence due to needing immediate medical attention for her asthma. Macy’s policy permits absences for disability-related reasons. However, in this case, Macy’s denied the employee’s request to excuse the absence, even though she had to be seen in a hospital emergency room, and fired her three weeks later.

Macy’s will pay $75,000 in monetary relief to the employee as part of a consent decree settling the suit and will provide additional relief intended to improve Macy’s workplace for employees with disabilities. Under the decree, Macy’s will train certain employees on disability law and accommodation requirements under the ADA. Macy’s will also monitor requests for accommodation and complaints of disability discrimination at its two Chicago stores and report those to the EEOC.

“The ADA requires employers to reasonably accommodate disability-related absences that enable their employees to perform their job,” said Julianne Bowman, EEOC’s district director in Chicago. “Here, a one-day absence would have enabled the employee to return to the job she held for almost eight years. We are pleased with today’s settlement which will compensate the victim and monitor Macy’s accommodation practices with respect to the ADA.”

Greg Gochanour, the regional attorney of EEOC’s Chicago District Office, said, “Macy’s response to the employee’s absence was not reasonable. The employee found herself in a potentially life threatening circumstance and phoned Macy’s to explain her absence before going to the hospital. The following day, she provided Macy’s documentation from the hospital showing she was treated for asthma. Rather than accommodate the employee, Macy’s fired her.”

EEOC: Rehab Center Forced Pregnant Employee To Resign After Denying Her Light-Duty Request

Employers should realize by now that they if they accommodate temporary restrictions of some employees injured at work, they have to do the same for their pregnant employees.

PruittHealth-Raleigh, LLC, a Georgia corporation doing business as a nursing and rehabilitation center in Raleigh, violated federal law when it refused to accommodate the pregnancy-related work restriction of a certified nursing assistant and forced her to resign, the Equal Employment Opportunity Commission charged in a lawsuit filed yesterday.

According to the EEOC’s lawsuit, PruittHealth offered light duty or job modifications to accommodate the temporary restrictions of certified nursing assistants (CNAs) who were injured at work. However, the company refused to grant similar accommodations or modifications to a CNA who experienced a pregnancy-related work restriction. The EEOC says that in October 2016, the company refused to accommodate the pregnancy-related 20-pound lifting restriction of CNA Dominique Codrington. Instead, the company’s assistant director of nursing and a human resources representative forced Codrington to resign or be fired.

The EEOC said that at all relevant times, the company had lifting devices and transfer belts available to help lift patients and did not prohibit CNAs from seeking the assistance of co-workers to lift patients manually. The EEOC contends that by refusing to accommodate Codrington’s pregnancy-related lifting restriction and forcing her to resign, the company violated the law.

The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating against employees due to pregnancy, including pregnancy-related conditions. The EEOC filed suit in U.S. District Court for the Eastern District of North Carolina, (Equal Employment Opportunity Commission v. PruittHealth – Raleigh, LLC, Civil Action No 5:18-CV-00165-D) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks injunctive relief, including policy changes at the company, as well as back pay, compensatory damages and punitive damages for Codrington.

“Employers must generally treat the work restrictions of pregnant employees just like those of non-pregnant employees,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “Companies must be careful not to violate federal anti-discrimination law when they pick and choose which employees to accommodate.”