EEOC: Clothing Retailer Violated ADA

It doesn’t matter the industry. You can’t treat applicants with disabilities differently from non-disabled applicants when filling job vacancies at your company.

Pacific Sunwear of California (PacSun), a leading specialty retailer that sells casual apparel, accessories, and footwear designed to appeal to teens and young adults, violated federal law when it refused to consider an applicant in a wheelchair for a job, the U.S. Equal Employment Opportunity Commission (EEOC), charged in a lawsuit it filed July 10.

According to the EEOC’s lawsuit, PacSun told John Sumner, a then 18-year-old student, that the store was not hiring when he applied for a position while in his wheelchair, and at the same time, told applicants without disabilities that it was looking to fill multiple positions. Although Sumner was qualified for the position, PacSun refused to give him a chance at the job, the EEOC said.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed its suit (Civil Action No. 3:18-cv-00863-BJD-JRK) in U.S. District Court for the Middle District of Florida after first attempting to reach a pre-litigation settlement through its conciliation process.

“Employers must make hiring decisions based on an individual’s qualifications rather than on generalizations, ignorance, patronizing attitudes or stereotypes,” said EEOC Regional Attorney Robert E. Weisberg. “PacSun could have saved itself a lot of trouble if it had simple inquired into Mr. Sumner’s ability to do the job instead of lying to him based on its prejudices.”

Eliminating barriers in recruitment and hiring, including exclusionary policies and practices towards people with disabilities, is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP). Addressing emerging and developing issues in equal employment law, including qualification standards that discriminate against individuals with disabilities, is another SEP priority.

Michael Farrell, director of the EEOC’s Miami District Office, said, “Federal law prohibits employers from treating job applicants with disabilities differently from any other applicant during the application process. Such conduct has been illegal since the ADA was first put into effect over 25 years ago, and the EEOC will enforce that law.”

The EEOC’s Miami District Office is comprised of the Miami, Tampa and San Juan EEOC offices, and has jurisdiction over Florida, Puerto Rico and the U.S. Virgin Islands.

Sponge Dry: Car Wash HQ Pays $225K in EEOC Settlement Over Denial of Promotions to Blacks

African-American employees should get a fairer shot at making manager at this Alabama car wash company.

Car Wash Headquarters, doing business as Mister  Car Wash and Mister Hotshine has agreed to pay $225,000 in lost wages and  damages to settle a race discrimination suit filed by the U.S. Equal Employment  Opportunity Commission (EEOC), the federal agency announced July 9.

According to the EEOC’s lawsuit,  Car Wash Headquarters failed to promote Antonio Purdom and a class of similarly  situated African-American employees to supervisor and management positions at  its Birmingham-area locations. Instead, less qualified white employees, some  with no prior work experience, were promoted. In some instances,  African-American employees were responsible for training the same unexperienced  white employees who were later promoted to management.

Such alleged conduct violates Title  VII of the Civil Rights Act of 1964, which prohibits discrimination based on  race. The EEOC filed suit (EEOC v. Car Wash Headquarters, Inc. d/b/a Mister Car  Wash d/b/a Mister Hotshine Carwash, Civil  Action No. 2:17-CV-00503-AKK) in U.S. District Court for the Northern District  of Alabama after first attempting to reach a pre-litigation settlement through  its conciliation process.

Car Wash Headquarters will pay  $225,000 in monetary relief to Purdom and the class of similarly situated  African-American employees as part of a three-year consent decree settling the  suit, signed by U.S. District Judge Abdul K. Kallon on July 9, 2018. In  addition to providing monetary relief, Car Wash Headquarters will take  specified actions designed to prevent future discrimination, including creating  a transparent and formal promotion policy and application process; implementing  new policies and practices designed to prevent discrimination on the basis of  race; providing anti-discrimination trainings to employees located in Alabama; providing  training to management employees responsible for supervising the Alabama  locations on the reporting and investigation of complaints of discrimination; creating  a toll-free number and email address for reporting complaints of discrimination;  and posting anti-discrimination notices in its workplace. Car Wash Headquarters  will also be required to monitor employee complaints of racial discrimination  and report those complaints to the EEOC.

“The EEOC will continue to hold employers who limit  employees’ advancement based on race accountable for such discriminatory  conduct,” said EEOC Regional Attorney Marsha Rucker. “This comprehensive  settlement will ensure that promotion and other employment decisions are based  on an individual’s qualifications and not race.”

According to Bradley Anderson, the  EEOC’s district director for the Birmingham District Office, “Federal law mandates  that promotions should be made based on qualifications, not demographic categories.  The EEOC will continue to enforce federal anti-discrimination laws so that all  employees, regardless of their race, will have the same equal employment  opportunities.”

Car Wash Headquarters, Inc.  operates more than 250 car washes, and 34 lube centers throughout the United  States. Its corporate headquarters is in Tucson, Ariz., and it has locations in  21 states throughout the country, including Alabama, Mississippi and Florida.  Car Wash Headquarters, Inc. employs a growing team of 8,000 employees.

The EEOC is responsible for  enforcing federal laws prohibiting employment discrimination. The EEOC’s  Birmingham District covers Alabama, Mississippi (except 17 northern counties)  and the Florida Panhandle.

EEOC: Jail Manager Underpaid Woman

Case-by-case the income gap between men and women doing the same work is closing. That’s probably the best we can do in the absence of a nationwide push to erase the differentials.

TrueCore Behavioral Solutions, a manager of programs and services  at a juvenile correction facility in Alexander, Ark., will pay $38,000 as part  of the settlement of a sex pay discrimination lawsuit brought by the U.S. Equal  Employment Opportunity Commission (EEOC), the federal agency announced July 6.  During the relevant time frame, the company managing the correctional facility  was known as G4S, but TrueCore purchased the assets and liabilities of G4S in  June 2017.

The EEOC’s  lawsuit challenged the company’s compensation of one of the employees when the  company placed a female employee into the facility investigator position but  paid her significantly less than the male who had recently vacated the  position. Although the woman brought the pay disparity to the company’s  attention, the company never raised her pay, the EEOC said.

Such  alleged conduct violates the Equal Pay Act (EPA) and Title VII of the Civil  Rights Act of 1964, which prohibit discrimination on the basis of sex. The EEOC  filed suit (EEOC v. TrueCore Behavioral Solutions, Civil Action No. 4:17-cv-387)  in U.S. District Court for the Eastern District of Arkansas, Western Division,  after first attempting to reach a voluntary pre-litigation settlement through its  conciliation process. The agency’s Little Rock Area Office investigated the discrimination  charge.

“One of  EEOC’s priorities is ensuring employees are paid equally when the employees  perform the same job,” said Faye A. Williams, regional attorney of the EEOC’s  Memphis District Office, which has jurisdiction over Arkansas, Tennessee, and  portions of Mississippi. “An employee’s gender can never be the basis for  disparate treatment and pay.”

Fatal Fall Costs Company $250K in Fines

Some workplace safety violations are egregious enough to trigger criminal and not just civil liability.

U.S. District Court Judge Ed Kinkeade has ordered Design Plastering West LLC to pay criminal and civil penalties for criminal violations of occupational safety and health standards after an employee suffered a fatal fall at an apartment complex in Dallas. The court ordered the company to pay a $150,000 criminal fine, $100,000 civil penalty, admit to eight willful violations, and to undergo monitoring by the Occupational Safety and Health Administration (OSHA) for four years.

On May 14, 2015, a worker fell from a third floor balcony while applying stucco without fall protection. OSHA cited the company for willfully failing to install scaffolding and provide workers with personal fall protection. In May 2018, Design Plastering West LLC pleaded guilty to the willful citation on fall protection.

“This company failed to comply with well-known safety requirements,” said OSHA’s Dallas Region Acting Regional Administrator Eric Harbin. “This sentence should serve as a reminder that employers can be held criminally responsible for failing to protect their workers’ safety.”

The criminal prosecution and sentencing in this case was the result of a collaboration between OSHA, the U.S. Department of Labor’s Office of the Solicitor, and the U.S. Attorney’s Office for the Northern District of Texas.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Georgia Realtor Closes on ADA Suit for $82,500

Rescinding this job offer after an applicant disclosed her disability was costly for the employer.

Jones Lang LaSalle Americas, Inc., a commercial real estate company  headquartered in Chicago with an office in Atlanta, will pay $82,500 to settle  a disability discrimination charge brought by the U.S. Equal Employment  Opportunity Commission (EEOC), the agency announced July 3.

The EEOC filed suit in 2017, charging that Jones Lang  LaSalle violated federal law when its Atlanta office refused to hire an  applicant in 2016 after she disclosed her disability. According to the EEOC’s  complaint, the applicant accepted a job offer with Jones Lang LaSalle and disclosed her disability after human resources reached out to her to discuss  her new position. After the applicant disclosed her disability, Jones Lang  LaSalle rescinded its job offer.

Such alleged conduct violates the Americans with  Disabilities Act (ADA), which prohibits employers from discriminating against  employees based on their disabilities and because they requested a reasonable  accommodation for those disabilities. The EEOC filed suit (EEOC v. Jones  Lang LaSalle Americas, Inc., Civil Action No. 1:17-cv-04017-ELR-JSA) in  U.S. District Court for the Northern District of Georgia, Atlanta Division,  after first attempting to reach a pre-litigation settlement through its  conciliation process.

The consent decree settling the suit was signed by the court  on July 2, 2018. In addition to the monetary relief, Jones Lang LaSalle agreed  to provide employment discrimination training to its management and  non-management employees, and to post anti-discrimination notices at its Atlanta  facility. In addition, the decree subjects Jones Lang LaSalle to reporting and  monitoring requirements.

“The disclosure of a disability is the first step in the  interactive process between the employer and employee when requesting an accommodation  under the ADA,” said Bernice Williams-Kimbrough, district director for the EEOC’s  Atlanta District Office. “This disclosure should result in a conversation  between the two parties about how to successfully address the employee’s needs,  not in the rescission of a job offer.”

Antonette Sewell, regional attorney for the EEOC’s Atlanta  District Office, added, “The agency is pleased that Jones Lang LaSalle agreed  to resolve this case and further train its employees on its obligations under  the ADA. The applicant in this case has been compensated and the employer will  be better equipped to respond the next time an applicant or employee discloses  a disability.”

The EEOC’s Atlanta District Office oversees  Georgia and parts of South Carolina.

EEOC Says Syrians Were Harassed at Work

To be a Syrian employee at this workplace was a severe disadvantage, according to federal civil rights investigators.

The U.S. Equal Employment Opportunity Commission announced July 3 that it filed suit against energy giant Halliburton Energy Services, Inc. for subjecting two employees to national origin and religious discrimination. The EEOC’s suit also charged that Halliburton unlawfully retaliated against one of the employees by firing him for reporting the mistreatment of employees.

According to the EEOC, Hassan Snoubar, of Syrian national origin, began working for Halliburton as an operator-assistant oil field worker, primarily in Odessa and Kilgore, Texas, in about August 2012. During his employment, Snoubar, a U.S. citizen, was subjected to taunts and name calling regarding both his national origin and his Muslim religion. He was frequently called derogatory names such as “camel jockey” and was accused of being associated with ISIS and terrorism by supervisors and co-workers. Mir Ali, a Muslim co-worker of Indian national origin, was similarly subjected to the hostile environment.

The two men were made to openly suffer insults including radio broadcasts of such offensive characterizations that were heard by several current and former Halliburton employees. After being continually criticized about their cultural attire, appearance and even claims that “their people” engaged in bestiality, Snoubar expressed his concerns to management and human resources, but was then fired.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating based on national origin and religion. The EEOC filed its lawsuit in U.S. District Court for the Northern District of Texas, Dallas Division (EEOC v. Halliburton Energy services, Inc., Civil Action No.3:18-CV-01736-N), after first attempting to reach a pre-litigation settlement through its conciliation process.

“This case should serve as a message that this kind of behavior will not be tolerated in the workplace,” said EEOC Trial Attorney Joel Clark. “No one should have to arrive at the workplace and be taunted or persecuted for his religious beliefs or national origin.”

EEOC Dallas District Office Regional Attorney Robert A. Canino added, “Passivity in the face of this kind of abuse is certainly enough for an employer to be held accountable, but the participation by supervisors in the mean-spirited degradation of an employee’s ethnic heritage and faith is unconscionable as well as unlawful. The oil field environment is not to be a free-fire zone for destructive energy in the form of open bigotry.”

According to company information, Houston-based Halliburton Energy Services, Inc., with over 55,000 employees, is one of the world’s largest providers of products and services to the energy industry.

$100K Settlement Closes ADA, ADEA Lawsuit

This federal contractor has to pay a six-figure amount to get out from under a disability and age discrimination lawsuit.

Federal contractor Camber Corporation has agreed to pay $100,000 and furnish  other relief to settle a disability and age discrimination lawsuit filed by the  U.S. Equal Employ­ment Oppor­tunity Commission (EEOC), the agency announced July 2.

The EEOC charged  that Camber Corporation violated federal law when it denied an employee a trans­fer  based on his son’s medical condition and then fired him, replacing him with  someone more than 20 years younger.

According to  the EEOC, employee Ashok Pai’s son  sustained catastrophic injuries in a car accident as a child and, as a result,  has been disabled for more than 25 years. Pai sought a  transfer to work nearer to where his son lived and requested leave to assist  with his care. Further, imme­diately after man­age­ment learned that Pai was  exploring the transfer to care for his disabled son, Camber classified him as  “re­signed,” began processing termination paperwork and ultimately fired him for  pretextual reasons, the EEOC said. Camber then replaced Pai, who was then in  his mid-60s, with a much younger worker.

Such alleged behavior violates  the Americans with Disabilities Act (ADA) and the Age Discrim­ination in  Employment Act (ADEA). The EEOC filed its suit (EEOC v. Camber Corporation,  Case No. 1:17-cv-01084-AJT-JFA) in U.S. District Court for the Eastern District  of Virginia after first attempting to reach a pre-litigation settlement through  its conciliation process.

On July 2, 2018, U.S. District  Court Judge Anthony J. Trenga entered a consent decree resolving the case. In  addition to a $100,000 award for lost wages, the two-year decree includes  injunctive relief to prevent disability and age discrimination from occurring  at the company in the future. The decree requires continued annual training on  the protections of the ADA and ADEA, including the ADA provision barring  employers from discriminating against workers because of their association with  disabled persons. The company must also post anti-discrimination notices at its  Huntsville, Ala., and Fairfax, Va., locations.

“The ADA not only prohibits  employers from discriminating against people with disabilities, it also bans  discrimination against employees and applicants based on their association with  a person with a disability — for good reasons,” said Washington Field Office  Acting Director Mindy Weinstein. “Mr. Pai simply asked for a transfer to help  deal with his son’s severe disability, and the company made a bad situation  worse by punishing him for trying to do the right thing and showing age bias at  the same time. The EEOC is here to fight for the rights of people like Ashok  Pai.”

EEOC Regional Attorney Debra  M. Lawrence added, “When employers violate the law, the EEOC will hold them  accountable. We are pleased that the parties were able to reach a resolution to  better protect the rights of employees under federal law.”

Camber Corporation was headquartered in Huntsville, Ala. This discrimination  took place in Falls Church, Va., where the employee worked for Camber at an  office within the U.S. Department of Justice.

$82K Recovery Closes Pregnancy Bias Case

This restaurant/jazz club saw the light on its bad treatment of pregnant servers. So maybe its future hires who get pregnant will have a better time of it.

LA Louisanne, Inc., a Los Angeles restaurant and jazz night club, will pay $82,500 and furnish other relief to settle a pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced July 2.

According to the EEOC’s lawsuit, LA Louisanne violated federal law when it reduced the working hours of one if its servers after learning she was pregnant, eventually removing her from the schedule entirely. The company then refused to allow her to return her to work after giving birth. The EEOC also charged that other servers for LA Louisanne experienced similar discrimination during their pregnancies.

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 Central District of California (EEOC v. LA Louisanne, Inc., Case No. 2:17-cv-06690) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $82,500 in monetary relief for the victim and the establishment of a class fund, LA Louisanne will retain an external EEO monitor who will review and revise the company’s discrimination and harassment policies as necessary. The company will also provide training for all employees regarding discrimination and harassment. The EEOC will monitor compliance with the three-year consent decree.

“Stereotypes regarding pregnant employees still persist, particularly in the food industry,” said Anna Park, regional attorney for the EEOC’s Los Angeles District. “We commend LA Louisanne for taking the necessary steps to create a more inclusive work environment for expectant employees.”

Christopher Green, director of the EEOC’s San Diego local office, which investigated the charge, added, “Pregnant employees should not lose their jobs or otherwise suffer discrimination simply because of their temporary condition. Employers should train employees on proper policies and practices to prevent bias against pregnant workers, who often remain productive during and after pregnancy.”

One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues involving the ADA and pregnancy-related limitations, among other issues.

EEOC: Worker Fired Because He Was Receiving Treatment for Opioid Addiction After Surgery

With opioid addiction a problem throughout the country, employers need to be aware of their legal obligation to accommodate workers who are in recovery from their addiction.

Steel Painters, LLC, a Beaumont, Texas-based painting company, unlawfully fired a worker because it regarded him as disabled and because of his record of a disability, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed June 29. The employee had been dependent on opioid medication in the past but was in recovery treatment.

According to the EEOC’s suit, a Steel Painters manager recruited Matthew Kimball for a journeyman painter position, and Kimball began work on a project for Steel Painters at a Silsbee, Texas plant on Sept. 19, 2016. Earlier this decade, Kimball sustained a shoulder and arm injury that required surgery and extensive physical rehabilitation. During his recuperation, he became dependent on prescribed opioid pain medication. At the time Steel Painters hired Kimball, he had been in a treatment program for over a year taking a dose of prescribed methadone at night after the work day, and he was gainfully employed in a similar painter position.

On his first day on the job, Kimball took the pre-employment drug and alcohol test required by Steel Painters, and he worked through the rest of the week. The following Monday, Kimball learned that the prescription medication he took caused the drug test to come back “positive.” However, after he provided the laboratory with a copy of his prescription and other documentation about his treatment, the laboratory cleared him to work.

Nevertheless, a Steel Painters human resources manager would not permit Kimball to return to his job. She demanded that Kimball have his doctor fill out a specific form and return it to the company. Kimball provided a letter from his doctor that detailed his treatment, and which invited the recipient to contact the clinic’s offices if more detailed information was needed. The human resources representative declared, “I’m not calling nobody,” the EEOC said. Even though Kimball offered to submit himself to a complete physical performed by a doctor of Steel Painters’ choosing, Kimball was told “you don’t have a job […] we have to terminate you.”

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-00303) after first attempting to reach a pre-litigation settlement through its conciliation process.

The federal agency is seeking a permanent injunction prohibiting Steel Painters from engaging in any future disability discrimination. The EEOC is also seeking back pay on behalf of Mr. Kimball, and compensatory and punitive damages and other relief on his behalf, including rightful-place instatement to a suitable position at Steel Painters.

“Opioid addiction is a disability that is affecting millions across the United States, yet many are regaining control over their lives by participating in supervised rehabilitation programs,” said EEOC Houston District Director Rayford O. Irvin. “When a worker has a record of such a disability and is performing his job proficiently, an employer cannot lawfully preclude the worker from employment because he is receiving treatment for his addiction.”

Houston District Office Regional Attorney Rudy Sustaita said, “Enforcement of the ADA is a top priority of this agency. When an employer regards a worker’s impairment as preventing him from doing the job, but refuses to consult with the worker’s treating doctor and assess the worker’s ability to work, the company should expect that the EEOC will enforce the ADA and defend the employee’s rights.”

NY Floor Manufacturer Dinged by OSHA for $182K in Penalties for Unsafe Work Conditions

The safety floor for this New York manufacturer evidently had some holes in it.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) on July 17 said it cited Timberline Hardwood Floors LLC for willful and serious violations of workplace safety and health standards. The Fulton, New York, custom hardwood-flooring manufacturer faces proposed penalties totaling $182,917.

OSHA cited the company for failing to implement lockout-tagout procedures to prevent machines from unintentionally starting; adequately train forklift operators; repair exposed electrical circuits; and develop hearing conservation and chemical hazard communication programs. OSHA also cited the company for allowing locked emergency exits, unguarded machines, and unlabeled hazardous materials and chemicals.

“During this inspection, OSHA identified serious hazards that posed a threat to workers’ safety and health,” said OSHA Syracuse Area Office Assistant Director Jeffrey Prebish. “Unfortunately, Timberline Hardwood Floors LLC ignored its obligation to protect employees from these well-known issues.”

The company has 15 business days from receipt of the safety and health citations and proposed penalties to comply, request an informal conference with OSHA’s area director, or contest the findings before the independent Occupational Safety and Health Review Commission.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit http://www.osha.gov.

Postscript: My thanks to Jon Hyman for including this blog entry in his Ohio Employer Law Blog July 27 weekly roundup of legal blogs.