Archive for October, 2018

EEOC Charges Race Harassment at Restaurant

What this restaurant allegedly served up to its black chef no one should have to digest.

A popular Tex-Mex restaurant violated federal law when it engaged in race-based harassment of a black chef, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a new lawsuit it filed Sept. 12.

According to EEOC’s suit, Michael Carrethers, an African-American cook at On the Border’s Holtsville, N.Y., location, was subjected to frequent verbal harassment and offensive language by co-workers. The harassment included the regular and open use of racial slurs such as “n—–r” toward Carrethers, as well as calling him other offensive terms like “black bean.”

The EEOC said that even though On the Border’s management was aware of and sometimes present for the harassment, it failed to stop the abuse or to discipline any of the harassers. The complaint states that one employee referred to Carrethers as “n—–r” multiple times a week.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race and multiple other bases, as well as retaliation for opposing or reporting discrimination. The EEOC filed suit in U.S. District Court for the Eastern District of New York (EEOC v. On the Border Acquisitions, LLC, d/b/a On the Border Mexican Grill & Cantina, Civil Action No. 1:18-cv-05122) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks compensatory and punitive damages, and injunctive relief to insure this doesn’t happen again. The agency’s litigation effort will be led by Senior Trial Attorney Charles F. Coleman, Jr. and supervised by Supervisory Trial Attorney Nora Curtin.

“The abuse to which Mr. Carrethers was subjected at On the Border is totally unacceptable,” said EEOC Regional Attorney Jeffrey Burstein. “The EEOC will file lawsuits like this to make sure that the clock is not turned backwards in any workplace.”

Charles F. Coleman, Jr., lead trial attorney on the case for the EEOC, said, “It is indefensible for this sort of language to be used so freely and repeatedly in the workplace. An employer cannot allow such ongoing harassment to occur while doing nothing to correct it.”

Kevin Berry, the EEOC’s New York District director, added, “This type of harassment demonstrates why the EEOC’s work is as crucial now as it has ever been.”

On its website, On the Border states that it is the country’s largest casual Mexican restaurant chain, with over 140 locations and 6,000 employees nationwide.

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

EEOC: Female Employees Harassed at Store

According to the EEOC, this New York store was not a hospitable place for women to work.

Foodtown Corp., a supermarket in Elmhurst, N.Y., violated  federal law by maintaining a hostile work environment where two female workers  were sexually harassed by their supervisor and then fired for opposing this misconduct,  the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on September 10.

According to the EEOC’s complaint, two female employees were subjected  to repeated, egregious sexual harassment by their supervisor, a department  manager. This included solicitations for sex, lewd comments about the women’s  bodies, and inappropriate touching of their bodies, the complaint alleges. The  women repeatedly rejected the supervisor’s advances, and one reported the  harassment to the store manager. Despite this complaint, the harassment continued,  and the supervisor then terminated both employees in retaliation for their  rejection of his unwanted advances, the EEOC charges.

Title VII of the Civil Rights Act of 1964 prohibits employers from  discriminating based on sex, and also from retaliating against workers who  object to discrimination. Sexual harassment is a form of sex discrimination  prohibited by the statute. The EEOC filed suit in the U.S. District Court for  the Eastern District of New York (EEOC v. Foodtown Corp., and 82-10 Baxter  Avenue Food Corp. d/b/a Foodtown a/k/a Foodtown of Baxter Avenue, Civil Action  No. 18-cv-5100) after first attempting to reach a pre-litigation settlement  through its conciliation process. The EEOC seeks compensatory and punitive  damages for the two employees and injunctive relief. The agency’s litigation  effort will be led by Senior Trial Attorney Adela Santos, supervised by  Supervisory Trial Attorney Raechel Adams.

“Federal law gives employees the right to work in an environment free  from sexual harassment,” said Jeffrey Burstein, regional attorney for the EEOC’s  New York District Office. “No worker should be forced to endure lewd comments,  propositions for sex, and inappropriate touching just so she can earn a  paycheck.”

The EEOC’s New York District director, Kevin Berry, added, “Sexual  harassment victims who bring the abuse to the attention of their supervisors  are doing the company a favor and should never be punished for it. The EEOC  will continue to aggressively enforce federal laws against retaliation for  reporting discrimination in the workplace.”

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

Employer Sued Over Medical Leave Denial

Another employer has crossed legal swords with federal civil rights enforcers over its handling of an employee’s request for leave due to a medical condition.

Vallen Distribution, Inc. d/b/a Hagemeyer North America, Inc., a national leading provider of indirect industrial supplies violated federal law when it fired an employee after he requested leave due to a medical condition, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed.

According to the EEOC’s suit, in August 2015, Hagemeyer fired Warehouse Driver Wesley Smith rather than grant his request for unpaid leave to treat and recover from prostate cancer.  Smith, who worked in Hagemeyer’s Augusta, Ga. warehouse facility, was fired the day before he was scheduled to undergo surgery.

Such alleged conduct violates the Americans with Disabilities Act (ADA) which prohibits discrimination based on a disability. The EEOC filed suit (EEOC v. Vallen Distribution, Inc. d/b/a Hagemeyer North America, Inc., Civil Action No. 1:18-cv-00146-JRH-BKE) in U.S. District Court for the Southern District of Georgia, Augusta Division after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking reinstatement, back pay, front pay, compensatory and punitive damages for Smith, as well as injunctive relief designed to prevent future discrimination.

“When an employer knows an employee has a disability and will need to be absent from work because of it, the employer should meet with the employee and seek to accommodate him,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. “”Medical leave is a widely-recognized accommodation, and in Mr. Smith’s case, could easily have been granted, preventing the firing of a valuable employee. However, instead of accommodating him, Hagemeyer fired Smith, less than 24-hours before his surgery..”

Bernice Williams-Kimbrough, district director of the Atlanta office, said, “The interactive process is most important during the accommodation process. In this case, Hagemeyer was much more interested in firing an employee with a disability rather than accommodating him and failed in its responsibility under the law.”

88K Settlement for the EEOC in ADA Suit Against An Idaho Store That Refused to Hire Deaf Worker

There’s been a rash lately of employers who don’t know how to handle deaf people who apply for open jobs.

An Idaho-based convenience store chain, Jacksons Food Stores, Inc., will pay $88,000 and hire a deaf worker as well as provide other relief to settle a disability discrimination lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) announced September 7.

The EEOC lawsuit charged that Jacksons refused to interview Nathaniel Prugh because of his deafness. After applying online for a position at the company’s Sammamish, Wash., store, Prugh was selected for an interview based on his qualifications and experience working similar jobs. However, once he explained that he was deaf and would need an interpreter, the store manager balked and refused to give him that opportunity, the EEOC said.

Rejecting a qualified applicant because of disability violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Western District of Washington (EEOC v. Jacksons Food Stores, Inc., Case No. 2:17-CV-01285) after an investigation by EEOC Investigator Elizabeth Kidd and after first attempting to reach a pre-litigation settlement through its conciliation process.

“My being deaf does not prevent me from being a qualified worker with much to contribute,” said Prugh. “I’m excited to show Jacksons what a valuable contribution I can make to its team.”

The five-year consent decree settling the lawsuit provides Prugh with a job and $88,000 in lost wages and compensatory damages. The decree also requires Jacksons to train staff regarding hiring and reasonable accommodation under the ADA. The company will also implement and disseminate a modified ADA policy, and will post a notice for employees about the consent decree and their rights under the ADA.

“Congress enacted the ADA to ensure that employers evaluate candidates based on individual merit rather than assumptions about what people with disabilities can or cannot do,” said EEOC Senior Trial Attorney May Che. “This settlement helps ensure that qualified workers like Mr. Prugh have a level playing field and can participate in the workforce to their fullest ability.”

Nancy Sienko, director for the Seattle Field Office, added, “We are very pleased with the outcome of this lawsuit. We commend Jacksons for its commitment to its obligations under the law and for working with the EEOC and Mr. Prugh to provide him the opportunity he deserves.”

According to its website, http://www.jacksons.com, Jacksons Foods is one of the largest privately held corporations in Idaho, operating over 230 Chevron-, Shell-, and Texaco-branded convenience stores in six Western states, with over 3,000 employees.

Eliminating barriers in hiring, including hiring practices that discriminate against people with disabilities, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

EEOC Recovers $88K For Blocked Deaf Applicant

This convenience story didn’t give a deaf applicant a fair shot at a job, according to federal investigators.

An Idaho-based convenience store chain, Jacksons Food Stores, Inc., will pay $88,000 and hire a deaf worker as well as provide other relief to settle a disability discrimination lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) announced September 7.

The EEOC lawsuit charged that Jacksons refused to interview Nathaniel Prugh because of his deafness. After applying online for a position at the company’s Sammamish, Wash., store, Prugh was selected for an interview based on his qualifications and experience working similar jobs. However, once he explained that he was deaf and would need an interpreter, the store manager balked and refused to give him that opportunity, the EEOC said.

Rejecting a qualified applicant because of disability violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Western District of Washington (EEOC v. Jacksons Food Stores, Inc., Case No. 2:17-CV-01285) after an investigation by EEOC Investigator Elizabeth Kidd and after first attempting to reach a pre-litigation settlement through its conciliation process.

“My being deaf does not prevent me from being a qualified worker with much to contribute,” said Prugh. “I’m excited to show Jacksons what a valuable contribution I can make to its team.”

The five-year consent decree settling the lawsuit provides Prugh with a job and $88,000 in lost wages and compensatory damages. The decree also requires Jacksons to train staff regarding hiring and reasonable accommodation under the ADA. The company will also implement and disseminate a modified ADA policy, and will post a notice for employees about the consent decree and their rights under the ADA.

“Congress enacted the ADA to ensure that employers evaluate candidates based on individual merit rather than assumptions about what people with disabilities can or cannot do,” said EEOC Senior Trial Attorney May Che. “This settlement helps ensure that qualified workers like Mr. Prugh have a level playing field and can participate in the workforce to their fullest ability.”

Nancy Sienko, director for the Seattle Field Office, added, “We are very pleased with the outcome of this lawsuit. We commend Jacksons for its commitment to its obligations under the law and for working with the EEOC and Mr. Prugh to provide him the opportunity he deserves.”

According to its website, http://www.jacksons.com, Jacksons Foods is one of the largest privately held corporations in Idaho, operating over 230 Chevron-, Shell-, and Texaco-branded convenience stores in six Western states, with over 3,000 employees.

Eliminating barriers in hiring, including hiring practices that discriminate against people with disabilities, is one of six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

High Injury Workplaces Target for OSHA

Federal workplace safety officials are putting high injury businesses under the microscope.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) is initiating the Site-Specific Targeting 2016 (SST-16) Program using injury and illness information electronically submitted by employers for calendar year (CY) 2016. The program will target high injury rate establishments in both the manufacturing and non-manufacturing sectors for inspection. Under this program, the agency will perform inspections of employers the agency believes should have provided 300A data, but did not for the CY 2016 injury and illness data collection. For CY 2016, OSHA required employers to electronically submit Form 300A data by December 15, 2017. The CY 2017 deadline was July 1, 2018; however, employers may still provide this information to the database.

Going forward, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records, and establishments with 20-249 employees that are classified in specific industries with historically high rates of occupational injuries and illnesses will be required to provide this information each year by March 2.

OSHA’s On-site Consultation Program offers employers with up to 250 workers with free, confidential safety and health advice on complying with OSHA standards, and establishing and improving safety and health programs.

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 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 www.osha.gov.

My thanks to Jon Hyman for choosing this blog post for his weekly roundup on the Ohio Employer Law Blog.

EEOC: Server Was Fired Over Epilepsy

It’s not up to an employee to “control” her disability in order to keep her job. The law requires the employer to evaluate employees individually to determine if they are capable of doing the job.

That lesson apparently was lost on this Georgia restaurant.

A Golden Corral restaurant franchisee located in Augusta, Ga., violated federal law when it unlawfully fired a server with epilepsy, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed September 6.

According to the EEOC’s suit, B. Fehr, LLC, doing business as Golden Corral, terminated Alicea Cruce in May 2016 because it accused her of being unwilling or unable to control her disability.

Discriminating against an employee due to a disability or perceived disability violates the Americans with Disabilities Act (ADA), which protects individuals from discrimination based on their disability. The EEOC filed suit (EEOC v. B. Fehr, LLC d/b/a Golden Corral, Civil Action No. 1:18-cv-00145-JRH-BKE) in U.S. District Court for the Southern District of Georgia, Augusta Division after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking reinstatement, back pay, front pay, and compensatory and punitive damages for Cruce, as well as injunctive relief designed to prevent future discrimination.

“An employer cannot fire an employee because of her disability – or its misperception of it,” said Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office. “Ms. Cruce’s condition in no way prevented her from performing her job, yet her employer fired her out of fear for her condition. Such conduct violates the ADA.”

Bernice Williams-Kimbrough, district director of the Atlanta office, said, “The EEOC is committed to stopping workplace disability discrimination in Georgia and across the country. The ADA was passed, in part, to allow individuals to be judged on their abilities, not on the employer’s assumptions about their supposed limitations.”

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