Archive for November, 2018

EEOC: Limiting Time Workers Could Sit on Stools During Food Demonstrations Violates the ADA

Workers who show off different foods at giant retailers like Walmart and Sam’s Clubs were unlawfully denied the opportunity to sit down because of their disability, federal law enforcement has charged.

Crossmark, Inc., a Plano, Texas-based sales and marketing services company that provides food demonstrators to Walmart and Sam’s Clubs, violated federal law by discriminating against disabled employees, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed Sept. 24 The suit claims that Crossmark’s failure to accommodate a nationwide class of qualified disabled workers who needed to use a stool violated the Americans with Disabilities Act (ADA).

According to the EEOC’s lawsuit, Crossmark established a qualification standard permitting its ubiquitous employees who offer shoppers food samples at Walmart and Sam’s Clubs stores to sit on stools for no more than ten minutes every two hours. For example, during the four years that Kathryne Guilfoyle worked directly for Sam’s Club, doing food demonstration events part-time, she was permitted to use a stool as necessary because of her disability. However, when Crossmark took over doing such events in Guilfoyle’s store and she asked for the same accommodation, Crossmark denied her request and she was fired. In addition to the illegal qualification standard, the EEOC also charges that Crossmark’s policies for considering an employee’s request to use a stool violated the ADA. During its investigation, the EEOC identified hundreds of employees, in addition to Guilfoyle, who were discriminated by Crossmark’s qualification standard and procedures.

The EEOC filed its lawsuit (Equal Employment Opportunity Commission v. Crossmark, Inc., Civil Action No. 3:18-cv-1760), in U.S. District Court for the Southern District of Illinois after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks monetary relief for each class member as well as a judgment and order requiring the company to implement policies and practices to prevent future discrimination.

“The ADA’s mandates are clear,” said EEOC St. Louis District Director James R. Neely, Jr. “Crossmark’s failure to accommodate its employees with disabilities, when Walmart and Sam’s Clubs were able to do so, is especially unacceptable.”

Andrea G. Baran, the EEOC’s regional attorney in St. Louis, added, “People with disabilities have the ability to contribute greatly to our workplaces and economy. When employers fail to give them the opportunity to do so, everyone suffers.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois.

Pregnancy Suit Filed Against Retirement Home

A woman’s possible future pregnancy can’t be used as a cudgel to deny her opportunities for on-the-job advancement.

The Glenridge on Palmer Ranch, an upscale retirement community in Sarasota, Fla., violated federal law by refusing to hire and promote a woman because of her potential to become pregnant, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed September 21.

According to the EEOC’s suit, Michelle Fredericks began working in The Glenridge’s dining department in 2007. In 2015, Glenridge managers encouraged Fredericks to apply for an open position as a dining room supervisor. Before Fredericks applied, a manager texted her to ask when she planned on having another baby, explaining, “With this position it doesn’t leave a lot of time off for long periods of time.” Glenridge failed to interview Fredericks and offered the dining supervisor position to a female that it did not believe would become pregnant, the EEOC said.

Pregnancy discrimination 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 Middle District of Florida, Tampa Division (EEOC v. The Glenridge on Palmer Ranch, Inc., Case No. 8:18-cv-2340-T-O2-CPT) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks back pay and compensatory and punitive damages for the discrimination victim. The suit also seeks injunctive relief to prevent and correct pregnancy discrimination in the future and training of Glenridge’s managers and supervisors about federal equal employment opportunity laws.

“The Pregnancy Discrimination Act celebrates its 40th anniversary this year,” said Robert E. Weisberg, regional attorney for the EEOC’s Miami District. “Still, as the New York Times recently highlighted, the number of pregnancy discrimination charges filed annually with the EEOC is close to an all-time high. The EEOC continues, with this suit, to seek vigorous enforcement of the laws that protect all women from this kind of intentional and harmful discrimination.”

The EEOC’s Tampa Field Office Director, Evangeline Hawthorne, added, “To deny a woman employment because she may become pregnant places her and her family in a position of immeasurable harm. The EEOC remains steadfast in its commitment to take legal action against those who engage in such unlawful tactics.

OSHA Targets Southeast Companies in Outreach Over Trenching and Excavation Work Hazards

Federal safety regulators today announced outreach efforts focused in the Southeastern United States to raise awareness of and response to hazards for workers in trenches and excavations.

Working in trenches and excavations can be hazardous, and trench collapses pose great risk to workers. To raise awareness of preventable incidents, compliance assistance specialists with the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) in the Southeast are conducting outreach to educate employers and employees on the hazards associated with trenching and excavation work.

OSHA area offices in Alabama, Florida, Georgia, and Mississippi, are reaching out to excavation employers, industry associations, equipment rental organizations, water utility suppliers, and national and local plumbing companies to educate them to identify trenching hazards. Compliance assistance specialists will also remind employers of the requirements to implement methods to prevent collapses, such as sloping trench walls, shoring the walls with supports, or shielding walls with trench boxes.

“Employees can be seriously or fatally injured in a matter of seconds when a trench collapses,” said OSHA Regional Administrator Kurt A. Petermeyer, in Atlanta. “Trench-related injuries are preventable when employees are trained properly and the required protections are in place.”

In October 2018, OSHA updated its National Emphasis Program (NEP) on Trenching and Excavation to continue support for compliance assistance and inspection programs that address trenching and excavation operations. The Agency provides a series of compliance assistance resources to help keep workers safe from trenching and excavation hazards, including a “Protect Workers in Trenches” poster, hard hat stickers in English and Spanishtrenching operations QuickCard, and updated Trenching and Excavation webpage.

Furniture Retailer Revises Criminal Background Check Policies in Settlement With the EEOC

Civil rights enforces frown on policies that automatically bar anyone with a criminal conviction from getting a job.

The U.S. Equal Employment Opportunity Commission (EEOC) and Rooms To Go, a larger furniture retailer, have reached a voluntary conciliation agreement to resolve allegations of race discrimination raised by an unsuccessful black applicant whose offer of employment was rescinded as a result of Rooms To Go’s background check policies, the federal agency announced Sept. 24. The agreement reflects the company’s implementation of revised policies and practices to ensure that its pre-employment screenings comply with Title VII of the Civil Rights Act of 1964, as amended (Title VII).

The cooperative agreement acknowledges Rooms To Go’s proactive changes to its hiring and screening policies. Rooms To Go’s revised policies and practices remove any blanket exclusions for criminal conviction from its screening policies, affording all applicants an opportunity for an individualized assessment. The agreement also reformed Rooms To Go’s employment application by removing criminal conviction questions and postponing inquiries about criminal history until later in the hiring process. These changes will ensure that applicants will be judged by their qualifications first, rather than screened based on criminal history questions on the application. Delaying any consideration of criminal history until after a conditional offer of employment gives applicants a fair chance at employment and an opportunity to explain their criminal history.

In addition, Rooms To Go will provide training on its revised criminal background procedures to the appropriate personnel. All human resource staff, along with other essential employees, will be required to take mandatory implicit bias training and annual refresher training. “We obtained financial relief for the victim of discrimination and eradicated a barrier for future applicants,” said EEOC Tampa Field Office Director Evangeline Hawthorne. “We are pleased that Rooms To Go chose to work with the EEOC to reach this conciliation agreement and that through our joint efforts we have been able to bring about real change at Rooms To Go.”

EEOC Sues Government Contractor Under ADA For Its Handling of Project Manager With PTSD

This government contractor is in trouble with the U.S. government over its alleged mishandling of an employee needing reasonable accommodation for her PTSD.

Clinton, Maryland-based federal contractor MSDS Consultant Services LLC violated federal law by failing to reasonably accommodate a project manager’s post-traumatic stress disorder (PTSD) and panic disorder, subjecting her to a hostile work environment, and firing her because of her disability and her complaints of discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Sept. 20.

According to the EEOC’s lawsuit, LaRufus Mitchell began working for MSDS as an analyst, project manager, and security specialist in April 2014, and was assigned to provide services for the U.S. Department of State (DoS). Prior to her position with MSDS, Mitchell worked as a direct employee of DoS. While employed with DoS, Mitchell filed a grievance alleging violations of the Americans with Disabilities Act (ADA). She later filed claims against DoS in federal court. In March 2016, Mitchell began to suffer symptoms of PTSD and panic disorder and had to take a medical leave of absence. Around that time, MSDS found out about her ADA complaints against DoS and chastised Mitchell for not disclosing the complaints to them. Over the next several months, MSDS repeatedly denied and delayed granting schedule adjustments to facilitate her return to work; withheld her pay; interfered with her receipt of insurance benefits; and otherwise subjected her to a hostile work environment. In June 2016, Mitchell hired a lawyer to communicate with MSDS about her requested accommodations, and in July 2016, she sought continued accommodations. Thereafter, MSDS’s mistreatment persisted and MSDS searched for a justification to terminate Mitchell’s employment, the EEOC alleges. In August 2016, MSDS sent DoS an email speculating that Mitchell would ask for more accommodations in the future and if she did, they suggested she should be replaced. On October 3, 2016, MSDS fired Mitchell, claiming her ADA lawsuit against DoS was a conflict of interest.

Such alleged conduct violates the ADA, which prohibits disability discrimination and retaliation for opposing discrimination. The ADA requires employers to provide reasonable accommodations to individuals with disabilities unless it would cause an undue hardship. The EEOC filed suit (EEOC v. MSDS Consultant Services, LLC, Case No. 8:18-cv-02917-PX) in the U.S. District Court for the District of Maryland, after first attempting to reach a pre-litigation settlement through its administrative conciliation process. The EEOC is seeking permanent injunctive relief prohibiting MSDS from discriminating against employees because of disability or retaliating against them for engaging in protected activity in the future, lost wages, compensatory and punitive damages, and other relief.

“Employers must remember that the rights extended to employees under the Americans with Disabilities Act include the right to reasonable accommodation of disability-related limitations and the right to oppose unlawful discrimination,” said Mindy E. Weinstein, acting director of the EEOC’s Washington Field Office. “A company cannot harass or fire an employee because she asks for an accommodation or because she may ask for one in the future; because she complains of discrimination by her current employer or by an employer from her past.”

Philadelphia District Office Regional Attorney Debra Lawrence said, “Instead of accommodating Ms. Mitchell, MSDS harassed her and retaliated against her for exercising her rights under the ADA. The EEOC is here to protect and enforce those rights for Ms. Mitchell and other individuals with disabilities.” The Washington Field Office has jurisdiction over the District of Columbia and the Virginia counties of Arlington, Clarke, Fairfax, Fauquier, Frederick, Loudoun, Prince William, Stafford and Warren; and the independent Virginia cities of Alexandria, Fairfax City, Falls Church, Manassas, Manassas Park and Winchester.

EEOC: Walmart Kept “Robust” Light Duty Program From Pregnant Workers at Wisc. Store

Here’s one where–if the allegations are true–the employer shot itself in the foot. It already had a program in place to accommodate workers with lifting restrictions–but didn’t extend that program to its pregnant employees.

Walmart violated federal law when it refused to accommodate workers’ pregnancy-related medical restrictions, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed September 21.

According to the EEOC’s lawsuit, Alyssa Gilliam and a class of pregnant employees at Walmart’s Distribution Center #6025 in Menomonie, Wis., were disallowed from taking part in a company program that accommodated other workers’ restrictions.

“What our investigation indicated is that Walmart had a robust light duty program that allowed workers with lifting restrictions to be accommodated,” said Julianne Bowman, the EEOC’s district director in Chicago who managed the federal agency’s pre-suit administrative investigation. “But Walmart deprived pregnant workers of the opportunity to participate in its light duty program. This amounted to pregnancy discrimination, which violates federal law.”

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (PDA), which prohibits pregnancy discriminationpregnancy discrimination in employment. The EEOC filed suit (EEOC v. Walmart Stores East, LP, d/b/a Walmart Distribution Center #6025, Civil Action No. 3:18-cv-783) in U.S. District Court for the Western District of Wisconsin on September 20, 2018 after first attempting to reach a pre-litigation settlement through its conciliation process.

The case has been assigned to U.S. District Judge Barbara B. Crabb. The EEOC is seeking full relief, including back pay, compensatory and punitive damages, and non-monetary measures to correct Walmart’s practices going forward.

Gregory Gochanour, regional attorney of the EEOC’s Chicago District Office, said, “By accommodating a large percentage of its non-pregnant employees with light duty work while denying those same accommodations to pregnant workers who are similar in their ability or inability to work, Walmart acted in contravention of the law.”

The EEOC’s Chicago District Office is responsible for processing charges of employment discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

$220,000 Settlement Wraps Up EEOC Harassment, Age Lawsuit Versus Phoenix Eatery

The service at this Arizona restaurant wasn’t so fine regarding its older women employees.

Phoenix restaurant Francisco Fine Foods LLC, doing business as Mariscos Altata, agreed to pay $220,000 and furnish other relief to settle an employment discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Sept. 21. The EEOC charged the restaurant with severe sexual harassment, age discrimination, and retaliation against a group of women.

According to the EEOC’s lawsuit, female employees of Mariscos Altata were subjected to sexual harassment including unwanted touching, grabbing, fondling, sexual comments, requests for sex, and other unlawful conduct since at least February 2011. The lawsuit additionally charged that Mariscos Altata subjected an employee to harassment based on her age, including comments that she was a “worthless old lady” and coworkers ridiculing her by taking bets on her age. Mariscos Altata also retaliated against women who refused to comply with sexual demands, the EEOC said.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination and retaliation, as well as the Age Discrimination in Employment Act, which prohibits discrimination against employees over the age of 40. The EEOC filed suit, EEOC v. Francisco’s Fine Foods, LLC d/b/a Mariscos Altata, Civil Action No. 2:17-cv-00945- JJT in U.S. District Court for the District of Arizona after first attempting to reach a settlement through its pre-litigation conciliation process. The lawsuit sought back pay and compensatory and punitive damages as well as appropriate injunctive relief to prevent discrimination in the future.

Under the four-and-a-half-year consent decree settling the lawsuit, which was signed by federal District Court Judge John J. Tuchi today, Mariscos Altata is ordered to revise its employment policies in consultation with an outside consultant. The company must also establish a robust system for employees to report harassment, discrimination, and retaliation; post an anti-discrimination notice; evaluate managers based on their compliance with EEO laws; and train its managers and employees on the law and Marisco Altata’s policies against discrimination. The restaurant also agreed to terminate the alleged harasser and never rehire him. Mariscos Altata will also send letters of apology to all of the women affected by the harassment and retaliation.

“Unfortunately, sexual harassment continues to be an epidemic in many workplaces, including restaurants,” said the EEOC’s Phoenix District Office regional attorney, Mary Jo O’Neill. “It is clearly unacceptable and illegal misconduct. No employee should ever be subjected to such degrading and abusive behavior in order to make a living to support herself and her family. Employers who fail to protect vulnerable employees from predatory abuse should know that the EEOC will step in to stop it.”

Elizabeth Cadle, district director of the EEOC’s Phoenix District Office, added, “Employees who stand up for themselves should never fear adverse employment actions as a result. Unfortunately, over 45 percent of charges to the EEOC involve allegations of retaliation – the most common type of discrimination charge. Employers have a legal duty to protect their employees from sexual harassment and retaliation.”

The EEOC’s Phoenix District Office has jurisdiction for Arizona, Colorado, Utah, Wyoming and parts of New Mexico (including Albuquerque).