Archive for February, 2019

Flattened: IHOP Forks Over $700K To Settle EEOC’s Sexual Harassment, Retaliation Lawsuit

The batter served at these IHOP restaurants to female employees turned sour. But now they are getting some justice courtesy of an EEOC lawsuit.

Several franchisees of the popular IHOP restaurant chain in Nevada and New York will pay $700,000 and furnish other relief to settle a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced February 20. The U.S. District Court of Nevada has approved a consent decree filed by the EEOC.

According to the EEOC’s lawsuit, IHOP owners, supervisors, managers and co-workers subjected female employees to ongoing egregious sexual harassment in both Nevada and New York locations. The harassment included groping; sending pictures of male genitalia; propositions for sex; viewing of porno­graphy; vulgar comments; and unwanted touching and kissing. The company failed to take corrective action when the victims complained, instead taking retaliatory action against them, including reducing their work hours and firing them.

In addition, since 2005, the company had in place a written sexual harassment policy that required complaints to be made to the corporate office in writing within 72 hours of the harassing incident. This policy deterred victims of harassment from reporting, removed the responsibility of local managers and supervisors to correct harassment that they were aware of, and emboldened the abusers, the EEOC contends.

Sexual harassment and retaliation for complaining about it violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit against the following entities after first attempting to reach a pre-litigation settlement through its conciliation process: Lucinda Management, LLC, Centennial Food Corporation dba IHOP Restaurant, Nellis Food Corporation dba IHOP Restaurant, Vegas Food Corpor­ation dba IHOP Restaurant, Cheyenne Food Corporation dba IHOP Restaurant, Craig Food Corp­or­ation dba IHOP Restaurant, Bayshore Food Corporation dba IHOP Restaurant, DiHop Corporation dba IHOP Restaurant, and Cooper Street Clam and Oyster Bar, LLC, in U.S. District Court for the District of Nevada (EEOC v. Lucinda Management, LLC., et. al., Case Number: 2:17-cv-02458).

The consent decree settling the suit, which remains under the court’s jurisdiction for the decree’s five-year term, provides $700,000 for a class of female employees. Additionally, Lucinda Management et. al., will eliminate the 72-hour policy for reporting harassment; establish and maintain a human resources department; hire an outside monitor; and create performance review standards for compliance with Title VII. The company will also provide extensive training to their management officials to prevent and correct harassment and retaliation, along with civility training.

“Sex harassment remains a persistent problem and placing impediments on the ability of emp­loyees to complain only exacerbates the problem,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Nevada in its jurisdiction.

Wendy Martin, director of the EEOC’s Las Vegas Local Office, added, “Employers should remember that they are responsible for creating an environment free of harassment. This includes empowering managers to address such conduct when they become aware of it.”

EEOC Nets $150K in ADA Suit For Deaf Applicant Denied Job as Parking Lot Valet Attendant in Fla.

This parking agency must redo its policies and procedures to make sure that deaf and hearing-impaired applicants for jobs at its lots get a fair chance at being hired.

USA Parking Services, Inc., a hospitality industry-focused valet and parking company, will pay $150,000 to settle the disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, USA Parking Services, Inc. violated the law by refusing to hire a deaf applicant for a valet attendant position based on the assumption that a deaf person could not perform the essential functions of the job rather than conduct an individualized assessment of his abilities.

In addition to monetary relief, the consent decree requires USA Parking Services, Inc. to affirmatively recruit applicants who are deaf and hearing-impaired and to add TTY capability to its discrimination hotline for the use of deaf and hearing-impaired applicants and employees. USA Parking Services, Inc. has also agreed to change the essential qualifications of the valet attendant position to make clear that the job can be performed by anyone who can communicate effectively with customers, whether that communication is verbal or written.  To prevent similar discrimination against future deaf or hearing- impaired applicants, USA Parking Services, Inc. will educate its workforce on disability discrimination through annual management and employee training across all of its locations in Miami-Dade and Broward Counties.  For the duration of the consent decree, USA Parking Services, Inc. will report to the EEOC about any complaints of disability discrimination made by employees or job applicants.

Failure to hire on the basis of stereotypes and assumptions about a disability and the failure to conduct an individualized assessment as to whether a particular disabled applicant can perform the job violates the Americans with Disabilities Act (ADA), as amended.

“The EEOC will continue to fight for deaf job applicants’ rights under the ADA to be provided an interpreter when they are interviewed for employment. Deaf individuals too often face discrimination at the interview stage which denies them even the opportunity to be considered for employment” said Robert E. Weisberg, regional attorney for the EEOC Miami District Office.

Michael Farrell, director of the EEOC Miami District Office, added, “Disabled individuals are entitled to a fair opportunity to work under the ADA, and that includes a fair hiring process. Individuals with disabilities must be evaluated on whether they can perform the essential functions of the job, not on stereotypes or assumptions.”

The EEOC Miami District Office has investigators who are fluent in multiple languages including American Sign Language (“ASL”), English, French, Spanish and Haitian Creole, among others, who process discrimination charges in Florida, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.

Bias Settlement Sets Back Staffing Cos. $475K

The chickens came home to roost for these staffing agencies that farmed out Latino workers to a poultry processing plant.

East Coast Labor Solutions, East Coast Labor Solutions of West Virginia, Labor Solutions, and Labor Solutions of Alabama (“East Coast Labor”), four related staffing agencies under common ownership, have agreed to pay $475,000 and furnish significant equitable relief to settle a federal lawsuit alleging national origin discrimination and failure to accommodate disabilities brought by the U.S.  Equal Employment Opportunity Commission (EEOC), the agency announced February 19.

According to the EEOC’s suit, East Coast Labor recruited Jorge Mercado and other Latino workers to work in a poultry processing plant in Guntersville, Alabama and subjected them to harassment, includ­ing ethnic slurs, threats and verbal abuse, and other abusive working conditions. The Latino workers were paid less money than promised, were placed in more hazardous positions, were denied bathroom and lunch breaks, and received fewer hours of work than their non-Latino counterparts. In addition, East Coast Labor deducted exorbitant relocation, housing and transportation fees from their pay. The EEOC further claimed that East Coast Labor did nothing to address complaints made by the Latino workers about their working conditions and ongoing harassment.

According to the EEOC, when Latino workers suffered repetitive motion injuries to their hands, forearms and shoulders, they were denied medical treatment and other accommodations such as breaks or time off from work to recuperate.

Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act of 1964 (Title VII). Title VII prohibits harassment or discrimination based on national origin, and the ADA requires employers to provide a reasonable accommodation for an employee’s disability, unless the employer would suffer an undue hardship as a result. The EEOC filed its lawsuit (Civil Action No. 4:16-CV-01848-ACA) in the U.S. District Court for the Northern District of Alabama, Middle Division on November 15, 2016, after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to monetary relief, the three-year consent decree settling the suit requires the staffing agencies to provide training to their employees on their obligations under the law, and review their anti-discrimination policies and modify them as necessary. The consent decree also prohibits the companies from engaging in any discrimination or retaliation because of national origin or disability. The decree requires the companies to post notices on their bulletin boards informing employees of their right to contact the EEOC if they feel they have been discriminated or retaliated against.

“We cannot allow any employer to prey on vulnerable workers by recruiting them and then subjecting them to such gross mistreatment,” said Marsha L. Rucker, regional attorney for the EEOC’s Birmingham District Office. “These workers only wanted the opportunity to work and receive a fair wage like they were promised and to work in a safe and humane environment. All workers should be treated this way, regardless of their national origin.”

Bradley Anderson, the EEOC’s Birmingham district director said, “The EEOC has made combatting discrimination against vulnerable workers a strategic priority so that employers cannot profit from victimizing them.”

The EEOC’s Birmingham District Office has jurisdiction over Alabama, Mississippi (all but 17 counties in the northern part of Mississippi), and the Florida Panhandle.

EEOC: Systemic Bias Against Women at Nationwide Chain of Discount Furniture Stores

Women have been barred from jobs at this company for going on six years, according to a just-filed lawsuit.

American Freight Management Company, LLC d/b/a American Freight Furniture and Mattress violated federal anti-discrimination laws by engaging in systemic discrimination against female applicants, according to a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on February 14. The lawsuit charges that American Freight refused to hire or even consider a class of female applicants for employment because of their sex.

American Freight, headquartered in Delaware, Ohio, operates a nationwide chain of warehouse-style discount furniture stores specializing in furniture obtained through factory closeouts, dealer cancellations, retail chain buyouts, and wholesale liquidations. The company has over 150 stores located throughout the United States.

According to the EEOC’s lawsuit, since at least January 1, 2013, American Freight has engaged in a nationwide pattern or practice of discrimination against  women, intentionally excluding qualified female applicants from sales and warehouse jobs because of their sex. Corporate managers instructed store managers not to hire women because women “complain and make trouble.” Store employees also heard store managers say that women: “bitch too much;” are too much of “a distraction” to the male employees; cannot work in the warehouse because “women can’t lift,” and do not “do as great a job at selling furniture as men,” according to the suit.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed its lawsuit (EEOC v. American Freight Management Company, LLC d/b/a American Freight Furniture and Mattress, Case No. 2:10-cv-00273) in U.S. District Court for the Northern District of Alabama, Southern Division, in Birmingham after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks monetary relief, including back pay and compensatory and punitive damages, for the class of female applicants denied employment opportunities due to the company’s discriminatory policies and practices. The suit also seeks injunctive relief to prevent future sex-based discrimination, including an order that American Freight be required to institute policies, practices and procedures that conform to the requirements of federal law.

“Refusing to hire or even consider an applicant because of her sex deprives people of equal opportunities within the workplace, and the EEOC is committed to stopping this sort of illegal conduct,” said Bradley Anderson, district director of the EEOC’s Birmingham District Office.

“All job applicants deserve to be evaluated based on their qualifications, without regard to sex,” said Marsha Rucker, regional attorney of the EEOC’s Birmingham District Office.

Eliminating barriers in recruitment and hiring, including exclusionary policies and practices that discriminate against women, is one of the national priorities identified by the EEOC’s Strategic Enforcement Plan.

The EEOC’s Birmingham District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in  Alabama, Mississippi (except 17 northern counties) and the Florida Panhandle.

Digital Processing Update Coming From EEOC

Like so much of modern communications, interactions between the EEOC and other parties are increasingly occurring over digital transmissions.

The U.S. Equal Employment Opportunity Commission (EEOC) on Thursday issued a Notice of Proposed Rulemaking (NPRM) to update private sector procedural regulations to account for digital transmission of documents and communications between the EEOC and the parties. The proposed rule changes recognize the increasing reliance on digital technology by the EEOC and its stakeholders. This NPRM was posted by the Federal Register for public inspection today and will be published in the Federal Register on Feb. 22, 2019. Members of the public wishing to comment on the NPRM will have 60 days from the date of publication to do so, through www.regulations.gov.

The NPRM, approved by a unanimous vote of the Commission on Dec. 4, 2018, also includes a few other focused updates to the private sector procedural rules. The NPRM invites public comment on a pro­posal to more clearly communicate that a no-cause closure does not equate to a finding that the allegations in the charge are meritless, and to include similar language on EEOC’s “Dismissal and Notice of Rights.” The NPRM also proposes to clarify the filing deadline for charges filed in locations where a state or local fair employment practices agency exists but does not have jurisdiction over the statutory basis for a charge. Finally, the NPRM would allow office directors in the field to delegate authority to issue a “Dismissal and Notice of Rights” with established procedures and quality standards to support increased efficiencies.

“The EEOC’s digital charge system makes the EEOC more accessible and more transparent to the public,” said EEOC Acting Chair Victoria A. Lipnic. “We encourage the public to provide candid feedback on these updates to our procedural rules as part of the agency’s move to online services.”

Forklift Injury Sets Back Employer $164K in Fines

Had this employer provided some basic training on the use of forklifts, it could have saved alot of money.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) yesterday cited Hilti Inc.–a hardware merchant wholesaler–for exposing employees to struck-by hazards after an employee was injured while operating a forklift at a distribution center in Atlanta, Georgia. The Plano, Texas-based company faces penalties of $164,802.

OSHA inspectors determined that Hilti failed to provide forklift operator training and instructions to employees operating the vehicles, and ensure that employees performed daily forklift inspections. The company also exposed employees to corrosive materials; failed to provide eyewash stations and showers in the work area; failed to develop a written hazard communication program and data sheets for forklift battery electrolytes; and failed to notify OSHA within 24 hours of any incident that leads to an employee’s hospitalization, as required.

“Developing, implementing, and maintaining a safety and health program, and ensuring safety standards are followed can significantly reduce the chance of unfortunate incidents such as this one,” said OSHA Atlanta-East Area Director William Fulcher.

The company has 15 business days from receipt of the 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.

My thanks to Jon Hyman for highlighting this blog post in today’s weekly roundup of the Ohio Employer Law Blog.

Valentines for Black Firefighters: $4.9M Settlement Against Fla. City in Promotions Case

Valentine’s Day this year proved sweet for a class of African-American firefighters in Jacksonville, Florida as their 7-year tussle with the city fire department over promotions came to an end.

The U.S. Equal Employment Opportunity Commission (EEOC) announced February 14 that it has resolved its race discrimination lawsuit against the Jacksonville Association of Fire Fighters, Local 122, IAFF. The EEOC’s lawsuit against the union was a companion case to the lawsuit filed by the U.S. Department of Justice against the City of Jacksonville (Case No.3-12-cv-451-J-32MCR), which alleged that the city’s promotional practices for various positions in the Jacksonville Fire and Rescue Department (JFRD) violated Title VII of the Civil Rights Act of 1964’s prohibition against race discrimination.

According to the EEOC’s lawsuit, filed April 30, 2012 in U.S. District Court for the Middle District of Florida (EEOC v. Jacksonville Association of Firefighters, Local 122, IAFF, 3:12-cv-491-J-32MCR), the union advocated for an unlawful promotional process that had a disparate impact on African-American promotional candi­dates. The EEOC said the union continued doing so after receiving an EEOC Commissioner’s discrimination charge against the union in February 2008, and after the city’s Human Rights Commission issued a report on Aug. 8, 2006 recommending changes to the JFRD promotional process.

The consent decree entered by the court resolves the claims of the DOJ and EEOC, as well as claims brought against the city and/or union by private plaintiffs the National Association for the Advancement of Colored People (NAACP), Jacksonville Branch, and the Jacksonville Brotherhood of Firefighters. Through the decree approved by the court on Feb. 5, 2019, the city agreed that it would develop a new promotional examination for the selection of certain positions in the Fire and Rescue Department. In addition, the city will offer up to 40 settlement promotion positions for qualified African-Americans and will establish a $4.9 million settlement fund for eligible promotion candidates.

“We are pleased that the union has agreed with the city’s decision to make changes to the pro­motional process and provide relief to eligible African-American promotion candidates,” said EEOC District Director Michael Farrell. “The EEOC will continue to identify and fight promotional processes that operate as systemic barriers to employment based on legally protected characteristics.”

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.

Fishy Smell: Seafood Harvester Dredges Up $675K to Settle Harassment, Retaliation Lawsuit

The stench emanating from this Atlantic Coast fishery wasn’t from the catch but rather the way the company treated its women employees.

Atlantic Capes Fisheries, Inc. (ACF), a New Jersey-based shellfish harvester and processor, and BJ’s Service Co., Inc., a staffing agency located in New Bedford, Mass., will pay $675,000 and furnish other relief to settle a lawsuit charging sex-based harassment and retaliation filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced January 30.

According to the EEOC’s suit, women at ACF’s Fall River, Mass., facility have been subject to ongoing and egregious sex harassment since at least 2013. The sex harassment, which the EEOC alleged was perpetrated by male managers, line supervisors and co-workers, included unwanted touching, solicitations for sex, and crude comments about female workers’ bodies. Despite know­ledge of the pervasive harassment, neither ACF nor BJ’s made any efforts to stop the harassment or punish the harassers, the EEOC charged. Additionally, the two companies fired two of the women, Mirna Pacaja and Paula Carrillo, after they filed charges of discrimination with the EEOC, according to the lawsuit.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed its suit (Civil Action No. 1:17-cv-11860) in U.S. District Court for the District of Massachusetts on Sept. 27, 2017 after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the terms of the four-year consent decree resolving the lawsuit, women who have worked at ACF’s Fall River facility at any time since January 2013 and who have experienced sexual harass­ment will be eligible to receive a portion of the settlement. The decree requires both employers to create and/or revise policies prohibiting sex discrimination (including harassment) and retaliation and provide related training to their managers and workers. The policies and training must be available in both English and Spanish, as most workers in ACF’s Fall River facility are Spanish speakers.

In addition, the decree requires both employers to retain, track, and investigate complaints of sex harassment and to provide copies of those complaints to the EEOC for the duration of the decree. The decree also requires that ACF employ a human resources professional who is bilingual in English and Spanish.

The consent decree resolving the case, which was approved by the court today, enjoins ACF and BJ’s from violating Title VII by allowing sex harassment of employees to occur and by retaliat­ing against any individual who has opposed practices made illegal under the statute, including oppo­sition to sexual harassment.

“Even in the era of the ‘Me Too,’ movement, many employees, especially low-wage and immigrant workers, fear bringing complaints of sex harassment forward,” said EEOC Senior Trial Attorney Sara Smolik. “The brave four women who filed discrimination charges with the EEOC in this case alerted the agency to widespread sex harassment that was adversely affecting them and many of their female co-workers in the facility. Because they had the courage to step forward, the EEOC was able to investigate and bring this lawsuit to improve the working conditions for every­one.”

EEOC Regional Attorney Jeffrey Burstein said, “The decree ensures that ACF and BJ’s comply with the law and provide crucial training and policy changes that will educate their workforce about their rights under Title VII. We are hopeful that with these changes, ACF and BJ’s will exemplify best employment practices in the seafood industry on the Massachusetts South Coast.”

EEOC New York District Director Kevin Berry added, “All employers should be aware that they have a responsibility to prevent sexual harassment of their employees. Employers must also make sure that they have multiple avenues for employees to complain about harassment and that those avenues of complaint are clear and shared with all staff.”

Sara Smolik and Adela Santos were the EEOC’s lead trial attorneys for this case.

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

Man Up: EEOC Recovers $30K For Men Spurned for Bartender Jobs With Buffalo Wild Wings

Men can be the victims of sex discrimination, too. In this case the EEOC came to the rescue of three men who sought bartender jobs at a popular local eatery.

R Wings R Wild, LLC, doing business as Buffalo Wild Wings, will pay $30,000 to three claimants who were denied jobs in Little Rock, Ark. and Del City, Okla., because they are male, as part of the settlement of a sex discrimination lawsuit brought by the U.S. Equal Employ­ment Opportunity Commis­sion (EEOC), the federal agency announced January 29.

According to the EEOC’s lawsuit, the company refused to hire males into bartender positions at locations in Arkansas and Oklahoma.

Sex discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Eastern District of Arkansas, Western Division, Civil Action No. 4:17-cv-624-BRW, after first attempting to reach a pre-litigation settlement through its conciliation process. The suit seeks monetary relief in the form of back pay, compensatory and punitive damages, compensation for lost benefits, and an injunction against future discrimination.

While denying any wrongdoing, RWRW chose to resolve this matter prior to trial. The EEOC commends RWRW for working with it to resolve this lawsuit.

In addition to the monetary payment, the company will also conduct sex discrimination training for its management employees in Little Rock and Del City locations.

“Sex discrimination happens to both males and females, and Title VII protects both genders against this illegal misconduct,” said Faye A. Williams, regional attorney of the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee and portions of Mississippi. “It is equally illegal to deny a male employment because of his gender.”

Buffalo Wild Wings, an Arkansas limited-liability company and owns and operates Buffalo Wild Wings restaurants in Arkansas and Oklahoma.

Bad Bread: N.Y. Subway Franchise Owners On Hook for $80K in Sexual Harassment Settlement

The next time restaurant franchise owners meet, they should put on the agenda the appropriate treatment of their workers.

Draper Development LLC, the owner-operator of over a dozen Subway franchises in the Albany and Schenectady area, will pay $80,000 and take other steps to settle a sexual harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced December 18.

According to the EEOC’s lawsuit, filed in the Northern District of New York (EEOC v. Draper Development, LLC Civil Action No. 1:15-cv-877), Nick Kelly, a former general manager at Draper’s Rotterdam Square Mall location, sent text messages to two female applicants offering a job in exchange for sex, both of whom were 17 years old at the time. In one case, Kelly’s text message said, “Bang my brains out, and the job is yours.” In both cases, when the young women did not comply, they were not hired.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 which prohibits sexual harassment, including requesting sexual favors in exchange for jobs, and refusing to hire applicants who do not comply with sexual advances.  The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to paying $80,000 to the two victims, Draper will: distribute a revised policy prohibiting sexual harassment; conduct anti-harassment training for managers and employees; post a public notice about the settlement; and report all sexual harassment complaints to the EEOC.

“No teenager who is just beginning to navigate the working world should ever have to deal with unwelcome sexual advances as part of the hiring process,” said Charles F. Coleman, Jr., the EEOC lead trial attorney. “The remedial provisions of the consent decree are designed to ensure such behavior never occurs again at this restaurant.”

EEOC Regional Attorney Jeffrey Burstein said, “Conditioning hiring in exchange for sexual favors, known as quid-pro-quo sexual harassment, is exactly the type of behavior that has made the deserved momentum around #MeToo continue to grow stronger. The EEOC is determined to do its part to ensure sexual harassment of this kind is eradicated from the workplace.”

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

Preventing harassment through systemic enforcement and targeted outreach is a national priority identified by the EEOC’s Strategic Enforcement Plan (SEP).  To learn more about EEOC’s strategic plan and enforcement priorities, visit http://www.eeoc.gov/EEOC/plan/sep.cfm.