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.