Jury Awards $20M to Gay Sergeant in Bias Suit; Superior Told Him to “Tone Down” His Sexuality

A gay cop on the beat can do the job just as well as a straight cop–and he needn’t be shy about his gayness.

Justice has been served for a gay police sergeant who was told “to tone down his sexuality” and then was transferred to another precinct after he sued the police department for discrimination.

A jury in St. Louis last Friday awarded Sgt. Keith Wildhaber nearly $20 million in a discrimination case involving claims that the department failed to promote him based on sex stereotyping and retaliated against him for filing a lawsuit.

The widow of a former police officer testified that police Capt. Guy Means had called Sergeant Wildhaber “fruity” at an event in 2015, and that he would never be promoted because he was “way too out there with his gayness and he needed to tone it down if he wanted a white shirt

Wildhaber, age 47, had more than 15 years of experience on the force, yet over the course of five and a half years, he was turned down for 23 promotions, his  lawsuit claimed. And a month after filing a discrimination complaint with the Equal Employment Opportunity Commission and the Missouri Commission on Human Rights, he was transferred to another precinct around 27 miles from his home, where he was assigned to work an overnight shift, according to court documents. He then filed a second charge of retaliation.

After three hours of deliberations, the jury awarded Sergeant Wildhaber $1.9 million in actual damages and $10 million in punitive damages on the discrimination allegation, and $999,000 in actual damages and $7 million in punitive damages for the retaliation allegations.

Cold Reception: Ice Cream Shop Violated ADA Rights of Hearing Impaired Worker, EEOC Alleges

I’ll bet this ice cream shop can hear its customers’ orders just fine. But when it comes to accommodating its workers who have hearing difficulties, it pretends not to hear.

Fourteen Foods, LLC d/b/a Dairy Queen Brazier, a limited liability company operating a Dairy Queen Brazier franchise in Savannah, TN, violated federal law by failing to provide a hearing-impaired crew member applicant a reasonable accommodation and denying him employment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed October 15.

EEOC alleged that the applicant had worked for a predecessor company at the same location for approximately two years. After new ownership took over, he applied for employment.  During the interview process, a company official told the applicant that he must wear a hat or a visor.  When the applicant said he could not do so because he wears a cochlear implant, the company required that he produce a medical statement from his doctor and a statement from the health department.  Although the applicant obtained the necessary medical information from his doctor and provided information from the local health department, the company official would not accept the information and refused to call the health department to confirm the applicant’s information. The company destroyed his application and refused to hire him.

The company’s alleged conduct violates the Americans with Disabilities Act (ADA), which makes it unlawful to discriminate against an applicant by denying him a reasonable accommodation and refusing to hire him because of a disability. Further, the company could not produce the applicant’s application even though it admitted he applied for employment.  Destroying or losing records violates the recordkeeping provisions of Title VII of the Civil Rights Act of 1964, which are incorporated into the ADA. The EEOC filed suit, (Civil Action No. 2:19-cv-02693 in U.S. District Court for the Western District of Tennessee, Eastern Division), after first attempting to resolve the matter through its pre-litigation voluntary conciliation process. The EEOC seeks injunctive relief prohibiting Dairy Queen from discriminating against applicants because of their disability, as well as monetary damages, including back pay, and compensatory and punitive damages.

“The EEOC remains committed to eliminating discrimination in the workplace against persons with disabilities,” said Delner Franklin-Thomas, district director of the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee and portions of Mississippi. “Companies cannot continue to use stereotypical reasons to avoid hiring persons with disabilities.”

Fourteen Foods, LLC, a limited liability Minnesota company, licensed to do business in the State of Tennessee, is a multi-unit owner and operator of 222 DQ Grill & Chill® restaurants and Dairy Queen Braziers in 13 states, including Tennessee, and has more than 9000 employees nationwide.

EEOC: Puerto Ricans, Pentecostals Suffered Discrimination at Hands of Management at Plant

Assembly-line work is tough enough without also having your national origin and religion disparaged. But according to federal civil rights investigators, that is what took place routinely at this manufacturing plant in Pennsylvania.

Service Caster Corporation, one of the largest caster and wheel companies in North America, violated federal law when it discriminated against and harassed three workers based on their national origin and religion and then retaliated against them for complaining, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced October 16.

According to the suit, West Reading, Pa.-based Service Caster subjected two assemblers and one assembly line supervisor to a hostile work environment because of their national origin, Puerto Rican, and religion, Pentecostal. The plant manager routinely made derogatory remarks about their national origin. The EEOC says the plant manager also made disparaging comments about their Pentecostal faith, including calling it a “cult.” The EEOC said the harassment continued even after the workers com­plained to the company owner.

Further, the EEOC said, Service Caster retaliated against the employees for their opposition to the harassment. The discrimination and retaliation included reduced hours, assignments and responsi­bilities, denial of superior assignments and overtime, and ultimately culminated in their terminations.

Title VII of the Civil Rights Act of 1964 prohibits discrimination and harassment based on national origin or religion. The EEOC filed suit (EEOC v. Service Caster Corporation, Civil Action No. 5:19-cv-04525-JLS) in U.S. District Court for the Eastern District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process.

“Managers should be role models, not harassers,” said EEOC Philadelphia District Director Jamie R. Williamson. “Employers have a responsibility to maintain an environment free of national origin or religious harassment and retaliation.”

EEOC Regional Attorney Debra Lawrence added, “This lawsuit should remind employers that they will be held accountable if they engage in discrimination or harassment based on national origin or religion, or if they punish workers who exercise their federal right to complain about such illegal misconduct.”

The EEOC’s Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the EEOC Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

Ill. Plant Fined $1.5M For Four Workers’ Deaths

The weekend brought this sobering news about worker fatalities at a chemical products manufacturing plant in Illinois.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited AB Specialty Silicones LLC for 12 willful federal safety violations after four employees suffered fatal injuries in an explosion and fire at the company’s Waukegan, Illinois, plant on May 3, 2019. The company faces $1,591,176 in penalties. OSHA has placed the silicon chemical products manufacturer in the Severe Violator Enforcement Program.

OSHA investigators determined AB Specialty Silicones failed to ensure that electrical equipment and installations in the production area of the plant complied with OSHA electrical standards, and were approved for hazardous locations. The company also used forklifts powered by liquid propane to transport volatile flammable liquids, and operated these forklifts in areas where employees handled and processed volatile flammable liquids and gases, creating the potential for ignition.

“Employers must employ hazard recognition to protect workers from harm, especially in high hazard industries,” said Principal Deputy Assistant Secretary of Labor for Occupational Safety and Health Loren Sweatt. “By ignoring safety and health requirements, this employer created an unsafe work environment with deadly consequences.”

“An employer’s adherence to safety and health standards, including the proper use of electrical equipment and forklifts when handling flammable liquids, is critical to preventing fire, explosions and other incidents that can seriously or fatally injure workers,” said OSHA Acting Regional Administrator Nancy Hauter, in Chicago, Illinois.

OSHA provides resources on electrical safety and using forklifts when working with hazardous materials. The company has 15 business days from receipt of the citations and 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 https://www.osha.gov.

EEOC Says Tech. Co. Wouldn’t Interview Hearing-Impaired Applicant in Person, Violating the ADA

By refusing to interview a hearing-impaired applicant face-to-face, this California tech company bought itself a lawsuit for disability discrimination.

Foster City-based technology company Guidewire Software, Inc., violated federal law when it failed to accommodate and interview a qualified job applicant due to her hearing impairment, the U.S. Equal Employment Opportunity Com­mission (EEOC) charged in a lawsuit filed recently.

According to the EEOC’s investigation, the applicant applied for a contractor position as a user experience designer and, based on her resume, Guidewire’s hiring manager emailed her to schedule an initial phone screening. The applicant responded immediately, requesting a face-to-face meeting as an accommodation since her cochlear implants limit the clarity of sound coming through telephones and computers.

Guidewire instead suggested using a technology known as “Relay Conference Captioning” and the use of sign language as a back-up. When the applicant looked into this alternative, however, she found that there was a waiting period to set up an account to use this technology. She immediately informed the hiring manager and asked about an alternative captioning service built into WebEx, the product Guidewire had already planned to use for part of the interview. She also noted that she does not use sign language.

Guidewire never responded to her email and instead conducted screening interviews with four candidates who did not request reasonable accommodation, and ultimately offered the position to one of those candidates, the EEOC said.

Rejecting a qualified applicant because of disability violates the Americans with Disabilities Act (ADA). The EEOC filed suit (CIV# 5:19-cv-06878) in U.S. District Court for the Northern District of California after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s lawsuit seeks lost wages, compensatory and punitive damages and injunctive relief designed to prevent such discrimination in the future.

“Guidewire had already determined that this applicant was qualified,” said EEOC Senior Trial Attorney Ami Sanghvi. “She simply requested a face-to-face meeting rather than a phone interview – something one Guidewire official deemed a ‘reasonable solution’ in their internal communications. By denying this reasonable request that would not have caused undue hardship, the company preemptively foreclosed this candidate’s shot to prove herself and earn a living.”

William Tamayo, the EEOC’s San Francisco District Office director, added, “Congress enacted the ADA to prevent just this sort of thing – employers refusing to consider qualified individuals be­cause of their disability.”

Tamayo noted that eliminating barriers in recruitment and hiring is one of six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

$185K Fine Levied Against Fla. Contractor For Death Caused by Unsafe Excavation Conditions

This employer’s neglect in making sure working conditions were safe led to the tragedy of an employee’s death.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Westwind Contracting Inc. for exposing employees to excavation and confined spaces hazards after a fatality at a Pembroke Pines, Florida, work site. The contractor faces $185,239 in penalties.

The employee drowned after water and mud filled a catch basin in which the employee was working. OSHA cited the Pembroke Park, Florida-based engineering company for failing to protect employees working in an excavation; train employees on how to recognize hazards related to catch basins and permit-required confined spaces; and develop and implement a permit-required confined space program. OSHA also cited the contractor for exposing workers who attempted to rescue their co-worker, to engulfment hazards.

“Employers have a legal responsibility to protect and train their employees on well-known confined space and excavation hazards to avoid tragedies such as this,” said OSHA Fort Lauderdale Area Director Condell Eastmond.

OSHA recently updated the National Emphasis Program on preventing injuries related to trenching and excavation collapses. OSHA’s trenching and excavation webpage provides additional information on trenching hazards and solutions. The webpage includes a trenching operations QuickCard that provides information on protecting employees before they enter a trench, and the “Protect Workers in Trenches” poster reminding employers to slope, shore, or shield trenches to prevent collapses.

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.

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 https://www.osha.gov.

Good Brew: EEOC Collects $950K for Alcohol Salesmen in Race, National Origin Settlement

Maybe there’s a few bucks leftover in this settlement to buy a round of beers for the victors.

The U.S. Equal Employment Opportunity Commission (EEOC) yesterday announced it has reached a settlement in which Breakthru Beverage Illinois, LLC (BBI), a distributor of alcoholic bever­ages, agreed to pay $950,000 to resolve an investigation conducted by the EEOC.

The EEOC investigation found reasonable cause to believe that BBI discriminated against Illinois sales employees by offering them account and territory assignments that, when accepted, resulted in national origin or race discrimination, which violates Title VII of the Civil Right Act of 1964. Although BBI denies that it engaged in any discriminatory or unlawful conduct, the company agreed to resolve the matter with the EEOC rather than pursue the matter through litigation.

The settlement provides monetary relief to the class identified by the EEOC and ensures the company will take proactive measures to prevent such discrimination from occurring in the future. Pursuant to the terms of the settlement, BBI will:

• conduct anti-discrimination training for its Illinois sales force;
• put in place systems to further encourage diverse applicants for open positions;
• revise its anti-discrimination policy to expressly reference that it prohibits segregating or making assignments based on race and/or national origin and distribute the revised policy to its Illinois sales force; and
• hire a monitor to track the demographics of employees applying for and receiving offers for specified Illinois sales positions.

BBI will also provide periodic reporting to the EEOC on the demographics of its Illinois sales force for the next two years and post an internal notification to its Illinois employees of this resolution.

“Even when pay and benefits are the same, a divided workforce can lead to decreased employee morale and reduced promotional opportunities for minority applicants,” said EEOC Chicago District Director Julianne Bowman. “We are pleased that BBI has agreed to monitor the demographics of its Illinois sales force to ensure all employees continue to have equal opportunities to service the accounts and work in the territories of their choice, based on their skills and abilities and not their race or national origin.”

Erick Sytsma, BBI’s vice president, human resources, Midwest region, said, “We are proud of our diversity and our record of providing equal employment opportunities to all of our employees and applicants, irrespective of their demographics. In this instance, rather than litigating, we were able resolve our differences with the EEOC in a manner that is entirely consistent with our inclusive philosophies and our commitment to equal employment opportunities to all individuals.”

EEOC: Company Violated ADA in Dismissal of Employee With Hearing, Speech Impairments

Employers can’t simply write off workers with disabilities as being unsafe for the job.

ASICS America Corporation (ASICS), a manufacturer of athletic footwear and accessories, violated federal law by firing a temporary worker because of her disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed last Friday.

According to the EEOC’s suit, on or about the first week in March of 2015, a temporary staffing agency assigned Shelby Orsburn, who has hearing and speech impairments, to work at ASICS’s warehouse distribution center in Byhalia, Mississippi. The lawsuit further alleges that  after Orsburn completed an orientation meeting and a video, members of ASICS’s human resources department told Orsburn that the company could not employ her because of her impairments. They said it was unsafe for her to work in the facility due to her disabilities and sent her home.  The EEOC charges that ASICS failed to engage in the interactive process with Orsburn to determine whether she could fulfill the essential functions of the position.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in the U.S. District Court for the Northern District of Mississippi, Oxford Division, Civil Action No. 3:19-cv-00227, after first attempting to reach a pre-litigation settlement through its conciliation process. The suit seeks monetary relief in the form of compensatory and punitive damages, backpay, as well as an injunction against future discrimination.

“Failing to engage in the interactive process with a disabled employee is illegal,” said Delner Franklin-Thomas, district director of the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee, and portions of Mississippi. “The EEOC will continue to hold employers accountable for failing to protect employees from unlawful discrimination.”

Say What? Know Your Noise Exposure at Work, Proactive Response, OSHA Implores in Tweet

Federal safety regulators want workers and employers to be more attuned to dangerous noise levels in the workplace.

In an October 7 tweet, the Occupational Safety and Health Administration issued a “Worker Safety Tip: Know your workplace noise level to protect yourself from hearing loss.”

The tweek links readers to an Occupational Noise Exposure resource page, which discusses a variety of topics such as noise standards, health effects, exposure and controls, and lots more.

For example:

Noise may be a problem in your workplace if you:

• Hear ringing or humming in your ears when you leave work.
• Have to shout to be heard by a coworker an arm’s length away.
• Experience temporary hearing loss when leaving work.

And Ways to control worker exposure to excessive noise and prevent hearing loss include using quieter machines, isolating the noise source, limiting worker exposure, or using use effective protective equipment.

Mopping Up: $315K Settlement Closes EEOC Suit Against Ohio Contractor for Age, Disability Bias

Applicants regardless of age or disability should now get a fair shake at being hired by this janitorial contractor, thanks to a six-figure settlement.

Janitorial Services, Inc. & Arbeit, Inc. (JSI), a janitorial contractor located in the Cleveland suburb of Cuyahoga Heights, has agreed to pay $315,000 to conciliate an age and disa­bility discrimination charge filed with the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Thursday.

The EEOC’s investigation revealed that JSI failed to hire a class of applicants for various positions because of their disability or age. The evidence obtained by the EEOC indicated that JSI rejected disabled applicants for positions based on alleged safety or other concerns without conducting individualized assessments as required by law. The EEOC also obtained evidence indicating that applicants were rejected for hire because of their ages (40 and older).

Such alleged conduct violates the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA).

According to the five-year agreement resolving these charges, the monetary settlement will be divided among the alleged discrimination victims. JSI will conduct annual ADA and ADEA training for all supervisors, managers, human resources officials and company executives. JSI will also provide periodic reports to the EEOC on all applicants; make job offers to the alleged discrimination victims; revise and distribute its internal equal employment opportunity policies to employees; and create an internal task force to ensure that applicants are hired in compliance with the law. Furthermore, JSI will post an internal notice of the violation and will inform its clients that employees will be sent out based solely on their qualifications and without regard to their age, disability or other protected bases.

“Job applicants have the right to be considered for open positions irrespective of their age or stereotypes about their disabilities,” said EEOC Philadelphia District Director Jamie R. Williamson. “JSI has shown its commitment to complying with the ADA and ADEA by reaching this agreement with the EEOC.”

EEOC Cleveland Field Office Director Cheryl J. Mabry added, “We commend JSI for working cooperatively with us to resolve this matter and hope that JSI will be a model to show other employers in northeast Ohio and across the country the importance of making hiring decisions based on an applicant’s ability to do the job, regardless of the applicant’s age or disability.”

The EEOC’s Cleveland Field Office is one of four offices in the EEOC Philadelphia District Office, which has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio.