Archive for November, 2019

$100K Payment Closes EEOC Lawsuit on Behalf of Harassed African-American Cook at N.Y. Eatery

Maybe this payout will prompt other restaurants not to permit racial harassment of their workers.

On The Border Acquisitions, LLC, doing business as On The Border  Mexican Grill & Cantina (OTB), will pay $100,000 and furnish other relief  to settle a race harassment lawsuit brought by the U.S. Equal Employment  Opportunity Commission (EEOC), the federal agency announced.

According to EEOC’s lawsuit, OTB failed to take action when several employees at its  Holtsville, New York location subjected an African-American cook to harassment  based on his race, including repeatedly calling him racial slurs.  Such alleged conduct violates Title VII of  the Civil Rights Act of 1964, which prohibits discrimination based on race, including  subjecting employees to a racially hostile work environment.

The EEOC filed suit in U.S.  District Court for the Eastern District of New York in September 2018 (On The  Border Acquisitions, LLC, d/b/a On The Border Mexican Grill & Cantina,  Civil Action No. 2:18-cv-05122), after first trying to reach a pre-litigation  settlement through its conciliation process.   The case was litigated by EEOC trial attorney Renay Oliver and supervisory  trial attorney Nora Curtin.

“The  EEOC takes seriously its responsibility to enforce federal law and hold  employers to account. We appreciate OTB’s recognition of that responsibility  and its willingness to resolve this case, avoiding a protracted litigation,”  said EEOC trial attorney Renay Oliver.

In addition to the $100,000 in  monetary relief and a letter of apology to the victim, the three-year consent  decree resolving the suit requires OTB to provide anti-discrimination and  harassment training to employees located at its Holtsville and Hicksville, New  York locations and the supervisors responsible for those locations. OTB will  also redistribute to those employees its EEO policies with a letter from its chief  people officer affirming the company’s commitment to provide a workplace free  from discrimination.  The consent decree  also requires OTB to report to EEOC future complaints of race discrimination  and harassment by its New York employees. The EEOC will monitor OTB’s  compliance with these obligations for the next three years.

Jeffrey Burstein, regional attorney for the New York  District Office said, “Unfortunately, racial  harassment is all too common in the restaurant industry. Whatever the environment, employers  need to take seriously their obligations under federal law and put a  stop to harassment as soon as they become aware of it.”

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

$42K Settlement Closes EEOC’s ADA Suit Over Firing of Office Assistant With Seizure Disorder

This employee–and others with seizure disorders–should feel thankful today that they have an ally in the Equal Employment Opportunity Commission.

Gollnick Construction, Inc., which does business as Colorado Excavating, will pay $42,500 and furnish other relief to settle a disability discrimination suit brought by the EEOC, the agency announced Tuesday.

The EEOC’s suit alleged Colorado Excavating fired office assistant Dora Marquez just four days after she suffered a seizure at work. Before firing Marquez, Colorado Excavating failed to engage in the required interactive process to discuss potential accommodations. The EEOC also charged the com­pany engaged in recordkeeping and confidentiality violations by not keeping medical information in separate medical files and by shredding employment applications.

Such conduct violates the Americans with Disabilities Act (ADA). The EEOC sued in U.S. District Court for the District of Colorado (EEOC v. Gollnick Constr. d/b/a Colo. Excavating, Civil Action No. 1:19-cv-02581-DDD-SKC) after first trying to settle through its conciliation process.

The three-year consent decree settling the lawsuit requires annual training for all employees, management officials, and human resources personnel with an emphasis on disability discrimination and the interactive process. The first annual training will include a component of Epilepsy 101 training provided by the Epilepsy Foundation of Colorado. The decree also requires periodic reports to the EEOC of all internal disability discrimination complaints. The monetary award includes back pay and compensatory damages.

“Far too often, people with seizure disorders are denied employment opportunities because of myths and fears about their condition,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office. “As this case shows, employment decisions should not be driven by stereotypes and fears about people with epilepsy.”

Amy Burkholder, EEOC Denver Field Office Director said, “We are pleased that Colorado Excavating was able to reach an agreement with the EEOC that will enable us to further Congress’s intention that persons with disabilities have equal opportunity to achieve success. Businesses, large and small, have a legal obligation under the ADA to provide a workplace free from disability discrimination.”

Studies show that the unemployment rate for individuals with epilepsy is two to three times that of the general population. Those individuals with epilepsy who are gainfully employed are likely to be underemployed or earn less than people who do not have epilepsy.

EEOC Recovers $100K in ADA Disability, Retaliation Settlement Against Big Lot Stores

Some justice for a disabled employee mocked for hearing and speech difficulties and her ally who suffered retaliation after coming to her aid.

National retailer Big Lots Stores, Inc., will pay $100,000 and furnish significant equitable relief to settle a disability discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

In its lawsuit, the EEOC charged that a retail worker with hearing and speech disabilities was subjected to harassment by her co-workers at Big Lots’ Elkins, WV, store.  A number of store employees often mocked the worker’s hearing disability and manner of speech, frequently using derogatory and highly offensive terms, and Big Lots management officials were aware of the harassment but failed to take appro­priate action, the EEOC alleged. Additionally, the EEOC charged that Big Lots refused to promote the employee because of her disabilities and in retaliation for reporting the harassment.   Further, the EEOC’s lawsuit charged that Big Lots subjected a non-disabled department manager to discrimination because of her association with the harassment victim and in retaliation for her efforts to protect her co-worker from harassment.

Such alleged conduct violates the Americans with Disabilities Act of 1990 (ADA), which prohibits employment discrimination based on disability or association with a disabled person and retaliation for opposing such discrimination. The EEOC filed suit (EEOC v. Big Lots Stores, Inc. Case No. 2:17-CV-00073) in U.S. District Court for the Northern District of West Virginia (Elkins). The U.S. District Court previously denied Big Lots’ motion for summary judgment seeking dismissal of the case, and the EEOC and Big Lots reached an agreement to voluntarily settle the case by consent decree before a scheduled trial.

In addition to paying a total of $100,000 to the two workers, the agreed consent decree approved by the U.S. District Court enjoins future violations of the ADA and requires that Big Lots implement various measures to prevent workplace disability discrimination, including ADA investigation documentation requirements, furnishing reports to the EEOC concerning certain allegations of disability harassment or discrimination and retaliation, a training requirement, and posting a notice to employees of the Elkins store relating to the settlement.

“Under federal law, workers have a right to earn a living free from harassment because of their disabilities,” said EEOC Regional Attorney Debra Lawrence said. “But of comparable importance is the legal right of all workers, whether they’re disabled or not disabled, to oppose and report workplace conduct that they believe to be disability harassment or other forms of discrimination.  Workers who exercise that right and seek to protect their co-workers or themselves should be applauded, not punished, and the EEOC will act to ensure those workers’ rights are respected.”

EEOC District Director Jamie R. Williamson added, “Disability harassment and other forms of harassment continue to be a pervasive problem in the American workplace.  It is important for employers to recognize the scale of that problem, to acknowledge their own responsibility, and to work proactively to develop and implement solutions within their own organizations.”

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

The lawsuit was commenced by the EEOC’s Pittsburgh Area Office, one of four component offices of the agency’s Philadelphia District Office. The Philadelphia District Office has jurisdiction over West Virginia, Pennsylvania, Maryland, Delaware, and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and parts of Virginia.

Digging Deep: Missouri Contractor Fined $213K For Ignoring Trench Collapse, Electrical Hazards

There’s really no excuse anymore for employers to keep exposing employees to injury or death from construction site trench collapses. Yet some still haven’t gotten the message.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has cited Blue Nile Contractors Inc. – based in Birmingham, Missouri – for failing to protect employees from trench collapse and electrical hazards. The company faces $210,037 in penalties.

OSHA inspectors observed workers exposed to trenching and excavation hazards while installing water lines at a Kansas City, Missouri, jobsite in May 2019. OSHA cited the company for four repeat and five serious safety violations of trenching and electrical hazards, and placed the company in the Agency’s Severe Violator Enforcement Program.

“Trench collapses can be quick and cause serious or fatal injuries, but they are preventable,” said OSHA Kansas City Area Director Karena Lorek. “Employers must ensure that there is a safe way to enter and exit a trench, cave-in protection is used, all materials are placed away from the trench’s edge, standing water and other hazards are addressed, and no one enters a trench before it has been properly inspected.”

OSHA recently updated the National Emphasis Program on preventing trenching and excavation collapses, and developed a series of compliance assistance resources to help keep workers safe from these hazards. The agency’s trenching and excavation webpage provides additional information on trenching hazards and solutions.  The page includes a trenching operations QuickCard on protecting workers around trenches, and the “Protect Workers in Trenches” poster that provides a quick reminder of the three ways to prevent trench collapses.

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.

Mopping Up: African-Americans Beneficiaries of EEOC $750K Settlement Against Janitorial Co.

African-American applicants for jobs with this janitorial service ought to get a fairer shake at a job as a result of this six-figure settlement with the federal government.

Janitorial Service Provider Diversified Maintenance Systems, LLC will pay $750,000 and furnish significant equitable relief to settle a federal race discrimination, harassment and retaliation lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) announced Friday.

In its lawsuit, the EEOC charged that since at least January, 2012, Diversified engaged in an ongoing pattern or practice of race discrimination against African-American job applicants in Maryland and the Washington D.C. and Philadelphia metropolitan areas. The company refused to hire blacks for custodian, lead custodian or porter positions, the EEOC said.

The EEOC also charged that district managers racially harassed an African-American janitorial supervisor by calling him racial slurs and using other abusive language in the presence of customers and employees. Although he complained to upper management and the human resources department, Diversified did not stop the harassment. Instead, the company retaliated against him by demoting him, altering his hours, work assignments and work conditions, and ultimately firing him, EEOC said.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. Diversified Maintenance Systems, LLC. Case No. 8:17-cv-01835) in U.S. District Court for the District of Maryland, Southern Division after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

In addition to the $750,000 in monetary relief to the African-American supervisor and other claimants, the 30-month consent decree provides equitable relief. Diversified is enjoined from discriminating against or harassing anyone based on race or engaging in retaliation and the company will designate an internal monitor to ensure compliance with the consent decree. Diversified will implement a targeted hiring plan, including tracking the number and race of applicants, and reason(s) why they are not hired. It will also create a policy to prohibit harassment and retaliation and provide training on preventing discrimination, harassment and retaliation. Finally, Diversified will post a notice regarding the settlement and report to the EEOC on how it investigates and handles any future complaints of race discrimination in hiring.

No worker should be denied employment because of his or her race,” said EEOC District Director Jamie R. Williamson. “Moreover, employers must properly address complaints of workplace harassment and prevent retaliation against those who exercise their rights to complain about such mistreatment.”

Regional Attorney Debra M. Lawrence added, “The EEOC stands ready to protect workers from race-based barriers in recruitment and hiring. This settlement should encourage all employers to review carefully their hiring practices and procedures to ensure that race is not a factor. We are pleased that in addition to monetary compensation to the claimants, Diversified agreed to robust protections against racial discrimination, harassment and retaliation.”

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.

The lawsuit was commenced by EEOC’s Baltimore Field Office, one of four component offices of EEOC’s Philadelphia District Office. The Philadelphia District Office is responsible for cases originating in West Virginia, Pennsylvania, Maryland, Delaware, and parts of New Jersey and Ohio.

$2.6M Settlement Closes ADA Suit Against Marketer Over Treatment of Food Demonstrators

A company that markets new foods using food demonstrators is paying big for its small-minded approach to reasonable accommodation.

CROSSMARK, Inc., a Plano, Texas-based international sales and marketing company that provides food demonstrators to major American retailers and warehouse stores, will pay $2.65 million and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Thursday.

The EEOC filed suit in 2018 alleging CROSSMARK allowed employees who prepared and served food samples to shoppers to sit on stools for no more than ten minutes every two hours, regardless of their medical conditions or restrictions. EEOC alleged that sitting for longer periods would have been a reasonable accommodation that enabled employees to perform the job. Some employees were permitted to sit as needed when they performed the same job while working directly for the retailers, but when CROSSMARK took over the events, it refused to allow the same accommodation, according to the EEOC.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires employers to provide reasonable accommodation to qualified individuals with disabilities. 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.

In addition to monetary relief for over one hundred former food demonstrators, the four-and-a-half-year consent decree settling the suit, entered by Judge Nancy J. Rosenstengel on November 20, 2019, requires CROSSMARK to designate ADA Coordinators to address requests for accommodations, revise its disability discrimination and reasonable accommodation policies, provide training to managers and employees, and establish a toll-free number for employees to obtain information about requests for accommodations.

“People with disabilities make substantial contributions to our workplaces and economy,” said Andrea G. Baran, the EEOC’s regional attorney in St. Louis. “We appreciate CROSSMARK’s commitment to ensuring reasonable accommodations for its workers nationwide.”

L. Jack Vasquez, Jr., director of the EEOC’s St. Louis District Office, added, “Providing reasonable accommodation to qualified workers who are able to perform the essential functions of their jobs is not only required by law, it is smart business.”

This isn’t the first employer to tangle with the EEOC over its refusal to accommodate food demonstrators. Earlier this year, the EEOC sued the company that employs food demonstrators at Costco wharehouses, alleging it illegally denied more frequent bathroom breaks to an employee with a bladder condition.

OSHA Fines UPS Freight for Firing Driver Who Refused to Violate Motor Carrier Safety Rules

Turns out it isn’t just civil servants who blow the whistle on wrongdoing, as we are now seeing in the impeachment hearings. This ex-UPS driver who deserves applause for standing up to–and paying the price for–refusing to violate federal driver safety rules.

The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has determined that UPS Ground Freight Inc. – doing business as UPS Freight – violated the Surface Transportation Assistance Act (STAA) when managers retaliated against a driver at the Londonderry, New Hampshire, facility. The driver had refused to operate a commercial motor vehicle that did not have either a permanent electronic logging device (ELD) or a mounting device for a portable ELD. OSHA ordered UPS Freight to pay the driver $15,273 in compensatory damages, $30,000 in punitive damages, and approximately $2,700 in back wages plus interest.

OSHA investigators determined that – in March 2019 – the driver refused in good faith to drive a truck without either a permanent ELD or a mounting device for a portable ELD because he believed doing so would violate the Federal Motor Carrier Safety Regulations (FMCSR). ELDs automatically record an operator’s driving time and facilitate the accurate recording of a driver’s hours of service. FMCSR required the driver to use an ELD, and the company to provide a vehicle with either a permanent ELD or a portable ELD mounted in a fixed position during his assigned route.

Investigators also determined that the driver’s supervisor was not trained on FMCSR’s requirements for ELDs, and that company managers attempted to coerce the complainant into violating the regulation. When he refused, the company terminated him for “gross insubordination.” The investigation revealed that the company later modified the driver’s termination to a suspension and engaged in post-reinstatement harassment.

OSHA also ordered the company to take additional corrective actions to resolve violations of the whistleblower provisions of STAA, including:

  • Clear the driver’s personnel file of any reference to the issues involved in the investigation;
  • Post a notice informing all employees of their whistleblower protections under STAA;
  • Refrain from firing or discriminating against any employee who engages in STAA-protected activity; and
  • Not use a driver’s refusal to drive because of a good faith concern that doing so would violate a FMCSR as a contributing factor in any termination decision.

“Truck drivers are protected from retaliation when they refuse to violate laws put in place to protect their safety and health,” said OSHA Regional Administrator Galen Blanton in Boston, Massachusetts. “This order underscores the agency’s commitment to protect workers who exercise their right to ensure the safety of themselves and the general public.”

OSHA enforces the whistleblower provisions of STAA and more than 20 whistleblower statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.

Under the Occupational Safety and Health Act, 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 http://www.osha.gov.