Spinal Tap: Pain Center Out $75K in Settlement With EEOC Over Medical Leave Time Off Request

Employers need to show some flexibility in employees’ requests for time off for cancer treatments.

National Spine & Pain Centers, LLC, a Rockville, Md.-based medical practice with over 60 offices in the Mid-Atlantic and Northeast, will pay $75,000 and furnish significant equitable relief to resolve a federal disability discrimination suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Monday.

According to the EEOC’s lawsuit, National Spine & Pain Centers denied leave to a patient services coordinator who had breast cancer. The EEOC alleged that the employee notified the company that she would require several weeks of medical leave so that she could undergo and recover from a lumpectomy. According to the lawsuit, National Spine & Pain Centers discharged the employee because she was not eligible for leave under the Family and Medical Leave Act (FMLA).

Such alleged conduct violates the Americans with Disabilities Act (ADA), which requires
employers to provide reasonable accommodations, including medical leave, to employees with disabilities unless doing so would create an undue hardship for the employer. The EEOC filed suit (Civil Action No. 8:20-cv-00065) in U.S. District Court for the District of Maryland after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to providing the former employee $75,000 in monetary relief, the two-year consent decree settling the suit provides programmatic relief intended to prevent further disability discrimination. The decree requires National Spine & Pain Centers to modify its companywide ADA reasonable accommodation policy to ensure that it will engage in an interactive process to consider requests for leave as a reasonable accommodation. Under the decree, the company will also provide training on ADA compliance, with an emphasis on reasonable accommodations, and it will provide periodic reports to the EEOC.

“It is crucial for employers to understand their obligations under both the FMLA and the ADA,” said EEOC Philadelphia Regional Attorney Debra M. Lawrence. “A disabled employee may be entitled to leave under the ADA even if she is not eligible for leave under the FMLA.”

Mindy E. Weinstein, director of the EEOC’s Washington Field Office, added, “Employers must provide reasonable accommodations to employees undergoing treatment for cancer – absent undue hardship. The EEOC takes seriously a company’s failure to provide reasonable accommodations, including leave, and we are committed to vigorously enforcing the ADA.”

Canadian Co. Discards Baggage of EEOC Lawsuit in Settlement Over Sexual and Racial Harassment

This conclusion hopefully will reverberate to the benefit of baggage handlers across the U.S.

Engie Services, Inc., a Canadian company that provides baggage handling and maintenance services at airports across the United States, has agreed to pay $125,000 and furnish significant equitable relief to settle a sexual and race harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Friday. The EEOC charged that Engie subjected two African American male employees at the Birmingham airport to sexual harassment and also subjected one to racial harassment.

According to the EEOC’s lawsuit, a male supervisor engaged in unwelcome sexual touching of the employees and sexually assaulted one employee on two occasions in 2015. The same supervisor and another supervisor also made racially offensive comments during the same time period.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual and racial harassment in the workplace. The EEOC filed its lawsuit (EEOC v. Engie Services Inc., Case No. 2:20-cv-01767-ACA) in U.S. District Court for the Northern District of Alabama on Nov. 9, 2020, after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to monetary relief, the two-year consent decree settling the lawsuit requires Engie to provide training to its employees on its obligations under the law and develop, implement and maintain anti-harassment and anti-retaliation policies. The decree also prohibits the company from engaging in any discrimination, harassment or retaliation because of sex or race in the future. The decree also requires Engie to post notices on its bulletin boards informing employees of their right to contact the EEOC if they feel they have been discriminated or retaliated against.

“The EEOC takes a company’s failure to take appropriate action to stop sexual or racial harassment seriously and will prosecute cases where this kind of abuse occurs,” said Marsha Rucker, regional attorney for the EEOC’s Birmingham District. “We commend these male African American employees for speaking up about workplace harassment.”

EEOC Birmingham District Director Bradley Anderson added, “We appreciate Engie’s efforts to reach an early resolution of this suit with the EEOC that provides both monetary and equitable relief. We commend the company for its willingness to train its employees and managers about workplace discrimination.”

The EEOC’s Birmingham District consists of Alabama, Mississippi (except 17 northern counties) and the Florida Panhandle.

EEOC: Employer Violated Deaf Employees’ Rights By Tuning Out Accommodation Request

Employer’s don’t get to dictate which accommodations are acceptable to employees with disabilities.

Opportunities and Resources, Inc. and ORI Anuenue Hale, Inc. (ORI), a work placement agency for individuals with disabilities, violated federal law when the agency routinely refused to provide sign language interpreters to deaf employees, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Friday.

According to the EEOC’s lawsuit, several deaf employees made repeated requests for sign language interpreters for staff meetings where ORI discussed work safety procedures, work protocols and assignments, and other work-related information. Despite ORI’s awareness of the deaf employees’ need for sign language interpreters and their limited English proficiencies, the company provided ineffective accommodations like providing written notes, handouts, and asking a deaf employee to interpret for other deaf employees.

The EEOC asserted that as a result of the failure to provide effective accommodations, the deaf employees were denied the benefits and privileges of employment, including full participation in these meetings and equal access to important information about their jobs and working environment.  

Such alleged conduct violates the provisions against disability discrimination under the Americans with Disabilities Act (ADA). The EEOC filed its suit the U.S. District Court for the District of Hawaii (EEOC v. Opportunities and Resources, Inc. et al., Case No: 1:21-cv-00286-JMS-RT) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks compensatory and punitive damages for the class of deaf employees, as well as injunctive relief intended to prevent any future discrimination in the workplace.

“The ADA requires employers to provide accommodations to employees with disabilities so that they can enjoy the full benefits and privileges of employment,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Hawaii in its jurisdiction. “Providing an ineffective accommodation is akin to failing to provide an accommodation at all.”

Raymond Griffin, Jr., director of the EEOC’s Honolulu Local Office, added, “The EEOC takes its commitment to protecting the rights of the individuals with disabilities seriously. Employers cannot, on their own, decide what accommodations will meet the needs of an employee. Employers have an obligation to engage employees in the interactive process to find effective accommodations.”

According to its website, www.ori-hawaii.com, ORI provides services and support to people with intellectual and developmental disabilities.

Latest EEO Law Digest Now on EEOC Website

If you represent federal workers alleging discrimination by their agencies, you’ll want to tap into this resource.

The U.S. Equal Employment Opportunity Commission (EEOC) on Wednesday announced the newest edition of the federal sector Digest of Equal Employment Opportunity Law (EEO Digest) is now available on the EEOC’s website.

“This annual compilation edition of noteworthy decisions provides a convenient reference for federal sector stakeholders,” said Carlton M. Hadden, director of the EEOC’s Office of Federal Operations (OFO). “The latest edition highlights important 2020 case decisions.”

The EEO Digest, a quarterly publication prepared by OFO, features a wide variety of recent Commission decisions and federal court cases of interest. The Digest also includes hyperlinks so stakeholders can easily access the full decisions that have been summarized. This edition of the Digest contains summaries of noteworthy decisions issued by the EEOC, including cases involving attorneys’ fees, compensatory damages, and complaint processing. It also includes cases discussing dismissals, findings on the merits, mixed-motive, remedies, sanctions, settlement agreements, stating a claim, summary judgment, and timeliness.

The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. In addition to the quarterly Digest, Commission federal sector decisions are available on the EEOC’s website. The public may also receive federal sector information updates and news items via GovDelivery and Twitter.

On the Menu: P.R. Restaurant Forks Over $130K in Settlement Over aFemale Server’s Treatment

This restaurant hit the trifecta of EEO violations regarding a female server.

A federal court has ordered a San Juan restaurant to pay $130,691 in a sexual harassment and retaliation discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission, the federal agency announced Wednesday. The EEOC had charged Limeños Corporation, doing business as Ceviche House, a restaurant in the Isla Verde area of San Juan, with violating federal law when an owner and general manager subjected a female server to sexual harassment, retaliated against her when she complained, and made her work conditions so intolerable she was forced to resign.

The EEOC’s lawsuit charged that Ceviche House’s part-owner Marcelo López Mandujano created a sexually charged workplace by making humiliating comments about female servers’ bodies, referring to female employees as whores, and frequently discussing his own sexual experiences with female servers. When the female employee complained, Mandujano retaliated against her by intensifying the harassment and threatening her job and her safety. As a result of this conduct, the female server was forced to resign.

Sexual harassment, retaliation for complaining about it, and forcing an employee to resign on account of a hostile work environment violates Title VII of the Civil Rights Act of 1964. Sexual harassment is a form of sex discrimination that is prohibited by the statute.

The EEOC filed suit in U.S. District Court of Puerto Rico (EEOC vs. Limeños Corporation d/b/a Ceviche House, Case No. 20-1143) after first attempting to reach a pre-litigation settlement through its conciliation process.

On the EEOC’s motion for default judgment, the court’s judgment, besides the monetary relief, requires Ceviche House to provide training for five years to its owners, officers, managers, and administrative assistants and implement a new employee policy against sexual harassment and retaliation. Ceviche House will also be required to provide annual written reports to the EEOC certifying compliance with the court’s judgment and report on any sex-based discrimination occurring in the workplace over the next five years.

“The court’s judgment against Ceviche House is consistent with the EEOC’s mission to prosecute employers who create a sexually hostile work environment and actively works to prevent future harm to employees,” said Robert E. Weisberg, regional attorney for the EEOC’s Miami District Office, which includes Puerto Rico within its jurisdiction. “The EEOC will continue to fight to prevent sexual harassment, especially those working in the hospitality industry, where so many workers are vulnerable to this kind of abuse.”

William Sanchez, director of the EEOC’s San Juan Local Office, said, “The court’s judgment against Ceviche House provides justice for this aggrieved employee, and, we trust, will serve as a lesson to other employers about the importance of maintaining a workplace free of sexual harassment.”

The EEOC’s Miami District Office is comprised of the Miami, Tampa, and San Juan offices and has jurisdiction over most of Florida, Puerto Rico, and the U.S. Virgin Islands. The EEOC’s Miami District employs multiple bilingual investigators who speak English, Spanish, Haitian Creole, French and Portuguese.

Training Alliance Renewed by OSHA, N.D. Groups

Here’s where a government-private sector partnership can literally saves lives.

To combat the dangers workers face in trenching and excavation operations, the U.S. Department of Labor’s Occupational Safety and Health Administration and key stakeholders renewed an alliance to train workers on trenching and excavation hazards.

The alliance will focus on educating employees and employers about cave-ins, struck-by heavy equipment, falling loads and vehicular traffic in close proximity to the excavation operations and raise awareness of workers’ rights and employers’ responsibilities under the Occupational Safety and Health Act.

The following organizations are joining with OSHA in the alliance:

— Workforce Safety and Insurance

— Energy Coalition for Contractor Safety

— North Dakota Safety Council

— North Dakota One Call

— Associated Builders and Contractors of North Dakota

— Bakken Basin Safety Consortium

— Associated General Contractors of North Dakota

The alliance signing took place yesterday at the North Dakota Safety Council campus in Bismarck.

“Trench collapses can be deadly for excavation workers. Employers can prevent collapses by sloping, shoring and shielding trench walls and training workers to recognize hazards and use proactive safety procedures,” said OSHA’s Area Director Scott Overson in Bismarck, North Dakota. “This alliance provides its contractor members with training and access to resources to improve workplace safety in this high-hazard industry.”

An implementation team, which comprises representatives of each organization, will meet to develop a plan of action, determine working procedures and identify the roles and responsibilities of the participants. In addition, they will meet up to twice annually to track and share information on activities and results in achieving the goals of the alliance and promote available training by each organization.

To raise awareness of OSHA safety standards, the agency partnered with the National Utility Contractors Association and participated in Trench Safety Stand-Down Week, June 14-18, 2021, to educate employers and workers. Visit OSHA’s Trenching and Excavation page for information on protecting workers in trenches.

OSHA’s Alliance Program works with groups committed to worker safety and health to prevent workplace fatalities, injuries and illnesses. These groups include unions, consulates, trade or professional organizations, businesses, faith- and community-based organizations, and educational institutions. OSHA and the groups work together to develop compliance assistance tools and resources, share information with workers and employers, and educate workers and employers about their rights and responsibilities.

OSHA Fines Plastic Facility $164K Following Death of Worker Who Fell From Elevated Platform

Another employer fell down in its duty to protect its workers from falling.

With the holiday fast approaching, a 56-year-old worker at a Toccoa plastic processing facility could never have known he would spend Christmas Day in a hospital and die from a head injury after falling more than 6 feet from an elevated platform.

An inspection of the Dec. 21, 2020, incident by the U.S. Department of Labor’s Occupational Safety and Health Administration found that while Scrap Masters Inc. had installed some fall protection on the platform, it failed to meet federal safety standards. OSHA cited the company for failing to equip stairs and platforms with guardrails to prevent falls.

In addition, OSHA determined that the employer failed to:

• Mount and mark fire extinguishers, exposing workers to fire hazards. The employer also did not implement a training program for the use of the extinguishers.
• Repair powered industrial trucks and ensure workers wore a seatbelt when operating a forklift.
• Provide a training program on powered industrial trucks that consists of formal and practical training, as well as an evaluation of the employee’s performance in the workplace.
• Develop and utilize specific procedures for employees performing service and maintenance activities on machines, exposing them to amputation hazards.
• Prevent workers from being exposed to occupational noise levels above the allowable time-weighted average.

In all, OSHA cited Scrap Masters with eight serious and five repeat violations, and proposed $164,308 in penalties.

“When employers fail to put safety programs in place, the results can be fatal,” said OSHA Acting Area Director Michael Hejazi in Atlanta-East. “Implementing required safety procedures can mean the difference between a tragic incident and everyone going home safely to their families.”

Scrap Masters Inc. recycles plastic automobile gas tanks and has a sister office in Manchester, Michigan. OSHA has inspected the company five times in the past five years, with four of the inspections occurring in the Toccoa facility. Of those four inspections, three resulted in citations issued.

The company has 15 business days from receipt of its 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.

Learn more about OSHA.

Fingerprint Spat Lands Debt Recovery Co. in Court Opposite EEOC in Religious Rights Case

Religious accommodation under Title VII could include an exemption from fingerprinting.

AscensionPoint Recovery Services, LLC (APRS), a Minnesota-based estate and probate debt recovery company that manages decedent debt recovery for creditors, violated federal law when it fired a Christian employee instead of accommodating his request not to be fingerprinted due to his religion, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed last Thursday.

The EEOC’s pre-suit investigation revealed that APRS had requested that its employees be finger-printed as a result of a background check requirement of one of its clients. Shortly after the Christian employee informed APRS that having his fingerprints captured was contrary to his religious practices, APRS fired him at their St. Louis Park, Minn., office. APRS did so without asking the client whether an exemption was available as a religious accommodation, and despite the fact that alternatives to fingerprinting are available.

Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion and requires employers to reasonably accommodate an applicant’s or employee’s religious practice unless it would pose an undue hardship.

The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The case, EEOC v. AscensionPoint Recovery Services, LLC, Civil Action No. 0:21-cv-01428, was filed in U.S. District Court for the District of Minnesota and was assigned to U.S. District Judge Eric C. Tostrud. The government’s litigation effort will be led by EEOC Trial Attorneys Adrienne Kaufman and Kelly Bunch and supervised by EEOC Supervisory Trial Attorney Justin Mulaire.

“An employee should not have to choose between his faith and his livelihood,” said Gregory Gochanour, the EEOC’s regional attorney in the Chicago District Office. “The EEOC is committed to enforcing the rights of religious employees, and Title VII requires that an employer attempt to find a workable solution when an employee’s sincerely held religious observance or practice conflicts with a work requirement.”

Chicago District Director Julianne Bowman added, “Federal law is clear: Employers cannot refuse to provide a religious accommodation unless it presents an undue hardship. Despite this obligation, APRS fired this employee the same day of his accommodation request — failing to even explore readily available solutions. When a company violates federal anti-discrimination laws this way, the EEOC will step in.”

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

OSHA Fines Tortilla Maker $218K in Safety Probe

Making tortillas shouldn’t come at the price of life and limb.

Previous inspections by the U.S. Department of Labor’s Occupational Safety and Health Administration have given the operators of a family owned tortilla factory south of Austin every opportunity to resolve its safety issues. Yet, OSHA has found the company still exposing workers to the risks of amputation and other serious injuries.

Worker complaints of dangerous amputation hazards led OSHA to again investigate conditions at El Milagro of Texas Inc. and the agency’s inspectors determined that the company once again failed to follow hazardous energy control procedures to prevent sudden machine start-up or movement during maintenance and servicing. As a result, inspectors cited El Milagro for three repeat violations related to energy control and four serious violations for failing to follow lockout/tagout procedures.

OSHA also cited the company for a repeat violation for failing to fit-test workers using respirators, and a serious violation for not performing medical evaluations for respirator use. The agency has proposed $218,839 in fines. OSHA cited the company for the same violations in 2015 and 2018.

“More than half of workplace amputations involve some type of machinery, the Bureau of Labor Statistics reports. Energy control and lockout/tagout procedures are vital to protecting workers in manufacturing facilities,” said OSHA Area Director Casey Perkins in Austin, Texas. “OSHA will hold employers accountable when they fail to comply with requirements to prevent worker exposure to dangerous hazards.”

El Milagro of Texas has 15 business days from receipt of its 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.

Exposed: R.I. Medical Practice Fined $136K by OSHA For Not Protecting Employees From Covid

The coronavirus may be waning–but its aftereffects linger.

The U.S. Department of Labor’s Occupational Safety and Health Administration has cited the owner-operator of four Rhode Island medical facilities for failing to protect workers from exposure to the coronavirus and implement proper safety measures after six employees tested positive for the virus in the fall of 2020.

OSHA investigators found the owner of North Providence Urgent Care Inc., North Providence Primary Care Associates Inc., Center of New England Urgent Care Inc. and Center of New England Primary Care Inc. willfully exposed employees to the coronavirus. The agency determined the owner continued to interact with workers and did not fully implement safeguards after he exhibited symptoms of the virus and later tested positive.

The owner and his companies face a proposed fine of $136,532 for failing to:

• Implement engineering controls, such as portable high-efficiency particulate air fan/filtration systems, and barriers between adjacent desks;
• Implement administrative controls, such as cleaning and disinfecting, and symptom screening of all employees; and
• Mandate contact tracing or quarantine periods after employee exposure to coronavirus-exposed patients.

“This employer placed workers and others at risk of contracting the coronavirus. Employers have a responsibility to isolate workers and themselves if they show symptoms of the virus,” said OSHA Area Director Robert Sestito in Providence, Rhode Island. “Protecting employees and patients by implementing timely and effective safeguards and controls to minimize exposure is critical to mitigating the spread of the virus.”

Read more about feasible and acceptable means of abatement for this hazard.

The employer has 15 business days from receipt of its 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.

On March 12, OSHA launched a national emphasis program focusing enforcement efforts on companies that put the largest number of workers at serious risk of contracting the coronavirus. The program also prioritizes employers that retaliate against workers for complaints about unsafe or unhealthy conditions, or for exercising other rights protected by federal law.

View OSHA’s COVID-19 information and resources.