Inhospitable: Hotel Whose Manager Allegedly Said Pregnancy Was “Liability” Settles EEOC Suit

On this Halloween, it’s scary that these attitudes about pregnant employees may persist.

Awon Phie LLC, doing business as Holiday Inn Express North Padre Island, will pay $30,000 and furnish comprehensive injunctive relief to settle a pregnancy discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Wednesday.

According to the EEOC’s lawsuit, the company’s operations manager told an employee that she noticed her stomach, referring to her being pregnant. The company’s operations manager told the employee she was a “liability” because of her pregnancy and fired her, stating that she could not allow a pregnant woman to work for the employer, the EEOC charged.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which prohibits employers from discriminating against pregnant employees. The EEOC filed suit against the company (EEOC v. Awon Phie LLC d/b/a Holiday Inn Express & Suites, Case No. 2:21-cv-00012) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the monetary relief, Awon Phie LLC has agreed to injunctive remedies including hiring an external equal employment opportunity consultant; revising its policies and procedures to ensure compliance with federal equal employment opportunity laws and regulations; providing anti-discrimination training, including training on Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act; and posting a notice regarding the consent decree settling the suit. The court will maintain jurisdiction over the case during the decree’s two-year term.

“We are pleased that because of this settlement, Awon Phie LLC will institute policies and provide training so that its management will better recognize and protect the rights of pregnant employees in the workplace going forward,” said EEOC Trial Attorney Esha Rajendran.
 
EEOC Supervisory Trial Attorney Eduardo Juarez added, “This case is a reminder that the decision whether a pregnant employee should work rests solely with her. It is the employee, not the employer, who is responsible for making decisions that affect the safety of the employee and her child.”

The San Antonio Field Office is part of the EEOC’s Dallas District Office, which is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Texas and parts of New Mexico.

Algorithms, AI Tools Under Microscope at EEOC

The EEOC wants to make sure these new technologies aren’t used for discriminatory purposes.

The U.S. Equal Employment Opportunity Commission (EEOC) is launching an initiative to ensure that artificial intelligence (AI) and other emerging tools used in hiring and other employment decisions comply with federal civil rights laws that the agency enforces, EEOC Chair Charlotte A. Burrows announced Thursday at a Genius Machines 2021 event.

“Artificial intelligence and algorithmic decision-making tools have great potential to improve our lives, including in the area of employment,” Burrows said. “At the same time, the EEOC is keenly aware that these tools may mask and perpetuate bias or create new discriminatory barriers to jobs. We must work to ensure that these new technologies do not become a high-tech pathway to discrimination.”

The initiative will examine more closely how technology is fundamentally changing the way employment decisions are made. It aims to guide applicants, employees, employers, and technology vendors in ensuring that these technologies are used fairly, consistent with federal equal employment opportunity laws.

“Bias in employment arising from the use of algorithms and AI falls squarely within the Commission’s priority to address systemic discrimination,” Burrows said. “While the technology may be evolving, anti-discrimination laws still apply. The EEOC will address workplace bias that violates federal civil rights laws regardless of the form it takes, and the agency is committed to helping employers understand how to benefit from these new technologies while also complying with employment laws.”

As part of the new initiative, the EEOC plans to:

• Establish an internal working group to coordinate the agency’s work on the initiative;
• Launch a series of listening sessions with key stakeholders about algorithmic tools and their employment ramifications;
• Gather information about the adoption, design, and impact of hiring and other employment-related technologies;
• Identify promising practices; and
• Issue technical assistance to provide guidance on algorithmic fairness and the use of AI in employment decisions.

The new initiative will build on the previous work of the Commission in this area. The Commission has been examining the issue of AI, people analytics, and big data in hiring and other employment decisions since at least 2016. That year, the EEOC held a public meeting on the equal employment opportunity implications of big data in the workplace. Additionally, the EEOC’s systemic investigators received extensive training in 2021 on the use of AI in employment practices.

Kaiser Out $130K in Settlement Over Door Access

Why wouldn’t you allow an employee to use a revolving door to get to her job?

Kaiser Foundation Health Plan of Georgia, Inc., a managed health care provider that is part of the Oakland, California-based Kaiser Permanente organization, agreed to settle a lawsuit after it was found liable for violating the Americans with Disabilities Act (ADA), the U.S. Equal Employment Opportunity Commission announced Monday.

After the court ruled against Kaiser, Kaiser agreed to pay its former employee $130,000 and enter into a consent decree under which it will train its employees on the ADA, make changes to its employment forms, and allow the EEOC to monitor how it handles future requests for accommodation under the ADA.

According to the EEOC’s lawsuit, the disabilities of one of Kaiser’s specialty appointment coordinators made it traumatic for her to access her workplace through revolving doors, so she requested the reasonable accommodation of using the available non-revolving doors. Kaiser refused to allow its employee to use the non-revolving doors to accommodate her disabilities and forced her to use the revolving doors instead, the EEOC said.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Northern District of Georgia, Atlanta Division (EEOC v. Kaiser Foundation Health Plan of Georgia, Inc., Civil Action No. 1:19-CV-5484-AT) after first attempting to reach a pre-litigation settlement through its conciliation process.

On April 19, Magistrate Judge Walter E. Johnson entered an order recommending that Kaiser be found liable as a matter of law for violating the ADA. On Aug. 9, U.S. District Court Judge Amy Totenberg entered an order adopting Johnson’s recommendation, which left only the amount of damages to be awarded to be tried to a jury.

In a significant decision that highlights an employer’s accommodation obligations under the ADA, the court held that a reasonable accommodation under the ADA need not relate to the performance of an essential function of the job. The court held that employees with disabilities are also entitled to accommodations to access the workplace and to ensure that employees can enjoy the same benefits and privileges of employment that other employees enjoy. Subsequent to the court’s decision, and prior to a trial on damages, Kaiser and the EEOC reached an agreement to resolve the lawsuit.

“An employer’s obligation to accommodate an employee extends to access to the employee’s worksite and not just the specific performance of the employee’s duties,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office. “The EEOC is pleased that after a lengthy court process, Kaiser has agreed to pay damages to its former employee for this violation of the law. Kaiser will also provide training and monitoring that we hope will ensure that what happened in this case does not happen again.”

Darrell Graham, district director of the Atlanta office, said, “A federal court found that Kaiser violated the ADA. The EEOC is pleased that rather than continue to fight this claim, Kaiser will compensate the victim and take the steps necessary to become a more inclusive workplace for its employees with disabilities.”

Breath of Fresh Air: Employer Settles EEOC ADA Suit Over Denial of Request for an Oxygen Device

Failure to offer a reasonable accommodation had this employer in a legal bind.

Strategic Equipment, LLC, doing business as TriMark Foodcraft, LLC, a Delaware corporation that specializes in commercial kitchen equipment and operates a distribution facility in Winston-Salem, North Carolina, has agreed to pay $25,000 and provide other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced October 22.

According to the EEOC’s complaint, Jean S. Perry is an individual with a disability who worked for Trimark through a temporary placement agency as an accounts payable costing clerk. In December 2018, Perry was admitted to the hospital for breathing complications related to her disability. Perry attempted to return to work, but when she notified Trimark that she required the use of a personal oxygen device and would need to bring it to work with her, Trimark fired her. The EEOC’s position is that Trimark had a legal obligation to permit Perry to use her oxygen tank at work as a reasonable accommodation and that it unlawfully discharged her because of a disability.

The conduct alleged by the EEOC violates the Americans with Disabilities Act (ADA). The ADA prohibits workplace discrimination based on disability and requires employers to provide reasonable accommodations to qualified individuals with disabilities unless doing so would be an undue hardship. The EEOC filed suit in U.S. District Court for the Middle District of North Carolina (EEOC v. Strategic Equipment, LLC d/b/a TriMark Foodcraft, LLC, Civil Action No. 1:20-cv-01000) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

In addition to providing monetary relief to Perry, the two-year consent decree settling the suit requires TriMark to amend its current anti-discrimination policy to include examples of job modifications that may qualify as reasonable accommodations under the ADA and to post the policy where it is visible to employees. The decree further requires TriMark to conduct annual ADA training for human resource employees and specialized training for the decision maker. Trimark is required to provide periodic reports to the EEOC.

“The ADA requires an individualized assessment to determine whether a reasonable accommodation can be provided without causing an undue hardship for the employer or a direct threat to other employees,” said Melinda C. Dugas, regional attorney for the EEOC’s Charlotte District Office. “Employers cannot prevent employees from being productive members of the workforce because of mere inconvenience or preconceived ideas about medical conditions. Further, direct threat determinations cannot be based on irrational fears or generalized conclusions. Such decisions must be based on the best available objective evidence.”

EEOC District Director Thomas Colclough said, “The ADA was created to ensure a level playing field for everyone in the workplace. This settlement represents a step forward in ensuring that the dream of equal opportunity in the workplace is realized by all employees regardless of their protected status. I applaud TriMark in taking this step by training its human resources employees on the ADA and the protections the ADA affords people with disabilities.”

EEOC Talks Vaccine Mandates in New Guidance

Employers have more guidance as they navigate the tricky intersection of EEO laws and vaccine requirements.

The U.S. Equal Employment Opportunity Commission (EEOC) yesterday posted updated and expanded technical assistance related to the COVID-19 pandemic, addressing questions about religious objections to employer COVID-19 vaccine requirements and how they interact with federal equal employment opportunity (EEO) laws.

The expanded technical assistance provides new information about how Title VII of the Civil Rights Act of 1964 applies when an applicant or employee requests an exception from an employer’s COVID-19 vaccination requirement that conflicts with their sincerely held religious beliefs, practices, or observances. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin.

“This update provides employers, employees, and applicants with important assistance when navigating vaccine-related religious accommodation requests,” said EEOC Chair Charlotte A. Burrows. “Title VII requires employers to accommodate employees’ sincerely held religious beliefs, practices, and observances absent undue hardship. This update will help safeguard that fundamental right as employers seek to protect workers and the public from the unique threat of COVID-19.”

The key updates to the technical assistance are summarized below:

• Employees and applicants must inform their employers if they seek an exception to an employer’s COVID-19 vaccine requirement due to a sincerely held religious belief, practice, or observance.
• Title VII requires employers to consider requests for religious accommodations but does not protect social, political, or economic views, or personal preferences of employees who seek exceptions to a COVID-19 vaccination requirement.
• Employers that demonstrate “undue hardship” are not required to accommodate an employee’s request for a religious accommodation.

The EEOC is providing this information to the public as many employers are requiring employees to be vaccinated against COVID-19 as a condition of their employment.  

This technical assistance answers COVID-19 questions only from the perspective of the EEO laws. Other federal, state, and local laws come into play regarding the COVID-19 pandemic for employers, employees, and applicants. As new developments occur, the EEOC will consider any impact they may have on EEOC’s COVID-19 technical assistance and will provide additional updates and assistance to the public as needed.

More information about the civil rights implications of the COVID-19 pandemic is available in the record of the EEOC’s April 28, 2021 hearing on that topic.  

$217K Later, W.Va. Restaurants Settle EEOC Suit Alleging Retaliation, Harassment Against Women

Given the allegations in this case, these eateries were wise to close the books on this litigation.

Route 22 Sports Bar, Inc. and Crazy Mexican Restaurant & Grill, LLC, two restaurants in Weirton, W.V., will pay $217,500 and provide significant equitable relief to settle a sexual harassment and retaliation suit, the U.S. Equal Employment Opportunity Commission (EEOC) announced Wednesday.

According to the EEOC’s lawsuit, the male spouse of an owner of the two restaurants, who, the EEOC alleged, possessed broad authority over the businesses and their employees, subjected a female bartender and other employees to severe, unwanted and offensive sexual harassment, including luring female employees to his secluded office, propositioning certain female workers for sex, and subjecting them to unwanted sexual touching and comments. Other male coworkers also frequently sexually harassed female workers. The EEOC’s lawsuit further charged that the restaurant owners retaliated against the female bartender for complaining about the harassment by firing her.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits harassment and discrimination because of sex. Title VII also prohibits employers from retaliating against employees because they oppose harassment or discrimination. The EEOC filed suit (U.S. EEOC v. Route 22 Sports Bar, Inc. et al., Civil Action No. 5:21-cv-00007) in U.S. District Court for the Northern District of West Virginia after first attempting to reach voluntary pre-litigation settlement through its conciliation process.

The parties voluntarily agreed to settle the case by entry of a consent decree, which has now been approved by the federal court. In addition to paying $217,500 in monetary relief to the female bartender and a class of other female workers, the restaurants will provide significant equitable relief, including: prohibiting the owner’s male spouse from holding any supervisory position and having any direct contact with employees while acting on behalf of either restaurant; adopting robust sexual harassment and anti-retaliation policies; establishing a complaint procedure for employees to report harassment or retaliation; providing specialized training on conducting sexual harassment investigations; and consenting to EEOC compliance monitoring and reporting requirements.

“Fostering a workplace free from harassment and retaliation requires holding owners and supervisors accountable for their actions,” said EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence. “The EEOC is committed to protecting service industry workers from perpetrators of sex discrimination, especially those who abuse their positions of authority.”

EEOC Philadelphia District Office Director Jamie R. Williamson added, “Restaurant workers are vital to our economy. They, like all workers, deserve to make a living without being subjected to sexual harassment and retaliation.”

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.

EEOC: Companies’ Attendance Policies Violated ADA in Not Excusing Disability-Related Absences

You’re apt to get on the government’s radar screen if your attendance policy is inflexible.

Grief, Inc., an international manufacturing company, and American Flange, its wholly-owned subsidiary operating in the western suburbs of Chicago, violated federal law when they fired an employee and refused to excuse his disability-related absences, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed October 19.

According to the EEOC’s suit, the agency’s pre-suit investigation revealed American Flange and Grief implemented a point-based attendance system that did not excuse disability-related absences. Because of this policy, an employee who had two absences sparked by a seizure disorder was fired even though the companies knew the absences were due to his medical condition.

This alleged conduct violates the Americans with Disabilities Act (ADA) which prohibits discrimination based on a person’s disability. The EEOC filed suit (EEOC v. American Flange and Grief, Inc., 1:21-cv-05552) in U.S. District Court for the Northern District of Illinois after first attempting to reach a pre-litigation settlement through its voluntary conciliation process. The EEOC is seeking back pay, compensatory damages, and punitive damages for the former employee, as well as injunctive relief to prevent future discrimination.

“While employers are obviously allowed to maintain attendance policies, the ADA requires them to approach absences that stem from disabilities with flexibility, and to explore ways for employees with disabilities to continue to work with reasonable accommodations when necessary,” said Gregory Gochanour, regional attorney for the EEOC’s Chicago District Office. “Firing this employee after he incurred just two and a half attendance points falls short of that mark.”

According to Julie Bowman, district director of the Chicago District Office, “Most long-term medical conditions will qualify as a disability if they have an impact on how a person lives and works. Some disabiling conditions are readily apparent – a person may need the assistance of a wheelchair or a guide dog. Other conditions, such as a seizure disorder, may be undetectable to casual observation. But when an employee makes their condition known to an employer, the ADA requires the employer to provide necessary reasonable accommodations when doing so would not be unduly burdensome. The EEOC found that Grief and American Flange failed to do so.”

The EEOC’s Chicago District Office is responsible for processing charges of employment 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.

EEOC Updates Quarterly Laws, Decisions Digest

For you federal EEO practitioners out there, the EEOC is making sure you are up to date.

The U.S. Equal Employment Opportunity Commission (EEOC) on October 7 announced that the newest edition of the federal sector Digest of Equal Employment Opportunity Law (EEO Digest) is now available on the EEOC’s website.

The EEO Digest, a quarterly publication prepared by the EEOC’s Office of Federal Operations (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 attorney’s fees, class complaints, compensatory damages and case processing. It also includes cases discussing dismissals, findings on the merits, mixed-motive, 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.

The EEOC advances opportunities in the workplace by enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available online at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

OSHA, Foundry Forge Settlement on Safety Flaws

Provided there’s adequate follow-through, safety conditions at this ironwork should improve.

A Syracuse iron foundry cited by the U.S. Department of Labor’s Occupational Safety and Health Administration for dozens of health and safety violations has agreed to correct 60 cited hazards, implement enhanced corrective measures and pay $276,189 in penalties in a settlement agreement with the department. OSHA made the announcement on Oct. 19.

OSHA’s Syracuse Area Office cited Frazer & Jones Co. Inc. in November 2019 following safety and health inspections that identified multiple hazards, including:

• Exposing employees to crystalline silica, silica dust and combustible dust.
• Inadequate respiratory protection.
• Fall, struck-by and caught-between hazards.
• Unsafe work floors and walking surfaces.
• Deficient confined space safeguards.
• Inaccessible or unavailable fire extinguishers.
• An impeded exit route.
• Lack of an effective pest removal program.
• Failure to prevent the build-up of bird feces on equipment.

The settlement, deemed a final order of the independent Occupational Safety and Health Review Commission effective Oct. 14, 2021, contains enhanced abatement measures the employer will take, including:

• Semi-annual inspections of the facility by a safety consultant.
• Addressing the consultant’s recommendations for action, and sharing them with the facility’s labor-management safety committee and the corporate parent’s board of directors.
• Implementing systems to receive and respond to employee complaints.
• A ventilation consultant will evaluate the facility’s dust control system for overhaul.

“The hazards our inspectors found at Frazer & Jones Co. Inc. exposed workers to potential injuries and long-term health effects. This settlement requires correction of those hazards and it commits the employer to implement ongoing measures to prevent these conditions from recurring in the future,” said OSHA Area Director Jeffrey Prebish in Syracuse.

“Employers are responsible for providing their employees with safe and healthful workplaces. When they fail to do so, the U.S. Department of Labor will actively pursue appropriate legal actions to change that behavior and compel future compliance with the law,” said Regional Solicitor of Labor Jeffrey Rogoff in New York.

OSHA’s Syracuse Area Office conducted the original inspections. Trial Attorney Rosemary Almonte of the department’s regional Office of the Solicitor in New York negotiated the settlement for the department.

EEOC: Employer Allowed Harassment of Black

What needed inspecting here was the employer’s tolerance of racial harassment.

American Piping Inspection, Inc. (API), an Oklahoma-based oil and gas inspection services company doing business in Texas, violated federal law when its supervisors created and condoned a hostile work environment for an African American employee and retaliated against him for complaining about the harassment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on September 30, 2021.

According to the EEOC’s lawsuit, a supervisor at API’s Midland facility began harassing the employee on his first day at work and the conduct continued throughout his employment. The supervisor referred to him and other black workers by a racial slur. The supervisor would also openly make racially offensive remarks he called “jokes” in the presence of employees under his supervision.  

Offended, the employee told the supervisor to stop engaging in the offensive conduct, and when he did not, the employee complained to API’s vice-president. However, the supervisor continued making racial comments, often while mocking the employee in front of his peers for being offended. Following a gathering at which the supervisor and other employees were present, the supervisor made other racist jokes while looking directly at the employee and using his hand to pretend to shoot a gun at him. Feeling threatened, the employee again complained to API’s vice-president. Shortly thereafter, API supervisors began to scrutinize and discipline the employee more harshly than his white colleagues and ultimately fired him about a month later.  

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits racial discrimination and retaliation. The EEOC filed suit in U.S. District Court for the Southern District of Texas (Civil Action No. 4:21-cv-03187) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process. The EEOC’s suit seeks backpay, compensatory and punitive damages for the employee, as well as injunctive relief intended to prevent any future discrimination in the workplace.  

Rayford Irvin, director of the EEOC’s Houston District Office, said “Employers have a legal duty to take prompt corrective action if such race-based conduct arises in a workplace. Employers should ensure supervisors are held accountable and are properly trained to handle complaints of harassment.”

“Using racial epithets and other racially insulting language has no place in the American workplace.  It is the employer’s responsibility to providing their employees workplaces free of racial discrimination,” said Rudy Sustaita, regional attorney for the EEOC’s Houston District Office.