Store Taken to Court in EEOC Retaliation Suit

Often, retaliation is charged along with another protected class violation. But not in this case.

Dillard’s, Inc., a national department store chain based in Little Rock, Arkansas, violated federal law when it fired a long-tenured, high-achieving employee after she complained of discrimination and asked about a pregnancy accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Friday.

According to the EEOC’s suit, in February 2020, a longtime African American sales associate in Dillard’s Northpoint Store, informed the new store manager about her pregnancy-related accommodation, which had been granted by her previous manager. The new store manager promptly rescinded the accommodation. A few days later, the store manager, without warning or explanation, transferred the sales associate to another department where she would struggle to maintain her sales numbers. In March 2020, the sales associate complained the transfer was discriminatory based on her race and pregnancy. Dillard’s did not address the complaint and instead reduced the associate’s hours. Because of the COVID-19 pandemic, the sales associate was furloughed in April 2020 along with several other employees. When Dillard’s began to recall employees, the sales associate was not asked to return to work. In August 2020, the sales associate was fired and was replaced with a lower-performing employee.  

Such alleged conduct violates the anti-retaliation provision of Title VII of the Civil Rights Act of 1964. The EEOC filed suit (Civil Action No. 1:23-CV-01943 MLB RDC) in the United States District Court for the Northern District of Georgia, Atlanta Division, after first trying to reach a pre-litigation settlement via its conciliation process. The EEOC is seeking back pay, compensatory damages, and punitive damages for the sales associate, as well as injunctive relief to prevent future discrimination.

“A campaign of retaliation by individuals in positions of power and based on the exercise of federally-protected rights is troublesome.  The behavior displayed by Dillard’s is unlawful, unacceptable, and intentional,” said Marcus G. Keegan, regional attorney for the EEOC’s Atlanta District Office. “The Commission will seek every possible remedy to make sure it doesn’t happen again.”  

“It takes courage to seek the accommodations a woman needs to protect herself and her growing family,” said Darrell Graham, district director of the Atlanta office. “It takes more courage to speak up to her employer when she thinks they have discriminated against her. This courage should be met with understanding and open ears, not retaliation.” Graham said. “The EEOC will never compromise on the promise that employees who exercise their federally-protected rights should not face retaliation.”

More information about retaliation is available at https://www.eeoc.gov/retaliation.

OSHA Hits Contractor With $257K Fines in Worker’s Death During Unsafe Excavation

Another preventable loss of life if only basic safety procedures had been adhered to.

A Houston-area contractor’s repeated failure to follow federal workplace safety procedures during excavation operations contributed to a worker’s death near Manvel in October 2022, a federal workplace safety investigation has found.

The U.S. Department of Labor’s Occupational Safety and Health Administration determined that R Construction Civil LLC allowed two employees to work in an excavation without sloping or using a protective system to prevent the 25-foot trench’s collapse. The fatal injury occurred when one of the workers was pinned against a mechanical compactor and the trench wall caved in.

“R Construction Civil LLC failed to meet its legal responsibility and it cost a worker their life,” explained OSHA Area Director Mark Briggs in Houston. “The company could have prevented this tragedy by following well-known safety measures meant to protect workers from this very hazard.”

OSHA issued two repeat citations for not having means to exit the excavation, failing to keep spoil piles at least 2 feet away from the excavation’s edge, and for using an inadequate protective system inside the excavation to protect workers from cave-ins. The agency also issued one serious citation for not inspecting the excavation daily, as required.

The company faces $257,822 in proposed penalties for its violations.

Headquartered in Buffalo, Texas, R Construction Civil LLC is a construction contractor providing heavy civil construction from water, sewage, drainage and site work. The company also has locations in Houston and Floresville.

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 about trenching and excavation safety.

Learn more about OSHA.

Somber Day as Workers Are Remembered

The roster of workers killed on the job is long–longer than should make us comfortable.

The U.S. must redouble its efforts to shorten this list.

Today you can tune in for OSHA’s memorial commemoration to those people died while simply doing their jobs.

The ceremony takes place at 1 p.m. and be accessed virtually or in person.

Log onto osha.gov/workers-memorial for more details.

Trucking Co. Pays $1.2M in Sex Bias Settlement

Qualified women can load trucks just like anyone else can.

R&L Carriers, Inc. and R&L Carriers, Shared Services, LLC (R&L Carriers), a nationwide trucking company headquartered in Wilmington, Ohio, will pay $1,250,000 to a class of female applicants and take steps to prevent future discrimination against female applicants to settle a federal lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced Tuesday.

According to the EEOC’s lawsuit, R&L Carriers, which specializes in less-than-a-load delivery, discriminated against women in hiring for Wilmington, Ohio loader positions between at least January 1, 2010, and December 31, 2017. Although a few women were hired as loaders, most female applicants were rejected or steered to different positions because of their sex. Applicants and other witnesses stated they were told R&L Carriers did not hire women for loader positions. The alleged discriminatory conduct resulted in a large difference in the percentage of female applicants who were hired compared to male applicants who were hired.

Such alleged conduct violates Title VII of the Civil Right Act of 1964 which prohibits discrimination based on an applicant’s sex.  The EEOC filed the lawsuit (Case No. 1:17-cv-00515-DRC) in the U.S. District Court for the Southern District of Ohio, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process.

“Women in the United States play a vital role in the American economy and workplaces,” said EEOC Chair Charlotte A. Burrows.  “The law requires companies to make hiring decisions based on an applicant’s qualifications, not gender stereotypes.  The EEOC will continue working to ensure that job opportunities in trucking and all industries are available to all qualified workers, regardless of gender.”

According to the consent decree resolving the suit, the $1.25 million settlement fund will be handled by a claims administrator paid for by R&L Carriers. In the next few months, the EEOC and the claims administrator will make efforts to locate the women to whom the money will be distributed. The EEOC has set up an information line for additional information on the settlement. The phone number is (317) 225-8363.

The decree also orders R&L Carriers not to discriminate against female applicants at its Wilmington facility, and requires other equitable and affirmative relief, including that R&L Carriers train its hiring officials in legal hiring procedures and notify its recruiters and employees not to discriminate against women in hiring for loader positions. R&L Carriers will also invite rejected female applicants to reapply for Wilmington loader positions and will engage in outreach and recruitment efforts related to employing women as loaders.

“I am pleased qualified women will finally have the opportunity to be hired as loaders at R & L Carriers rather than being steered to office jobs,” said Indianapolis District Director Michelle Eisele.  “Gender discrimination can occur in all industries in the United States, and the EEOC is committed to educating employees and employers about their rights and responsibilities in the workplace and eliminating it when needed.”

“Sex discrimination is illegal and will not be tolerated,” said Kenneth Bird, regional attorney for the EEOC’s Indianapolis District Office. “Employers should be on notice the EEOC will act aggressively to protect people from this type of discrimination. Employers cannot hire women for only some positions while excluding them from other positions.”

The EEOC’s Indianapolis District has jurisdiction over Indiana, Kentucky, Michigan, and parts of Ohio.

More information about sex discrimination is available at https://www.eeoc.gov/sex-based-discrimination.

EEOC: Wal-Mart Store Violated ADA in Not Excusing Disability-Related Work Absences

Saying one thing, doing the opposite. Not a recipe for success under the ADA.

Wal-Mart Stores East, LP violated federal law when it refused to excuse an employee’s disability-related leave and fired her for violating the company’s attendance policy, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed on Monday.

According to the EEOC’s lawsuit, the employee was hired in July 2016 and worked stocking shelves in the candy aisle. In September 2016, the employee was diagnosed with epileptic seizure disorder. The condition causes the employee to have periodic seizures which often result in a loss of consciousness and a recovery period of at least 24 hours. The employee’s mother notified the employee’s supervisor of the seizure-related disability and advised her the employee may continue to have seizures. She provided the supervisor with a doctor’s note detailing the diagnosis and related medical restrictions. The supervisor said she would excuse seizure-related absences if the employee’s mother notified her the absence was related to the employee’s seizure disorder. During the next eight months, the employee incurred periodic absences because of her disability. On each occasion, the employee’s mother notified the supervisor the absence was due to the employee’s seizure disorder. The employer did not excuse these absences, and, as a result, the employee was fired for violating the store’s attendance policy.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects individuals from disability discrimination in the workplace and which, absent undue hardship, requires employers to provide reasonable accommodations to allow employees with disabilities to perform the essential functions of the job. The EEOC filed suit in the U.S. District Court for the Eastern District of North Carolina, Western Division (Equal Employment Opportunity Commission v. Wal-Mart Stores East, LP, Civil Action No.: 5:23-cv-00218) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.

The EEOC seeks monetary relief for the former employee, including back pay, and compensatory and punitive damages. The EEOC also seeks injunctive relief against the company to end any ongoing discrimination and to prevent such unlawful conduct in the future.

“Reasonable accommodations required by the ADA can take many forms,” said Melinda C. Dugas, regional attorney for the EEOC’s Charlotte District. “An employer may be required to create an exception to an existing workplace policy if it will allow the employee to perform the essential functions of the job.”

Charlotte District Director Betsy Rader said, “The EEOC will continue to stand up for the rights of individuals with disabilities to equal opportunities in the workplace, ensuring employers provide reasonable accommodations where they do not impose an undue hardship.”

The EEOC’s Charlotte District is charged with enforcing federal employment anti-discrimination laws in North Carolina, South Carolina, and Virginia.

For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination.

OSHA Inks 2 New Safety Partnerships in South

Let’s start our Monday morning with some good workplace safety news.

On April 21, OSHA and the Brasfield & Gorrie Construction signed a strategic partnership to promote safety and health practices to help in preventing worker injuries and exposure to hazards during construction of Cooper Green Mercy Health, a five-story, 211,000-square-foot hospital and parking deck in Birmingham, Alabama.

The initiative will also encourage contractors to develop and implement safety and health programs, and provide safety and health training to employees, employers, and supervisors. Participants will focus on the use of personal protective equipment, heat illness prevention, hazards related to falls, struck-by and caught-in objects, electrical equipment and work practices, fire protection and prevention, safe use of hand and power tools, and silica and noise exposure.

The completed facility will offer an ambulatory outpatient facility, exam rooms, pharmacy and office spaces.

OSHA’s Strategic Partnership Program works with employers, employees, professional and trade associations, labor organizations and other interested stakeholders to establish specific goals, strategies and performance measures to improve worker safety and health. Learn more about OSHA.

“Public-private sector partnerships focused on worker safety and health training at all levels are a proven method to enhance worker safety during major construction projects,” said OSHA Area Office Director to Joel Batiz in Birmingham, Alabama. “Partnerships like these make a significant difference in ensuring workers finish their day’s work safely.”

On April 18, OSHA and Moss & Associates LLC signed a strategic partnership to promote safety and health practices to prevent exposure to common construction hazards during construction of the Alanik Hotel in Clearwater Beach, Florida. The project calls for construction of a 492,000-square-foot, 15-story hotel on a two-acre parcel off the Clearwater Beach barrier island.

The University of South Florida On-Site Consultation Program is also a member of this partnership.

The initiative will also encourage contractors to develop and use safety and health programs, and provide required training to employees, employers and supervisors. The initiative will focus on safe work practices and the need to use required personal protective equipment. It will also promote the safe use of hand and power tools and awareness of common construction hazards associated with heat illness, falls, struck-by and caught-in objects, and unsafe levels of silica dust and noise.

OSHA’s Strategic Partnership Program works with employers, employees, professional and trade associations, labor organizations and other interested stakeholders to establish specific goals, strategies and performance measures to improve worker safety and health.

Learn more about OSHA.

EEOC: Food Products Co. Tolerated Harassment

These employers committed the tri-fecta of civil rights violations, the government charged.

Pacific Culinary Group, Inc. and CB Foods, Inc., two companies involved in the sale, production, and/or distribution of Asian food products, violated federal law when they failed to prevent and correct ongoing sexual harassment and retaliation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed Friday.

According to the EEOC’s lawsuit, since at least 2020, Pacific Culinary and CB Foods subjected both female and male workers at their Monterey Park, California location to ongoing verbal and physical sexual harassment. The harassment, allegedly perpetrated by their chief operating officer, included but was not limited to, frequent and offensive unwanted groping and touching of their bodies, unwelcome sexual advances and comments about their appearance, and inappropriate questions about employees’ sexual preferences and sexual activities. Despite having received multiple complaints of the sexual harassment, the companies failed to take prompt and effective action, and the sexual harassment continued. The EEOC also said when employees objected to or reported the harassment, they were retaliated against with further harassment and/or by discipline, including termination. The unlawful employment practices resulted in intolerable working conditions, compelling some of the workers to quit.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrim­ination on the basis of sex and retaliation. The EEOC filed suit in U.S. District Court for the Central District of California (Case No.: 2:23-cv-03018) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks compensatory and punitive damages for a class of aggrieved individuals, as well as injunctive relief intended to prevent and correct discrimination.

“The EEOC continues to see employers failing to address and properly remedy harassment in the workplace, despite repeated employee complaints. Failing to correct harassment opens employers up to liability and tells others such behavior is condoned in the workplace,” said Anna Park, regional attorney with the Los Angeles district of the EEOC. “The EEOC will continue to vigorously enforce anti-discrimination laws to shine a light on and stop harassment and retaliation.”

“Employers should embrace the opportunity to address harassment and discrimination when it is reported to them. Retaliation chills others from coming forward and creates a work culture that adversely affects all employees, thereby negatively affecting the company’s brand and bottom line, said Los Angeles District Director Christine Park-Gonzalez. “Addressing such complaints in a timely, fair, and effective manner will benefit all employees.”      

For additional information on harassment, please visit https://www.eeoc.gov/harassment and  https://www.eeoc.gov/sexual-harassment. For more information on retaliation, go to https://www.eeoc.gov/retaliation.

Fla. Dollar General Hit With Safety Violation Fine

It bears repeating. Discounts are fine, but not at the expense of workers’ safety.

Federal workplace safety inspectors have found Dollar General Corp., one of the nation’s largest discount retailers, exposing its employees and others to unsafe conditions again, this time in Winter Garden, Florida.

In October 2022, inspectors with the U.S. Department of Labor’s Occupational Safety and Health Administration found employees facing fire and entrapment hazards as shelving, rolling containers and merchandise blocked exit routes. OSHA also discovered merchandise blocking walkways and items stacked in an unstable manner, exposing workers to trip and struck-by hazards.

The agency cited the company with one willful violation and two repeat violations. Dollar General faces $401,812 in newly proposed penalties.

Since 2017, OSHA has assessed Dollar General Corp. and Dolgencorp more than $16 million in fines and issued citations in more than 180 inspections of Dollar General stores nationwide for numerous willful, repeat and serious workplace safety violations related to unsafe conditions.

“Years of OSHA inspections that have identified systemic hazards makes it clear that Dollar General values profits more than the safety of the people who work in their stores,” said OSHA Regional Administrator Kurt Petermeyer in Atlanta. “They are well aware of federal requirements, but they continue to ignore their legal responsibilities to protect their employees at stores throughout the nation.”

In 27 Dollar General store inspections in Alabama, Florida and Georgia from Feb. 1, 2022, through March 13, 2023, OSHA assessed the company with a total of nearly $8.5 million in penalties.

Based in Goodlettsville, Tennessee, Dollar General Corp. and Dolgencorp LLC operate about 19,000 stores and 28 distribution centers in 47 states and employ more than 173,000 workers. In fiscal year 2022, the company reported more than $9 billion in net sales.

The company has contested the findings before the independent Occupational Safety and Health Review Commission.

Paper Mill Hit With $227K Fine in Safety Case

Manufacturing good. Death on job bad.

Federal workplace safety inspectors examining how a 36-year-old worker suffered fatal electrocution in a Maplesville paper mill found his employer willfully violating safety standards, including disregarding hazardous energy control procedures that protect employees performing maintenance on machinery.

An investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration into the Sept. 28, 2022, incident found a three-person team of employees of South Coast Paper LLC was working on a line of a sheeter machine – a system of six machines connected by metal conveyors that transforms paper rolls into copier paper – when they noticed one of the conveyor belts had stopped. During actions to replace the belt’s motor – without de-energizing the machines in use – a hot wire made contact with the ground and energized the machine. The 36-year-old worker suffered electrocution when he grabbed a metal rail connected to the conveyor system.

“There is no reason to perform maintenance on machinery without first taking all steps to de-energize that piece of equipment. Doing otherwise places workers at serious risk for injury and death,” said OSHA Area Office Director Jose Gonzalez in Mobile, Alabama. “South Coast Paper’s failure to follow established safety procedures cost this worker their life and has left family, friends and co-workers to mourn.”

OSHA cited the company with one willful violation for allowing employees to perform maintenance on machinery without ensuring the development and documentation of hazardous energy control procedures and that they were followed. The agency also cited South Coast Paper with a repeat violation for allowing workers to perform maintenance on machines without first being trained to make sure they possessed the knowledge and skills for safely applying, using and removing hazardous energy controls. OSHA cited the company for a similar violation in June 2022 at its Burlington, New Jersey, facility.

In addition, the agency cited South Coast Paper for lack of machine guarding, and not providing clear access in front of a 480-volt breaker panel nor training on electrical safe work practices.

OSHA has proposed $227,040 in penalties for the violations.

The company has 15 business days from receipt of the citations and penalties to comply, request an informal conference with OSHA, or contest the findings before the independent Occupational Safety and Health Review Commission.

Visit OSHA’s website for information on developing a workplace safety and health program. Employers can also contact the agency for information about OSHA’s compliance assistance resources and for free help on complying with OSHA standards.

OSHA Finds U.S. Vets Facility Broke Safety Rules

The feds are supposed to be a role model for the private sector–but were a bad one in this case.

Federal safety inspectors found that the U.S. Department of Veterans Affairs endangered maintenance workers at its healthcare facility in Prescott by allowing them to work on steam lines without ensuring they followed required safety procedures.

The U.S. Department of Labor’s Occupational Safety and Health Administration identified one willful violation and two repeated violations by the department’s Northern Arizona Veterans Affairs Health Care System and issued three serious notices for exposing employees to burns and other serious injuries. OSHA identified the violations during an October 2022 inspection.

The findings come less than two years after a pair of workers died at the Veterans Affairs Healthcare System in West Haven, Connecticut, in November 2020 after suffering fatal burns while working on a steam line. In that case, OSHA cited similar violations to those found in Prescott.

“Despite the tragic and preventable deaths of two workers at a facility in Connecticut in 2020, the U.S. Department of Veterans Affairs allowed the same hazards to endanger employees working on steam lines at its Prescott, Arizona, facility,” said OSHA Area Director T. Zachary Barnett in Phoenix.

During the inspection, OSHA inspectors determined the Prescott facility lacked energy-isolating procedures — also known as lockout/tagout — that are designed to prevent the release of hazardous energy when steam lines are being maintained or serviced. They found employees followed an ad-hoc process that did not meet OSHA requirements, and that the facility failed to train workers on safety procedures.

“Federal law requires all employers, public or private, to provide a safe workplace. Management at all Veterans Affairs facilities should review their employee safety and health programs to ensure they comply with industry and OSHA standards for isolating hazardous energy before another tragedy occurs,” Barnett added.

The Veterans Affairs’ Northern Arizona Healthcare System serves the healthcare needs of more than 33,000 veterans at 12 locations in the region. The department provides benefits, healthcare and cemetery services to military veterans, families and survivors. The VA employs nearly 400,000 people at its medical facilities, clinics and benefits offices.

Under Executive Order 12196, federal agencies must comply with the same safety and health standards as private sector employers covered under the Occupational Safety and Health Act of 1970. Federal agencies are issued notices of unsafe and unhealthful working conditions and required to demonstrate they have abated hazards found but are not assessed monetary penalties. For similar violations, a private sector employer could face penalties of up to $315,875.

The Department of Veterans Affairs has 15 business days from receipt of the notices to comply, request an informal conference with OSHA’s area director or appeal the notices by submitting a summary of the agency’s position on the unresolved issues to OSHA’s regional administrator in San Francisco.