EEOC Sues Employer for Not Accommodating Applicant With an Alternative Drug Screening

It seems this employer simply couldn’t be bothered to offer this applicant a reasonable accommodation-or check whether one had been offered in other similar situations.

Employment & Training Centers, Inc. violated federal law by refusing to provide a reasonable accommodation for an individual applying for a data entry position in its Houston office, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed yesterday.

According to the EEOC’s lawsuit, Employment & Training Centers, Inc. interviewed an applicant with an end-stage renal disease and made a conditional offer of employment to the applicant, subject to the applicant passing a drug screen. The applicant informed the company that because of his disability he could not produce urine and requested an alternative method of drug screening. The company rejected his request and said they could not provide a reasonable accommodation as no alternate test was available. The company then rescinded the conditional job offer. However, internal records revealed that one or more alternative testing methods were available.

Such conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination on the basis of a disability. The EEOC filed suit (EEOC v. Employment & Training Centers, Inc., Civil Action No. 4:23-cv-03201) in U.S. District Court for the Southern District of Texas in Houston after first attempting to reach a pre-litigation settlement through the agency’s administrative conciliation process.

“When a reasonable accommodation exists and does not pose an undue hardship on an employer, the employer cannot refuse to grant the accommodation request simply because it might pose a minor inconvenience,” said Rayford O. Irvin, district director of the EEOC Houston District Office.

EEOC Houston District Office Trial Attorney Lloyd van Oostenrijk said, “Companies must live up to their responsibility to provide reasonable accommodations to applicants and employees who need them. The cost of providing an accommodation is often quite low and not difficult for companies to assume.”

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

OSHA Would Expand Third Party Permission to Accompany Employees During Safety Inspections

A rulemaking initiated by the DOL on Wednesday would broaden the scope of who can accompany employees during workplace safety inspections.

The U.S. Department of Labor yesterday announced a notice of proposed rulemaking to revise regulations regarding who can be authorized by employees to act as their representative to accompany the department’s Occupational Safety and Health Administration compliance officers during physical workplace inspections.

Specifically, the proposed rule clarifies that employees may authorize an employee, or they may authorize a non-employee third party if the compliance officer determines the third party is reasonably necessary to conduct an effective and thorough inspection.

The proposed changes also clarify that third-party representatives are not limited to industrial hygienists or safety engineers, two examples included in the existing regulation. Third-party representatives may be reasonably necessary because they have skills, knowledge or experience that may help inform the compliance officer’s inspection. This information may include experience with particular hazards, workplace conditions or language skills that can improve communications between OSHA representatives and workers.

“Congress considered worker participation a key element of workplace safety and health inspections when it passed the Occupational Safety and Health Act,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “This proposal aims to make inspections more effective and ultimately make workplaces safer by increasing opportunities for employees to be represented in the inspection process.”

In addition to the NPRM’s proposed revisions, OSHA is also seeking public comment on the criteria and degree of deference OSHA should give to employees’ choice of representative in determining whether a third party can participate in an inspection.

The Occupational Safety and Health Act gives the employer and employees the right to have a representative authorized by them accompany OSHA officials during a workplace inspection to aid the investigation. Employee participation and representation is critical to an inspector’s ability to complete a thorough and effective workplace investigation and helps OSHA gather information about the job site’s conditions and hazards.

The proposed revisions do not change existing regulations that give OSHA compliance officers the authority to determine if an individual is authorized by employees and to prevent someone from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection, or to limit participation to protect employer trade secrets.

Submit comments at Regulations.gov, the federal eRulemaking portal by Oct. 30, 2023. Include Docket Number OSHA-2023-0008 on all submissions. Read the Federal Register notice for more information.

Learn more about OSHA.

My thanks to Jon Hyman for including this post in his must-reads of the week in Friday’s Ohio Employer Law Blog roundup.

EEOC Charges Vegas Eatery in Harassment Cae

This alleged misconduct shouldn’t stay in Vegas–or anywhere else for that matter.

KVP, LP, doing business as Bouchon Restaurant, and KRM, Inc, doing business as Thomas Keller Restaurant Group, together operate a restaurant chain including restaurants such as French Laundry, Bouchon Bistro, and Bouchon Bakery, violated federal law by subjecting employees to sexual harassment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed August 24.

According to the EEOC’s lawsuit, since at least 2018, managers at Bouchon Las Vegas sexually harassed female and male employees on a daily basis. The harassment included unwanted and repeated sexual advances, sexual comments, sexually offensive conduct, and unwelcome physical contact. Despite receiving complaints, Bouchon and Thomas Keller Restaurant Group failed to take appropriate and effective action to prevent the ongoing sexual harassment. Instead, some employees who complained faced retaliation.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits a hostile work environment based on sex, including sexual harassment, as well as retaliation against individuals who complain about sexual harassment or engage in other protected activity. The EEOC filed suit (EEOC v. KVP, LP, et al., Case No. 2:23-cv-01308) in the U.S. District Court for the District of Nevada after first attempting to reach a pre-litigation settlement through its voluntary conciliation process. The EEOC seeks monetary damages for the claimants, including compensatory and punitive damages, and injunctive relief against the company to prevent such unlawful conduct in the future.

“Sexual harassment in the restaurant and hospitality industry is a common charge made to the EEOC,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Las Vegas in its jurisdiction. “Employers have an obligation to ensure their worksites are free from harassment and retaliation and address such behavior if it arises.”

“Being faced with sexual harassment on a daily basis is a nightmare for employees. The impact of harassment on individuals can have long-lasting effects on the survivors,” said Las Vegas Local Office Director Michael Mendoza. “The EEOC will continue to work tirelessly to stop and rectify harassment and retaliation in the workplace.”

For more information about sexual harassment, visit: https://www.eeoc.gov/sexual-harassment. To learn more about retaliation: https://www.eeoc.gov/retaliation.

State Agency Ordered by OSHA to Remove Reprimand From File of Safety Whistleblower

A reminder to employers that retaliating against an employee because they report safety concerns to the authorities violates federal law.

A federal whistleblower investigation has found the North Dakota Department of Environmental Quality illegally retaliated against an environmental scientist after they reported safety concerns about the public water system to management and later contacted the U.S. Environmental Protection Agency.

The U.S. Department of Labor’s Occupational Safety and Health Administration determined the DEQ’s actions violated federal law that protects employees who share water safety information and ordered the department to remove the written reprimand from the employees’ personnel file.

OSHA investigators learned that the employee – who worked for the agency for more than seven years – raised safety concerns to their supervisor over a six-month period and alerted the EPA about defects in reporting and data collection and concerns that sanitary violations were being downgraded to minor violations. The supervisor requested the employee stop communicating with the EPA and, on July 1, 2022, issued him a written reprimand for contacting the EPA.

“Employees have the right to report potential violations related to safe drinking water and it is illegal for employers to retaliate against those who do,” explained OSHA Regional Administrator Jennifer S. Rous in Denver. “Our investigation and actions on the environmental scientist’s behalf reflect the U.S. Department of Labor’s determination to make sure workers’ rights are protected.”

Based in Bismarck, the North Dakota Department of Environmental Quality is tasked with protecting the state’s air and water resources.

The department and the employee may file objections or request a hearing with the department’s Office of Administrative Law Judges within 30 days of receiving the agency’s order.

OSHA enforces the whistleblower provisions of the Safe Drinking Water Act and more than 20 other statutes protecting employees who report violations of various workplace safety and health, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, criminal antitrust and anti-money laundering laws. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.

EEOC Alleges Rampant Harassment at Vegas Bar

The behavior alleged here harkens back to Mad Men days–or worse.

Mariscos El Puerto, Inc. and La Catrina, LLC, a restaurant and bar based in Las Vegas, violated federal law when its owners, managers, supervisors, co-workers, and customers subjected female workers to sexual harassment and subjected gay and lesbian workers to discrimination and harassment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in two separate lawsuits filed August 24.                                          

According to the first lawsuit, since 2015, male managers, supervisors, co-workers, and/or customers of Mariscos and La Catrina subjected female workers at the restaurant and bar to sexual harassment. Male managers and/or supervisors required female employees to engage in sexual activities to maintain their employment and terminated employees who refused. The harassment also included sexual assaults, sexual solicitations, inappropriate touching of the buttocks and breasts, males rubbing up against the female workers, and frequent explicit sexual comments.

The second lawsuit alleges Mariscos’ and La Catrina’s owners, managers, and/or supervisors discriminated against gay and lesbian workers and subjected them to harassment based on their sexual orientation, which included physical assault and offensive slurs. The two lawsuits further allege that for some workers, the working conditions were so intolerable they felt they had no choice but to quit.

Such alleged conduct violates Title VII of the Civil Rights Act of of 1964, which prohibits sexual harassment, harassment and retaliation for opposing such behavior. The EEOC filed the two suits in U.S. District Court for the District of Nevada (EEOC v. Mariscos El Puerto, Inc. and La Catrina, LLC, Case Nos. 2:23-cv-01309 and 2:23-cv-01310) after first attempting to reach pre-litigation settlements through its conciliation processes.

The EEOC’s suit seeks compensatory and punitive damages for the complainants and class members as well as injunctive relief intended to prevent Mariscos and La Catrina from engaging in further discrimination, harassment, and retaliation.

“The EEOC continues to see egregious sexual harassment against vulnerable low-wage workers in the restaurant industry,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes Las Vegas in its jurisdiction. “The Commission will continue to vigorously enforce anti-discrimination laws on behalf of the most vulnerable workers.”

“Employers have an obligation to prevent and address harassment in the workplace,” said Michael Mendoza, director of the Las Vegas Local Office. “To allow a work environment to fester with sexual and sexual orientation harassment is unacceptable.”

To find out more information about sexual harassment, visit the EEOC’s website: https://www.eeoc.gov/sexual-harassment. For more information on sexual orientation discrimination, visit: https://www.eeoc.gov/sexual-orientation-and-gender-identity-sogi-discrimination; and for retaliation: https://www.eeoc.gov/retaliation.

OSHA, Dollar Tree Sign New Pact on Safety

Amid the usual bad news on workers’ safety, here is ray of hope.

The U.S. Department of Labor announced Wednesday that its Occupational Safety and Health Administration has entered into a corporate-wide settlement agreement with the operators of one of the nation’s largest discount retail chains to improve workplace safety significantly in stores nationwide.

The settlement agreement requires Dollar Tree and Family Dollar to conduct a comprehensive, nationwide assessment of the root causes of the violations OSHA has repeatedly cited at multiple stores, with a plan to identify causes and make operational changes to correct them within a two-year period. In the meantime, to ensure prompt abatement of any future violations related to blocked exits, access to fire extinguishers and electrical panels, and improper material storage at stores nationwide, the companies must correct hazards — within 48 hours of OSHA notifying them — and later submit proof the hazards were corrected. Failure to do so subjects the companies to monetary assessments of $100,000 per day of violation, up to $500,000, as well as OSHA inspection and enforcement actions.

“By securing this agreement with Dollar Tree and Family Dollar, the department is making good on President Biden’s commitment to be the most pro-worker administration in history,” said Acting Secretary of Labor Julie Su. “At the Department of Labor, we know that every worker deserves to come home safe at the end of the workday. Through our robust enforcement of workplace protections and use of innovative legal methods that resulted in this agreement, thousands of workers will have a healthier, safer and more certain future.”

“By creating incentives for companies to implement systemic solutions nationwide, the Department of Labor has created a pathway to ensuring more workers are safe and protected when they’re at work,” said Solicitor of Labor Seema Nanda. “The Solicitor’s office and OSHA support innovative agreements under which companies commit to solve the underlying problems that create hazards. We were willing to use this approach because these companies had already taken substantial steps to address the systemic issues, which gave us confidence that this innovative approach would work.”

“This agreement focuses on improving working conditions at thousands of stores nationwide,” said Assistant Secretary for Occupational Safety and Health Doug Parker. “Dollar Tree and Family Dollar have agreed to significant investments to more effectively identify and correct the root causes of the hazards most commonly found during OSHA inspections, including blocked exits and unstable stacking of materials.”

The companies have also agreed to pay $1.35 million in penalties to settle existing contested as well as open inspections of similar alleged violations.

Entered on Aug. 17, 2023, the corporate-wide settlement agreement covers all Dollar Tree and Family Dollar stores within federal OSHA jurisdiction. As part of the agreement, which may last up to two years, the company will form safety advisory groups with extensive employee representation, enhance hazard identification and control programs, develop an audit program, create a new employee training program and hire additional safety professionals.

Dollar Tree has also agreed to maintain a 24-hour hotline to receive safety complaints and establish a tracking system to ensure complaints are addressed. The company will also hold quarterly meetings between OSHA and its Dollar Tree and Family Dollar operations to discuss progress towards systemic improvements.

Based in Chesapeake, Virginia, Dollar Tree operates more than 16,000 Dollar Tree and Family Dollar stores in 48 states and Canada, and is one of the nation’s largest chains of discount retail locations as Dollar Tree and Family Dollar stores. The company also maintains a nationwide logistics network and employs more than 193,000 people.

Systemic Bias at Top of List in EEOC’s New Plan

Planning is good. It gives employers and employees a roadmap as to the agency’s priorities in the next several years.

The U.S. Equal Employment Opportunity Commission (EEOC) announced August 22 it has approved its Strategic Plan for Fiscal Years 2022-2026 https://www.eeoc.gov/eeoc-strategic-plan-2022-2026. Implementation will begin immediately.

The Strategic Plan serves as a framework for achieving the EEOC’s mission to prevent and remedy unlawful employment discrimination and advance equal employment opportunity for all.  The Plan also sets forth its vision of fair and inclusive workplaces with equal opportunity for all.

To accomplish this mission and advance the agency’s vision, the Strategic Plan outlines the EEOC’s strategic goals and objectives to: combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities; prevent employment discrimination and advance equal employment opportunities through education and outreach; and strive for organizational excellence through its people, practices, and technology.

Highlights of the new Strategic Plan include:

• Increased focus on systemic discrimination. The Plan emphasizes expanding the EEOC’s capacity to eliminate systemic barriers to equal opportunity in the workplace, including training staff to identify and investigate systemic cases and devoting additional resources to systemic enforcement.
• Improved monitoring of conciliation agreements to ensure workplaces are free from discrimination after the EEOC makes a finding of discrimination.
• Enhanced intake services to potential charging parties, respondents, and representatives. Under the Plan, the EEOC will focus on improving and expanding access to intake services, increasing the availability of intake interview appointments, and improving overall service to the public.
• Leverage technology and innovative outreach strategies to expand the agency’s reach to diverse populations; vulnerable communities; and small, new, and disadvantaged or underserved employers.
• Promote promising practices that employers can adopt to prevent discrimination in the workplace.

The Government Performance and Results Act (GPRA) Modernization Act requires executive departments, government corporations, and independent agencies to develop and post a strategic plan on their public websites every four fiscal years. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future.

The EEOC also publishes a Strategic Enforcement Plan (SEP), which is a separate document that establishes the EEOC’s substantive area priorities for its work to advance equal employment opportunity and prevent and remedy discrimination in the workplace. 

EEOC Settles Pregnancy Charge With Restaurant

Looks like this employer wasn’t up to date on the latest laws strengthening protections for pregnant workers.

Hoyle Enterprises LLC, doing business as Lady Luck Steakhouse (“Lady Luck”), a local restaurant in Tacoma, Washington, has agreed to the terms of a conciliation agreement following the investigation of a charge of discrimination filed with the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced yesterday.

According to the EEOC, Lady Luck fired a newly-hired pregnant worker after completing a single shift. Lady Luck’s management team also had a practice of excluding pregnant workers from working certain “club night” shifts. Such conduct and policies violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on sex, including pregnancy and pregnancy-related conditions. 

According to the terms of the two-year conciliation agreement, Lady Luck will provide compensatory damages and backpay to the former employee. In addition, the restaurant owners agree to revise its nondiscrimination policy, stop preventing pregnant employees from working certain shifts and performing certain duties, and conduct a training for management and human resources personnel. They will also provide periodic updates and reports to the EEOC.

“Pregnant workers must be afforded the same rights and benefits as non-pregnant workers. Well-intended as some employers may be, placing special conditions or limits on a worker simply because they are pregnant is against the law,” said Elizabeth M. Cannon, director of EEOC’s Seattle Field Office. “Not only that, but under the Pregnant Workers Fairness Act (PWFA), which went into effect on June 27, 2023, employers are also required to provide reasonable accommodations to workers who are pregnant, trying to become pregnant, experiencing pregnancy-related medical conditions, or recovering from childbirth, unless it causes an undue hardship.”  

The EEOC’s Seattle Field Office has jurisdiction over Alaska, Idaho, Montana, Oregon, and Washington. More information about pregnancy discrimination can be found at https://www.eeoc.gov/pregnancy-discrimination. To learn more about the PWFA, visit https://www.eeoc.gov/wysk/what-you-should-know-about-pregnant-workers-fairness-act.

Corning Out $180K in Sex Bias Settlement

The employer was asking for trouble by limiting job opportunities to men over similarly or more qualified women.

Corning Incorporated will pay $120,000 and furnish other relief to settle a sex discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced August 18.

According to the EEOC’s lawsuit, Corning violated federal law by failing to promote female “process assistants” (machine operators) at its Sullivan Park and Big Flats locations in southern central New York.

The EEOC alleged that, at its Sullivan Park and Big Flats locations, Corning groomed male process assistants for advancement, provided them with greater training opportunities, and bent its own eligibility rules to place them in line lead positions instead of similarly or more qualified women.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating based on sex. The EEOC filed suit (EEOC v. Corning Incorp­orated, Civil Action No. 6:21-cv-06745) in U.S. District Court for the Western District of New York in December 2021 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.

In addition to the monetary relief, the three-year consent decree resolving the suit requires Corning to provide enhanced anti-discrimination training, with a focus on hiring; revise its equal employment opportunity policies; modify its line lead hiring processes; and receive and investigate complaints of discrimination and retaliation and report the same to the EEOC. The EEOC will monitor Corning’s compliance with these obligations for the next three years.

“The EEOC appreciates Corning’s willingness to make critical changes to its line lead hiring process, changes that we believe will lead to the advancement of qualified employees regardless of their sex,” said EEOC’s Jeffrey Burstein, regional attorney for the New York District Office.

EEOC New York Acting District Director Timothy Riera added, “The EEOC takes seriously its responsibility to enforce federal law. We encourage employers to be proactive in ensuring that decisions on promotions and other workplace opportunities, such as training, are made without regard to gender.”

For more information about sex discrimination, please visit https://www.eeoc.gov/sex-based-discrimination.

The EEOC’s New York District Office is responsible for addressing discrimination charges and conducting agency litigation in Connecticut, Maine, Massachusetts, New Hampshire, New York, northern New Jersey, Rhode Island and Vermont.

Employer, Successor Found Liable in Race Case

The employer rolled the dice in taking this case to a jury — and lost its bet.

The U.S. Equal Employment Opportunity Commission (EEOC) has won a victory in federal court in Pittsburgh, Pennsylvania, in its employment discrimination lawsuit against Coastal Drilling East, LLC and Coastal Well Service, LLC, the federal agency announced August 16.

The EEOC originally filed the racial harassment case against Coastal Drilling East, LLC (Coastal Drilling), a Pennsylvania-based company that provides geotechnical construction services in the oil and natural gas industry, on September 13, 2021. According to the lawsuit, a Black employee at Coastal Drilling’s Graysville, Pennsylvania, site was subjected to severe racial harassment by his coworkers, including being handed a noose, open display of nooses on other occasions, and persistent use of racial epithets such as “n****r” in reference to himself and other Black persons.

A direct supervisor tolerated and participated in some of the racial harassment, the EEOC said. Coastal Drilling was aware of the racial harassment in its workplace but failed to take action to stop it from occurring, eventually forcing the Black worker to resign his employ­ment, the EEOC charged.

Such conduct violates Title VII of the Civil Rights Act of 1964, which prohibits racial harassment and forced resignation from employment because of race. The EEOC originally filed suit against Defendant Coastal Drilling East, LLC in U.S. District Court for the Western District of Pennsylvania (U.S. EEOC v. Coastal Drilling East, LLC & Coastal Well Service, LLC, Civil Action No. 2:21-cv-01220-JFC). Defendant Coastal Well Service, LLC was created after the Title VII violations committed in the case, and the EEOC subsequently added Coastal Well Service as a defendant in the lawsuit in its capacity as a successor-in-interest to the well services division of Coastal Drilling East. 

On December 5, 2022, a unanimous eight-person federal jury in Pittsburgh found that Coastal Drilling East, LLC and Coastal Well Service, LLC violated federal law when they subjected a Black employee to racial harassment and forced resignation because of race. The federal jury returned a verdict in favor of EEOC, finding that the defendants violated the Black employee’s rights under Title VII, and awarding him $24,375 in compensatory damages for emotional distress. On August 16th, 2023, Senior U.S. District Judge Joy Flowers Conti subsequently entered an order requiring the defendants to pay the Black employee an additional $56.093.62 in back pay and other relief for the Title VII violations found by the jury. The court also ordered a permanent injunction for a two-year period barring the defendants from engaging in or tolerating racial harassment and requiring them to implement other measures to prevent further violations of federal law.

“Nooses and racial slurs have no place in the workplace and construction sites are no exception,” said EEOC Chair Charlotte A. Burrows.  “Unfortunately, racial harassment remains a significant barrier to entry, retention, and advancement of people of color in the construction industry.  The EEOC is committed to doing its part to ensure that all workers are able to join and thrive in this critically important industry.”

For more information on race and color discrimination, please visit https://www.eeoc.gov/racecolor-discrimination. For more information on harassment, please visit https://www.eeoc.gov/harassment

The lawsuit was initiated 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 Pennsylvania, West Virginia, Maryland, Delaware, and portions of New Jersey and Ohio. Attorneys in the Philadelphia District Office also prosecute discrimination cases in Washington, D.C. and portions of Virginia.