See Something, Say Something: EEOC Bids Workers Report on Harassment at Restaurant

Where there’s smoke there’s fire. Or at least the government suspects there’s more sexual harassment fires to put out at this restaurant chain.

The U.S. Equal Employment Opportunity Commission (EEOC) encourages victims of or witnesses to sexual harassment at Swami’s restaurants to come forward and report their experiences to the federal agency in connection with an EEOC lawsuit against the chain.

On May 17, 2023, the EEOC filed a lawsuit in federal court against Swami’s for sexual harassment and retaliation. The respondents include Swami’s 101 LLC dba Swami’s Café; Swami’s Vista LLC; Swami’s Carlsbad LLC; Swami’s Escondido LLC; Swami’s Oceanside LLC; Swami’s La Mesa LLC; Swami’s North Park LLC; Swami’s Hillcrest LLC; Swami’s Downtown LLC; and Honey’s Bistro; LLC.

According to the EEOC’s suit, the Swami’s restaurants have maintained a hostile work environment where young female employees were subjected to frequent, ongoing, inappropriate, unwelcome and offensive sexual misconduct by a Swami’s manager, other male employees, and customers. The EEOC alleges, among other things, that male employees routinely touched female employees, some of whom were underage, made lewd comments about their appearance, and asked them on dates and to engage in sexual activities. When the employees complained, nothing was done to address the harassment and misconduct.

Further, because of the employees’ complaints about this hostile work environment and Swami’s failure to take corrective action, the EEOC alleges that the company reduced the employees’ work hours; terminated them; intimidated them physically and emotionally; unfairly and incorrectly reprimanded them for their work performance; and/or left the employees with no choice but to resign.

The EEOC has resolved the lawsuit against Swami’s Downtown LLC, which has agreed to expansive injunctive remedies. Because the EEOC represents the public, it does not collect attorneys’ fees for bringing cases on the public’s behalf. The case against the remaining Swami’s restaurants continues.

If you feel you were subjected to, or witnessed, any conduct similar to the above at any of the of the Swami’s locations, please contact EEOC Regional Attorney Anna Park or the EEOC by phone or email: at 213-785-3095, Option 4, or SwamisLitigation@eeoc.gov.

“Though it can be difficult to come forward, this case is very important for the public good, involving sexual harassment and retaliation against many people in various locations,” Park said. “The EEOC encourages anyone who experienced or witnessed harassment at the aforementioned Swami’s locations or Honey’s Bistro from 2019 to the present to contact us.”

For more information about the case, you may refer to https://www.eeoc.gov/newsroom/eeoc-sues-swamis-cafe-and-honeys-bistro-sexual-harassment-and-retaliation.

Preventing workplace harassment through systemic litigation and investigation is one of the six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP). For more information on the Commission’s SEP go to: https://www.eeoc.gov/strategic-enforcement-plan-fiscal-years-2024-2028.

The EEOC’s Los Angeles District Office has jurisdiction over San Diego County.

Vulnerable Workers Focus of EEOC Outreach

People from “vulnerable” and underserved” communities have an ally in the federal government. But if you employ these folks, this is a warning to get on the right side of the law.

The U.S. Equal Employment Opportunity Commission (EEOC) on Monday launched the REACH initiative: “Enhancing OutREACH to Vulnerable Workers and Underserved Communities,” a new, multi-year effort led by Commissioner Kalpana Kotagal. The initiative focuses on ensuring EEOC’s outreach and education efforts are effectively reaching workers who often are the least likely to seek the agency’s assistance, despite their great need.

“I am delighted that Commissioner Kotagal agreed to lead this critical effort to ensure that the EEOC is accessible to all members of the public, including the most vulnerable workers and those who live in parts of the country that are geographically removed from an EEOC office,” said EEOC Chair Charlotte A. Burrows.  “The REACH initiative will help us to identify ways to more effectively reach underserved communities—including rural areas, many Tribal nations, and other communities at significant distance from the EEOC’s 53 field locations.”

The REACH initiative will:

• Hold in-person and virtual listening sessions with a broad range of stakeholders in different areas around the country to examine how the EEOC can bolster its efforts to reach vulnerable and underserved communities by identifying existing barriers to reporting discrimination and soliciting recommendations on how to serve these populations better.
• Review and evaluate existing research and recommendations on effective outreach strategies, tools, and methods to inform the work of the initiative.
• Identify best practices for reaching vulnerable and underserved communities and consider how to develop an increased presence in rural areas and areas far from physical EEOC office locations.
• Develop recommendations to present to the EEOC Chair for enhancing outreach efforts.

Kotagal is holding her first in-person REACH listening session in Las Vegas today with local non-profit organizations and labor unions that have experience working with low-wage workers and workers of color and serve as trusted partners on the ground.

“As the daughter of immigrants, I know what is possible in this great country, and that it is due in no small part to our nation’s deep commitment to equal opportunity,” Kotagal said. “By ensuring that the Commission is accessible to vulnerable and underserved communities, we can advance fair and inclusive workplaces and achieve systemic change. I’m grateful for the opportunity to hear directly from local stakeholders across the country about how the agency can enhance its outreach efforts and make the promise of equal opportunity a reality for all.”

The REACH initiative advances the EEOC’s Strategic Plan for Fiscal Years 2022-2026’s Objective II.A to ensure “[m]embers of the public are aware of employment discrimination laws and know their rights and responsibilities under these laws.”

Also, it furthers the EEOC’s Strategic Enforcement Plan for Fiscal Years 2024-2028 (SEP), which prioritizes protecting vulnerable workers from employment discrimination. The SEP identifies vulnerable workers as: immigrant and migrant workers and workers on temporary visas; people with developmental or intellectual disabilities; workers with mental health related disabilities; individuals with arrest or conviction records; LGBTQI+ individuals; temporary workers; older workers; individuals employed in low wage jobs, including teenage workers employed in such jobs; survivors of gender-based violence; Native Americans/Alaska Natives; and persons with limited literacy or English proficiency.

Kotagal joined the EEOC as a commissioner Aug. 9, 2023, for a term expiring in July 2027.

Restaurant Settles Transgender Bias Claim

Employers are on notice that they cannot tolerate the type of behavior alleged in this lawsuit.

T.C. Wheelers, Inc., a restaurant that operates as T.C. Wheelers Bar & Pizzeria in Tonawanda, New York, has agreed to pay $25,000 and provide other relief to settle a sex-based harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced January 22.

According to the EEOC’s lawsuit, the owners and staff of the restaurant verbally harassed Quinn Gambino, a transgender man, by making crude and derogatory references to his transgender status, including telling him that he “wasn’t a real man,” and asking invasive questions about his transition and genitalia.

The EEOC also alleged that the owners repeatedly and intentionally misgendered Gambino by using female pronouns and failed to correct the behavior of employees and customers who did the same. Although the employee reported the harassment to his manager on several occasions, the behavior continued until the employee was compelled to resign.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, including that based on gender identity and gender expression. The EEOC filed suit in U.S. District Court for the Western District of New York (EEOC v. T.C. Wheelers, Inc. d/b/a T.C. Wheelers Bar & Pizzeria, Civil Action No. 1:23-cv-00286) after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the three-year decree settling the suit, T.C. Wheelers agreed to pay Gambino $25,000 in back pay and compensatory damages. The decree provides that T.C. Wheelers institutes and enforces equal employment opportunity policies that include a strong and clear commitment to preventing unlawful sex discrimination and harassment, including discrimination and harassment towards transgender persons. To ensure compliance, T.C. Wheelers has hired an independent human resources monitor who will supervise and investigate all employee complaints.

Additionally, all owners, managers, and employees will be required to complete training on federal anti-discrimination employment laws, with a special emphasis on issues relating to gender identity and expression. T.C. Wheelers, through its independent human resource monitor, will provide annual reports to the EEOC regarding its implementation of these and other terms of the decree, and the EEOC will retain the right to inspect the company’s business records and premises to ensure compliance.

“We appreciate T.C. Wheeler’s agreement to settle this lawsuit and make proactive changes, and we are proud to have obtained an effective resolution that compensates Gambino for what he endured and helps ensure that other transgender employees will be treated fairly in the future,” said Jeffrey Burstein, regional attorney for the EEOC’s New York District Office.

EEOC New York District Director Yaw Gyebi, Jr. added, “The EEOC considers protecting members of the LGBTQIA+ community to be an important enforcement priority. We will continue to assure that transgender employees receive the full benefit of federal anti-discrimination laws in all industries.”

More information is available at www.eeoc.gov. For more information about sex discrimination visit https://www.eeoc.gov/laws/guidance/sex-discrimination

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

OSHA Calls Meeting of Construction Safety Panel

If you want a ringside seat to this vital convocation, then get your registration in soon, as seating is limited.

The U.S. Department of Labor’s Occupational Safety and Health Administration has scheduled a meeting of the Advisory Committee on Construction Safety and Health for Thursday, Feb. 22, 2024, from 9 a.m. to 4 p.m. EST.

The meeting will include remarks from the Assistant Secretary for Occupational Safety and Health Doug Parker, updates on the construction industry from OSHA’s Directorate of Construction, a discussion about women in construction, reports from committee workgroups and a period during which the public is invited to make comments.

Three ACCSH workgroups will meet on Feb. 21. The Emerging Technology workgroup from 9-11 a.m.; the Workzone workgroup from 12-2 p.m.; and the Health in Construction workgroup from 2:10-4:10 p.m.

The full committee and workgroup meetings are open to the public and will be held in Conference Room C-5521, Room 4, U.S. Department of Labor, 200 Constitution Ave., NW, Washington DC 20210. Public attendance in-person is limited to 25 people.

To register for in-person attendance, contact Gretta Jameson at jameson.grettah@dol.gov by Feb. 15. Submit comments and requests to speak at the Federal eRulemaking Portal, Docket Number OSHA-2024-0002, by Feb. 15. Be sure to include the docket number on all submissions. Details on how to attend online are included in the docket and are available on the ACCSH webpage. Read the Federal Register notice for submission details.

The Contract Work Hours and Safety Standards Act, also known as the Construction Safety Act, established the committee to advise the Secretary of Labor and Assistant Secretary for Occupational Safety and Health on CSA-related policy matters and the setting of construction standards.

Classy Hotel Inks ADA Settlement With EEOC

Is standing really such an essential function that it can’t be accommodated? Is it worth losing a valued employee over a rigid one-sided-fits-all policy?

Those questions were at the heat of a recent lawsuit brought by the federal government.

299 Madison Ave. LLC, doing business as Library Hotel, a luxury boutique hotel in New York City, will pay $42,000 to a former front desk employee to resolve a disability discrimination lawsuit filed pursuant to the Americans with Disabilities Act (ADA) by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced yesterday.

According to the EEOC’s lawsuit, a guest services agent for the hotel submitted medical support for, and requested use of a chair or stool as an accommodation for the employee’s disability, which made standing for prolonged periods of time difficult.

Library Hotel denied the request based on its policy that guest services agents must stand at all times, and instead offered insufficient and undesirable alternative accommodations. The employee attempted to continue to work without the accommodation, but was forced to resign in light of a continuing deterioration of the employee’s physical health.

Such alleged conduct violates the ADA, which prohibits an employer from failing to reasonably accommodate an employee’s qualifying disability, absent undue hardship. The EEOC filed suit in U.S. District Court for the Southern District of New York (EEOC v. 299 Madison Ave. LLC d/b/a Library Hotel, Civil Action No. 1:23-cv-08306) after first attempting to reach a pre-litigation settlement through its conciliation process. This case was litigated by EEOC Trial Attorneys Andres F. Puerta and Cara Chomski, and supervised by Assistant Regional Attorney Kimberly A. Cruz.

In addition to the monetary relief paid to the employee named in the suit, the consent decree resolving the litigation enjoins Library Hotel from enforcing any “standing only” policy against employees with disabilities where the employee’s disability prevents them from standing the entirety of their work shift. The decree also requires Library Hotel to significantly revise and reissue its ADA accommodations policy; provide management and employee training on the ADA; issue annual executive messages on equal employment opportunity (EEO) policies; include EEO language on the hotel’s career page and on its employment application; provide periodic reports to the EEOC; and post EEOC notices in the workplace.

“This case should serve as a stern warning to employers,” said EEOC Regional Attorney Jeffrey Burstein. “A company’s internal policy does not trump a company’s obligations under the ADA.”

Yaw Gyebi, Jr., director of the EEOC’s New York District Office, said, “The hotel industry in particular should take heed of this action. Inflexible employment policies applied universally without regard for the ADA’s reasonable accommodation mandate likely violate federal law.”

EEOC Trial Attorney Andres F. Puerta added, “When receiving a request for accommodation, employers should first assess whether the request is reasonable and can be accomplished without disrupting business operations, as opposed to whether a request is contrary to a rigid universal application of a company policy. This approach may better inform decision makers so that they may engage in a good-faith interactive process with the employee and do not run afoul of the ADA.”

For more information on disability discrimination, please visit https://www.eeoc.gov/disability-discrimination. For more information on reasonable accommodation under the ADA, visit https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#reassignment.

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

OSHA Lauds Alliance Agreements on Safety

Better to be pro-active rather than reactive when it comes to ensuring sure workplaces are safe. Here are the latest examples of employers and the government working together to create safer workplaces before problems occur.

Five organizations and businesses nationwide have signed and renewed alliance agreements with the Occupational Safety and Health Administration and organizations to provide workers with information on their legal and fundamental rights, guidance and access to training resources on workplace safety and health, the agency announced this week.

By joining with OSHA, these organizations benefit from fostering collaboration and can better focus on hazards in ways that are specific to their industries and workplaces.

The alliances will work together on initiatives and facilitate opportunities to:

• Promote worker rights for people who are Mexican Nationals in Missouri and Kansas.
• Provide information about safe excavation and trenching work in Missouri.
• Share safety best practices between OSHA and the Navy Fleet Readiness Center East in North Carolina.
• Reduce and prevent exposure to hazards associated with health care, transportation construction, warehousing, agriculture and education industries in Montana.
• Share information about workplace safety in the healthcare industry in Missouri, Nebraska, and Kansas.

“The most effective way to protect workers is for every employer to embrace safety and health as a core value in their workplaces,” said Doug Kalinowski, director of Cooperative and State Programs at OSHA. “These alliances from across the country and in various industries show that these employers have made worker safety and health a core value and are leaders in workplace safety.”

OSHA’s Alliance Program helps the agency develop working relationships with organizations that are committed to workplace safety and health. These groups include trade and professional associations, labor unions, educational institutions, community and faith-based groups, and government agencies.

Alliance participants work with OSHA to provide workers and employers with information, guidance, and resources to promote safety and health in workplaces. Alliances also ensure that workers know their rights under the Occupational Safety and Health Act.

Learn more about how employers can keep workers safe through OSHA alliances.

Employer Out $80K in Pay Settlement

Every employer knows that retaliating against an employee because they complain about discrimination only makes matters worse, right?

Not this one, apparently.

Medsurant Holdings, LLC, a Pennsylvania-based healthcare services company providing intraoperative neurophysiologic monitoring services to hospitals and surgeons in several states will pay $80,000 to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced Tuesday.

Medsurant Health’s monitoring services are performed by intraoperative neurophysiology monitorists, and according to the EEOC’s lawsuit, Medsurant paid a female monitorist less than her male coworkers for performing equal work, despite her excellent credentials and performance history. After she complained, the company retaliated against her and treated her worse than similarly situated male colleagues, resulting in her constructive discharge.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 and the Equal Pay Act of 1963, which prohibit pay discrimination based on sex and retaliation for engaging in protected activity. The EEOC filed suit in U.S. District Court for the Middle District of Tennessee (EEOC v. Medsurant Holdings, LLC et al.., Case No.3:23-cv-00501), after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $80,000 in monetary relief paid to the female monitorist, the consent decree resolving the litigation prohibits future pay discrimination or retaliation and requires Medsurant Health to take affirmative steps to prevent such discrimination in the future. These steps include the implementation of enhanced compensation and discrimination policies, training for human resources and management officials involved in compensation decisions, notices to employees about their rights, and an internal compensation audit.

Debra Lawrence, regional attorney in the EEOC’s Philadelphia District Office, said, “Employers should be proactively reviewing their own compensation systems for sex-based disparities, and they cannot punish an employee for raising equal pay concerns.”

Philadelphia District Office Director Jamie Williamson said, “More than 60 years after passage of the Equal Pay Act, women continue to face pay disparities in the workplace. The EEOC stands ready to assist victims of pay discrimination.”

For more information about equal pay and compensation, see: https://www.eeoc.gov/equal-paycompensation-discrimination. For more information on sex-based discrimination, please visit https://www.eeoc.gov/sex-based-discrimination. For more information on retaliation, see: https://www.eeoc.gov/retaliation.

The EEOC’s Philadelphia District Office has jurisdiction over Pennsylvania, West Virginia, 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.

Hospital Settles Religion Case Over Vaccine Rule

Sure, employees should be encouraged to get the flu shot, but to make it a must-have for a job without considering an exemption for those with religious opposition to the vaccine is going too far.

Trinity Health Grand Rapids, formerly known as Mercy Health St. Mary’s, a hospital and member of the Trinity Health-Michigan health system, agreed to pay $50,000 and provide other relief to settle a religious discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced January 19.

According to the EEOC’s lawsuit, Trinity Health violated Title VII of the Civil Rights Act of 1964 by rescinding a job offer to an applicant who, for religious reasons, refused to receive a flu vaccine. Under Trinity Health’s influenza policy, which has since been rescinded, employees were required to get a flu shot on an annual basis unless granted an exemption. While the applicant’s conditional job offer for the position of business-office coordinator was pending, he applied for an exemption to the flu-shot requirement based on his religious beliefs. Trinity unlawfully denied his request and rescinded the job offer, the EEOC said.

Such alleged conduct violated Title VII of the Civil Rights Act of 1964, which prohibits religious discrimination. The EEOC filed suit (EEOC v. Trinity Health-Michigan, d/b/a Mercy Health St. Mary’s, Case No. 1:23-cv-00435) in U.S. District Court for the Western District of Michigan after first attempting to reach a pre-litigation settlement through its administrative conciliation process.

Under the consent decree settling the suit, Trinity Health is enjoined from failing to hire applicants because of their sincerely held religious beliefs against taking the flu vaccine or denying religious exemptions from vaccination in the future, unless doing so would pose an undue hardship. The hospital will also train human resources and senior leadership team members at the hospital on Title VII’s religious protections for applicants and employees. In addition, the applicant will receive $11,348 in back pay along with $38,651 in non-economic damages.

“Employees should not have to check their religious beliefs at the workplace door,” said EEOC Senior Trial Attorney Dale Price. “The applicant’s objection, which was based on his sincere religious beliefs, could have been easily accommodated. The EEOC will vigorously protect the religious rights of applicants and employees in the workplace.”

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

The EEOC’s Detroit Field Office is part of the Indianapolis District Office, which oversees Michigan, Indiana, Kentucky, and parts of Ohio.

OSHA Dings EV Battery Maker on Safety Flaws

As the government pushes EV cars onto American consumers, let’s not lose sight of the safety of the workers who make the batteries for these vehicles

A global electric vehicle battery manufacturer exposed employees at its Commerce plant to serious and potentially disabling safety and health hazards, a U.S. Department of Labor workplace safety inspection found.

The department’s Occupational Safety and Health Administration cited SK Battery America Inc. with six serious violations and one other-than-serious violation after finding the company:

• Subjected employees to continuous noise levels exceeding the 8-hour time-weighted average of 85 A-weighted decibels by not developing a monitoring program, nor establishing an audiometric testing program, including a valid baseline audiogram.
• Exposed employees working with cobalt, nickel and manganese to respiratory hazards by failing to complete a workplace hazard assessment; ensure employees were given clean, disinfected and sanitary respirators; and store respirators properly to protect them from material contamination.
• Failed to make certain that people working with corrosive materials had access to eyewash stations and emergency showers.
• Left workers handling bags of nickel powder vulnerable to respiratory hazards by not providing feasible administrative or engineering controls to reduce exposure levels.

“The lithium battery industry has experienced unprecedented growth, and with that growth comes a heightened responsibility to ensure the safety of those at the forefront of innovation. SK Battery America Inc. is well aware that materials used to produce lithium batteries can cause debilitating and permanent health issues,” said OSHA Area Office Director Joshua Turner in Atlanta-East. “OSHA’s continued efforts to identify and remain vigilant to these emerging hazards is key in helping the industry understand how to eliminate employee exposures in the workplace. No employer should overlook the reality that is not just about advancing technology; it is about prioritizing the safety of your employees.”

OSHA has proposed $75,449 in penalties, an amount set by federal statute.

SK Battery America Inc., which employs about 3,100 people at its two battery manufacturing plants in Commerce, is a subsidiary of SK On, a global electric vehicle battery manufacturer. SK On is part of the Seoul-based SK Group, South Korea’s second-largest conglomerate, which includes companies in energy, advanced materials, biopharmaceuticals and digital business.

SK Battery America Inc. has contested 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.

The National Institute for Occupational Safety and Health’s sound level meter app is available to the public to download for free on mobile iOS devices. It measures sound levels in the workplace and provides noise exposure parameters to help reduce occupational noise-induced hearing loss. For information on workplace noise levels and safety, visit OSHA’s noise exposure website.

Balance Due: ATM Service Provider Pays $55K in ADA Settlement Involving Fired Stroke Sufferer

The amount of settlement is less important than the principle.

This privately-owned independent ATM service provider is $55,000 poorer as the result of a settlement it reached with the Equal Employment Opportunity Commission on over its refusal to accommodate a field service technician after he suffered a stroke and was subsequently hospitalized. “The EEOC alleged that Cash Depot placed the employee on a leave of absence and guaranteed to hold his job open utilities a specified date, but instead posted his job and hired another field service technician to replace him. When the employee was released to return to work with a restriction, the company fired him, stating it could not accommodate his restriction.”

The lesson here, as it often is under the ADA, is “employers use engage in the interactive process with an employee to determine if a reasonable accommodation will allow the employee to perform their job.”

Also, if you are going to guarantee a job when an employee returns from leave, it’s best the you find a way to make good on that promise.