Nurse Axed After Injury Has Ally in EEOC, Which Files ADA Suit on Her Behalf Against Hospital

The Equal Employment Opportunity Commission wants a hospital to answer in federal court why it refused to provide a reasonable accommodation to an employee with physical impairments and then fired her instead.

This Americans With Disabilities Act lawsuit filed on July 25 is against Wesley Health System, LLC, dba Merit Health Wesley, a general medical and surgical hospital located in Hattiesburg, Miss.

The EEOC’s Mobile Local Office investigated the discrimination charge and discovered that Lois Cooper worked as a registered nurse for Merit Health Wesley for approximately two years before injuring her arm and shoulder. When she returned to work after a three-month leave, she presented a release from her doctor releasing her for full duty, with a heavy-lifting restriction. Despite the release, the company refused to allow her to return to work, and did so without first engaging in the legally required interactive process to determine if she was qualified to perform her job. Cooper was called into the human resources office and told that based on the lifting restriction, she could not perform job duties, and was let go.

Later, Cooper applied for an open position as a registered nurse, for which she was qualified, in another of the hospital’s clinics. Even though that position required no heavy lifting, the hospital selected another applicant.

Such alleged misconduct violates the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against an employee based on actual or perceived disability. The EEOC filed suit (Equal Employment Opportunity Commission v. Wesley Health System, LLC d/b/a Merit Health Wesley f/k/a Merit Health, Case No. 2:17-CV-126-KS-MTP) in U.S. District Court for the Southern District of Mississippi, Eastern Division after first attempting to resolve the matter through its pre-litigation conciliation process. The agency’s lawsuit seeks, among other things, reinstatement; monetary damages, including back pay; compensation for emotional distress; punitive damages; and an injunction to prevent further discrimination.

“Employers cannot fire an employee because of a medical impairment when it does not affect the employee’s ability to perform the essential functions of her job,” said EEOC Regional Attorney Marsha L. Rucker. “This case should serve as a reminder that employers cannot rely on myths and fears about medical impairments or disabilities in denying qualified individuals employment opportunities. To do so is a clear violation of federal law.”

District Director Delner Franklin-Thomas added, “Engaging in the interactive process is not only required by the law, but it makes sense for everyone, because it facilitates an open discussion between the employer and employee about finding a reasonable accommodation that does not impose an undue hardship on anyone.”

According to company information, Merit Health Wesley is part of the Merit Health Network, which consists of 12 hospitals throughout Mississippi.

EEOC Wins Relief in Two Age Bias Cases

Comes word that employers in separate cases have settled claims of age discrimination in employment filed by the Equal Employment Opportunity Commission.

The Commonwealth of Pennsylvania’s Office of Public Records will pay $60,000 and costs to settle a federal age discrimination lawsuit filed,  the EEOC announced on July 24.

According to the EEOC’s lawsuit, Joseph Bednarik, who was over 40 years old, had graduated from law school with honors and had about 30 years of legal experience, including about 17 years with the Pennsylvania Human Relations Commission, when he applied for an appeals officer position with the Office of Public Records. Appeals officers review citizen challenges to refusals by state government agencies to provide government records under Pennsylvania’s “open records” statute.

The EEOC charged that during Bednarik’s second interview for the position, the executive director of the Office of Public Records expressed concerns that Bednarik might not have a long tenure with the agency since he had already worked for the commonwealth for 17 years and might be nearing retirement. Despite Bednarik’s qualifications and positive employment reference, the Office of Public Affairs selected a significantly less experienced and younger applicant because of Bednarik’s age, the EEOC said.

Such alleged conduct violates the Age Discrimination in Employment Act of 1967 (ADEA), which makes it illegal to discriminate against individuals 40 or older based on age. The EEOC filed suit (EEOC v. Commonwealth of Pennsylvania, Office of Open Records, Civil Action No. 1-15-cv-01895) in U.S. District Court for the Middle District of Pennsylvania after first attempting to reach a pre-litigation settlement through its conciliation process.

“The EEOC will take vigorous action when an employer makes a hiring decision because of age,” said EEOC Philadelphia District Office Regional Attorney Debra M. Lawrence.

Spencer H. Lewis, Jr., director of the EEOC’s Philadelphia District Office, added, “As we mark the 50th anniversary of the ADEA this year, this case illustrates that age discrimination remains a serious problem in the workplace. This resolution should send a strong message to all employers, public and private, that the EEOC will not tolerate age discrimination in the workplace.”

In the second settlement, also announced on July 24, the EEOC said that SAN JUAN, P.R. – Meat Market San Juan, LLC, a steakhouse in San Juan, P.R., has agreed to pay a monetary amount to unsuccessful job applicants and to maintain a workplace free of discrimination to resolve an age discrimination investigation by the agency’s San Juan Local Office.

The agreement, a voluntary resolution, results from a multi-year EEOC investigation into Meat Market’s hiring and recruitment practices. As part of the agreement, Meat Market agreed to maintain a policy of hiring candidates without regard to their age.

Meat Market San Juan, LLC denied the allegations of the investigation but agreed to conciliate the matter with the EEOC. The parties have reached a resolution stipulating that Meat Market will take affirmative steps to institute new hiring and recruitment policies and put in place measures aimed at ensuring that age does not factor into hiring decisions in the future.

“We appreciate that Meat Market worked cooperatively with the EEOC to resolve this charge,” said William Sanchez, director of the EEOC’s San Juan Local Office. “This agreement ensures that the company will take proactive measures to prevent discrimination in the future by putting in place effective recruitment and hiring practices.”

The San Juan Local Office is part of the EEOC’s Miami District. The Miami District is responsible for investigating charges of discrimination in the State of Florida, the Commonwealth of Puerto Rico, and the U.S. Virgin Islands.

EEOC: Harassment Pervasive Against African American Employee at Sporting Goods Store

No one should have to put up at work with what an African American employee at a Washington State sports retail store had to put up with.

One of the Western United States’ largest sports retailers, Big 5 Sporting Goods, violated federal law when it allowed ongoing racial harassment, including death threats, and retaliatory discipline against a black manager trainee at its Oak Harbor, Wash., store, the Equal Employment Opportunity Commission charged in a lawsuit filed on July 20.

Robert Sanders was the only African-American employee at Big 5’s location on Whidbey Island. According to the EEOC’s investigation, the store manager and various assistant managers called Sanders “spook,” “boy” and “King Kong” and told him that he had the “face of a janitor.” The agency found that even though Sanders repeatedly reported this conduct to upper management, the company failed to act and Sanders instead faced escalated harassment as well as retaliation in the form of increased workloads, denial of breaks, and unwarranted discipline. After he was forced to take several leaves due to stress, one assistant manager told Sanders, “We will hang you, we will seriously lynch you if you call in again this week.” Another assistant manager asked Sanders if he was “ready to commit suicide,” offering “assistance” when he was ready to do so.

“I came prepared to work hard and put in my dues to become a manager,” Sanders said. “But I was met with comments about my race: ‘You’re the perfect definition of ‘spook’ because your skin is so dark, but your teeth are so white.’ And it went downhill from there, to being taunted by another manager trainee about ‘ending up in a river, dead.’ Whidbey Island is a small place, and I didn’t want to leave my house. I felt like Big 5 took away my ability to not just succeed at work, but to simply live my life with dignity and without fear.”

Racial harassment and retaliation violate Title VII of Civil Rights Act of 1964. After first attempting to reach a prelitigation settlement through its conciliation process, the EEOC filed its lawsuit (EEOC v. Big 5 Sporting Goods Corp., Civil Number 2:17-CV-01098.) in U.S. District Court for the Western District of Washington. The EEOC seeks monetary damages for the employee, as well as injunctive relief to remedy and prevent harassment and retaliation in the workplace.

EEOC Trial Attorney Carmen Flores said, “Mr. Sanders simply wanted to come to work and earn a living. Instead, his promising career opportunity was poisoned by hate and threats from his managers and coworkers. I hope that our lawsuit in this case will send a message to all employers that they need to take swift action when alerted to workplace harassment.”

Nancy Sienko, field director for the Seattle office of the EEOC’s San Francisco District, added, “The delay by Big 5 to take action to investigate and stop the racial harassment and retaliation is in­excusable. The slurs and threats that Mr. Sanders faced have a terrible history and should never be tolerated. It is the employer’s responsibility to ensure that all employees can work in a safe environ­ment free from racial hostility so they can succeed to their highest potential.”

Big 5 Sporting Goods is headquartered in El Segundo, Calif., and operated 433 stores as of Jan. 1, 2017, with9,000 full-time employees.

Employer Accused of Misusing Medical Info in Hiring Process Agrees to Settle ADA Lawsuit

“Handle information on employees’ medical conditions with care.”

Those words should be etched on the walls of every HR department in the company. Otherwise, you’re apt to be slapped with an Americans With Disabilities Act lawsuit, forcing you either to litigate your violation of the law or settle for a hefty sum.

Chemtrusion, Inc., a Houston-based manufacturing services company, will pay $145,000 and provide other significant relief to settle a disability discrimination lawsuit filed by the Employment Opportunity Commission, the federal agency announced on July 21.

The EEOC filed suit against Chemtrusion in October 2016, claiming that since 2012, the company refused to hire or provide reasonable accommodations to a class of job applicants at the company’s Jeffersonville, Ind., facility because of medical information it obtained during pre-employ­ment medical examinations. The company failed to conduct any individual­ized assessment of whether they could perform essential job functions, the EEOC charged.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed its lawsuit in U.S. District Court for the Southern District of Indiana, New Albany Division (EEOC v. Chemtrusion, Inc., Case No. 4:16-cv-00180) after first attempting to reach a pre-litigation settlement through its conciliation process.

The EEOC and Chemtrusion voluntarily negotiated the terms of the consent decree settling the suit, without any admission of wrongdoing or liability by Chemtrusion.

In addition to monetary relief, the decree requires that Chemtrusion: (1) instruct its hiring personnel and medical providers not to conduct medical inquiries until after a condit­ional offer is made; (2) conduct individualized analysis before withdrawing job offers; (3) train its hiring personnel on what the ADA requires with respect to medical examinations and hiring; (4) submit deci­sions to rescind job offers to legal counsel for review; and (5) track rescinded offers. The EEOC will monitor compli­ance with the two-year decree.

“All the corrective measures required by the consent decree will ensure that Chemtrusion will comply with federal disability discrimination law in filling vacancies in the future,” said Kenneth L. Bird, regional attorney for EEOC’s Indianapolis District. “It will also provide a strong reminder to other employers that applicants are entitled to an individualized assessment of whether they can do a job, with or without reasonable accommodation, before a company may rescind a job offer after a medical examination.”

Eliminating barriers to recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against people with disabilities or racial, ethnic, and religious groups, older workers, and women, is one of the six national priorities identified by the Commission’s Strategic Enforcement Plan (SEP).

EEOC Outs Parking Mgmt. Co. For Rejecting Applicant Because of “Physicality of Job”

Stereotypes about age and gender were factors in the decision by a Georgia parking management company to reject a 60-year-old female applicant for a valet job, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed.

According to the EEOC’s lawsuit, on or about Jan. 12, 2016, 60-year-old Valencia Hayden applied for a valet position with Eagle Parking. During her interview, the operations manager looked at Hayden’s application and told her that she would not be successful as a valet because of the “physicality of the job.”  Instead, the operations manager told Hayden that she would be perfect for a customer service position and told Hayden to come back the following week to attend orientation. The day before she was scheduled to begin her new positon, Hayden called to ask what time she should report. However, the operations manager told Hayden that the job had already been filled. Eagle Parking’s records show that, after Hayden was interviewed, it hired several male valets and customer service employees who were substantially younger than Hayden.

Such alleged conduct violates Title VII of the Civil Rights Act and the Age Discrimination in Employment Act (ADEA). The EEOC filed suit (Equal Employment Opportunity Commission v. Eagle Parking, LLC, Civil Action No. 1:17-cv-2904-TWT-CMS) in U.S. District Court for the Northern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process. The federal agency seeks back pay, compensa­tory damages, punitive damages and liquidated damages for Hayden, as well as injunctive relief designed to prevent such discrimination in the future.

“This suit sends a strong message to employers that applicants must be judged strictly on their ability to perform the job, and not on stereotypes associated with their gender and age,” said Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office.

Antonette Sewell, regional attorney for the Atlanta District Office, added, “What is most disturbing about this case is that the hiring official automatically assumed that Ms. Hayden was not qualified to work as a valet or customer service parking manager because of her age and the fact that she is a woman. Such managerial behavior is not legal or acceptable in the 21st century.”

OSHA: Monorail Hoists Exempt From Crane and Derricks Rule If Meet Other Safety Regulations

Employers that use monorail hoists can get out of one set of safety obligations if they meet other requirements.

That’s the gist of an announcement by the Occupational Safety and Health Administration of  a new enforcement policy that excludes monorail hoists from the requirements of Subpart CC – Cranes and Derricks in Construction, as long as employers meet other OSHA requirements.

The policy change was made in response to comments from stakeholders and in recognition that a monorail hoist–which is attached to a fixed monorail mounted on equipment such as trucks, trailers, or scaffolding systems–is significantly different from other cranes and derricks in construction.

Some monorail hoists can be extended and contracted in only a fixed horizontal direction. They do not rotate, swing on a hinge, or boom out much farther than the equipment on which they are mounted. They are often used in construction to hoist precast concrete components, storage tanks, and mechanical equipment.

Under the new policy, the agency will not cite employers for failing to meet the requirements of Subpart CC if they meet the requirements of the overhead hoists and general training standards.

The general industry requirements for monorail hoists remain intact.

“This enforcement policy is a commonsense approach to addressing industry concerns while also ensuring workers are protected,” said Dean McKenzie, director of OSHA’s Directorate of Construction.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit www.osha.gov.

EEOC: Securities Firm Hit Trifecta of Illegality

After a bit of a lull, the Equal Employment Opportunity Commission has filed various employment discrimination lawsuits in rapid succession. There’s a backlog of lawsuits from the end of July. Here is one more.

This one involves three distinct alleged grounds of discrimination–what in horse racing terms is known as the trifecta.

MVM Inc., an Ashburn, Va.-based diversified security services firm, violated federal law when it stopped accommodating a security guard’s religious beliefs and disciplined him in retaliation for his complaint about racial harassment, the EEOC charged in a lawsuit it announced on July 20.

According to the suit, Kelvin Davis is a practicing Muslim and observes his faith by wearing a beard. MVM hired Davis to work at a facility in Woodlawn, Md., as a security guard. Although MVM has a grooming policy which restricts guards’ facial hair to no longer than one-quarter of an inch, it granted Davis a waiver as a religious accommodation.

Davis maintained his beard while working for MVM for approximately one year, until he com­plained to MVM management that his supervisor had called him a “nigga.” Instead of taking corrective action, the day after Davis’ complaint, his supervisor and two managers retaliated against him by forcing him to shave his beard, the EEOC said.

The EEOC charged that MVM also retaliated against Davis by subjecting him to heightened scrutiny and unwarranted discipline, including a one-day suspension for arriving to work two minutes late. It also threatened him with termination. The EEOC charged that MVM’s failure to address the racial harassment, unjustified retaliatory actions, and threat of termination created conditions of employment so intolerable that Davis was forced to resign.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits dis­crim­ination based on race or religion. Title VII requires an employer to reasonably accommodate an emp­loyee’s sincerely held religious beliefs. The law also prohibits an employer from retaliating against an employee because he complained about harassment or discrimination.

The EEOC filed suit (EEOC v. MVM, Inc., Civil Action No. 1:17-cv-02025) in U.S. District Court for the District of Maryland, Northern Division, after first attempting to reach a pre-litigation settlement through its conciliation process. As part of the suit, the EEOC is seeking back pay and compensatory and punitive damages on behalf of Davis, as well as injunctive relief.

“No one should be subjected to racial slurs to earn a living,” said Spencer H. Lewis, Jr., district director of the EEOC’s Philadelphia District Office. “Mr. Davis exercised his civil right to complain about racial harassment, but MVM unfortunately chose to engage in reprisal instead of addressing the harass­ment.”

EEOC Regional Attorney Debra M. Lawrence added, “Retaliation always makes a bad situation worse. Employers must take action to investigate and stop racial harassment, not punish the victim, and that’s why we filed this suit.”