EEOC Roundup: June 2014

Employment is heavily regulated in the U.S., where it is illegal to discriminate against a job applicant or an employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. It is also illegal to discriminate against a person because he or she made a discrimination complaint, filed a charge of discrimination, or participated in an employment-discrimination investigation or lawsuit.

Discrimination is getting more expensive for noncompliant employers as the U.S. Equal Employment Opportunity Commission (EEOC) actively investigates charges of discrimination.

Here are some cases the EEOC filed or settled during June 2014:

Pregnancy Discrimination

A fast-food restaurant that asked an obviously pregnant job applicant pregnancy-related questions and thereafter refused to hire her because of her pregnancy agreed to pay $10,000 and provide substantial injunctive relief to settle alleged violations of Title VII of the Civil Rights Act stemming from the pregnancy discrimination.

A management-services company facing similar charges agreed to pay $25,000 for refusing a pregnant housekeeper's request to excuse her from working with chemicals as she carried on with her normal duties, and firing her when she could not provide a doctor's note clearing her to work with chemicals.

Disability Discrimination

A nonprofit formed to assist people with disabilities is being sued by the EEOC for disability discrimination under the Americans with Disabilities Act (ADA). The nonprofit is accused of refusing to provide a deaf employee with requested accommodations — such as TTY equipment, a video phone and the ability to use text messaging — or provide alternate accommodations and then firing the employee because of the employee's disability.

A poultry processor agreed to pay $52,000 and provide other relief to settle a disability discrimination lawsuit alleging that it refused to accommodate a disabled employee and fired her because of her disability in violation of the ADA. According to the EEOC, the employee — who suffered from anemia — requested a reassignment after her department's duties were moved to a colder environment. Instead of granting her request, the employer sent her home until she could provide a doctor's note proving her anemia diagnosis, although it fired her before she had time to get the note.

Similarly, a hair salon is being sued for allegedly firing an employee who suffered from scoliosis and a herniated disc after refusing her request for a reasonable accommodation that would allow her to stand for extended periods of time without significant pain.

Two companies face lawsuits for discriminating against an employee or applicant because of perceived disabilities. The first, a distributor, allegedly refused to allow an employee to return to work because it regarded him as disabled following a heart attack, despite the fact that he was cleared by his doctor and fully capable of performing his job. In the second case, an industrial file sharpening company is accused of offering an applicant a position but rescinding it upon discovering he took a prescription drug for a seizure disorder without further evidence that he was incapable of performing the job. Such presumptions violate the ADA, which protects employees from discrimination based on their actual or perceived disabilities.

A health-care facility is accused of disability discrimination for revoking a job offer after learning that an applicant's kidney disorder left her unable to produce concentrated urine for purposes of a pre-employment drug screen. The facility allegedly denied her request for a reasonable accommo­da­tion of an alternative pre-employment drug test based on blood or hair and revoked its conditional offer of employment as a direct result of the failure to accommodate. The facility has agreed to pay $30,000 and furnish other relief to settle the lawsuit.

Unlawful Leave Policy Leads to Disability Discrimination

A health-care provider agreed to pay $1,350,000 and undertake significant remedial measures to settle a disability discrimination lawsuit for a fixed leave policy that failed to consider leave as a reasonable accommodation, in violation of the ADA. Rather, the leave policy merely tracked the requirements of the federal Family Medical Leave Act (FMLA), limiting employee leaves to a maximum of 12 weeks. As a result, employees who were not eligible for FMLA leave were fired after being absent either a short time, or upon the expiration of their 12 weeks of FMLA leave. Rather, the ADA requires that employers engage in an interactive process with employees with disabilities to determine how much ADA-related leave is needed.

Pay Discrimination and Retaliation

A commercial trucking company will pay $42,000 and furnish significant equitable relief to resolve a lawsuit for firing a female truck driver in retaliation for her complaints of perceived pay discrimination. Such gender-based pay discrimination and retaliatory employment practices that discourage individuals from exercising their rights violate the Equal Pay Act and Title VII of the Civil Rights Act.

National Origin Discrimination

A metal and plastic products manufacturer is accused of violating Title VII of the Civil Rights Act by employing an "English only" rule to discriminate against a group of Hmong and Hispanic employees who were fired after a brief, 10-minute observation of their English skills. Such employment practices are considered discriminatory when — as here — fluent English is not required for the safe and effective performance of a job, nor for the successful operation of the employer's business.

Sexual Harassment

The EEOC settled a sexual harassment lawsuit against a bank stemming from charges that a male branch manager repeatedly used his body to trap a female employee behind the teller counter while making suggestive comments to her, regularly stared at women's breasts, frequently touched female employees inappropriately and made sexual comments about female customers that came into the bank. Complaints of such conduct were repeatedly ignored and no action was taken to address the manager's conduct. Accordingly, the bank has agreed to pay $300,000 and furnish other relief to settle the Title VII sexual harassment charges.

Same-Sex Sexual Harassment/Retaliation

A security services company will pay $155,000 and provide other relief to settle a sexual harassment and retaliation lawsuit filed by the EEOC. According to the suit, two male superiors of the company subjected a group of male subordinates to a variety of sexual misconduct — including inappropriate sexual comments, touching and solicitations — forced male employees to accompany them to gay strip clubs while on duty and offered promotions to certain male employees in exchange for sex.

Age Discrimination

An employment agency for disabled individuals will pay $40,000 and furnish other relief to settle an age discrimination lawsuit for revoking job offers to two women after the company's CEO learned that each was over 70 years of age and offering the positions to two younger individuals shortly thereafter. Such conduct violates the Age Discrimination in Employment Act (ADEA), which prohibits employers from subjecting individuals to discrimination due to age.

Race Discrimination

A private university was accused of denying both tenure and a promotion to an associate professor — who was strongly recommended by her peers — because she is African-American. The university agreed to pay $75,000 and furnish other relief to settle the Title VII race discrimination lawsuit.

Racial Harassment

The U.S. Fourth Circuit Court of Appeals upheld a unanimous jury verdict in favor of the EEOC awarding more than $243,000 and injunctive relief for victims of racial harassment and retaliation. The appeal stems from a lawsuit in which a trucking company was found guilty of subjecting two African-American truckers to repeated, derogatory racial comments and slurs by their manager/supervisor, the company's dispatcher, several mechanics and other truck drivers — all of whom are white — many of which included references to the "N" word and nooses. Although both men repeatedly complained to management and an owner of the company, the harassment continued. The jury also found that one of the complainants was fired because of his race and in retaliation for joining the lawsuit.

The company had appealed the jury verdict — issued with less than an hour of deliberation — arguing the trial court erred in instructing the jury and admitting certain evidence. The court of appeals firmly rejected such arguments.

National Origin and Religious Discrimination

A car dealership was accused of subjecting three Arab Muslim employees to a hostile work environment consisting of offensive slurs based on their national origin and mocking and insulting references to their religion. In response, the dealership has agreed to pay $100,000 and other remedial measures to settle the alleged Title VII violations.

Employers can avoid costly investigations, litigation and negative publicity by implementing and enforcing an EEOC training program and compliance policy.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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