Delaware Employment Law Blog

The U.S. Equal Employment Opportunity Commission (EEOC) reported that it a record number of discrimination charges in FY 2009, the second-highest number in its history. Race and sex discrimination continued to be the most frequently filed, but religion, disability and retaliation claims all reached new highs. EEOC investigates and enforces claims of discrimination under Title VII, the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA).

Notable statistics relating to resolved claims (those resolved via settlement, withdrawal, and conciliation), include:

• EEOC resolved 85,980 charges.
• Resolved charges resulted in $294.2 million in relief for claimants. 
• Total relief represented a $20 million increase over FY 2008.

Notable statistics relating to "merit" lawsuits (suits filed by EEOC against employers who refuse to comply with information requests or who allegedly breach settlement agreements), include:

• EEOC filed or intervened in only 281 “merit” lawsuits
• This is the lowest number of new merit cases for a fiscal year since 1997, according to the EEOC’s online statistics, and is down from a high of 438 merit cases in 1999.
• EEOC resolved 321 “merit” cases, for a total of $82.1 million, a decrease of about $20 million from FY 2008.

The Delaware Department of Labor (“DDOL”) handles most discrimination charges filed against Delaware employers. The DDOL and EEOC have a work-sharing arrangement. The DDOL has a mediation program for newly filed charges in which employers can participate before filing a substantive response to the charge. Mediation can result in a low-cost settlement with a minimum of disruption and negative publicity. Neither the DDOL nor EEOC publicizes settlements reached during the administrative process--another reason to consider settlement at this stage of the dispute. Employers who are curious about the types of cases that the EEOC likes to file can review its press release page, where it publishes, on a daily basis, news releases about cases it has filed and settled.

The Equal Employment Opportunity Commission has issued proposed regulations for ways to improve how discrimination complaints are processed.  I’ll beg your pardon if the first thought that comes to mind when I hear this is, “Improve it for whom, exactly?”.  The sarcasm didn’t stop there.  The more I read, the more questions I have, each tinted with at least a hint of snarkiness. (The snarky comments are denoted in blue).

Peggy Mastroianni, EEOC's deputy legal counsel, said the working group that issued the recommendations decided to proceed with incremental changes and would tackle only issues on which the group could reach consensus.

If a bureaucratic “working group” with no mandated checklist of required objectives or enforcing agency to ensure the completion of objectives, is going to work only on the objectives that they can agree upon, I’d say it’s a safe bet that none of those objectives is likely to ever get done.  Oh, heck, they may never get started.  When was the last time you were in a group setting where all persons in the group reached consensus on anything?

Among the process updates outlined by the EEOC in a Federal Register notice published on Monday was a requirement that agencies file responses to complaints electronically.

Congratulations!  Federal courts have been filing dockets electronically since, what, around 2005?

Another proposed regulation would require an agency to notify the complainant when its investigation would be complete.  This requirement would be triggered “only” if the investigation was not completed within 180 days from filing.  The notice, of course, also would inform the employee that he has a right to file a lawsuit once the 180-day mark has passed. 

I honestly cannot recall an investigation being completed in 180 days. Certainly not in the past 2 years but maybe not even in the past 5 years. I have clients who responded to charges filed more than 2 years ago without having received any indication that a decision would be rendered any time in the near—or distant—future. So this proposal seems like a guarantee that each complainant will be reminded that they can skip the process altogether and go directly to the courthouse steps. Remind me again, isn’t the purpose of this process somehow linked to the idea that completing it may have desirable benefits to all involved?

A final note of irony can be found in the portion of the notice that explains that the EEOC "intends to provide a mechanism for reviewing and seeking compliance from agencies that fail to comply with the requirements" of a number of EEO directives. In other words, it wants to attempt to get its own house in order.  This may be related to the claim that only about 50% of federal departments and agencies actually follow some of the “mandatory” reporting requirements. 

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Title VII prohibits employers from discrimination based on religion, among other things.  The anti-religious-discrimination requirements actually require employers to go a step further.  Not only must employers refrain from acting (i.e., from discriminating), but they must also take action in the form of providing an accommodation for sincerely held religious beliefs of an employee.  Of course, there are limits on how far an employer must go to make such accommodations. And, like all of Title VII, the law applies not only to employees but to applicants, as well. 

United Parcel Service (UPS), learned this lesson in a very undesirable way.  Last week, a federal jury in New Jersey found against UPS and ordered it to pay $10,000 in damages in a religious-accommodation claim brought by the EEOC.  The EEOC asserted, and the jury so found, that the plaintiff was wrongfully denied a job based on his religious beliefs.  The plaintiff, Ronnis Mason, a Rastafarian, applied for a job in 2004 as a driver's assistant but was denied the job because of his beard. 

The company had a policy that prevented employees with beards from delivering packages to customers.  He was, instead, offered a job as a package handler.  In this position, Mason would have worked in a warehouse for a lower salary.  Mason never completed the application process.

This is the second successful case of religious discrimination brought by the EEOC on behalf of a Rastafarian in recent memory.  We posted last year about a quickly-settled claim involving four security guards at NYC's Grand Central Station were disciplined when their "sloppy-looking" dreadlocks did not fit under the uniform-standard caps.

Employees filed more charges of discrimination this year than in any other year. The EEOC processed 95,402 charges in 2008—15.2% more discrimination claims than in 2007. In light of these trying economic times, the layoffs and reductions in force that inevitably follow, it seems very possible that 2009 will be the first year to see more than one million charges of discrimination.  Some additional "highlights" from the annual report:

• The EEOC secured more than $274.4 million on behalf of claimants--down from the $290.6 million in 2007. 
• 18,304 claimants obtained monetary and nonmonetary benefits through the charge process.
• At the end of 2007, the EEOC had just less than 55,000 pending charges, increasing to approximately 74,000 pending charges at the end of 2008. 

An abbreviated version of the EEOC's report is available on the Commission's website.

The Delaware Department of Labor (DDOL), is the agency responsible for processing charges of discrimination filed under Delaware’s various discrimination statutes. Because the DDOL has a work-sharing agreement with the U.S. Equal Employment Opportunity Commission (EEOC), the Department has authority to process charges filed under state and federal discrimination laws.

Until now, the charge process, including applicable deadlines and controlling procedures, has not been regulated by state law. How a charge is handled by the DDOL, and the rules governing charging parties and responding employers have been available only in the form of proposed regulations for the past several years. But, last month, the DDOL published its first set of final regulations applicable to the charge process.

In this post, the new regulations are summarized and explained. A second, follow-up post will offer some commentary about these important changes.

The Charge of Discrimination

The regulations set forth what must be included in a charge of discrimination. A charge must identify:

• the basis for the DDOL to assert jurisdiction over the charge;
• the type(s) of discrimination alleged;
• the type(s) of adverse action alleged;
• the facts that support the claim;
• the laws that have allegedly been violated; and
• the reasons that the charging party believes support a finding of discrimination.

For the charge to be valid, the charging party must swear under oath that the allegations are true and correct and must sign the charge before a notary public.

Initial Processing of a Charge

Once a verified charge is filed, the DDOL must send a copy to the employer, by certified mail, within 14 days. The DDOL may also include a request for information with the charge, and, in its discretion, may invite the employer to participate in mediation. Even if the DDOL has not invited the employer to participate in mediation, the regulations permit the employer to request mediation in lieu of filing an answer.

The employer has 20 days to submit an answer, though the Administrator has the discretion to grant an extension of time to respond. The answer must respond “fully and completely” to the allegations asserted in the charge.

Preliminary Findings

The next step is the issuance of a preliminary finding. The Administrator must issue her preliminary finding within 60 days from the date the charge was served to the employer. The DDOL Administrator has three options. She can refer the case to mediation, refer the case for investigation, or recommend dismissal of the case.

The Administrator may dismiss a case in the following circumstances:

• the DDOL does not have jurisdiction over the case (because, for example, the employer has too few employees to be covered by the law or the employment was not located in Delaware);
• the charging party is not cooperating;
• the employer has filed for bankruptcy or relief is otherwise precluded;
• the charge was filed after the statutory deadline, or
• the charge does not allege facts that would, even if true, constitute a violation of the law.

Administrative dismissal is rare. And, even if dismissal is recommended, the charging party will be given the opportunity to provide additional evidence demonstrating that an investigation is warranted.

Mediation

The regulations also address the DDOL mediation process. The Administrator is authorized to refer a case to mediation at any time, after 20 days from service of the charge. The regulations make clear that mediation communications and records are confidential and may not be used against either party. The regulations preclude the mediation director and staff from participating in the investigation of any case that is unsuccessfully mediated. And, if the case is settled, the settlement agreement will be kept confidential unless there is an allegation that one of the parties has breached the agreement.

Investigation

If the parties do not mediate the charge or if the mediation fails, the charge will be referred for investigation. The employer has 20 days from the date it receives notice that the case has been referred for investigation to file its answer, if it has not done so already. If the employer did file an answer, the employer will have 20 days from the date of notice of investigative referral provide a supplemental response or to respond to any pending request for information.

The regulations include a lengthy description of the DDOL’s tools for investigating claims. The DDOL’s powers include obtaining information from the employer through written requests for information and documents, on-site visits and interviews. The DDOL can obtain information from third parties with subpoenas and depositions. The DDOL also has the authority to obtain information at a fact-finding conference.

A DDOL representative advises the parties in advance of the conference to bring specified witnesses and documents. During the fact-finding conference, the DDOL representative will question the witnesses and parties. The regulations state that “the parties shall not be entitled to cross-examine witnesses,” but the representative has the discretion to allow attendees to question the witnesses.

Determination and Findings

When the DDOL concludes its investigation, the Administrator will issue a determination. The determination can state that the Administrator either did or did not find reasonable cause to believe that the employer violated the law by discriminating against the charging party. A “no-cause” finding results in a dismissal of the charge. A finding of “cause,” on the other hand, means that the Administrator has determined that there is reasonable cause to believe that the employer unlawfully discriminated against the charging party.

In the event of a “cause finding,” the employer has 10 days to file a written request for reconsideration of the finding. The Administrator will determine whether the employer will be granted permission to submit additional information in support of its request. The Administrator’s decision will be issued within 10 days of the date the request for reconsideration is made.

Conciliation

If the reasonable-cause finding is not reversed by the Administrator, it is considered final. A final cause finding triggers the conciliation process. Similar to the mediation process, conciliation provides an additional pre-litigation opportunity for the parties to resolve the dispute.

If conciliation fails and the parties do not reach agreement, the DDOL will issue a Right-to-Sue Notice to the employee, which authorizes the employee to file a complaint in state court. At that point, the DDOL’s involvement in the case concludes. The DDOL will retain its file for two years. If litigation ensues, the parties will have the right to obtain copies of the witness statements and factual written data, reports and documents in the DDOL’s file by making a written request and serving a copy of the request on the other party or the other party’s attorney.

Pregnancy discrimination is the wrong being alleged by the U.S. Equal Employment Opportunity Commission ("EEOC"), against not-for-profit company, Imagine Schools, Inc., which is one of the largest operators of charter and private schools in the country.  The company, based in Virginia, is alleged to failed to hire two women for administrative positions at the Renaissance Academy in Kansas City, Missouri, because they wee pregnant.  The Renaissance Academy was the rebirth of Southwest Charter School in Kansas City, which had lost its charter.  Both women worked at Southwest prior to its closing. 

The EEOC recently filed suit against a private school in Maryland, alleging that it failed to renew a teacher's contract after learning that he was HIV positive. (See EEOC Files Suit Alleging School Fired Teacher for Being HIV Positive).

Religious discrimination can arise in a variety of circumstances. For example, just recently, we posted about a religious-discrimination claim filed by the U.S. Equal Employment Opportunity Commission ("EEOC"), on behalf of four Rastafarians who had been disciplined for their dreadlocks.  In another, fairly unusual, claim of religious discrimination, the issue isn't hair-style choices, though.  This time, the problem is with short shorts.

But not with an employee wearing one.  Instead, the EEOC claims, an employee at St. Louis clothing store, Hollister Co., was terminated when she refused to wear pants or skirts the didn't cover the knee.  She stated a religious objection to the required uniform on the ground that her Pentecostal faith prohibited such attire.

Apparently, though, the employee had no such religious objection at the time she was hired. 

And, although this point is certainly relevant from the perspective of truth-seeker, it's not so relevant when it comes to determining whether religious discrimination occurred.  An employee need not explained what caused him or her to alter conduct based on religious views--or to change their religious views, for that matter.  If faced with a request for a religious accommodation, it does not behoove an employer to start "throwing stones" as it were. 

Instead, unless it is an absolutely obvious contradiction of the employee's otherwise-professed lifestyle, you are best advised to take the employee's word on it.  Just assume that they do hold a sincere religious belief about the issue and focus, instead, on the viability of the request.

**The irony in this claim can't go unnoticed by the Human Resource generalists in the world who spend such an inordinate amount of energy working towards eradicating short shorts in the workplace, which, I am certain, many would argue is a religious mission in its own right.  Of course, the NYT, this summer, published an article claiming that the "man-short" (pictured above), was making its way to the "acceptable attire" list in corporate America.  Let me know how that works out.**

Previous posts on religious discrimination and dress codes include:

EEOC Files Religious Discrimination Lawsuit on behalf of Sikh who refused to remove turban

What Not to Wear to Work: More Style Rules for the Modern (Gen Y) Worker

I'm Too Sexy For This Job: The Beginnings of a Failure-to-Hire Lawsuit

EEOC Sues over Dreadlocks, Claiming Religious Discrimination

Workplace bullying is not unlawful. The U.S. Equal Employment Opportunity Commission (EEOC), is not stopped by that, though.  It has entered into a consent decree with the State of Oregon, ending a lawsuit involving workplace bullying.  The case, filed by the EEOC on behalf of Sheri Peters, a former juvenile court clerk, was filed under federal employment laws but, at its core, alleged egregious workplace bullying.

Peters claimed that her former boss, the juvenile justice center manager, Linda Simonson, engaged in a variety of hostile conduct towards her subordinates. Peters claimed that, after working at the center for a month, she told Simonson that she was pregnant.  Simonson responded that she felt Peters had concealed her pregnancy to get hired and called Peters at her unborn child "garbage."  When Peters went to the hospital with a ruptured placenta in December 2004, she claimed, Simonson called her and chastised her for being not at work.

Court documents do not paint a pretty image for the center's management style.  Several current and former employees testified about the "bullying conduct" of Simonson who, as one witness described, “managed the department like an abusive parent.”  Another employee reported that she was harassed "relentlessly" by Simonson while out maternity leave.  Another claimed that, while she was pregnant, she was subject to “harassing and intimidating behavior” by Simsonson.  And one employee stated that Simonson was harassing, “cruel and vindictive."

As part of the settlement, Peters will receive $315,000. 

The real lesson here is not about pregnancy discrimination or even gender-based harassment.  The real lesson is about respectful conduct in the workplace.  Employers who fail to recognize that respect is an essential component of every job will eventually have to face the fallout of a distrusting workforce who feels they were thrown to the wolves by the organization that turned a blind eye to bullying and disrespectful treatment by management.

A pregnancy-discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), against a Pittsburgh-area plastic-surgery office has settled  The parties entered into a consent decree, which provides, in part, for payment of $75,000 to Erin Griggle, a former secretary at Premier Plastic Surgery, located in Cranberry, Pennsylvania.

Although no discrimination suit is built on accusations of niceties and cordialities, this case has some particularly harsh-sounding allegations.  According to the complaint filed by the EEOC, a pregnant Ms. Griggle was told to "suck in her belly," because if she didn't, she would scare away patients who went to the facility to "look better."  She was later terminated because "she was not a good fit."  Then, when the center began the search for Griggle's replacement, the center's president was alleged to have asked if the candidate "had a uterus."

As is standard in EEOC consent decrees, the defendant expressly denied any wrongdoing so we'll likely never hear the center's complete side of the story.  But it does beg the question, do people really say things like this?  If you ever hear an employee say anything even close to the statements allegedly made in this case--don't delay.  Act swiftly and effectively to stop the conduct and make absolutely clear that it will not be tolerated under any circumstance.

The Americans With Disabilities Act (ADA), protects qualified individuals with a disability.  What is and is not a disability has been the subject of much discussion since the recent passage of the ADA Amendments Act of 2008.  The status of HIV as a recognized disability under the ADA, though, is not likely to be impacted--it has long been settled that a person with HIV/AIDS is protected by the statute.  In fact, we were reminded of this in July when we reported that the EEOC had filed suit against a weight-loss clinic in Pennsylvania, alleging that the clinic had wrongfully terminated an employee for having AIDS. 

The EEOC has filed another AIDS-based lawsuit under the ADA.  This time, the suit is against the Chesapeake Academy, a private school in Anne Arundel, Maryland.  In its suit, the EEOC alleges that the second-grade teacher, Chauncey Stevenson, was terminated when he told the school he was infected with the disease.  The Baltimore Sun reports that Stevenson had been given good performance reviews for the years of his employment but his contract was not renewed for the 2006-2007 school year.  Stevenson then filed a Charge of Discrimination with the EEOC. When settlement negotiations with the school failed, the Commission filed suit on Stevenson's behalf. 

In a recent post, Religious Discrimination & Prayer At Work: Employers Who Pray, we talked about employers who conduct prayer at the start of a business meeting.  The EEOC recently announced that it endorses such conduct, at least insofar as it does not find pre-meeting prayer to be discriminatory per se.  We wondered how many employers would be so bold as to follow this announcement after being counseled for so long that such an idea would be a sure-fire way to land in federal court sued for religious discrimination.  I don't have any developments to report from the employers but it appear that employees think the idea is ok--so long as they are the ones picking the religion.

In Minneapolis, Gold'n Plump Poultry, Inc. announced that, pursuant to the settlement of a class action lawsuit, it will allow Muslim workers to take short prayer breaks and to refuse to handle pork at the company's poultry processing facilities.  The lawsuit accused the Work Connection employment agency of requiring Muslim applicants to sign a "pork acknowledgment form," in which they agreed to handle pork products. It was alleged in the complaint that Somali workers who did not sign the document were not hired.

Gold'n Plump explained that employees will now be provided a 10-minute break in the second half of the shift at a certain time and only in a portion of the plant.  The employees had sought to be granted permission to leave the processing line when necessary to pray.  All employees, regardless of religion, will be granted the break.

The U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against Philadelphia-employer, Verizon, alleging unlawful retaliation.  The complaint was filed on behalf of former service technician, Theresa Allen, who worked at the company's Bryn Mawr facility until last year.  Allen, who is in her 50s, was the only female employee at that location until October 2006. 

According to the EEOC's complaint, Allen was sexually harassed during the 21 years of her employment by being exposed to pornographic magazines, which were commonly left out in the open in the workplace.  She was also subjected to inappropriate physical contact.

Philly.com reports that, in August 2006, Allen began to complain to management about the various offenses.  In September, Allen claims, after the conduct had not ceased despite her complaints, a plastic rat was hung in the service technician's garage.  She removed the rat but it reappeared several times.  Phrases like "Ratteri" and "Stop telling on everybody" were written in various places around the garage.  Allen was fired in February 2007, allegedly for taking home two cups of rock salt, which she claims to have later replaced with a 10-pound bag. 

Minimizing retaliation claims
There are a number of ways you can reduce your likelihood of being faced with a retaliation claim, including the following:

1. Ensure that you have a policy prohibiting retaliation included in your harassment and discrimination policies.
2. Make sure your policies clearly state that suspected retaliation must be reported, and provide employees several avenues through which they can do that.
3. Train all supervisors and managers so they know that it's unlawful to retaliate against employees for protected activity. That includes formal charges of discrimination as well as internal complaints about harassment or discrimination.
4. When you receive a complaint about unlawful activity or are charged with discrimination, protect the source of the complaint as much as possible. One of the best defenses to a retaliation claim is to be able to show that the person who supposedly retaliated wasn't even aware of the charge or complaint in the first place. Of course in many situations, the employee's immediate supervisor must be told about a complaint so that an adequate investigation can be conducted.
5. Treat the complaining employee like nothing has changed.  Of course, filing a charge or internal complaint doesn't insulate the employee from future disciplinary action.

Three female attorneys filed suit against the New Jersey State Office of Attorney Ethics (“OAE”), alleging gender discrimination. The plaintiffs claimed that women were assigned to lower-grade positions than their male counterparts. According to the article on Law.com, males without law degrees, some without college degrees, were awarded higher ranked jobs than females with law degrees.

The suit was filed in March 2005 under the Equal Pay Act, Title VII of the Civil Rights Act and its state equivalent, the New Jersey Law Against Discrimination. The case settled in June and each of the three plaintiffs received $5,000 in back pay and a total of $135,000 in emotional-distress damages. This is a relatively small sum, especially given the number of plaintiffs and the involvement of a government defendant.

But what makes this settlement even more interesting are its conditions. The settlement agreement makes an express denial of wrongdoing by the defendants, which is not uncommon. Unlike suits settled with the Equal Employment Opportunity Commission, no remedial measures were required by the agreement, nor were the defendants required to implement any training programs or make any workplace postings.

Most significantly, though, are the provisions whereby the two plaintiffs who had resigned from their jobs during the lawsuit agree to never seek employment with the OAE. Last year, there was a bit of murmuring that the EEOC was going to take a formal position against such “banishment” clauses, also known as “no reapplication” or “no re-employment” provisions.

These provisions are of the highest importance to employers when settling a lawsuit brought by a former employee. If employers were prohibited from including this type of clause in settlement agreements, there would be a greatly decreased incentive to settle at all. Employers would risk the very real possibility that they’d pay a significant sum of money only to be taken “hostage” by an employee determined to inflict permanent suffering on his employer.

The Equal Employment Opportunity Commission (EEOC), reports that the number of discrimination charges filed has actually fallen. For federal employees, anyway. The EEOC released its Annual Report on the Federal Work Force for FY 2007 last week.

According to EEOC Chairwoman, Naomi C. Earp, "The report shows that in FY 2007, federal employees and applicants filed 16,363 complaints alleging employment discrimination on the basis of race, color, sex, national origin, religion, age,  disability and reprisal -- down from 16,723 complaints in FY 2006 and 18,000 complaints in FY 2005.” Over the past ten years, the number of claims filed by Hispanic, African American, and Asian federal employees have increased slightly but the number of disability claims has declined.

The private sector did not fare as well during FY2007. As previously posted, the EEOC reported that a record number of discrimination charge were filed with the agency last year.

The U.S. Equal Employment Opportunity Commission ("EEOC") has filed suit against The Cheesecake Factory in Chandler, Arizona.  The suit alleges that the California-based restaurant ignored repeated incidents of same-sex harassment.  Several male employees claim that there were regular sexual assaults by groups of male employees, who would grab another male employee and take turns simulating sex with him.  

One of the three men, Bryce Fitzpatrick, said he was harassed more than 20 times while he worked as a kitchen supervisor. Fitzpatrick, 23, said he would be cornered by about five to 10 cooks and dishwashers who would lift his legs into the air and grind up against him in the restaurant's kitchen area. 

R. Enochs, Esq. has posted on the difficulties the claimants are likely to face.  Same-sex harassment claims make up 16% of all sexual harassment claims filed with the EEOC.  Male-on-male claims are particularly stigmatized.  When a male victim complains to management, he's often faced with resistance instead of redress.  Excusing the behavior as "horseplay," the conduct is actually more akin to hazing. 

The Equal Employment Opportunity Commission (EEOC) has been hard at work.  Here's a rundown of some of the latest claims and settlements involving the EEOC and its big sister, the Department of Labor (DOL).

Hotel Heartache

The former owner of a Best Western hotel in Ocean City, Maryland hotel settled a claim for discrimination and retaliation brought by the former executive housekeeper for $36,000.

The owner of the Ramada Inn Wytheville, in Wyethville, Virginia, has settled a claim for unpaid back wages brought by the U.S. Department of Labor.  The hotel owner was alleged to have paid waitstaff the federal tip-credit wage of $2.13 per hour despite the fact that the employees didn't earn enough tips to yield the minimum wage of $5.85 per hour.  The employees were subject to a half-hour meal-break deduction, regardless of whether they actually took, or were permitted to take, any meal break. Finally, the hotel's time records did not reflect the number of hours worked by employees each week.  Improperly paid employees will share in a $23,000 settlement.

Fly Me to the DOL

An aircraft-painting company in New Mexico has agreed to pay more than $227,000 in back wages and fringe benefits to resolve a claim by the U.S. Department of Labor.  Dean Baldwin Painting misclassified employees who worked on an Air Force contract.  Workers assigned to work on military aircraft are paid at a different rate than those who perform work on commercial aircraft.  The company began paying back wages, which will be distributed among 255 current and former employees, four months ago.

And the Last Laugh Goes to. . .

Les Schwab Tire Centers of Montana has agreed to pay $185,000 to settle a racial harassment suit brought by the EEOC on behalf of Earle Nevins, a former Les Schwab employee.  Nevins, a member of the Blackfeet Nation claimed that he'd been subjected to a hostile environment by coworkers who called him derogatory names and made insulting jokes about Native Americans.  The EEOC  suit alleged that, when Nevins complained of the harassment, he was told that the coworkers were merely engaging in "horseplay," and was later fired for his complaints. 

Jin Hua Inc., a restaurant supply company in New York, has agreed to pay 28 employees a total of $110,788 in overtime back wages. in order to resolve a federal lawsuit brought by the Department of Labor.  estigation that disclosed violations of the FLSA’s overtime and record-keeping provisions.

Everyone's talking about dress codes.  Pantyhose or no pantyhose?  Flip-flops causing mutiny in the workplace. What not to wear is not just a TV show, it's regular water cooler talk these days.  A new case filed by the EEOC shows a much more serious side of the dress-code debate--how dress codes can turn into discrimination.

The Equal Employment Opportunity Commission has sued Texas business, Champion National Security Firm, for religious discrimination after the company did not hire a Sikh who refused to shave his beard and take off his turban.

The claimant, Sukhdev Singh Brar, applied for a position as a security officer, was called for an interview and then got the job.  Well, almost.  Brar alleges that a company representative told him, "'I'm going to hire you, but you have to shave and take off your turban."  Brar says he told the interviewer that her request was against federal law and his religion. 

But she was not dissuaded.  Even after he told her that it was against his religion to cut his hair and remove his turban, she told him that this was the company's policy and the policy wasn't going to change.  "I cannot cut my hair. I cannot take off my turban," he said.

Title VII prohibits employers from discriminating against employees and applicants because of their religion when making decisions about hiring, firing, and other terms and conditions of employment.

The Act also requires employers to reasonably accommodate the religious practices of an employee or prospective employee, unless to do so would create an undue hardship upon the employer. Flexible scheduling, voluntary substitutions or swaps, job reassignments and lateral transfers are examples of accommodating an employee's religious beliefs.

The standard for religious accommodations is "undue hardship."  But what exactly is  an undue hardship? According to the EEOC, "an employer can claim undue hardship when accommodating an employee's religious practices if allowing such practices requires more than ordinary administrative costs."  The EEOC goes on to identify some examples of a religious accommodation:

Employers cannot schedule examinations or other selection activities in conflict with a current or prospective employee's religious needs, inquire about an applicant's future availability at certain times, maintain a restrictive dress code, or refuse to allow observance of a Sabbath or religious holiday, unless the employer can prove that not doing so would cause an undue hardship.

The undue-hardship standard is substantially easier to meet as compared to the standard used in disabilities accommodations. But, even under a lenient standard, the employer must still have a reason for refusing to accommodate a religious request.  And just saying, "Well, that's our policy" is not going to cut it.  I'd be interested to know what the company's defense will be; what will it claim was the hardship?  And the employer may very well have one--it refused to settle (or at least to settle on the terms offered by the EEOC).  Employers stay tuned, the dress-code debate is sure to heat up.

Music may be an art form to some.  But some music may be a form of harassment.  The EEOC has reach an agreement with Novellus Systems wherein the San-Jose based employer will pay $168,000 to a former employee for race-based harassment.  The claim alleges that the employee was terminated after he complained about racially offensive music played by a co-worker.

Michael Cooke worked at Novellus Systems for more than ten years. Cooke, an assembly technician, claimed that he was terminated after he complained about racially offensive music played at work by a co-worker.  The suit alleged that a 27-year-old co-worker would play rap music and rap along, using lyrics that included derogatory racial slurs, including the "N-word."

Cooke complained to the co-worker, a Vietnamese-American, and to his supervisors about the language in the songs.  But the co-worker continued to sing along using racial slurs within hearing distance of Cooke.  After a year and a half of the co-worker singing and Cooke complaining, the suit alleges, Cooke was dismissed in retaliation for his complaints.

A lesson for employers:  As part of the settlement agreement, the company has agreed to modify its anti-harassment policy to exclude playing racially derogatory music in the workplace. 

Does your anti-harassment policy include this type of prohibition?  Are your employees permitted to play music at their work stations?  If the answer is "yes," maybe you should consider a policy review to make sure you're covered.

P.S.  The Gangsta Rap Coloring Book pictured above is, indeed, a real coloring book, available for sale at Amazon.com for $8.95.

The EEOC has been as busy as ever. Below are two recent discrimination settlements.

EEOC Settlement:  Race Discrimination at Construction Site

The EEOC has settled a case brought against yet another construction company.  The racial harassment case filed against Washington Group International, Inc. was settled for $1.5m.  The suit alleged that WGI created a racially hostile work environment for black employees and failed to take appropriate action to remedy the harassment.  $1.3m of the settlement will be distributed among 6 black former employees and $200,000 will be shared among 11 similarly situated individuals.  The alleged conduct is said to have occurred on a construction job site in Massachusetts.

Delaware-Based Conectiv Settles Race-Discrimination Claim with Philadelphia EEOC for $1.65m.

EEOC Settlement:  Age Discrimination Class Action Against Lockheed Martin

Lockheed Martin Global Telecommunications settled an age discrimination class action for $773,000.  The Maryland-based employer was sued for allegedly discriminating against eight employees ages 47 to 65.  The workers were fired during a reduction in force in October 2000.  The former employees had been paid severance packages, so the settlement amount constitutes only back-pay remedies.

The Equal Employment Opportunity Commission (EEOC) has filed suit under the ADA against a Pittsburgh drug-treatment center.  The suit, which is brought on behalf of a former clinic employee under the Americans With Disabilities Act, alleges disability-based discrimination.  The employee, a recovering drug addict, worked full-time as a counselor at the clinic when was terminated when she tested positive for methadone in a random drug test.  

The Greenbriar Treatment Center in New Kensington, is alleged to have fired the employee despite her claim that she had a legal prescription for the methadone, which she'd been receiving through a treatment program since 2002.  She was later berated by her former boss, who told her that she "should be ashamed of herself."  The EEOC contends that the termination was unlawful discrimination against a person with a disability. 

The Americans With Disabilities Act & Illegal Drug Use

The Americans With Disabilities Act (ADA) does not protect current drug users.  But it does protect those who are in recovery for drug or alcohol abuse. 

The EEOC's Technical Assistance Manual for the ADA has the following to say about the use of illegal drugs as a disability:

Regarding Persons Currently In Recovery:

Persons addicted to drugs, but who are no longer using drugs illegally and are receiving treatment for drug addiction or who have been rehabilitated successfully, are protected by the ADA from discrimination on the basis of past drug addiction.

For example

An addict who is currently in a drug rehabilitation program and has not used drugs illegally for some time is not excluded from the protection of the ADA. This person will be protected by the ADA because s/he has a history of addiction, or if s/he is "regarded as" being addicted. Similarly, an addict who is rehabilitated or who has successfully completed a supervised rehabilitation program and is no longer illegally using drugs is not excluded from the ADA.

Regarding Persons Currently Using:

However, a person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be "substantially limited" because of drug use, s/he must be addicted to the drug.

To ensure that drug use is not recurring, an employer may request evidence that an individual is participating in a drug rehabilitation program or may request the results of a drug test.

Not having seen the complaint, I'm at a bit of a loss as to what type of facts may be alleged to support the EEOC's claim.  To present a viable claim, the EEOC has to allege that the employee (1) is disabled, presumably because of her drug addiction; and (2) she suffered some adverse action, presumably the termination; and (3) Number 1 was the reason for Number 2; i.e., that she was fired because of her drug addiction. 

My initial reactions to this scenario:  What was the clinic's drug policy? I'd think it would be more comprehensive than most.  Did it address methadone?  What was the clinic's position, if any, on methadone programs as a recovery treatment?  And, of course, wasn't there a pre-employment drug test?  If so, did she test positive for methadone?  If she did, well, it seems like clinic could be in a bad spot.  If she didn't, was she still using illegal drugs?  Would that have been a piece of after-acquired evidence (i.e., falsifying drug test results, etc.) upon which the employer could have terminated her?  That would be a reason other than a "disability."

The merits of the case may also depend on how the court defines a "recovery program" as that term is used in the EEOC's Guidance, above.  It isn't clear from the EEOC's own definition whether the methadone program would qualify.

A "rehabilitation program" may include in-patient, out-patient, or employee assistance programs, or recognized self-help programs such as Narcotics Anonymous.

Source:  Post Gazette at http://www.post-gazette.com/pg/08166/889903-56.stm