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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Good Article About Workplace Blunders

Posted in General Employment Discrimination

Just a quick plug for a column written by Aaron Taube in Business Insider entitled “8 Inappropriate Things You Might Be Doing At Work.”

mistakes : Closeup portrait, rude, angry,senior mature business man gesturing with finger against temple, are you crazy? Isolated white background. Negative human emotions, facial expression, feeling, attitude

We’ll just highlight one of his “inappropriate things” – “Asking someone to speak for the people of their race/ethnicity/gender/sexuality.”  He writes: 

“Perhaps there’s a hot-button social issue in the news and you’d like to know what your black/Latino/gay/female coworker thinks about it. This is fine, but don’t make your query about their status as a minority. Whatever you do, don’t start your sentence with the phrase: ‘As a [black/Latino/gay] person ….’”

mistakes : Illustration depicting a roadsign with a my bad  concept. Blue sky background.

 Go read the others.

 

Pregnant Waitress Fired Because “Baby Was At Risk”: Another EEOC Suit Has Followed

Posted in Pregnancy Discrimination

A Texas restaurant and bar was just sued by the EEOC.  Reason?   It fired a waitress because she was pregnant, allegedly telling her that “her baby’s health was at risk” because the bar is a smoking establishment.  (In this case, as in so many others, the expressed “concern” may have been simply a cover for outright discriminatory animus since the owner complained that “she was starting to show”).

She was forced to take early maternity leave, “and never assigned her another shift thereafter, effectively discharging her.”

On July 8th we prefaced a post with the following boldly lettered warning:  You Cannot Fire Or Place A Pregnant Employee On Leave Because “The Baby Is Taking Its Toll On You” Or Because Of Potential Harm To The Baby Or Because “Pregnant Women Should Not Work.”

pregnant worker : Pregnantcouple in workers jumpsuit isolated in white Stock PhotoApparently the Texas bar did not know this, or disregarded it.

On March 13, 2013 we cautioned that the EEOC is very serious about pursuing discrimination cases filed under the Pregnancy Discrimination Act (PDA), especially if you fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health.    You cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child.    See our post of April 18th

Our recent post of June 25th related to a new suit in which the EEOC claimed that a spa franchise in Charlotte, NC fired a just-hired employee (a front desk associate) because she had just notified it that she was pregnant. According to the EEOC, the clinic manager told her that “pregnant women should not be working.”

Christina wrote last month about the EEOC’s newly-issued Enforcement Guidance on Pregnancy Discrimination and Related Issues. “The Guidance largely sets forth well-established interpretations of the Pregnancy Discrimination Act (“PDA”) and the interplay with the Americans with Disabilities Act, the Family and Medical Leave Act, and Title VII.”   As evidence of the EEOC’s seriousness about this issue: it has just reported that since the start of fiscal year 2011, it has filed over 45 lawsuits involving pregnancy discrimination.

As an EEOC attorney noted in the press release about this latest Texas PDA case:

“Employers should be well beyond archaic prejudices against women who are pregnant. Too many employers have continued to deny female workers equal opportunity to earn a living for their families and themselves, simply because they are pregnant or ‘showing.’   The EEOC continues to combat such prejudices and practices as part of its efforts to educate the public about the rights of women in the workplace – everyone should be free from this obvious form of sex discrimination.”

Pregnant sad woman is dismissed by her boss and invited to leave  out isolated on white background Stock Photo - 16063523

We printed a great comment recently by Jim Watson, an HR generalist in the Detroit area, who warned HR folks about this aspect of the PDA, and provided some good advice.  We reprint it here:

“Richard, great article. I think there are a lot of employers who erroneously make decisions to fire or remove pregnant employees from certain jobs out of misguided notions of protecting the employee/unborn child from certain work conditions or out of a general fear that the pregnant employee will get hurt and sue or drive up Workers Compensation costs.

I think it is vitally important that we HR professionals continue to help educate our employers that this type of thinking is no longer acceptable to the federal government and the agencies with activist agendas that get these types of complaints. Discussing such EEOC decisions helps to validate our message.

I have advised the management teams I have worked with in the past to make an individual assessment of each situation and to take appropriate action when necessary based upon the unique facts of that situation. Having good data and factual information to work with, not overreacting and talking with the employee are all suggested courses of action.”

Our Repeated Takeaway, Repeated Once More:    Take this issue seriously … because the EEOC has made obtaining not just monetary damages but also “targeted, equitable relief” – such as all sorts of injunctions — one of its top priorities. This means that you could be scrutinized closely by the EEOC and/or the Court for years.

 

 

Massachusetts Employers Must Grant Leave to Victims of Domestic Violence

Posted in General Employment Matters, Leave Laws

On August 8, 2014, Governor Deval Patrick signed into law An Act Relative to Domestic Violence.  In relevant part, Section 13 of the law requires employers with 50 or more employees to 622408_sprovide up to 15 days’ leave in any 12 month period if 1) the employee or family member of the employee is a victim of abusive behavior; and 2) the employee is using leave to seek medical attention, counseling, victim services or legal assistance, to secure housing, obtain a protective order, or appear in court as related to abusive behavior against the employee or a family member.

The leave is not available if the employee is the perpetrator and may either be paid or unpaid. Employees must provide advance notice if possible, and if not possible, within 3 working days after taking leave. Despite this provision, there is a provision that basically gives the employees 30 days after the fact to bring in documentation requested by the employer where there is an unscheduled absence. Employers can require that employees  exhaust PTO  first.

There is a requirement that employers notify employees of their rights and responsibilities, but there is no specific poster contemplated by the statute. Nor is there any indication that annual notice is required. Employers could satisfy the notice obligation either by creating a posting or by giving employees and new hires a copy of a notice of rights and responsibilities.

In any case, this part of the  law  is immediately effective so covered employers should take immediate steps to provide notice to employees and to insure that leave is provided when requested.

 

Gee Whiz! Sexual Harassment Claims Abound at Archie Comics – By Both Males and Females!

Posted in Sexual Harassment

Comic books were never this weird.    And certainly not Archies!

However, charges and countercharges of sexual harassment have been aired in the courts for more than 3 years.  Male execs who charged that the female CEO had harassed them were themselves just sued by female execs who claim that they were harassed by the men simply for having worked for the female CEO.  Got it?

You can’t make this stuff up — even if you were a comic writer!

Comics : Ironic Satirical Illustration of a Retro Classic Comics Woman Being a Drama Queen

Christina filed a post on July 12, 2011 which reported that Archie Comics had filed for an injunction barring its Co-CEO Nancy Silberkleit from entering the premises.  Archie accused Silberkleit of sexual harassment, including making numerous comments about male genitalia, and some rather offensive personal habits such as wearing the same clothes for several days and letting her dog defecate in the premises.

Pow!

On December 9, 2013, we reported that Silberkleit was accused in a (second?) lawsuit of gender discrimination against several male employees.  Plaintiffs, who included both the president and the editor-in-chief, claimed that she referred to them as “penis,” and yelled “Penis! Penis! Penis!” during a business meeting.   The Daily News reported that “the word ‘penis’ became somewhat of a campaign slogan and her preferred method of referring to employees in lieu of their names.”

Blam!

Comics : Scared man in old comic book style.

The Daily News has now reported that a new lawsuit was filed “earlier this year,” this time by three female execs who allege that they too were “subjected to gender discrimination and sexual harassment.”    However, they allege that “Archie Comics is a male dominated and male run workplace that disrespects females,” and that they were “targeted and retaliated against” by male bosses because they worked directly for Silberkleit.  These allegedly disrespecting bosses are alleged to include the very same male president and editor-in-chief who sued Silberkleit!

Kaboom!

Whew!  Can’t keep these story lines straight.   Think we will go back to Batman comics!

comic books : Comic Book Illustration

 

Accommodate Religious Beliefs: The EEOC Is Watching

Posted in Religious Discrimination

Discrimination based upon religion is in the news today after the EEOC just sued a Food Lion store in North Carolina for refusing to accommodate, and firing, an employee who is a Jehovah’s Witness.

religion : hands protecting the glowing flame of a candle in the darkness Stock Photo

When he was hired as a meat cutter, the employee told the store manager that his religious beliefs required him to attend church services Sundays and Thursday evenings.  The manager agreed to accommodate this request, but when he was transferred to another store, his new manager fired him noting that he didn’t know how the employee could not work on Sundays.

An EEOC attorney stated:  “Many decision makers seem to forget that unless providing a reasonable accommodation would impose an undue hardship on the company, the accommodation must be provided.  No person should ever be forced to choose between his religion and his job.”

On October 26, 2013, we recommended an article in the Wall Street Journal (page B1) about the increasing number of claims of religious discrimination:  ”Part of the surge comes from employees – Muslims, Christians, Seventh-Day Adventists and others – who were denied requests to avoid work on Sabbath days. Conflicts also have erupted over workers’ appearance, particularly in jobs requiring uniforms, involving food preparation and in image-focused fashion retailing.”

We also reported last year that the EEOC announced that it had settled (for $70,000) a case of religious discrimination against an employee who was a Jehovah’s Witness because the employer failed to accommodate his request for a schedule change so he could attend an annual religious service.   Besides having his request denied, he was fired, and also placed on the company’s list of “do not rehire” employees.

An EEOC trial attorney said what we always advise employers:   “Businesses have a clear legal duty under federal law to handle requests for religious accommodations from their employees with due amounts of consideration.”

religion : Man pray for something over black background with space for text on right

We have blogged many times about religious accommodation issues, which though complicated, cannot simply be ignored or unilaterally denied without making some attempt to accommodate the employee.  Many such cases involve time off, as this latest one does, but many involve dress and grooming codes.

Two years ago, my partner Christina wrote about a workshop sponsored by the EEOC’s Training Institute and the agency’s Washington, D.C., field office, where a senior attorney noted that these types of cases are “low hanging fruit.”

“The reason is that these cases,” she wrote, “unlike a lot of employment cases, do not usually involve a lot of documents or witnesses.  Instead, it usually involves a low level manager who is strictly enforcing a dress code that is usually contained in one or two paragraphs of a handbook.  As the senior EEOC attorney stated, managers need to be trained that certain religious beliefs may mean that employees cannot comply with a dress code.   Managers also need to be trained that a dress code is not carved in stone and some flexibility may need to be applied.”

 

 

Tick Tock: Have You Filed Your EEO-1 Report Yet?

Posted in Equal Employment Opportunity Commission, OFCCP, Race Discrimination

17674277_sPrivate employers with 100 or more employees must file an EEO-1 Report each year.  This year’s deadline for filing is September 30, 2014.

The preferred method for completing the EEO-1 report is the web-based online filing system, which can be accessed at the EEOC’s website here.

The EEO-1 report requires covered employers to set forth for each job classification the numbers of employees in each of six ethnic groups.

If you are an employer who has had more than 100 employees for years and has never filed an EEO-1 report, don’t panic.  The remedy for failure to file is that a court may simply order you to file the required report.

That does not mean that you should continue to not file the required reports to try to stay off the EEOC’s radar.  Steps should immediately be taken to file for this year.  Filling out the report may take some time, especially if you have not been tracking the demographics of your employees all along, so don’t leave this for the last minute.

How do you know to which ethnic group an employee belongs?  The EEOC prefers that employers give employees an opportunity to self-identify and then if they decline to do so, the employer may put down the ethnic group that you believe the employee belongs to based on a visual inspection.  When sending out surveys to employees, employers should be careful to note that the survey is for reporting purposes, is voluntary, and will not be used in making any employment-related determinations.

ALERT! EEOC Disciplined And Embarrassed: Court Sanctions It’s Attorneys For Premature Announcement Of Settlement, And Directs It To Hold Press Conference Retracting Its Prior Announcement

Posted in Equal Employment Opportunity Commission

On June 5th of this year we discussed the case of a group of Hawaiian farms and a labor contractor sued by the EEOC for allegedly harassing and mistreating Thai farmworkers.

We wrote that “[t]his week the EEOC announced that it had settled the case with four of the Hawaiian farms for an aggregate of $2.4 million. The EEOC General Counsel said that ‘This resolution reflects the commission’s redoubled effort to challenge discriminatory practices against the most vulnerable workers, who often live and work in the shadows of the economy (emphasis added).’”    We noted the EEOC’s big splash of a press release (and wide press coverage).

EEOC Touts Settlement — Court Says “Not So Fast”

On June 9th we published a post entitled “EEOC Touts Settlement — Court Says ‘Not So Fast.’”   Apparently our first post about the settlement was premature because the EEOC  had jumped the gun in announcing the settlement and was dealt a blow by the Court, which denied the EEOC’s consent decrees — at least temporarily, apparently because the EEOC failed to comply with the Court’s procedural rules and oral instructions given to its counsel.   Moreover, the Court, sua sponte, ordered the EEOC to show cause why sanctions should not be imposed against it’s counsel.    Read the order here.

punishment : Cartoon of Dad scolding his son and sending him away Illustration

Why Did The EEOC Prematurely Announce A Settlement?

We tried to access the link to the EEOC’s earlier press release about the purported settlement but it was taken down.  

Many readers told us not to trust the accuracy or truthfulness of EEOC press releases, because the EEOC, so they said, is notorious for  puffing questionable cases and seeking publicity at the expense of innocent employers (and sometimes the truth).   

The Court Has Just Excoriated The EEOC

The Court in the Hawaiian farms case has now issued a blistering decision in which it held that “The EEOC’s filing of the Consent Decrees with the unsigned orders on June 3, 2014 violated both Local Rule 100.9.1 and this Court’s oral instructions to counsel’s staff member. … The EEOC’s counsel disregarded that instruction, apparently so that EEOC officials could announce, during a previously scheduled press conference, that consent decrees had been “filed” in this case.”

punishment : Violence and abuse - cry child pull ear punishment

So that’s why the rush to a press release!

As to the EEOC’s premature press release, the Court stated that “While this Court recognizes that the EEOC uses press conferences to inform the public about litigation that the EEOC is involved in and to educate the public about unlawful discrimination practices, the EEOC should not have held a press conference regarding the settlements … until this Court signed the orders attached to the Consent Decrees and filed the documents.   This would likely have occurred in a timely manner, i.e. no more than seven to ten days after the EEOC submitted the Consent Decrees and proposed orders … The EEOC could have held its press conference at that time.”

To redress the EEOC’s premature press announcement, the Court ordered that “it will not consider [the EEOC’s] request to approve the four Consent Decrees unless the EEOC holds a press conference retracting its statements at the June press conference regarding the improperly filed Consent Decrees.”

punishment : Violence and abuse - little child strap punishment

As to sanctions, the Court ordered that “there is good cause to discipline both [EEOC attorneys] … This Court will file a disciplinary complaint against each of them with the State Bar of  California.”   Ouch!  Pretty serious stuff!

punishment : A businessman standing in the corner whilst wearing a dunce hat. Stock Photo

It gives us little joy or satisfaction to see the EEOC and its counsel humbled like this:  the EEOC is, after all, the leading agency in combatting employment discrimination and harassment, despite what may be overreaching or arrogance at times.

But our readers who warned us not to rush to publish EEOC press announcements until they were confirmed were apparently right … we will be a little more careful (skeptical?) in the future.

EEOC Sues Over Sexual Harassment Of Vulnerable Agricultural Workers

Posted in Uncategorized

One of the largest producers of fresh potatoes in North America has just been sued for sexual harassment by the EEOC.   It is alleged that several women at its Colorado location were sexually menaced by a production supervisor and fired when they resisted or complained.

potatoes : Happy woman gardener working on field, young female holding chest, girl growing organic green vegetables and fruits, summer garden, rural leisure outdoor, lady farmer, potato and onion harvest season

According to the EEOC:

The supervisor Valdez had a habit of licking his finger and putting it in the ears of at least two of the female plaintiffs; sexually propositioned some of the women; groped female employees’ buttocks at the time clocked; forced one employee to sit on his lap in a dark office and made inappropriately sexual remarks.   The EEOC charges that those women who opposed the supervisor’s conduct or reported him were forced to perform undesirable work and eventually fired.

helpless woman : Poor dirty girl staring into distance Stock Photo

We have written before about the EEOC’s announced intent to protect “vulnerable” workers:  we said on June 5th: “‘The most vulnerable workers’ — this is a part of the EEOC’s strategic plan for enforcement.   Protecting them, that is, as we noted before – think farm workers, migrant workers, workers in isolated areas, and mentally-challenged Henry’s Turkey workers.”

 

 

“Third-Party Sexual Harassment” — What Every Employer Must Know

Posted in Sexual Harassment

We have commented in many blog posts that a hostile work environment can be created in any way, by anybody, or by any means, if the employer does not address an employee complaint that the workplace has been made hostile by, say, sexually harassing behavior of an employee. 

A newly filed lawsuit gives us a good opportunity to discuss “Third-party sexual harassment.”

sexual harassment : Caucasian mid-adult man touching shoulder of woman sitting at computer who feels uncomfortable. Stock Photo

Third-Party Sexual Harassment

“Third-party sexual harassment” – that is, sexual harassment by someone other than an officer or employee of the company at which the victim works, is actionable harassment.    A hostile workplace based upon allegations of sexual harassment is not  a function of the status of the harasser but the fact that a hostile work place has been created (by the harasser) which the employer has done nothing to remedy.   

As an EEOC lawyer once put it:   “Employers are responsible for ensuring a harassment-free workplace for their employees, regardless if the harasser is a co-worker, manager or customer. There should be no tolerance for repeat offenders and serial harassers.”

We have cited many examples of third-party harassment:

***  a case where a store took no steps to remedy a situation where a customer was groping female employees;

***  a case where the harasser was an incredibly racist and sexist independent contractor;    

***  a class action settled for $200,000 by the EEOC against a restaurant for permitting female servers to be sexually harassed by a customer, a Palm Beach County sheriff’s deputy, who allegedly frequently grabbed their breasts and buttocks, made frequent sexual innuendos, and invited them to join in a ménage a trois;

***  a case we wrote about on February 4, 2012, where a female prison guard in Iowa sued prison officials under a “third-party harassment” theory claiming that sexually explicit and violent movies which inmates were allowed to see caused them to sexually harass her.   

Can A Vile Parrot Create A Hostile Work Environment?

And, of course, you might remember (or choose not to) our blog yarn about the parrot (true story!) kept by a patient in an expensive long term care facility which repeatedly shouted sexual vulgarities to an offended attending female nurse.   We asked whether an employer can be liable for creating a hostile work environment if it permits sexual comments to be made to an offended employee by, for example, a parrot?  

parrot : parrot Illustration

The nurse’s complaints to her supervisor were laughed off, but she got the last laugh because the court found a hostile work environment based upon sexual harassment.  It made no difference whether the harassing comments came from a supervisor or a bird — what was legally sigificant was that the employer took no steps to remedy the complaint of the offended employee – such as ejecting the parrot (and its owner), or permitting the employee to work with other patients. 

Teens As Victims

We have also reported that retail workers — especially teens — are particularly vulnerable to harassment, third-party or otherwise.  They are victims of harassment more often because of their relatively low status and power in the workplace; as with people victimized throughout society, they are more often the victims of this “power differential.”  

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Low Workplace Status And Power Differential

On December 27, 2012 we published the following about low status and power differential in the workplace correlating with sexual harassment of younger workers:

“A study by Illinois State professors Kimberly Schneider and Patricia Jarvis (and reported by Business News Daily) has found that adolescents employed as sales clerks or flipping burgers are more likely to be sexually harassed by older co-workers than adult employees, and more likely to be harassed than adolescents in jobs that provided more meaningful work and autonomy. Significantly, such harassment can lead to lower job satisfaction, lower skill development (especially in females), and can impact performance in school, absenteeism, tardiness and grades.

New Lawsuit

It has now been reported that a lawsuit has been filed against Urban Outfitters by a former employee who claims that she suffered sexual assault and sexual harassment from customers, with the company doing nothing about it — and even worse, mocked her, with a security guard calling her a “stupid bitch,” and retaliated against her.

So she quit.  She told the Daily News that “I felt traumatized.  I felt I was being punished.  They made it their mission to make me feel invalidated.”

She alleges in her suit that a customer grabbed her lip, licked her cheek, and grabbed her dress while trying to pull her chest out of it.  Earlier, a security guard told her that a customer had been following her and videoing up her skirt.

In all of these cases she claims that other than ejecting the customers, the police were never called, nor was she provided with the harassers’ names so that she could file a criminal complaint.

On the contrary, she claims that one guard mocked her, and one guard “patted her down” as she left work — sexually inappropriate and not done to other employees, she alleges.

For its part, the company issued a statement that it “abhors unlawful discrimination and harassment and has policies which prohibit such conduct in the workplace. The Company takes these matters very seriously and is currently investigating the allegations made in the complaint.”

 sexual harassment : Woman flirting with a man Stock Photo

Transgender Discrimination Outlawed! (In Malta)

Posted in Gender Identity or Expression, Trangendered individuals; gender identity, Uncategorized

Since everyone knows that the country of Malta (“Where’s that, Jake?”) is in the vanguard on human rights, and is more enlightened and progressive than, say, an old-fashioned, traditional country such as the US, which usually lags behind, it should therefore come as no surprise that Malta just outlawed discrimination against transgender individuals, on grounds of sex.

 malta flag : very big size malta black map with flag 

Malta is the first European country to forbid discrimination on the basis of gender identity in its Constitution.

transgender : Gay Pride flag on stand on pink background Stock Photo

Perhaps the example of Malta may influence the US when it comes to guaranteeing human rights (for its own citizens, that is).