Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

“Harrowing,” “appalling” and “extreme abuse” were words used by EEOC lawyers regarding a series of lawsuits targeting sexual harassment, particularly of farmworkers who are subject to an "appalling abuse of power."

One example was an EEOC suit against National Food Corporation, a major egg supplier in Washington.  It was alleged that the company allowed a supervisor to physically grab a female worker who worked alone in a henhouse where the harasser was the only management person on site. He made sexual demands upon her several times a week from 2003 to 2010.

She said that "For almost seven years, I tried to just survive these demands from my boss, because I needed to support my mother and my daughter.” 

Now the company has settled this action for $650,000.

The EEOC General Counsel stated what we have been repeating for years: "It is one of the EEOC's national priorities to combat discrimination against vulnerable workers, and we hope that this settlement sends a message to other employers that they need to be vigilant to prevent sexual harassment and other abuse."

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Don’t say that the EEOC did not warn you – it included GINA as one of its priorities in its Strategic Enforcement Plan ("SEP").  So now, hot on the heels of its first GINA lawsuit (and settlement), the EEOC announced thatit has filed a GINA class action against The Founders Pavilion, Inc., a Corning, N.Y. nursing and rehabilitation center.  Under GINA, employers cannot, in the hiring process, request genetic information and family medical history.

The EEOC alleges that the company conducted post-offer, pre-employment medical exams of applicants, and annual exams if the person was hired, and requested family medical history.

Elizabeth Grossman, the NY EEOC’s regional attorney said that "GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law.  Here, not only did the employer ask for prohibited information, it also discriminated against individuals with disabilities or perceived disabilities as well as pregnant women."

That last statement should resonate with health care facilities, who we have repeatedly warned that the EEOC is targeting under the ADA for disability discrimination.  Now, it seems, it is targeting them under GINA too.

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Once again, despite the express feeling of being "ashamed" about sexual assault in the military by the President, there is a new story tonight about a military arrest - it has been reported that a Lt. Col. at Ft. Campbell who is a sexual harassment prevention officer has been arrested for a sexually-related crime.

This case is distinguishable from our previous posts because his issue was with an ex-wife with mutual restraining orders, not with subordinates.  He was removed fom his position by the Army while his domestic dispute is beign resolved.     

In any event, the US military has a clear institutional resistance to any change.  The "chain of command" model must be changed.  Without a change of the culture of the military, these episodes will continue.

This is no joke - it is a serious situation of criminal behavior.

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A number of people have written about our “Shy Bladder” post, questioning whether it is, indeed, a disability. After all, what life function does it impair? 

One reader who is a sufferer of paruresis wrote:

“As a person who suffers from shy bladder, I can say that it disables me only by causing me to take forever in the restroom. I can't urinate in a public restroom if I know that anyone else is in the room. I have an awful time when my bladder is really full and I have to go into a store restroom. I take 3-4 times as long as any other woman.

I had to undergo random urinalyses when I was in the Navy, and they were a whole lot worse than in the civilian world. In the Navy, the observer actually had to observe. I was watched from start to finish, and it was very unpleasant. I always had to have the observer turn on the faucet to help me.

I can understand the person being unable to urinate with anyone else in the room, but I think the employer can overcome the problem. Medical providers have what they call "top hats" -- plastic things that sit across the toilet and collect urine. The employer can rig the toilet with one of these. Then, they can pat down the person before leaving her to provide the sample. It'd be more time-consuming, but it can be done.”

 So according to our reading of our reader’s comment, even if “shy bladder” is not a disability, nonetheless there is still an easy way to accommodate a person -- a top hat! - so there should never be an issue. 

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In accordance with its Strategic Enforcement Plan ("SEP"), the EEOC is addressing these issues in a new Question and Answer Series. Both employers (and their HR advisors) and employees can benefit from reading this.  See: http://www.eeoc.gov/laws/types/disability.cfm.

The EEOC Chairwoman states that "Nearly 34 million Americans have been diagnosed with cancer, diabetes, or epilepsy, and more than 2 million have an intellectual disability.  Many of them are looking for jobs or are already in the workplace.  While there is a considerable amount of general information available about the ADA, the EEOC often is asked questions about how the ADA applies to these conditions."

The EEOC press release describes these documents as “ reflect[ing] the changes to the definition of disability made by the ADA Amendments Act (ADAAA) that make it easier to conclude that individuals with a wide range of impairments, including cancer, diabetes, epilepsy, and intellectual disabilities, are protected by the ADA. Each of the documents also answers questions about topics such as: when an employer may obtain medical information from applicants and employees; what types of reasonable accommodations individuals with these particular disabilities might need; how an employer should handle safety concerns; and what an employer should do to prevent and correct disability-based harassment.”

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In a military where, last year, there were a whopping 26 convictions out of 26,000 charges of sexual assault (and only 3,000 reported charges), the news tonight is that the sexual harassment prevention officer at Fort Hood has been arrested for sexual assault and for forcing a subordinate into prostitution.  This is the second such officer arrested in a week. 

Seems that the chain of command structure, where it behooves a superior officer to cover up such charges, may be a factor, as well as the entire, engrained culture of the military.  This scares victims into keeping silent about such assaults.

Law enforcement is failing in the US military.

More as it comes to light.  

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Although the UK Equality Act, like the US ADA, prohibits disability discrimination, a Macmillan Cancer Support/YouGov online survey says that 37% of employees who undergo cancer treatment report discrimination, an increase from 23% in 2010.  It also found that 9% felt harassed enough to quit, and 13% reported lack of reasonable accommodations. 

The Chief Executive at Macmillan Cancer Support noted that: 

“As our population grows and ages, and the retirement age rises, cancer will become an increasingly common issue for employees and their managers. It’s vital they are equipped to help people with cancer stay in work. It isn’t difficult and it is likely to be cheaper and easier than recruiting a replacement or defending a discrimination claim.”

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Way back on October 4, 2011, we asked whether any of you were ever in a situation where you had to produce a urine sample as part of routine drug testing, or were in a football stadium bathroom with a line of impatient fans behind you who had been drinking beer for hours and were muttering menacingly because you just froze up?

The pressure was on you, that’s for sure.  It’s called “paruresis,” also known as “shy bladder” or “bashful bladder.”  It is, simply, a bladder that has performance anxiety when the pressure is on, whether in a public situation or with others around. It’s a bummer, but is it a disability for purposes of the ADA if you are not hired because you can’t show a clean drug test because of it?   What “major life activity” is substantially limited by possessing a shy bladder – urinating in public? Drinking beer at a Giants game?

The EEOC  considered in 2011 “whether paruresis is a disability under the Americans with Disabilities Act (ADA), as amended by the ADA Amendments Act of 2008 (ADAAA), and under the regulations implementing the ADAAA published by the U.S. Equal Employment Opportunity Commission (EEOC) on March 25, 2011,”  in an informal opinion letter . 

We summarized this letter in our blog post at:: http://employmentdiscrimination.foxrothschild.com/2011/10/articles/americans-with-disabilities-ac/is-having-a-bashful-bladder-a-disability-or-merely-a-problem-at-halftime-at-giants-stadium/

The EEOC came to no definitive or clear conclusion, which led us to say:  “Stay tuned because we will no doubt see such a fact situation hit the courts soon enough and learn more.”

Well, the case has arrived – an applicant for a position as a an organ transplant financial coordinator at Iowa Methodist Medical Center failed a job-related drug test and was refused hiring because she could not complete the urine test – yep, paruresis. She sued under the ADA claiming that the Medical Center failed to make a reasonable accommodation for her alleged disability.

She claimed that she had always managed this condition by using single-stall restrooms or by running water to cover the sound of her urinating. Her court filing states that if she "cannot flush the toilet or run the water in the sink, she is generally unable to urinate in a public restroom." 

Should, or could, she have been accommodated without undue hardship?

Finally, we may get an answer to these weighty issues.  In the meantime, don't drink too much beer if the water's running. 

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A jury recently slammed Henry’s Turkey Service for $240,000,000 -- the largest verdict in EEOC history, for exploiting intellectually disabled workers by, among other things, paying them only $65 dollars per month eviscerating turkeys on an assembly line. In an ADA case brought by the EEOC, an expert witness had testified that the company "took advantage of the workers ... knowing that they would not likely be discovered because the workers were disabled."

However, it’s an early Thanksgiving for Henry – the EEOC just filed court papers in which it conceded that under the ADA the verdict must be reduced to $1.6 million. The ADA has a cap on damages: it limits compensatory and punitive damages to $50,000 if the company employs between 14 and 101 for 20 or more weeks during a calendar year.  

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David Miller, a litigator from Sydney, Australia, helpfully wrote about the workers comp decision from Australia which we discussed last week where an employer was found liable for injuries sustained from a falling chandelier by an employee who was traveling for work and had "wild sex" in her motel room:  

"And now the case is off to our High Court - the equivalent of SCOTUS in the judicial hierarchy - http://www.smh.com.au/national/sex-injury-compo-case-goes-to-the-high-court-20130510-2jdcc.html"

For those scholars who want to conduct further legal research into the factual underpinnings of this fascinating case, a click on the above link is a required first step.

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Is bad credit an accurate predictor of employee trustworthiness or reliability?  Or is it discriminatory?  We first discussed this in 2011, before the great debates began. 

See link: http://employmentdiscrimination.foxrothschild.com/2011/02/articles/another-category/careful-how-you-use-those-credit-checks-they-could-be-discriminatory/

The New York Times today has a great article, "The Long Shadow of Bad Credit," that nicely illustrates the on-going debate about credit checks and trustworthiness, and the proliferation of anti-credit checking laws.  It uses interviews with employees, employers and credit reporting bureau spokespeople, as well as studies on whether there is a statistical correlation between bad credit and job performance or propensity for committing fraud, to highlight the arguments for and against such laws. 

And whether the use of credit checks is a way to discriminate illegally "[i]f you have five people and can't make up your mind."

The NYT link: http://www.nytimes.com/2013/05/12/business/employers-pull-applicants-credit-reports.html?pagewanted=all

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My faithful assistant Chrissie has been working hard to come up with a good Friday 5-Minute Laugh Session for this week's installment.  She decided to try to come up with one related to training, since I had two training sessions this week with a client covering employee relations for managers.

I am pleased to report that my training sessions went much better than this, but this Duck Dynasty clip is priceless in demonstrating how quickly a session can get out of hand with unruly employees.

http://www.youtube.com/watch?v=KC4BRcRr5Z4

Happy Friday!

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Yes, this is true.  An employer in Miami required employees to attend courses at the Church of Scientology, and also “to spend at least half their work days in courses that involved Scientology religious practices, such as screaming at ashtrays or staring at someone for eight hours without moving.”   Sounds like “The Master.”    

They also required one employee to undergo an "audit" by an "E-meter"  

"According to the EEOC's suit, employees repeatedly asked not to attend the courses but were told it was a requirement of the job. In the cases of [two employees], when they refused to participate in Scientology religious practices and/or did not conform to Scientology religious beliefs, they were terminated."  

Anyway, the EEOC sued the employer, Miami’s Dynamic Medical Services, which provides medical and chiropractic services, claiming that “Requiring employees to conform to religious practices and beliefs espoused by the employer, creating a hostile work environment, and failing to reasonably accommodate the religious beliefs of an employee all violate Title VII of the Civil Rights Act of 1964.” 

It is interesting that at a time when Scientology is contending that, at least for tax purposes, it is, in fact, a church, its "religious practices" are resulting in an alleged Title VII violation.

One EEOC lawyer said that "Employees' freedom from religious coercion at the workplace must be protected," and another said "When an employer makes an employment decision based on employees' failure to adopt the employer's religious beliefs, it violates federal law.”

Takeaway:  If you want to force employees to scream at ashtrays, make sure there is no religious aspect to it. 

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The first lawsuit ever filed by the EEOC alleging genetic discrimination under GINA has been settled, and the allegations in the suit nicely illustrate the requirements of GINA (or at least what the EEOC views as its requirements). GINA, the Genetic Information Nondiscrimination Act, has been around since 2009 but it is widely misunderstood, if understood at all, and there has been little court precedent.

GINA makes it illegal to discriminate against employees or job applicants because of genetic information, which includes family medical history, and restricts employers from requesting, requiring or purchasing such information.

The EEOC alleged in the Oklahoma federal court that the employer refused to hire a woman who had been given an offer of a permanent position as a memo clerk because tests it had conducted concluded that she had carpal tunnel syndrome (“CTS”).

The company had sent her to an outside laboratory for a drug test and physical, and there she had to fill out a questionnaire disclosing the existence of numerous listed disorders in her family medical history. According to the EEOC, “[t]he questionnaire asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and ‘mental disorders’ in her family. [She] was then subjected to medical testing, from which the examiner concluded that further evaluation was needed to determine whether [she] suffered from carpal tunnel syndrome (CTS).” 

Although her own doctor found that she did not have CTS, her offer was revoked because the company’s outside lab indicated otherwise.

 The lawsuit therefore claimed a violation of both GINA (since the company asked for her family medical history), as well as the ADA (because the company perceived the applicant as having CTS).  The company settled immediately for $50,000.

An EEOC attorney said that "Employers need to be aware that GINA prohibits requesting family medical history. When illegal questions are required as part of the hiring process, the EEOC will be vigilant. …”

We will be seeing more of GINA as the EEOC zeros in on it.  

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