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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

Congressional Report Criticizes EEOC Litigation Choices: Valid Criticism or Politics as Usual?

Posted in Equal Employment Opportunity Commission

Yesterday, Senate Republicans on the Health, Education, Labor and Pensions Committee issued a minority report criticizing the EEOC’s litigation tactics.  If anyone was wondering how the Republicans would come down on the issue, the title of the report says it all:  “EEOC:  An Agency on the Wrong Track? Litigation Failures, Misfocused Priorities, and Lack of Transparency Raise Concerns about Important Anti-Discrimination Agency.”

29799241_sThe report is fairly scathing and focuses on several allegedly problem areas.  One focus of the report is the courts’ criticism of the EEOC for failing to conciliate matters before litigation as required.  The background of the criticism is the fact that courts have ordered the EEOC to pay attorneys’ fees in ten cases since 2011.  As some of you may know, Title VII allows for the “prevailing party” to recover attorneys’ fees. The law is not simply a “loser pays” scheme.  In order for a defendant to recover fees, the defendant must be able to show that the claim was basically frivolous, i.e., without legal or factual basis.

In response to criticisms regarding the conciliation process raised by litigants of the claims, the EEOC has taken the position that its conciliation process is not subject to judicial review.  It is merely for the court to determine whether conciliation took place and not whether conciliation methods were in fact done in good faith.  Most courts have rejected this argument, but thanks to a Seventh Circuit decision adopting the EEOC’s position, there is now a split in the circuits.  The case, Mach Mining v. EEOC,  will be argued before the Supreme Court this term.

I, thankfully, have not had any probable cause findings at the EEOC in recent years. However, the last time I did have one, the conciliation process was not much of a “process.”  My client was presented with a take it or leave it demand of over $100,000, $50,000 of which was designated as attorneys’ fees.  When my client made a counter-offer, we were told that the mediation process was over.  In that case, the reason could have been as simple as the EEOC recognizing that this was a divide that was not going to be bridged (I think the counter-offer was in the low five figures).  However, litigants have complained that in lawsuits that this type of “take it or leave it” approach is how the EEOC conducts conciliation.

There are always dangers of relying solely on a few anecdotal reports.  I have also heard from several of my colleagues that this has not been their experience and that the EEOC is more willing to continue to try to negotiate in the conciliation process.  It is questionable how much impact this minority report will have on the EEOC and their litigation tactics in any case.

We are curious, what do you think?  Do you think the EEOC conciliation process would bear up under court scrutiny?

Testing Job Applicants For Carpal Tunnel Violates ADA: EEOC Lawsuit

Posted in Americans with Disabilities Act, Equal Employment Opportunity Commission

An Illinois manufacture of steel castings for the rail industry was just sued by the EEOC for allegedly violating the ADA.  The EEOC alleges that the company illegally asks job applicants if they “have a history of carpal tunnel syndrome and gives them a nerve conduction tests.”  Seehttp://www.eeoc.gov/eeoc/newsroom/release/11-20-14.cfm.

carpal tunnel : Carpal Tunnel Syndrome cartoon of a man with a sore wrist. Illustration

Although the EEOC press release does not clearly explain the company’s professed need for such questions or the nerve test, it may be assumed that the company certainly views these as job-related. 

In any event, the EEOC said that “the most current relevant published medical literature does not support the use of such tests alone, or the use of prior medical history alone, to predict the development of carpal tunnel. … The result of these practices, according to the agency, was to deny employment opportunities to a class of people who had a history of carpal tunnel syndrome or who [the company] believed might develop that condition.”

Takeaway

As noted above, it is not clear to us whether there is a relationship between the job duties of this particular position and carpal tunnel syndrome.  But we may assume that the company feels that there is such a relationship, and that it is even possible that the EEOC may agree — the EEOC questioned the medical appropriateness or accuracy of the nerve test as a predictor and made no blanket statement that carpal tunnel syndrome does not prevent an employee from performing the relevant job duties with or without accommodations — as might be expected from the EEOC if that were the case.   

In any event, under the ADA the EEOC has gone after employers who make stereotypical assumptions about disabilities and the ability to perform the job, i.e, the perception of disability.   Read our blog of yesterday.

Said an EEOC attorney, quite accurately summarizing the relevant provisions of the ADA:  

“Employment decisions, including hiring decisions, must be based on a person’s ability to perform the job, not on stereotypes, assumptions or conjecture. An individualized assessment of the applicant’s present ability to safely perform the job duties is required if an employer screens out an applicant based on medical tests or exams in the hiring process.”

 

Critical Care Hospital Which Fired Nurse Who Needed Chemotherapy Settles With EEOC

Posted in Americans with Disabilities Act

If you were a critical care hospital would you fire a nurse with cancer who asked for an accommodation to get chemotherapy?  Even if you had meritorious grounds, would you do it, given the stark appearance of an ADA violation, as well as the horrendous publicity?   

We wrote about such a case in a post a year ago called “Critical Care Hospital Fires Nurse Who Asked For Chemo Accommodation.” It discussed a newly-filed EEOC suit against a North Carolina full-service critical access hospital for refusing to accommodate a registered nurse’s need for cancer chemo treatments, and then firing her.  

We asked then:  “What were they thinking?”

cancer care : Mid adult woman talking to doctor about her diagnosis

We don’t know, but after a year of litigation with the EEOC, the facility has just agreed to a settlement of $85,000. 

It was only a matter of time. 

And an EEOC attorney underscored our constant warning that the EEOC was targeting health care facilities for alleged ADA discrimination:  “One would hope that hospitals and other health care facilities would understand and respect an employee’s need for an accommodation resulting from cancer treatments.”

The EEOC Has Targeted Medical Facilities For ADA Violations For A Long Time

We have a particular penchant for, among other things, tracking new cases filed (or settled) by the EEOC accusing medical and health care providers of discriminating against people with disabilities (mainly because, as employment attorneys, we are amazed at how obtuse and oblivious some employers can be). 

In that same post last year we noted that the EEOC had also just sued a Michigan operator of a chain of assisted living facilities for violating the ADA.  The claim – after hiring an administrator of the new facility, the company learned from her at her physical examination that she suffered from epilepsy.  What did they do?  Fired her the first day that she worked. 

And then, “as a postscript,” we mentioned that the EEOC had just reported that a second North Carolina health care facility agreed to pay $51,000 to settle an ADA suit brought on behalf of a certified nursing assistant with asthma who was required by a new company policy to supervise residents during smoking breaks, which made her asthma worse. She submitted a doctor’s note and requested to be excused from this chore. 

She was fired.

asthma and smoking : smoking causes disease in children

Do Not Succumb To “Baseless Myths, Fears And Stereotypes About Persons With Disabilities 

We cited EEOC attorneys who said that the EEOC “will vigorously pursue violations of the ADA when employers base their decisions on baseless myths, fears and stereotypes about persons with epilepsy,” and that “Employers must be sensitive and reasonable about an employee’s complaints about a workplace hazard to their health, and health-related facilities should be especially cognizant of this.”

We have often cautioned employers about succumbing to “myths, fears and stereotypes” when it comes to people with disabilities.  See, for example, our post about an army veteran with a prosthetic hand.

Takeaway

When will employers listen to us?

 

Gender Pay Disparity Requires Pay Equity Analysis

Posted in Gender Discrimination

“Women continue to make less than men for the same work,” notes Tara Siegel Bernard in her interesting article in the New York Times of November 15th entitled “Vigilant Eye On Gender Pay Gap.”  

Link:  http://www.nytimes.com/2014/11/15/business/keeping-a-vigilant-eye-on-pay-equity-for-women.html?module=Search&mabReward=relbias%3Ar%2C%7B%222%22%3A%22RI%3A18%22%7D&_r=0

What is particularly interesting is that while she examines the causes of gender pay disparity, she also reports on what some companies are doing — conducting “pay equity analyses … to analyze whether their women are paid on par with equivalent men, job by job, then devising plans to fill in any gaps.”

These analyses, which are “needed to tease out gender bias” are fairly complex and sophisticated. 

 gender pay disparity : Income gap. Different income between husband and wife Stock Photo 

She says that “For some employers, a big motivation for running pay analyses is still to avoid lawsuits,” but quotes one consultant who said that “Now, you are seeing companies — technology, consumer products, health care — do it to stay competitive, and they are doing it as part of an integrated strategy.”

Other than a simple cost saving measure, she writes that gender pay inequity may be a result of women being “less inclined” to ask for a raise, because “When they do, they are perceived as less likable and may be penalized;” the so-called “motherhood penalty;” and the fact that “women are less likely to work the longest hours or specific hours.”

Well worth the read.

 

How to Prepare the Best Thanksgiving Turkey

Posted in 5 Minute Laugh

Huh?  Did this become a cooking blog?  No, it’s simply time for the Friday 5 minute laugh.  Chrissie has been diligently looking for a Thanksgiving video and has come across a few gems.  I decided to go with this one because I now have “All About the Bass,” I mean, “Baste” stuck in my head.  I thought I would share my pain. Enjoy this clever parody.

https://www.youtube.com/watch?v=XWe4GpTaO8I

Happy Thanksgiving!

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Grooming Policies: A Long-Haired Employee “Cannot Drag His Hair Thru The Food”

Posted in General Employment Discrimination, Title VII

A couple of readers of our blog post yesterday relating to employer dress and grooming policies helpfully added a couple of points about an employer’s legitimate health and safety concerns, which we publish below.

Marc Brenman, a university instructor in Olympia, WA:

“There are also issues of mutable characteristics, and safety. And issues such as the fact that the ability to wear long hair doesn’t mean the employee can drag it thru the food.”

long hair men : Portrait of a smiling and handsome man giving a peace sign isolated on white

Peter Mangles, healthcare exec in Aberdeen, UK:  

“This is a very interesting article about the rules and laws around discrimination and uniform and dress code policies. We have for many years in the health sector dictated to employees and staff about dress codes, uniforms and the wearing of jewelry at work. The wearing of rings, bangles and nail polish has for example been frowned upon and “banned” because of infection control and occupational health and safety reasons.

Shoe and uniform styles are often stipulated and enforced because of potential needle stick injuries and the exposure to blood and other bodily fluids. Depending on an individuals area of expertise other personal protective equipment (PPE) may be necessary that also affects what an individual may or may not wear.

The article was an interesting read in regards to the various precedents set in the courts in relation to grooming and uniform policy enforcement, something to mindful and aware of in the future.”

 

Is There A Duty To Mitigate Emotional Damages?

Posted in General Employment Discrimination, General Employment Matters, Title VII

Our post the other day about plaintiff/employee’s requirement of mitigating damages in employment discrimination cases drew some good comments, posted below.

But before we get to the comments, we wanted to discuss the duty to mitigate emotional damages.

emotional pain : young white woman sadly sitting with his head propped on his hands Stock Photo

Is There A Duty To Mitigate Emotional Damages?

We previously wrote about a case of apparent first impression in which a court held that that the duty to mitigate does not extend to emotional damages, because while Title VII explicitly requires a plaintiff to mitigate back pay losses, Congress’s deliberate decision not to require such mitigation when it comes to emotional damages means that there is no such duty.

The Court held that the EEOC was not required to prove that groped female employees made reasonable efforts to limit their emotional harm caused by the alleged harassment:   ”Congress’ deliberate decision to carve out this duty to mitigate damages [for back pay losses] clearly signifies that Congress did not intend to create a duty to mitigate all compensatory damages. If Congress intended there to be a duty to mitigate all compensatory damages, it is illogical that it chose to single out the duty to mitigate back pay alone.”

And now to our readers:

Lisa York Bowman, an attorney in the Atlanta area:

This is a great reminder. Plaintiffs often think they can sue and then fly to Vegas. On behalf of employers, I rely on this defense regularly.

William Deveney, also an attorney in the Atlanta area:

“There’s also a good argument that the failure-to-mitigate damages goes to more than just a lost wages claim.

From Faragher: ‘If the victim could have avoided harm, no liability should be found against the employer who had taken reasonable care, and if damages could reasonably have been mitigated no award against a liable employer should reward a plaintiff for what her own efforts could have avoided.’”

Sheila Halliman, an attorney in the Dallas/Ft. Worth area:

It should be noted that mitigating damages can be helpful to the claimant too. It reveals the effort put forth by the victim and the in some cases the difficulty of obtaining similar or better suitable employment.

Dr. Ralph Steel, a professor in the Dallas-Fort Worth area:

“Good post exchanges addressing mitigating damages and how it can be used to defend as well as put forth an employment discrimination case.”

 

 

 

Waddya Mean I Can’t Wear My Diamond Ring To Work?

Posted in Religious Discrimination, Title VII

We have just heard about an apparent controversy at Starbucks over a new corporate dress policy — apparently the policy limits an employee’s right to wear certain types of jewelry, clothing and shoes. 

Under the policy rings may not have stones in them, nose studs must be small and only two earrings per ear are permitted.  

diamond ring woman : Woman showing two hands full of rings

Tattoos cannot be on the face or throat and may not have lewd messages, and hair may not be in bright or “unnatural” colors.

Is all of this legal?  Depends. 

A lot has been written lately about dress and grooming codes.  Indeed, we have done a lot of the writing.  

On its face the Starbuck’s policy appears perfectly legal.  But serious problems may arise in its application, as Abercrombie & Fitch knows (as does the Supreme Court, which agreed last month to hear an appeal by the EEOC of A&F’s ”Look Policy”). 

Grooming/Dress Policies and Title VII

We have written before that although Title VII does not prohibit dress or grooming rules per se, such rules may still violate Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style.   As with most situations involving religious beliefs, an employee must be accommodated as long as this does not cause an undue hardship to the employer.

We cited a few cases to remind us that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices.

tatoo style : illustration of skull decorated with tatoo on white background

With regard to hair styling in particular, a couple of years ago we quoted a Missouri Department of Labor spokeswoman who aptly said that:   

“An employer may condition a job on an employee’s compliance with the employer’s hair styling preferences, unless the employee’s alternative hair styling preference is connected with the employee’s inclusion in a protected category. For example, a particular hair style may be a tenet of the employee’s religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer).”

We also found a good article on workplace dress codes and disparate gender impact.  The Business Management Daily of June 4, 2012 prefaces its article by noting that “Female employees who are accused of wearing clothing that is too revealing may complain of sexism. Male employees prohibited from wearing shorts, for example, may argue that a double standard exists because females are permitted to wear skirts. But don’t let employees’ complaints prevent you from upholding your company’s appearance standards.  Employers have the right to define appropriate attire in their workplaces.”

The Rules Are Tricky

These rules can get quite complex, as we noted many times, and it is recommended that counsel be consulted before an employer refuses an employee’s accommodation request.

A few cases which we wrote about before are instructive that just because employers have a policy that appears neutral on its face by, for example, prohibiting all employee from wearing or displaying things like tattoos, piercings, long hair, or head scarves, the policy may still run afoul of Title VII’s prohibition against policies which have a “disparate impact” on employees with certain religious beliefs or practices.

We reported about the case filed by the EEOC against Abercrombie & Fitch (noted above) where an Oklahoma jury awarded $20,000 in damages to an applicant for a job after the employer refused to hire her when she appeared for an interview wearing a headscarf, which she wore for religious reasons as a devout Muslim. The employer argued that it had a strict “Look” policy in order to insure a unified “preppy” brand image.

We also noted a Title VII filing by the EEOC against a Taco Bell franchise owner alleging that its termination of a devout Nazirite employee due to his failure to cut his hair was religious discrimination.  Nazirites do not cut their hair as a sign of devotion to God.   The employee had worked for Family Foods for six years without cutting his hair (in fact, he had not cut his hair since he was 15 years old) before the company tried to enforce its grooming policy that required him to cut his hair. 

Occupational Health & Safety  reported that Family Foods entered into a consent decree whereby it settled the case and agreed to pay the employee $27,000, and also to adopt a formal religious accommodation policy, to do appropriate annual trainings on Title VII, and also to post a copy of its anti-discrimination policy at all of its facilities.

These cases had a religious component, and an EEOC attorney commented that “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.”

Without some evidence that there are religious overtones regarding a dress or grooming policy, the results may be different.  

In early 2012, we mentioned an article by Steve Giegerich of The St. Louis Post-Dispatch who reported about an employee with dreadlocks who had been working at a convenience store for four months who was barred from work because his hair violated the employer’s written policy which stated that hair must be “kept neat and clean…immoderate styles… such as corn rows, braids etc. must be approved by a supervisor … dreadlocks and mohawks are unacceptable.”

As Giegerich accurately reported, “policies on the personal grooming habits of employees land on the edge of state and federal employment discrimination laws,” and in all states but Michigan, employers have the right to terminate or suspend any employee who fails to comply with grooming guidelines.

He quoted an EEOC attorney who, agreeing with our analysis above, stated that “The baseline for evaluating grooming policies is to look at their overall burden on different groups of employees.”

Significantly, the reported story noted no sincerely held religious beliefs of the employee regarding his wearing of dreadlocks. Absent any such evidence, it would appear that his wearing of dreadlocks could be prohibited by the employer.

 

New EEOC End-Of-Fiscal-Year Performance Report

Posted in EEOC Charge of Discrimination, Equal Employment Opportunity Commission

Last year at this time, we posted some of the statistics set forth in the EEOC’s annual end-of-the-fiscal-year Performance Report (“PAR”).  See http://www.eeoc.gov/eeoc/plan/index.cfm.

We have just received the latest EEOC annual report for FY 2014 – and we set forth below the relevant results. See the EEOC web site: http://www.eeoc.gov/eeoc/plan/2014par.pdf

As last year, the EEOC stressed that it “continued to implement its Strategic Plan for FY 2012-2016,” and is implementing its Strategic Enforcement Plan (SEP).

metrics : A wooden ruler with the words To Measure is to Know, symbolizing the importance of gathering information when attempting to learn the nature of an object or issue Stock Photo

Many metrics are down from FY 2013 – the EEOC explains this as the “effects of sequestration and the government shutdown.”  Last year there was a similar metric decline, which the EEOC attributed to a “decline in staffing and resources the agency faced in FY 2013, including the impact from furloughs.”    Here are the two years compared:

metrics : Blackboard with Performance Metrics wording Stock Photo

 

FY 2013:  93,727 private sector discrimination charges of discrimination

FY 2014:  88,778 private sector discrimination charges of discrimination

 

FY 2013:  EEOC resolved 97,252 charges

FY 2014:  EEOC resolved 87,442 charges

 

FY 2013:  EEOC recovered $372.1 million in monetary relief for charging parties

FY 2014:  EEOC recovered $296.1 million in monetary relief for charging parties

 

FY 2013:  EEOC filed 131 “merits lawsuits,” including 89 individual suits, 21 non-systemic class suits, and 21 systemic suits.  And it had 231 cases on its active docket at year end.

FY 2014:  EEOC filed 133 “merits lawsuits,” including 105 individual suits, 11 non-systemic class suits, and 17 systemic suits.  And it had 228 cases on its active docket at year end.

 

 

$185 Million Punitive Damages Against AutoZone: How Did They Get There?

Posted in Employee Termination, Gender Discrimination, Retaliation

25300036_sWhew.

Let’s just take a moment for that to sink in.  As we reported on Monday, $185 Million in punitive damages were awarded Monday against AutoZone.  This was after the jury awarded $872,000 in compensatory damages on Friday.

You are probably asking yourselves how in the world this happened.  I have to say, based on some of  the press coverage of this case, I was not at first sure.

The basic facts of Rosario Juarez’s claim are these:

Juarez joined the company in 2000 and was promoted to parts sales manager in 2001.  She claims that of 98 stores in the San Diego area, only 10 had female managers.  Juarez alleged that AutoZone had a glass ceiling where women were not promoted to store manager positions.

The complaint says Juarez was finally promoted to the position of store manager in October 2004 — but only after she complained about the discrimination. She then claims that after she informed the company of her pregnancy in November 2005, her district manager tried to encourage her to step down, saying she would not be able to handle the responsibilities of running the store and being a mother at the same time.  Juarez refused to resign and after her son was born in May 2005, she claims she still suffered discrimination.  She again complained of discrimination and was then demoted in February 2006, the suit says. She eventually filed a complaint over the demotion with the California Department of Fair Employment and Housing in 2007.

Juarez was not immediately terminated after filing the administrative complaint.  Instead, many months (perhaps even a year or more) later, Juarez was fired after a customer service representative allegedly misplaced an envelope with cash from the register, and Juarez was blamed and subsequently terminated in November 2008.  Juarez claims that this was a scheme designed simply to retaliate against her.

All in all, a rather run of the mill pregnancy discrimination claim.  Indeed, a claim that could possibly have been dismissed in some courts as the alleged retaliation took place so long after her complaints.

You can see where this claim went wrong when you dig a little deeper into the facts that came out at trial.  According to ABC News 10, the plaintiff presented the testimony of a former district manager, who was also an ordained minister, who claimed that there was a meeting with high-level executives where they were celebrating the expiration of a previous settlement agreement requiring AutoZone to promote women and to track the promotions.  This former district manager said that he was offered a promotion if he fired all the women at his stores.

Damning evidence to be sure.  It also did not help that the person who investigated the loss of cash that led to Juarez’s firing testified that she never believed that Juarez had taken the cash and felt instead that the company was targeting Juarez.  It probably also did not help that this was not the first time that punitive damages were awarded against AutoZone on similar claims.

33089944_sAutoZone has already announced plans to appeal and it is likely that the punitive damages award, which is 200 times the compensatory damages, will get drastically reduced at some phase in the litigation.  However, this case serves as an example to employers whose top level executives do not fully commit to equal employment opportunity principles.  Even if the actual decision makers in this case legitimately believed that Juarez had taken the cash, the testimony that high level executives held such disdain for women likely torpedoed this case.

Quite simply, when training employees on discrimination policies, companies cannot afford to skip high level executives or to tolerate less than full compliance with the anti-discrimination policies or else they risk arguments by employees that there was a “culture” of discrimination at the company as evidenced by the high-level executives’ behavior.