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Employment Discrimination Report

Discussions on Recent Legislation, Noteworthy Cases & Trends in Enforcement

EEOC Settles Pregnancy and Disability Discrimination Suits In Furtherance Of It’s Strategic Plan

Posted in Americans with Disabilities Act, Pregnancy Discrimination

In our blog of December 17, 2013 we reported that the EEOC continues to implement its Strategic Plan for FY 2012-2016 and began implementing its Strategic Enforcement Plan (“SEP”).  See: http://www.eeoc.gov/eeoc/plan/index.cfm.

EEOC Zeros In On Pregnancy and Disability Discrimination

On October 3, 2013, we wrote that in furtherance of the SEP, “two EEOC officials told a PLI audience as to what areas the EEOC intended to target in its future litigation. … the EEOC said that it would file more suits relating to: vulnerable workers (i.e., immigrants and migrants); emerging legal issues under the ADA Amendments Act and ADA accommodations, discrimination against members of the lesbian, gay, bisexual, and transgender (“LGBT”) community; accommodation for pregnant workers; sexual harassment; Genetic Information Nondiscrimination Act (“GINA”) cases; and the use of criminal records in hiring (emphasis added).”

Indeed, when the EEOC closed fiscal year 2013, it appeared to us that of the lawsuits filed in the last year by the EEOC, two areas stand out: more than a third of the EEOC’s filed lawsuits related to the ADA, and a third came from sex and pregnancy discrimination claims.   We then issued our own subtle warning:  “Got that employers? The vast majority of recent EEOC lawsuits have dealt with ADA ,and sex and pregnancy discrimination claims.”

The EEOC has now announced the settlement of two lawsuits:  one a pregnancy case, and the other a disability case.   Surprised? 

Can An Employer Ask An Applicant If She Is Pregnant?

In the first case, an Annapolis internal medicine practice agreed to pay $22,500 – it was alleged that it hired a medical receptionist who told a supervisor of her pregnancy and asked her not to disclose this.  “However, management failed to honor her request and also began subjecting her to unequal treatment. When [she] complained, Annapolis Internal Medicine gave [her] a counseling report about ‘the value of being honest’ instead of addressing her concerns about discrimination,” and “continued to treat [her] more harshly because of her pregnancy” and fired her. 

Takeaway:   The EEOC District Director said that “An employer should not ask an applicant during the interview whether she is pregnant, and an applicant absolutely has no obligation to disclose her pregnancy during the interview or early in her employment — it is simply not relevant to the hiring decision or her job.” 

Employer:  Applicant With Prostate Cancer “Would End Up Wearing Diapers”

In the second case, a Chicago company which provides logistical services to the refrigerated and frozen food markets agreed to pay $80,000 for refusing to hire an applicant with prostate cancer.  It was reported that the company owner made “derogatory statements” about the applicant, such as “that he could not hire [him] because he had cancer,” and, in a final sensitive touch, said that “in a best-case scenario, [he] would end up wearing diapers.”

An EEOC attorney commented:   ”There is hardly a family in America that has not been touched by cancer in one form or another.  Through the crucible of that experience, those families and most employers have learned that cancer patients and survivors can and do work, and work well.”

Got that employers? The vast majority of recent EEOC lawsuits have dealt with ADA ,and sex and pregnancy discrimination claims. 

 

“No Urban Dictates” Meet “Don’t Send Us Anyone From Detroit”

Posted in Race Discrimination

Recently we talked about coded language meant to disguise discriminatory intent  -  “language workaround,” as one reader called it.   We posted a comment from a reader, Claudia D. Orr, an employment attorney in the Detroit area, who informed us that she had heard of a temp agency which “honored illegal requests.”   A client apparently said “don’t send us anyone from Detroit” - which was “code for they only want white temps sent.”

Another reader familiar with the world of broadcasting who saw this post (and asked not to be identified) told us about another language workaround –  “no urban dictates.”

11519057_sShe wrote:

“Thank you for posting this Richard. This practice extends to other industries as well.  I am not sure if this practice is still wide spread but in media there used to be something called “no urban dictates.”  They were common especially when it came to “urban” radio.  Ad agencies would not place ads on these stations because companies often associated “urban listeners” with a certain lifestyle — urban stations largely target the African American community.  Some radio stations got around this dictate by using other names for their formats but still played the same content.

I am hoping this practice has changed. Many big name companies engaged in this practice, but I do not know if any litigation ever came of it because businesses can spend ad dollars any way they want.”

 

We did some quick research and found the following quote about “no urban dictates” and race and ethnicity discrimination from an article published three years ago:

“the Federal Communications Commission’s Enforcement Bureau released an Enforcement Advisory reminding television and radio broadcasters that they must certify in their broadcast applications that their advertising contracts do not discriminate on the basis of race or ethnicity.

This comes as a response to “No Urban Dictate” (NUD) policies civil rights leaders and minority broadcasters report are in place and actively executed in the advertising industry. This occurs when advertisers and their agencies intentionally by-pass urban and Latino stations, supposedly because the advertiser client has dictated that its ads not be placed with those outlets.

African-American broadcasters have long said the unspoken policies exist. The issue was first brought to the FCC by the National Association of Black Owned Broadcasters (NABOB) 27 years ago.”

Anyone else have any language workarounds?

 

Russia Set To Pass Anti-Harassment Law “To Protect The More Beautiful, But Weaker Sex”

Posted in Sexual Harassment

The good news, according to an article in the Moscow Times:  Russia is about to pass its first anti-sexual harassment law.  The not-so-good news:  while the law may reduce the sexual harassment rate against women at work (now at 30% of women reporting), it may very well be aimed, at least partly, at permitting the deportion of foreign workers.

Last year The World Economic Forum ranked Russia 61st out of 136 countries in terms of gender equality – lower than vitually all Western nations.  The new law, if passed by the Duma, would apply only to women being harassed by men, and would not cover harassment by women or same-sex harassment. 

This may be because the bill’s author, Oleg Nilov, said that the proposed  law is designed to protect “the more beautiful, but weaker sex.”   

Ah, the medieval chivalry of Mr. Nilov!  

Under the proposed law, Russian citizens will face fines and community service, but, ominously, non-Russian offenders also face  deportation, because Russian deputies believe that they “are more likely to commit serious offenses.”   Nilov addressed this additional punishment of non-Russians as follows:  “The millions of migrant workers who speak Russian badly have to rely on body language to make their intentions toward women clear.   Adopting this law can significantly reduce ethnic tensions in our society.”

In Russia, the term “ethnic tensions” is fraught with racial overtones, and the proposed new law and Nilov’s statement has sent a clear message as to the intent of the law.   As the Moscow Times reports:  “Immigration and fear of ethnic crime remains a contentious issue in Russia, despite government data proving that just 1.8 percent of crimes reported to police in 2012 were committed by foreign nationals. About 35 percent of Russians see[] migrant workers as a “threat,” according to a 2013 survey by state pollster VTsIOM.”

Indeed, the president of the Federation of Migrants in Russia commented “This bill will restrict the freedoms of both Russian and non-Russian citizens and will give the racist elements in the country’s law enforcement agencies more opportunity to assert themselves.”

He also declared that:  “People who are unfriendly towards immigrants will get an opportunity to provoke or falsify the situations that would lead to deportations. The bill also contradicts the international law that orders that persons convicted on the territory of a certain state must serve their punishment within the borders of this same state,”

We shall see.

 

Dwarfs Stigmatized In the Chinese Workplace; File With EEOC In the US

Posted in Uncategorized

The Global Times has devoted a lengthy article on the stigma faced in China by the approximately 39 million people with dwarfism, including the severe employment discrimination which they face.

The article claims that “Most dwarfs are from remote, often mountainous regions, where there is poor awareness of health issues. Even after an accurate diagnosis, they can’t afford the high medical fees to treat the condition.   Most dwarfs interviewed said all hospitals or clinics firstly wrongly diagnosed the problem as malnutrition or delayed growth and prescribed calcium or zinc supplements or cod liver oil. Some desperate parents even resorted to witches or Shamans.”

A Chinese medical expert on dwarfism was described as saying that “poor knowledge of the disease from both parents and grass-roots medical staff, as well as high medical expenses, were key problems. Early intervention can result in an average or near average height.”

9720703_sEmployment In China Only To Attract Customers In Entertainment

The employment situation faced by these people is bleak —  the jobs which they can obtain are typically with zoos, parks, circuses, hotels or art troupes, where “Making use of little people as a selling point to attract customers is not uncommon for many employers, and it’s also unavoidable.”

For example, in “the World Ecological Garden of Butterflies,” there is what is called a “Dwarf Kingdom” with over 100 members. One said that “Many of us feel uncomfortable about the idea. The dwarfs are displayed like a mountain of monkeys in a zoo.” The zoo manager called it a “pure charity” effort.

Becoming Proactive:  EEOC Complaints Filed In The US

A California-based group, the Little People of America Inc., is ”a nonprofit organization that provides support and information to people of short stature and their families,” and for which “Membership is available to individuals with a medical diagnosis of dwarfism or form of short stature, as well as their families, grandparents, relatives, and all medical professionals.”   The president of the group told the The Global Times that displaying “little people” in entertainment promotes “stigma and stereotypes,” and hurts rather than helps them.

He noted that “In the past months, two dwarfs have filed discrimination complaints with the Equal Employment Opportunity Commission. The dwarfs were fired in the restaurant industry after asking for accommodation.”   A recent press release from the group described the two charging parties and their claims revolving around failure to accommodate:

“Laura Kercheva, from Houston, Texas, recently filed an EEOC lawsuit after a reasonable accommodation was revoked at her place of employment. Kercheva was a server at Nick’s Bar and Grill and had requested, and been given, a lower shelf for her to retrieve her drink tray. A new general manager was hired, revoked the reasonable accommodation and refused to reconsider or find an alternative accommodation. Shortly thereafter, Kercheva’s work hours were reduced and then she was fired (emphasis added).”

“Abigail McManus, from Mickelton, New Jersey, filed the second employment discrimination case with the EEOC. McManus had been hired and was going through employee training as a clerk/team member at a Heritage Dairy Store, when she was removed from the group training into a private room. The training coordinator proceeded to ask McManus to perform the duties that would be required of her. When McManus was able to conduct all duties, except for the one’s that required her to be of average height, she was fired. If given a step stool, a very reasonable accommodation, McManus could have easily performed all of the necessary job functions (emphasis added).”

There is still a long way to go since Randy Newman’s song in the 70′s (which he came to hate and was, in any case, misinterpreted) attacking bigotry by seeming to be prejudiced against a group which (at the time) he likely chose because he could not conceive that anyone could be offended.

 

Is This Proper Notice of Resignation?

Posted in 5 Minute Laugh

Apropos of our recent post “Tired of that Unmotivated Employee?  Pay Them to Quit,” this week’s five-minute laugh session is a delightful way to quit.  It reminds Chrissie and I of a former boss we had that always said that if he won the lottery, he would pay singing minstrels to go around the office and sing exactly what he thought of people.

Although this video is not quite so snarky, I really hope that some of those Amazon employees who are paid to quit think about this creative approach.  If, for no other reason, than my own amusement:  https://www.youtube.com/watch?v=OuflKkU-CFY#aid=P-HripZntv4

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You Cannot Discriminate Against A Pregnant Employee Because Of “Outdated Myths Or Stereotypes Or Couched In The Language Of Safety And Health”

Posted in Pregnancy Discrimination

The EEOC just announced two settlements of cases involving pregnancy discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act (“PDA”).   One involves a simple failure to hire, but the other is more nuanced and has more to teach us about pregnancy discrimination.  

On March 13, 2013 we cautioned that “The EEOC is serious about pursuing discrimination cases filed under the Pregnancy Discrimination Act (PDA) – very serious especially if you fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health. That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child. We have repeatedly issued this warning, and have cited new case filings or settlements to support our concerns. Take this 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.”

In fiscal year 2013, of the lawsuits filed in the last year by the EEOC, two areas stand out:  more than a third of the EEOC’s filed lawsuits related to the ADA, and a third came from sex and pregnancy discrimination claims.   Got that employers? The vast majority of recent EEOC lawsuits have dealt with ADA, sex and pregnancy discrimination claims

That is the bullseye in their target.

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You Cannot Refuse To Hire An Otherwise Qualified Pregnant Applicant

In the first settlement just announced, the EEOC alleged that a store in Manhattan, after multiple interviews of the applicant who was extended an offer, refused to hire her after being informed that she was pregnant.  The company settled for $90,000.  

Takeaway (as noted by an EEOC attorney):   ”Employers have a duty to respect the ability of pregnant women to participate in the workforce. The EEOC is committed to enforcing the law when employers fall short of this duty.”

You Cannot Place A Pregnant Employee On Leave Because “The Baby Is Taking Its Toll On You”  Or Because Of  Potential Harm To The Baby

The second case merits more attetion. 

In that case a trucking company agreed to a $27,000 settlement in which it was alleged that an employee who was 7 1/2 months pregnant told the manager that her doctor had excused her from work for a few days due to an arrested case of premature labor.  The manager, however, refused to permit her to come back to work until after the birth.  When she complained and said that she was going to file an EEOC charge she was fired.   

Why would he refuse to allow her back to work?

In the March 13, 2013 post referenced above, we wrote about “an employer who ‘could not allow [the pregnant employee] to continue to work as a housekeeper because of the potential harm to the development of her baby.’   We also wrote that the EEOC had announced the settlement of a pregnancy discrimination case in Mississippi where a pregnant female employee at a bar was fired without warning and without prior disciplinary action because, as it was told to her, ‘The baby is taking its toll on you.’   And in J’s Seafood Restaurant of Panama City, Florida two servers were fired because ‘their pregnancies caused them to be a liability to the company.’  The EEOC just today announced that it has chalked up another such settlement with the owner of a Michigan Comfort Inn, who has agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages after it fired a pregnant employee because, as the EEOC said, “it could not allow the employee to continue to work as a housekeeper because of the potential harm to the development of her baby.”

Takeaway 

As we noted above, ”you [cannot] fire a pregnant employee because of outdated myths or stereotypes or couched in the language of safety and health. That is, you cannot claim that disparate treatment of pregnant employees is justified by concern for the unborn child (emphassis added).”   

It seems that this was the reason why the manager in this latest case refused to allow the woman back to work in her last 1 1/2 months of pregnancy.  

An EEOC lawyer seemed to say as much:   “The law ensures that a woman cannot be forced to leave her employment because of her pregnancy or because of her employer’s paternalistic notions regarding pregnancy. The EEOC will continue to actively pursue cases where an employee is subjected to discriminatory treatment because she is pregnant (emphasis added).”

 

 

“‘Sexual Harassment Is Part Of The Culture Of Westminster”

Posted in Sexual Harassment

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Westminster – august seat of the British government.  Can it really be the “Palace of Sexminster?”

Survey Finds Rampant Sexual Harassment

Recent allegations of sexual harassment reaching into the highest levels of government prompted a local London TV channel to interview 70 people who work at Westminster, and the results were a bit of a shock – at least on this side of the pond. 

Apparently one third of the interviewees had “personally experienced sexual harassment which they saw as an abuse of power,” while less than half “had no first or second-hand knowledge of such behaviour.​”   One woman said:  “When I was there, older men would explore their sexuality and be predatory to younger men.” 

Harassment As An Abuse Of Power

We recently blogged that “It should come as no surprise that victims of harassment are more often of relatively low status and power in the workplace. As with people victimized throughout society, they are more often the victims of this ‘power differential.’”

A UK gay rights activist Ben Summerskill said that “People are vulnerable as they’re often political obsessives and have never worked anywhere else.  For both sexes the MP can say that if they oblige them, it might help their career enormously.  There’s no HR [human resources], no structure for people management or supervision.”

An amazing 40% of men had been sexually harassed or knew someone who had been harassed, and Summerskill said: ‘Sexual harassment is part of the culture of Westminster.  In the last decade I’ve heard of dozens of cases from men and women.”

Grow A Pair

One Conservative MP was dismissive of ”victims” of unwanted sexual advances: he said that they should toughen up and “Grow a pair.”

Westminster Meet Washington

Good to know that lack of compliance by lawmakers with the laws that they make is not unique to Washington.

 

 

Pulmonary Technologist With Usher’s Syndrome Fired By Health Care Provider Settles EEOC Suit For $180,000

Posted in Americans with Disabilities Act

The EEOC filed a lawsuit last year which alleged that a leading health care provider in Maryland violated the Americans with Disabilities Act (“ADA”), by failing to provide a reasonable accommodation and then firing a pulmonary function technologist because she suffers from Usher’s Syndrome, a genetic disorder that impairs hearing and vision.

The EEOC alleged that the company perceived that the employee’s disability interfered with her safely performing her job duties — after she worked there for almost 19 years. She was removed from her responsibilities and then fired, even though there was “a suitable vacant position as a reasonable accommodation.”

It was just announced that the health care provider agreed to settle the action – for $180,000.  (We won’t bore you again with our “shooting fish in a barrel”  mantra). 

The EEOC stated that “Such alleged conduct violates the Americans with Disabilities Act (“ADA”), which requires an employer to provide a reasonable accommodation, including reassignment to a vacant position, unless the employer can prove it would be an undue hardship.” 

What Is Perception of Disability

Employers must be aware – but many are not – that the ADA prohibits making an adverse determination about an employee – such as termination — not only based upon a disability or record of disability, but also because the employer perceives the employee to be disabled.

As an EEOC trial attorney stated in another case: “[E]mployers should not make decisions based on perceptions about someone’s supposed impairment. … the ADA requires employers to make an individualized assessment about an applicant or employee’s ability to do the job instead of acting out of speculative fears or biases.” Another EEOC attorney said that “speculation and fears over … perceived disability … is exactly the type of discrimination the ADA was meant to address and stop.”

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Language Workaround: “Don’t Send Us Anyone From Detroit”

Posted in General Employment Discrimination, Race Discrimination

We like the term ”‘language workaround” as meaning coded or “dog whistle” language when used specifically to obscure references to age.  See our April 4th blog.

Now a reader has provided us a new one for use when referring to race.

Claudia D. Orr, an employment attorney in the Detroit area:

“A friend of mine worked for a temp agency and the agency honored illegal requests. First day on the job a client said “don’t send us anyone from Detroit.”  My friend asked her supervisor what that meant and the supervisor said “that is code for they only want white temps sent. You will get used to it. We try to keep our clients happy.”

My friend became a whistleblower!  The EEOC’s press release indicated that this was an ‘equal employment opportunity discriminator … they honored requests based on sex, race, disability, religion …’”

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Tired of That Unmotivated Employee? Pay Them to Quit

Posted in Employee Termination

What?  Did she just say that?

10862064_sIf that was your reaction, this is not my idea.  This is a new HR Strategy that Amazon has announced it is trying.  Amazon is trying to weed out employees who are not engaged.  In order to get rid of these unengaged, underachievers, Amazon will pay up to $5,000 for them to quit.  The Los Angeles Times has the full article for details, but this is a plan that has already been adopted by Zappos and Netflix.

It’s an interesting strategy to say the least.  Yes, unengaged employees tend to be less productive and can also divert management resources away from more motivated employees.  Yes, an employee who quits is not eligible for unemployment.  Yes, unhappy employees breed other unhappy employees creating massive morale problems in the workplace.

However, as most people will tell you the cost of training new employees is not insignificant.  Studies about the true cost of employee turnover are a bit all over the map but according to a recent article published by Zane Benefits, a rough estimate of the cost of replacing one employee is 6-9 months of that employees’ salary.  The question is whether the cost/benefit analysis comes out in favor of a pay to quit program like Amazon’s.

As an employment attorney, I can’t help but think that a lot of these “unengaged” employees may very well believe their lack of motivation is not their own problem, but rather was caused by the company or some people at the company.  For employers considering similar pay to quit programs, thought should be put into obtaining a release of all claims in exchange for the payment.  There is nothing worse than paying a problem employee only to have that very same money used to partially fund a lawsuit against the former employer.

We’d love to hear your reactions to Amazon’s new policy.