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

Jenny Yang, a plaintiff’s attorney at the law firm of Cohen Milstein Sellers & Toll, has just been confirmed by the  Senate to succeed Stuart Ishimaru as an EEOC commissioner. Her term will expire July 1, 2017.

She represented 1.5 million women in the Wal-Mart Stores Inc. v. Dukes sex-discrimination class action, as well as more than 28,000 female employees alleging sex discrimination in in Beck v. The Boeing Company, which was settled in 2004 for $72 million.

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Last January we reported on the EEOC’s just released data for its fiscal year ending September 30, 2010, and we now have a new report from the EEOC for the fiscal year ending September 30, 2011, which has a few new wrinkles (and some old ones).  The full report is available on the EEOC website: http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm. 

The  number of new filings fell just short of 100,000, just as it did last year.  

The most frequently filed charges were (same as last year) retaliation (37,836 claims), race (33,512 claims) and sex discrimination (30,356 claims), [including sexual harassment and pregnancy].  

The EEOC filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits.

The EEOC resolved 254 lawsuits, with a monetary recovery of $44.2 million.

What is new is that the EEOC has begun breaking out and sorting data into a number of different categories and fields.  There are a few other new items -- check it out.

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If sequestration occurs in March, the EEOC stands to have its budget slashed by between $23 million and $30 million – a cut of between 6.5% and 8.2%.  Employee furloughs would undoubtedly follow, and a backlog of cases would grow.  

An American Federation of Government Employees spokesperson said that "For all intents and purposes, the United States would cease to have enforceable civil rights in the workplace should sequestration occur."

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To all those who somehow thought that EEOC operations in New York would slow down or perhaps that charge files might be “misplaced” due to Hurricane Sandy and a man-made flood condition which dispossessed the EEOC since last July, the EEOC just announced that it is now back up and running and has resumed normal operations out of its location at 33 Whitehall Street, and is open Monday-Friday from 9:00 a.m. - 5:00 p.m.

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We have now received the long-awaited EEOC performance report for fiscal year 2012, its Performance and Accountability Report (prepared pursuant to its February 2012 Strategic Plan).

Some of the highlights of the EEOC’s 2012 fiscal year:

1.         The EEOC received 99,412 charges of discrimination, almost the same as last year, but resolved 111,139 charges. 

2.         The EEOC filed 122 lawsuits on the merits.

3.         20 percent of the EEOC’s litigation cases were systemic cases.  

4.         The EEOC “secured” $365.4 million in monetary awards -- its highest ever. $44.2 million of this was through litigation, and approximately $36 million came from investigations and conciliations of systemic charges of discrimination.  

5.          The EEOC “secured” more than $61.9 million for parties who requested hearings in the federal sector. 

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On May 21st and October 1st we wrote that the EEOC was serious about pursuing pregnancy discrimination cases filed under the Pregnancy Discrimination Act (PDA). As an EEOC local regional director noted then: “Having a new child should be a joyous event, not one that leads to unemployment.” We have cautioned employers for a long time that the EEOC was targeting pregnancy discrimination.

As a small example of this, we can report that the EEOC has just issued a press release that it has settled a lawsuit that it filed against Capri Home Care, a leading home health agency in Central Florida, for $23,000 and other relief. It was alleged in that suit that Capri had hired a female job applicant for a billing clerk/administrative assistant position but withdrew the offer when it discovered that she was pregnant.
 

EEOC attorneys were quoted as follows: "Pregnancy discrimination is a great social wrong,” and "The struggle of pregnant women in the workplace continues to be problematic. Women should not have to fear that disclosing their pregnancy will lead to lost job opportunities."

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Two EEOC regional attorneys, panelists at a Practising Law Institute conference last week, discussed a number of issues which should be of concern to employers regarding the EEOC’s future plans and practices.

Among a wide range of topics, they told the gathering that:

1.  The EEOC continues to emphasize systemic litigation, or nationwide/regionwide class cases, because such cases mean “getting a bigger bang for the taxpayer's buck.” Case filings are down at the EEOC, partly because “we are grossly understaffed,” and because of the EEOC's focus on systemic litigation.

2.  A strategic enforcement plan (“SEP”) has been drafted by the EEOC which currently has three guiding principles: (1) targeted enforcement; (2) an integrated approach to public sector and private sector enforcement; and (3) accountability. The EEOC considers four primary factors in deciding whether to pursue litigation on a filed charge:

-- does the case potentially affect a large number of claimants;

-- what area of the law does the charge involve;

-- does the charge allege bias against a vulnerable worker or group of workers; and

-- might the case have a significant impact in shaping the law on a particular subject.

3.  The EEOC's current litigation priorities are on cases which:

-- allege systemic discrimination, especially in recruitment and hiring;

-- involve immigrant, migrant, or other vulnerable workers;

-- implicate emerging legal issues, including under the ADA Amendments Act, discrimination against members of the lesbian, gay, bisexual, and transgender (LGBT) community, and forced unpaid leave as an accommodation for pregnant workers;

-- preserve individuals' access to the legal system, such as cases involving employers' attempted curtailment of employee job rights, including through overbroad waivers; and

-- combat sexual harassment.

4.  The EEOC will likely target the following policies and practices:

-- “fixed-leave” policies, which are unlawful under the ADA amendments, as well as what is known as “100-percent healed policies,” in which an employer requires an employee to be 100 percent healed before returning to work from medical or disability leave. One EEOC attorney said that employers have implemented these types of policies to provide more rigid rules for supervisors to follow, “But they won't work, however. We will be litigating these cases.”

-- using a standard one-size fits-all form request for ADA accommodations. Written accommodation forms may be permissible, but where a standard form is the only acceptable means of requesting an accommodation this runs afoul of the law.

-- Genetic Information Nondiscrimination Act (“GINA”) cases, where the EEOC has made “cause findings” on a number of charges, although most have settled.

-- the use of criminal records in hiring, which the EEOC may pursue as systemic cases.

5.  There likely will be no increase in Equal Pay Act cases since, as one EEOC attorney noted, low-income workers can receive better damages under Title VII, which permits compensatory awards.

We will keep you updated on the cases which the EEOC files and whether we detect a pattern or an area which the EEOC is targeting

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To replace Commissioner Stuart Ishimaru who left the EEOC in April, the President recently nominated Jenny R. Yang, an NYU Law graduate who is a partner in a firm that represents plaintiffs in employment discrimination cases.

From 1998 to 2003 she was in the employment litigation section of the Justice Department's Civil Rights Division, and currently serves as vice chair of the board of directors of the Asian Pacific American Legal Resource Center.

Her nomination must now go to the Senate, which, in today’s political climate, means that she is hardly assured confirmation.
 

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The General Counsel of the EEOC went on record this week with a couple of significant announcements.

P. David Lopez said that the EEOC planned to file fewer “systemic cases” this year than last – presumably because of limited resources and the need to utilize these resources for existing litigations, which are time and resource consuming. The EEOC has defined a “systemic case” as involving discrimination that has a broad or major impact on an industry, profession, company or geographic location. The EEOC’s “Systemic Initiative” of 2006 made such cases a “top priority,” so the announcement of fewer suits is noteworthy. 
 

Mr. Lopez also announced that the EEOC is now treating as “priority” cases which the private bar is less likely to take on, for example, cases of hiring discrimination, where the EEOC has broader authority than private attorneys, such as subpoena authority, to investigate claims.  

Additionally, the EEOC is likely to focus on what it refers to as vulnerable workers, such as in human trafficking situations, where workers are brought to this country and are mistreated or even enslaved or made indentured servants. For example, in a press release dated April 2011, the EEOC reported that it filed suit against a farm labor contractor known as Global Horizons alleging that it

“engaged in a pattern or practice of national origin and race discrimination, harassment, and retaliation, when it trafficked over 200 Thai male victims to farms in Hawaii and Washington where they were subjected to severe abuse. … [and] enticed Thai male nationals into working at the farms with the false promises of steady, high-paying agricultural jobs along with temporary visas allowing them to live and work in the U.S. legally.  The opportunity came at a price: high recruitment fees creating an insurmountable debt for the Thai workers. When they reached the U.S., Global Horizons confiscated the workers’ passports and threatened deportation if they complained, which set the tone for the abuses to come.” 

We will keep you posted as to whether the EEOC in fact acts in conformance with these announcements.

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The EEOC has just reported that it has entered into a “National Universal Agreement to Mediate” (or  “NUAM”) with Family Dollar Stores, Inc. “Under the terms of the NUAM, all eligible charges of discrimination filed with the EEOC in which Family Dollar Stores is named as an employer/respondent will be referred to the EEOC’s mediation unit, as appropriate.”  The agreement  covers all of the 7,200 Family Dollar Stores in 45 states.

What IS a National Universal Agreement to Mediate? And why might it be good thing to know about?

The EEOC is charged with enforcing federal laws against employment discrimination and can investigate charges of discrimination against employers who are covered by the laws, make a finding of discrimination if appropriate, and then try to settle the charge or even file a lawsuit to protect the rights of the individual who filed the charge and the public (although it files relatively few cases itself, usually leaving it to the affected individual to sue).  Significantly, it also has the authority to seek to prevent discrimination before it occurs through outreach, education and technical assistance programs, and to mediate charges of discrimination before they reach the litigation stage.

Mediation is a voluntary program, and both employer and employee may opt out of it.  A NUAM is, according to the EEOC, “an agreement between EEOC and an employer to mediate all eligible charges filed against the employer, prior to an agency investigation or litigation. … [and] substitutes for the individual agreement to mediate which the parties sign prior to a mediation being conducted.”

The EEOC touts the program as “provid[ing] a way to resolve workplace disputes promptly and more efficiently before any investigation occurs, should a charge be filed.” Mediations are confidential unless the employer has agreed otherwise, and the NUAM program gets you quicker mediation than the standard mediation program. The EEOC also encourages participation in the NUAM program, because it “demonstrates from the outset a company's willingness to mediate on cases eligible for mediation - this may contribute to the ultimate satisfactory resolution of a matter.” It is always a smart idea to be on the EEOC’s good side.  And mediation, if successful, is a heckuva lot cheaper and time consuming than litigation.

The EEOC claims that “Expanding mediation is a key component of the EEOC’s efforts to improve operational efficiency and effectiveness. … Since the full implementation of the EEOC’s National Mediation Program in April 1999, more than 148,000 charges of employment discrimination have been mediated, with over 70% being successfully resolved.”

“Nationwide mediation agreements like this are a classic win-win,” said Nicholas Inzeo, Director of the EEOC’s Office of Field Programs. “NUAMs are a non-adversarial and efficient way for companies to handle discrimination charges using the EEOC as a partner and advisor. EEOC mediation encourages a positive work environment, and the company saves time and money. Everyone benefits.”

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I was surprised to learn from Vindy.com that the EEOC has a “mobile outreach center,” at least in Youngstown, Ohio, that takes employee complaints by appointment, and that “Walk-ins also are accepted.”  

However, I was dismayed to see that because the EEOC this Friday is visiting the local NAACP, several online comments to this story reeked of racism.      

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I just returned from Washington D.C., having attended last week’s 2012 Staffing Law Conference of the American Staffing Association.

Besides the welcome opportunity to hear speakers from across the country discuss the staffing industry and the legal challenges that it faces, which I am all too familiar with, I was particularly interested in what one speaker had to say.  EEOC Commissioner Victoria A. Lipnic indicated that the EEOC’s upcoming agenda related to employment discrimination will include continuing the practice of filing between 200-300 lawsuits per year, generally addressing alleged systemic discrimination. She noted that while the EEOC and its general counsel’s office make policy and oversee the workings of the nationwide field offices, the individual field offices are relatively autonomous in bringing the lawsuits.

Commissioner Lipnic also noted that the EEOC is presently occupied with drafting and/or updating its guidelines relating to credit checking as part of an employer’s hiring process, as well as the hiring of individuals with criminal histories.           

This conference was conducted on the heels of the announcement of the resignation effective April 29, 2012 of EEOC Commissioner Stuart Ishimaru, who has served since 2003.  The four remaining members of the EEOC are Commissioner Lipnic, and Commissioners Jacqueline Berrien (the Chairperson), Chai Feldblum and Constance Barker.     

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The EEOC has reported that in the last fiscal year employers paid $100 million to settle discrimination charges filed with the EEOC. The largest payout -- over 1/3 - was for charges arising under the ADA.

The EEOC also reported that the two most frequent charges were filed under the ADA and the ADEA. Additionally, during the first year of the existence of the Genetic Information Nondiscrimination Act (“GINA”), there were 245 charges filed, none of which has (as of yet) gone to court.  

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The EEOC just voted 4 to 1 to approve its four-year enforcement plan to attack "systemic employment discrimination," by filing more suits relating to alleged patterns, policies or practices of employers.   

Look for the EEOC to attempt to get more "bang for the buck," by filing larger, more newsworthy and higher visibility cases, targeting certain industries.      

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President Obama has proposed an increase in the EEOC's 2013 fiscal year budget due, in part, to an increasing backlog of cases.   The increase in funding combined with the increase in charges that were seen in FY 2011 is going to mean that more cases are going to come to the attention of the EEOC.

The increase in funding is also going to be important for employers since the EEOC has announced that its priority will be to continue to litigate systemic cases.  Those systemic cases have been, if recent activity by the EEOC is the guide, failure to hire cases. 

For example, on January 31, 2012, the EEOC issued a press release announcing that it had filed suit against Mavis Discount Tire for failing to hire women.  The press release also specifically solicits women who have been denied a job to join the litigation either as a party or a witness.

Failure to hire cases can be especially problematic as, in this day and age, where a lot of applications may be online.  Regardless of whether an application is in electronic form or hard copy, employers are obligated under federal regulations to maintain applications and any records relating to the application, such as resumes and interview notes, for at least one year after the record is created.   Best practices indicate that such records should be kept even longer as the applicable statute of limitations under Title VII, for example, is two years.

Employers should make sure that they have formal record retention policies governing the maintenance and destruction of all records related to personnel decisions.

Photo credit:  Tom Lohdan 

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Please visit our California Employment Law blog entry by our colleague Jeff Polsky for a discussion of the June 8, 2011 EEOC meeting at which there was a discussion of issues surrounding leave of absence as a reasonable accommodation for disabled employees.

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In our blog of February 22, 2011, we noted that under the anti-discrimination laws there is no protected class known as “the unemployed,” and if you are not hired because of your unemployment status, you have no actionable claim of discrimination.  However, there is a concept known as “disparate impact,” which means that a hiring criteria, although neutral and non-discriminatory on its face, may nevertheless impact disproportionately certain protected classes, and therefore violate the law. 

The EEOC conducted a hearing recently to explore, in the words of Chairwoman Jacqueline A. Berrien, the “emerging practice of excluding unemployed persons from applicant pools.”  Experts who testified at the hearing said that there may be a “disparate impact” on those who are disproportionately represented in the jobless rolls, such as older and disabled people, African Americans, Asian Americans and Hispanic Americans. 

No laws or regulations yet exist which forbid the use of employment status as a hiring criteria, but given the increase in the jobless rate, an employer who is hiring is certain to encounter applicants who are unemployed or who have unexplained gaps in their resumes. Don’t automatically disqualify these applicants, or advertise that only the employed need apply – there is no point in looking for increased scrutiny in these uncertain economic times.     

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In response to the President’s executive order issued on January 18, 2011, the EEOC recently released its plan as to matters which it will conduct a “retrospective analysis” within the next two years. In its public call for comments, the EEOC received 38 comments from, among others, civil rights groups, law firms and individuals.     

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No matter where you look in the language of Title VII, or in any state or local anti-discrimination laws (that we know of), there is no protected class known as “the unemployed.”  Therefore, if you are not hired because of your unemployment status, you have no actionable claim of discrimination. Seems simple and case closed!

Not so fast!

As we noted in an earlier post (February 9, 2011), there is a concept known as “disparate impact.” This means that the use of a test or screening device, although neutral and non-discriminatory on its face, may nevertheless impact disproportionately certain protected classes, and therefore violate the law. In the case of unemployment, an ad or policy that excludes the unemployed from applying, while seeming to apply equally to all genders, races, religions, ages and other protected classes, may nonetheless have a disparate impact upon African Americans, Latinos, and older applicants – each of which class of protected applicants has a higher statistical unemployment rate.

For example, African Americans have been reported to be unemployed at a rate of almost double that of whites, while Latinos have been reported to be unemployed at a rate of almost 50% more than whites. Moreover, more than half of the long-term unemployed are over 40 years of age. Clearly, a policy that excludes the unemployed from applying has a statistically good chance of disparately impacting these groups.

The EEOC has recently taken note of sporadic (and perhaps merely anecdotal) reports of ads or policies which exclude the unemployed from applying. Admittedly these are not common, but nevertheless the purported practice has crossed the EEOC’s radar.  

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The EEOC reported recently that while it is filing fewer lawsuits (11% per cent fewer than last year), it is using its increasing resources to aggressively attack "systemic" discrimination, or company-wide practices of discrimination.  One particular focus of this EEOC attack is on pay discrimination claims filed by female workers.  

Employment lawyers are wisely advising their clients to pay closer attention to their compliance policies and practices, including studying and updating their pay systems, updating employee manuals, and conducting training programs for both manager and workers.   The EEOC's new focus is not going away any time soon, and should an employee bring to its attention a discrimination claim that, after investigation, appears to be not merely unique to that employee but a company policy, the stakes for that company are enormous.  

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In a report on its fiscal year ending September 30, 2010, the EEOC disclosed a number of interesting statistics relating to the filings of discrimination that it received in that year.  

1.  The  number of new filings fell just short of 100,000, an increase of 7 per cent over the previous year. 

2.  Claims for retaliation (which we have repeatedly warned were on the increase and about which we have written often in an effort to educate employers) is now the number one category of filings for the first time in the EEOC's 45 year history.  With regard to alleged underlying discrimination, race and sex discrimination claims are now number one and two, with disability claims increasing the fastest over the previous year.  

 3.  Claims under the newly passed Genetic Information Nondiscrimination Act ("GINA") totaled 201 -- which we can expect to rise as the statute becomes more widely known.  

The increase in filings is not surprising given the recessionary economy, in which more workers have been terminated and jobs are harder to find, and given the increase in EEOC funding.   The EEOC also claims that contributing to this increase is its new filing procedures, as well as the effect of the new amendments to the Americans With Disabilities Act, and the Lilly Ledbetter Fair Pay Act.  

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On December 7, 2010, the Supreme Court of the United States (SCOTUS) heard oral arguments in Thompson v. North American Stainless, LP, 130 S. Ct. 3542. At issue is whether employers should be held liable for claims of retaliation asserted by their employees who are close friends, colleagues or family members of an employee who has filed a complaint or claim of discrimination. The nature of the relationship, ie., the closeness of the parties and/or the parameters of the relationship that would give rise to a retaliation claim is one of the major issues to be addressed by the Court. Under plaintiff’s theory, if a known “relationship” between the complainant and another employee is established, even if the latter did not participate in the filing of a claim or the investigation of a complaint, that other employee could assert a retaliation cause of action under Title VII.

To provide some further insight into the potential impact of the pending Supreme Court decision, here is a quick factual recap. Eric L. Thompson worked as a metallurgical engineer for defendant North American Stainless, LP, in Carroll County, Kentucky from February 1997 through March 2003. In 2000, Miriam Regalado was hired by Defendant. Thompson and Regalado began dating shortly after she was hired in 2000, and in 2003, when Thompson was fired, he and Regalado were engaged to be married. The relationship was common knowledge at North American Stainless at the time of Thompson’s termination.

Regalado filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) in September 2002, alleging that her supervisors discriminated against her based on her gender. On February 13, 2003, the EEOC notified North American Stainless of Regalado’s charge. On March 7, 2003, the North American Stainless terminated Thompson’s employment citing performance based reasons. Thompson alleges that he was terminated in retaliation for his then-fiancée’s filing if her EEOC charge.

Thompson then filed his own charge with the EEOC, which conducted an investigation and found “reasonable cause to believe that [North American Stainless] violated Title VII.” After failed conciliation efforts, the EEOC issued a right-to-sue letter and Thompson filed suit against North American Stainless in the Eastern District of Kentucky. North American Stainless successfully moved for summary judgment on Thompson’s claim arguing that his “[r]elationship to [Regalado] was the sole motivating factor in his termination,” and was insufficient as a matter of law to support a cause of action under Title VII. The district court granted the defendant's motion, holding that Thompson failed to state a claim under Title VII or the anti-retaliation provision of Title VII The Sixth Circuit Court of Appeals affirmed the ruling, and the Supreme Court granted certiorari.

Defense counsel and employers are understandably concerned about the potential implications of this case, as is the Supreme Court Justices, based on their questions to the lawyers arguing the case. For example, how close or intimate must a relationship be for the “other employee” to be protected under Title VII, and what is the obligation, if any, of the employer to know or be aware of relationships in the workplace. However, in light of a more conservative leaning bench, the general consensus is that the Supreme Court will rule in favor of the employer, even if it carves out a limited exception, perhaps for married or engaged employees.

Take heart.  Even if SCOTUS recognizes a retaliation cause of action under the circumstances referenced above, it does not spell doom for employers. Instead, it signals the need for revisions of employment policies/handbooks (i.e., narrowly tailored non-fraternization policies—you should have them already) and updated training for supervisors and human resources personnel.

More to come on this important case.
 

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Our entry of June 29, 2010 reported on a staffing company (Spencer Reed) which entered into a “consent decree”  to settle a case filed by the EEOC under Title VII and the Age Discrimination in Employment Act (“ADEA”). On June 15, 2010, another staffing company similarly entered into a consent decree with the EEOC, in a case filed under the Americans With Disabilities Act (“ADA”).  In EEOC v. Balance Staffing, N.D. Ill., No. 1:09-cv-6004, June 15, 2010, the EEOC claimed that the company hired Jocelyn Snower but that the offer was revoked when it discovered that she was blind.

As in the Spencer Reed consent decree, Balance Staffing not only made a cash payment to Ms. Snower, in this case in the sum of $100,000, but was also required to provide annual EEO training to all of the involved managers and human resources employees, and to report to the EEOC all future discrimination and retaliation complaints. 

Another expensive lesson learned too late -- the company should have practiced “preventive law,” and trained its managers and employees in advance.  

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In 2009, the EEOC sued the employment staffing firm of Spencer Reed Group in a federal court in Georgia on behalf of an older, white former employee, Diane Coleman, who was employed in the Atlanta office. The case is named U.S. Equal Employment Opportunity Commission v. Spencer Reed Group, LLC (N.D. Ga, No. 1:09-CV-2228  June 8, 2010). The complaint, filed under Title VII and the Age Discrimination in Employment Act (“ADEA”), alleged that Spencer Reed treated Coleman differently (and worse) than it did younger, African American employees, and fired her the day after she complained about this.

 To settle the case, Spencer Reed entered into a “consent decree” in which it paid Coleman $125,000. Additionally, under the consent decree Spencer Reed agreed to do, among other things:

·        comply with Title VII and the ADEA in all respects;

·        provide anti-discrimination training to all of the employees and managers in its Atlanta

       workplace;

·        post notices in its Atlanta workplace informing employees of their rights under Title VII

      and the ADEA and of the settlement of Coleman’s case, and to permit the EEOC to

      enter the workplace to monitor compliance with this provision; and

·        certify to the EEOC every 6 months whether anyone in the Atlanta office has

      complained about race and/or age discrimination, providing relevant details.

This settlement is noteworthy to us because it underscores our belief that if an employer practices “preventive law,” by doing before an employee complains of discrimination what the EEOC required of Spencer Reed after the lawsuit was filed, it could save the employer having to pay a judgment of $125,000, or much more. 

If an employer has and maintains a policy and procedure manual which is distributed to all employees and contains a “zero tolerance for discrimination” provision, posts anti-discrimination notices in the workplace, provides periodic equal employment training to both managers and employees, and periodically conducts an audit to insure compliance with the anti-discrimination laws – pretty much all of which the EEOC required of Spencer Reed in this consent decree – the employer might be able to avoid the enormous expense, time and distraction of a lawsuit, and a whopping judgment. 

Perhaps the motto of this blog should be:

                    “An ounce of prevention. …”     

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As many pundits expected, the U.S. Equal Employment Opportunity Commission (EEOC) is stepping up its litigation of discrimination claims. In one week, the EEOC settled two lawsuits totaling $180,000. Although the financial recoveries may not be significant to many employers, having the EEOC’s nose in your business is never a good thing and can lead to protracted litigation for years to come.

On June 7, 2010, the EEOC announced that it settled a case with a Harley Davidson motorcycle dealership where the company agreed to pay $55,000 to settle a Title VII sex discrimination and retaliation lawsuit filed by the EEOC. In addition to the payment, the dealership was ordered to revise its equal employment policy and complaint procedure; conduct annual sexual discrimination and retaliation training; post a notice stating the terms of the settlement and how to complain about discrimination. On June 9, 2010, the EEOC announced that it settled a Title VII race discrimination and age discrimination and retaliation lawsuit brought pursuant to the Age Discrimination in Employment Act (ADEA) against the Atlanta office of Spencer Reed Group, LLC, a Kansas-based staffing firm for $125,000. In addition to the monetary relief, the settlement also requires the company to provide EEO trainings, submit reports to the EEOC, and post anti-discrimination notices.

These two employers will now have the EEOC watching their very basic employment functions such as training of staff, and will be required to file periodic reports with the agency from which additional litigation could ensue. In addition, the employees of these companies will now be apprised of the settlements and mandates placed on the company by the EEOC. These companies should expect more administrative charges and will have to strictly comply with the respective decrees. Employers that have a very good and consistent EEO training program and complaint process need not be alarmed by these settlements. However, if you can’t quite remember how many of your current employees are EEO trained, or the last time your employee handbook or complaint process was updated, I would suggest you contact your labor and employment attorney to address those matters before the EEOC does.
 

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In a recent decision, the U.S. District Court of Minnesota ruled that a reasonable jury could find that an employer failed to provide a reasonable accommodation to a job applicant with a severe hearing impairment, in violation of the Americans with Disabilities Act of 1990 as amended (pdf) (ADA).

The employer argued that the plaintiff is not protected by the ADA because his severe hearing impairment prevents him from using a workplace radio, which is a requirement of the positions to which he applied. The court disagreed ruling that a jury could find that with a reasonable accommodation, plaintiff could perform two outdoor mining positions to which he applied. The court in large part relied on the fact that the plaintiff had successfully performed similar duties with another employer for nine years without incident. Acknowledging the employer’s concern for the safety of its employees and the need for employees to be able to communicate with each other, the court nonetheless explained that other methods of communication were available and could potentially be used to get plaintiff’s attention i.e. written, hand signals, horns or more technological devices such as text-based devices.

This case underscores the need for employers to properly train their staff to address disability issues and requests for accommodations, even at the interview stage. It also illustrates that what is reasonable will change as technology advances and is made more readily available to employers. Therefore, employers must engage in a meaningful interactive process and think outside the box. What this means is you must ask questions, including, “What accommodation would allow you to do this job?” Then follow-up based on the response to that question to get a full picture of the employee’s disability as it relates to the job. This will place employers in a better position to evaluate the request and assess their ability to provide a reasonable accommodation. If in the end an employer cannot provide a reasonable accommodation then it will have contemporaneous records of the requested accommodation(s) and the steps taken to provide that accommodation, or prove that the requested accommodation would have caused an undue burden on the company.
 

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In a recent and much anticipated decision, the New York Court of Appeals, the State’s highest court ruled in Zakrzewska v. New School that the New York City Human Rights Law (“NYCHRL”) imposes strict liability on an employer where the offending employee exercised managerial or supervisory responsibility over the employee-plaintiff. 

Prior to this decision, New York City employers were advised by counsel that they could potentially escape liability in harassment cases by asserting the Faragher/Ellerth defense which in relevant parts require the employer to establish that it:

1) took reasonable steps to prevent or promptly correct the alleged harassment; and

(2) the employee unreasonably failed to take advantage of any preventative opportunities provided by the employer.

That defense is no longer available to employers defending claims of harassment by a supervisor brought pursuant to the NYCHRL. Instead, the court in Zakrzewska instructed that an employer’s anti-discrimination policies and procedures may be considered only for purposes of mitigating the amount of civil penalties or punitive damages awarded to the plaintiff.
 

New York City employers must increase their efforts to monitor and prevent workplace harassment. Specifically, with respect to supervisors, New York City employers must conduct comprehensive, mandatory harassment trainings with particular emphasis on how to identify and address unwelcomed conduct in the workplace, and contemporaneously document all affirmative steps taken to investigate and resolve those activities. Anything less will be to an employer’s peril.  To the extent your company does not conduct frequent and thorough harassment trainings programs, you should contact your labor and employment counsel immediately to create one for your business.

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On March 27, 2010, Chai Feldman was given a recess appointment to the post of Commissioner of the EEOC, and was sworn in on April 7, 2010. As an openly gay woman, much has been written about what Commissioner Feldman's appointment will mean for lesbian, gay, bisexual and transgender rights. However, often lost in the analysis is what Commissioner Feldman's appointment means to employers in light of her documented advocacy for protecting the rights of disabled employees.

As the former Legislative Counsel to the AIDS Project of the American Civil Liberties Union, Commissioner Feldman is credited with having played an integral role in the drafting of the Americans with Disabilities Act of 1990 and then as an advocate for the passage of the ADA Amendments Act of 2008 (ADAA).
 

1. Tougher Enforcement of the ADA and ADAA

Make no mistake, Commissioner Feldman strongly believes in the ADA, the ADAA and what these laws mean to covered employees who wish to remain in the workforce. Expect the EEOC to start pushing employers to be more flexible and imaginative with respect to available means to accommodate an employee, think technology and think as broad as the New York City Human Rights law or New York State Human Rights law. That leads me to number 2.

2. Workplace Flexibility Will Be Emphasized by the EEOC

Most recently Commissioner Feldman served as the Co-Director of Workplace Flexibility 2010, where she worked to advance flexible workplaces and hours for employees. The EEOC is likely going to aggressively explore the boundaries of adjustments in employees' schedules, and alternate work cites i.e. telecommuting, as possible "accommodations" for an employee's disability.

3. Be Careful of What You Say in that Position Statement

Keeping the prior two points in mind, simply stating in that position statement, written one day before its due to the EEOC that the requested accommodation will cause an undue hardship to the business may come back to bite you.

4. Use the Interactive Process to Probe the Alleged Disability

All said, ensure that you are engaging in a very interactive process with the disabled employee. Ask probing questions to determine the extent of their alleged disability and their limitations with respect to the job. Then, THINK long and hard about what can be done to accommodate that employee. If all else fails, think what would Commissioner Feldman believe is reasonable.

However, as always, contact an employment attorney to discuss these issues before giving a written or off the cuff response to an accommodation request that may cause the EEOC to issue an unfavorable ruling against your company.

On that note, ladies and gentlemen, I am officially a blogger.

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