When it filed suit earlier this year,  the EEOC issued a press release which stated:  “Once again, an employer involved in the health care field has impermissibly allowed fear and bias to enter into the hiring process. The ADA clearly prohibits covered employers, including those staffing health care positions, from refusing to hire someone based on disability.”

We could have said that – but hey, we always say that!  We refer to EEOC suits such as this, for those unfamiliar with our blog, as the EEOC going after “low hanging fruit” or “shooting fish in a barrel” (see our prior posts).  

The suit alleged that a Pittsburgh-based nationwide staffing service for nurses and other health care professionals refused to hire someone who already received an offer contingent upon completion of a health status certification.  The certification showed his HIV-positive status and his offer was withdrawn.  He was cleared to work, though, in a position of sitting with patients at a VA medical facility.

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The EEOC has now trumpeted that it has settled this case – with the staffing company having to pay $75,000.

We said recently appropos another such case that “the EEOC seems to be saying that it will ‘challenge’ health care facilities in particular for acting as if they are above the law or feeling invulnerable simply because they ‘do good work.’”

Our takeaway today (and always):  (1) the EEOC is gunning for health care and medical facilities which may have violated the ADA (the “Americans With Disabilities Act”); (2) staffing companies also seem to be in the EEOC’s cross-hairs; and (3) don’t violate the ADA!

 

 

Someone failed to advise a NY legal staffing company about a little thing known as the ADEA – the Age Discrimination In Employment Act.

Apparently it “rejected a 70-year-old attorney when it discovered her age and told her it would never hire her after she questioned if the rejection was because of her age.”  This, according to a new suit filed by the EEOC.

older lawyer : Older business woman sitting at desk reading in a book. Idea for a learning concept in the age.

After the attorney accepted a temporary work project, the company asked for and was told her date of birth, and within 90 minutes she was told her that the offer was withdrawn.  The attorney asked whether this was because of her age, and the company allegedly told her that “she would be placed on a ‘do not use’ list and she need not apply for future work assignments with [the company].”

One EEOC lawyer said that “It is time to send a clear message to employers: Neither age discrimination nor retaliation for making a discrimination complaint will be tolerated.”

A second EEOC lawyer said: “More and more Americans are working past the age of 65, and they have a right to do so free of ageism.”

Age discrimination claims are rising fast these days — the aging of the population ensures that employers who are not familiar with the ADEA will be targeted by an ever more aggressive EEOC.

In any event, as we have said in our prior posts, employers are missing out on a valuable resource — experienced employees — if they seek to eliminate them, legally or illegally.

 

 

Here is what failure to make out a prima facie case looks like in its starkest terms

A Muslim software architect in Washington State sued his former staffing company employer in federal court under Title VII based upon religious (and national origin) discrimination.  His contention?   That when he was sent on a business trip the employer deliberately booked him a hotel room with the number “911” just to humiliate him as a Muslim by reminding him of 9/11.

The court ruled against plaintiff, who appeared pro se, since he presented no evidence in support of his claim but just “conjecture.”  In fact, the hotel reservation e-mail receipt did not indicate that anyone at his employer requested room 911.

His other claims were similarly dismissed.

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26736791_sThe headline above says it all – need we repeat out “low hanging fruit” or “fish in a barrel” mantras?   Or should we let the EEOC’s press release do it for us:  “Once again, an employer involved in the health care field has impermissibly allowed fear and bias to enter into the hiring process. The ADA clearly prohibits covered employers, including those staffing health care positions, from refusing to hire someone based on disability.”

This time a Pittsburgh-based staffing service for nurses and other health care professionals with 360 offices nationwide refused to hire someone who already received an offer contingent upon completion of a health status certification.  the certifucation showed his HIV-positive status and his offer was withdrawn.  He was cleared to work, though, in a position of sitting with patients at a VA medical facility.

We said recently appropos another such case that “the EEOC seems to be saying that it will ‘challenge’ health care facilities in particular for acting as if they are above the law or feeling invulnerable simply because they ‘do good work.’”

Our takeaways today:  (1) the EEOC is gunning for health care and medical facilities which may have violated the ADA (the “Americans With Disabilities Act”); (2) staffing companies also seem to be in the EEOC’s cross-hairs; and (3) don’t violate the ADA!

 

13320079_sOn November 5, 2012, we reported on an EEOC lawsuit against Señor Frog’s, a chain of Mexican-themed restaurants, as well as its staffing company, for “rampant sexual harassment of its female employees in Honolulu.”  The suit alleged that “widespread sexual harassment was out of control, stemming from Señor Frog’s owner himself.”

“[A]t least nine female servers and bartenders were repeatedly bombarded with sexual propositions, explicit sexual remarks, groping, grabbing, and exposure of genital areas by male managers, and even ordered to perform sexual favors for high-level Señor Frog officials.”

The regional EEOC attorney stated that “We are troubled by the increase of sexual harassment cases and companies continuing to fail to take this problem seriously.”

The EEOC previously settled with the Hawaii staffing company with which Frog had contracted to provide HR services and oversee the company’s non-management staff for $150,000.  It has now just reported that the company has agreed to settle the case for $350,000, and other relief.  “The company closed its Honolulu establishment in August 2012. Notwithstanding, if [it] chooses to open another restaurant or chooses to reopen the Señor Frog’s in Hawaii, the consent decree requires substantial injunctive relief including the creation and distribution of an anti-harassment policy along with annual training for all restaurant employees to prevent future instances of sexual harassment, discrimination and retaliation. The EEOC will monitor compliance with the agreement.”

As EEOC attorney said that “Our young workers [a/k/a “vulnerable workers”] are all too often the targets of the most insidious forms of sexual harassment, which can spread like wildfire at work.  Employers who fail to fulfill their moral and legal obligation to prevent and immediately stop the sexual abuse of its young workers will answer to the EEOC.”

 

The EEOC had six charges filed with it between 2007 and 2009 alleging that the San Diego staffing firm Huyssen Inc., doing business as Sedona Group, engaged in a pattern and practice of classifying and failing to refer job applicants based on their race, color, sex, national origin, age or disability.

The EEOC just issued a press release announcing that Sedona agreed to pay $920,000 to a class of “men and women of various races and national origins, individuals 40 years of age and older, and those with disabilities,” who applied to Sedona for referral employment.  Sedona also agreed to provide yearly EEO and diversity training to all its Sab Diego employees, and to “hire an independent EEO consultant to assist the company in revising its EEO policies and complaint procedures, training and compliance with the agreement.”

Takeaway:  We do not know the specific details of the discrimination charges, or their merits, but nevertheless we have always endorsed wholeheartedly, and exhorted all employers, that yearly EEO and diversity training, competent advice from employment discrimination specialists, as well as periodic updating of written policy and procedure manuals, is something that should be scrupulously attended to.

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Readers may recall that on December 4, 2012 we reported that a staffing agency, Staffmark, sent a woman with a prosthetic leg to work as a temporary SONY employee in an Illinois facility which packages and/or inspects Sony products that are being shipped out. After two days she was told by Staffmark that she would be removed from her job and reassigned “because they did not want anyone bumping into her.” No reassignment was made by Staffmark and she was fired.

The EEOC found “reasonable cause” to believe that Staffmark and Sony fired the woman because of her prosthetic leg, in violation of the ADA, and the EEOC announced that it had sued both companies.  An EEOC lawyer stated that the woman “was fired because of unjustified fears about her having a prosthetic leg. Firing employees because of baseless fears and stereotypes about their disabilities is illegal, and the EEOC will defend the victims of such unlawful conduct.”

The EEOC has now reported that Staffmark has agreed to pay $100,000 to settle the case, but that SONY continues to fight.

Staffing agencies be cautioned: last year we quoted the EEOC as warning that “Staffing agencies cannot avoid liability for discrimination by saying they were just following an employer-client’s orders, nor can employers avoid liability by saying the victim was ‘really employed’ by their staffing agency.”

An EEOC lawyer has now warned that “If the EEOC is in the picture … [this] may prove far from a good business decision, but rather a short-sighted and costly one.”

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The EEOC just announced that it has sued a Georgia staffing and professional recruitment company for retaliating against an employee who had filed an unspecified EEOC discrimination charge. Noteworthy is that the complaint in this case is silent as to what the employee felt was the basis for the discrimination charge, for none is asserted by the EEOC in its complaint.   

 

The employee was assigned to one particular client of the staffing company as a quality auditor, and was suspended for a week for missing one day of work. He filed a discrimination charge with the EEOC, and was never given any further job assignments or opportunities.  The staffing company’s on-site supervisor was the person who suspended the employee and to whom the employee allegedly said that his suspension “was not fair” and that “he was going to the EEOC.”  

 

Since filing an EEOC charge requires an employee to check a box indicating the type of discrimination alleged, i.e., race, gender, age, etc.,  presumably the employee in this case did indeed check a box, therefore the fact that the EEOC’s lawsuit does not set forth this basis of discrimination may be significant.  

 

The EEOC stated that: “Eliminating policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC’s investigative or enforcement efforts, is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (emphasis added).”

 

We have always cautioned employers that retaliation for filing a charge of discrimination is far easier to prove than the underlying alleged discrimination, and can be demonstrated even if the underlying basis for the discrimination charge fails.  Given that retaliation is an EEOC priority, perhaps this is a test case by the EEOC to see how low the bar is when no underlying basis for discrimination is set forth or when an incredibly weak case of discrimination is alleged.  

 

 

A staffing agency, Staffmark, sent a woman with a prosthetic leg to work as a temporary SONY employee in an Illinois facility which packages and/or inspects Sony products that are being shipped out. After two days she was told by Staffmark that she would be removed from her job and reassigned “because they did not want anyone bumping into her.” No reassignment was made by Staffmark and she was fired.

The EEOC found “reasonable cause” to believe that Staffmark and Sony fired the woman because of her prosthetic leg, in violation of the ADA, and today the EEOC announced that it had sued both companies.
 

One EEOC lawyer stated that the woman “was fired because of unjustified fears about her having a prosthetic leg. Firing employees because of baseless fears and stereotypes about their disabilities is illegal, and the EEOC will defend the victims of such unlawful conduct."
 

Staffing agencies take note: another EEOC lawyer warned that "Staffing agencies cannot avoid liability for discrimination by saying they were just following an employer-client’s orders, nor can employers avoid liability by saying the victim was ‘really employed’ by their staffing agency.”
 

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.