Although we are not seeing much federal regulatory action in employment law these days, employers must remain diligent in compliance efforts, regardless of industry. The EEOC continues to make an impact through investigation, voluntary resolution, and litigation. During the first few weeks of August 2018 alone, the EEOC filed several cases, which I summarize below. These developments teach us:
- Workplace harassment will not be tolerated.
- Compensating men and women differently for similar work will receive close scrutiny.
- Inflexible leave and no-fault attendance policies create problems for employers under the ADA.
- Basing employment decisions on stereotypes about the impact of a medical condition leads to trouble.
- Both the staffing agency and its client may be liable for unlawful employment practices.
- The EEOC will continue to protect employees from retaliation.
- The cash settlements referenced below are only part of the story. EEOC settlements often involve a consent decree requiring the employer to adopt policies, processes, training, and even new roles or positions, all subject to EEOC oversight for years.
- The results are public.
According to press releases posted on the EEOC’s website, during the first few weeks of August, 2018, the EEOC was involved in the following litigation developments. Note: The following summaries describe allegations only. Nothing set forth below is intended to suggest whether the allegations are true or not.
- The EEOC sued Stanley Black & Decker, Inc., alleging that the company unlawfully terminated an employee for poor attendance instead of reasonably accommodating her by offering time off for medical appointments for her cancer.
- The EEOC settled with Home Depot after alleging that the company unlawfully fired an employee for leaving her post due to irritable bowel syndrome and fibromyalgia rather than reasonably accommodating her by allowing an emergency break. The company agreed to pay $100,000.00.
- The EEOC sued Custom Fabrication & Engineering d/b/a Midwest Automation Custom Fabrication, Inc., alleging that, after recuperating from a stroke, an employee was not permitted to return to work even though he produced the releases required by the company.
- The EEOC sued Grand Hyatt New York, Inc., alleging that the company unlawfully failed to reasonably accommodate a front desk employee with a chronic back impairment by allowing him to sit in a chair.
- The EEOC sued Citgo Petroleum Corporation, alleging that the company unlawfully withdrew a job offer after discovering that the applicant had permanent vision loss in one eye.
- The EEOC settled with Murphy Oil USA, Inc. after alleging that the company required an employee with a back impairment to perform duties that violated work restrictions ordered by his physician, and that the company fired the employee in retaliation for complaining to company management about failure to accommodate his restrictions. The company agreed to pay $100,000.00.
- The EEOC sued Remedy Intelligent Staffing, LLC (staffing company) and Lornamead, Inc. (client), alleging that they failed to reasonably accommodate an employee with a kidney condition by providing him with a chair so that he could minimize painful bending and twisting while operating a machine, or by reassigning him.
- The EEOC settled with Massimo Zanetti Beverage USA, Inc. after alleging sexual harassment due to a male co-worker subjecting a female temporary employee to requests for sex and sexual favors and crude sexual comments and gestures, and the company’s termination of her assignment rather than address her three complaints. The company agreed to pay $65,000.
- The EEOC sued Hackensack Meridian Health, alleging that one of its managers harassed an employee because of his religious faith by reacting negatively to a crucifix in the employee’s office and then regularly belittling and screaming at him and ridiculing his work in front of others.
- The EEOC sued Alden Short, Inc. and its subsidiary Hinson Jennings, LLC, alleging that they subjected three employees to a hostile work environment because of their national origin, referencing the occurrence of slurs and derogatory comments and that the company did not have a procedure or designated employee through which/whom complaints of discrimination could be made.
- The EEOC sued Ojos Locos Sports Cantina for sexual harassment by managers and co-workers and for retaliation. The EEOC alleges that female employees (one of whom was 17 years old at the time) faced requests that they show more cleavage; comments about their breasts and buttocks; comments by male employees about their private parts; text requests for sex; unwelcome touching of their bodies; and, in at least one case, a manager texting a photo of his penis. The EEOC also alleges that the women who complained had hours reduced, were assigned undesirable shifts and work assignments, and were terminated or forced to resign.
- The EEOC sued Amada Senior care, alleging sexual harassment and retaliation. The EEOC alleges that, when two female employees provided in-home care to a client, the client’s son touched the employees’ breasts and buttocks, made derogatory sexual remarks, exposed himself, and touched the employees with his genitals. The EEOC also alleges that, when the employees reported their concerns, the company failed to investigate, continued to assign them to the client, cut their hours, terminated one of them, and forced the other to quit.
- The EEOC sued Marion’s Cleaners for harassment based on race and national origin and for retaliation. The EEOC alleges that a co-worker continually told an employee that she “needed to go back to Mexico;” that she “was nothing,” was a “stupid Mexican,” and was a “dirty Mexican;” and told her to “shut up” when speaking Spanish, and, when the employee reported her concerns, the company did nothing. The EEOC alleges that, when the employee asked her co-worker to stop, he grabbed her by the hair, repeatedly punched her in the face, and pressed her against an exposed steam pipe, resulting in second-degree burns and trauma. The EEOC alleges that the company fired the victim rather than taking action against the harasser.
- The EEOC sued United Airlines, alleging that, over a multi-year period, a United pilot frequently posted sexually-explicit images of a United flight attendant to various websites, identified her by name and home airport, and sometimes referenced the airline’s tagline “Fly the Friendly Skies.” The EEOC alleges that the posts were seen by several co-workers and adversely affected the flight attendant’s work environment, and that United failed to prevent and correct the pilot’s behavior even after the flight attendant made numerous complaints.
- The EEOC settled with Las Trancas of Martinsburg, Inc. after alleging that several male supervisors and coworkers subjected two employees to frequent sexual touching and grabbing, lewd sexual comments, and other offensive and threatening behaviors. The EEOC alleged that one employee was fired for refusing to submit to her supervisor’s advances, and the other was forced to quit. The company agreed to pay $66,598.00.
- The EEOC sued Rockdale Grocery, Inc. (doing business as Piggly Wiggly), alleging hostile work environment and retaliation. The EEOC alleges that a male employee made lewd sexual comments and advances to two female store clerks and that, when the women complained, the company failed to take action, opting instead to cut one employee’s hours and eventually terminating both employees.
- The EEOC sued Murex Petroleum Corp., alleging harassment based on race due to white co-workers calling an African-American employee “spook,” “spade,” and “Buckwheat,” and making other racially derogatory comments such as “n—-r-rigged.” The EEOC alleges that the victim’s supervisor witnessed the harassment, but no action was taken to stop it.
- The EEOC sued Fairbanks Ranch Country Club for sexual harassment and retaliation, alleging that a manager solicited naked pictures from female employees, grabbed their buttocks, attempted to kiss them, offered one employee to male customers for lap dances, choked one employee, and required sexual favors for job benefits.
- The EEOC settled with Koch Foods after alleging sexual harassment and race and national origin discrimination due to supervisors touching and/or making sexually suggestive comments to female Hispanic employees, hitting Hispanic employees, and charging Hispanic employees money for normal work activities, and retaliatory discharge and other forms of retaliation after the employees complained. The company agreed to pay $3.75 million.
- The EEOC settled with Alorica, Inc. after alleging that the company subjected employees to a sexually hostile work environment and that onsite human resources staff failed to properly address the employees’ complaints. The company agreed to pay $3.5 million.
- The EEOC sued Rocco’s Pub, alleging that the company unlawfully discriminated against a bartender by demoting her to a lower paying server job because of her pregnancy, even though her pregnancy did not affect her ability to work as a bartender.
Sex Discrimination in Pay/Promotion
- The EEOC sued Ferman Automotive Group and Cigar City Motors, alleging that the company repeatedly promoted males to general manager positons despite the presence of an equally or more qualified female candidate.
- The EEOC sued Kansas Unified School District 245 LeRoy-Gridley, alleging that it paid a woman less than men for a job that required the same skill, effort, and responsibility. The EEOC alleges that a female principal in 2015 and 2016 received an initial base salary of $45,000.00; her male predecessor’s base salary was $50,000.00; after she complained, she was given a raise to $46,500.00; and, in 2017, her male replacement had a base salary of $50,000.00.
- The EEOC sued Urbana School District No. 116, alleging that the district unlawfully limited salary increases for older teachers pursuant to an unlawful provision of a collective bargaining agreement that limited the salary increases of teachers who are within ten years of retirement eligibility to no more than six percent above their previous year’s salary.
- The EEOC sued The University of Wisconsin System, alleging that it refused to hire a former long-term employee because of her age. The EEOC alleges that the 53-year-old employee was laid off from her job as a Marketing and Communications Specialist; applied for six different positions and was not hired for any of them; one of the positions she was denied was Associate Marketing and Communications Specialist, even though she had 25 years of relevant experience; and the candidate selected was 23 years old and had less than two years’ experience.
- The EEOC sued Fermi National Accelerator Laboratory, alleging that the company failed to promote a female engineer, despite being the most qualified candidate, in retaliation for her complaint of sex discrimination.
- The EEOC settled with Southeast Food Services/Wendy’s after alleging that the company required employees to sign a release that included a commitment not to file discrimination complaints as a condition of receiving a promotion and rescinded a promotion when an employee refused to sign the release. The company agreed to pay $20,000.00.
(This post is not legal advice. Consider consulting with a lawyer about specific situations.)