“For a young Black man … I’m already paying you a lot of money” was not the right reason to deny pay increase. An African-American auditor was promoted to team leader. However, unlike others who were promoted, he received no pay raise. When he inquired about this, a supervisor said that for a young Black man, he was already being “paid a lot of money.” The auditor then filed an EEO complaint. Following this, he allegedly was told he could choose between being fired or dropping the complaint, and in a heated meeting a supervisor used the n-word. The auditor was then fired. He sued for discrimination and retaliation under 42 U.S. Code §1981. The court found evidence of discrimination in pay and retaliation. It also found that the single incident of the n-word was sufficiently severe to create a racially hostile environment under the harassment standards. (The supervisor was later fired after an internal investigation concluded that he did use the word.)
Ayissi-Etoh v. Fannie Mae (D.C. Cir., 2013)
Prejudice is not necessarily discrimination. An African-American delicatessen worker was fired for stealing from the restaurant—i.e., not paying for food and drink she consumed. The employee sued for racial discrimination, claiming that the manager had made numerous “anti-Black comments” and disparaged African-American public figures in front of the staff. He also tolerated hostile racial comments, including use of the n-word by a customer. The court dismissed the case, finding no connection between the manager’s comments and the decision to fire the employee. The employee did not deny taking the food and drink. Fourteen other employees, many of whom were White, had been fired for the same infraction. A company is not precluded from firing a person for theft just because a manager has made prejudiced comments unrelated to the theft policy. Even a prejudiced manager can do nondiscriminatory discipline by equally enforcing rules.
Addison v. Ingles Markets, Inc. (11th Cir., 2013)
Court dismisses EEOC’s case over random drug testing. U.S. Steel did random drug and alcohol tests on probationary employees in safety-sensitive positions. This policy was approved under the collective bargaining agreement. A coke-oven worker failed the alcohol test and was fired. She claimed it was a false positive due to diabetes. She filed a claim with the Equal Employment Opportunity Commission (EEOC) for disability discrimination. The EEOC filed suit against the company and the United Steelworkers Union on behalf of the person and all others who had been fired for failing the test. The EEOC claimed that the alcohol test is a medical exam which has an adverse impact on certain disabilities. It sought to prohibit all random testing and restrict tests to only individualized reasonable-suspicion situations. The court rejected this claim. It found that safety was fundamentally job-related and the alcohol test was “consistent with business necessity.” The EEOC’s argument was also inconsistent with its own rule that random testing is valid for “public safety” employees (fire, police, security, transit drivers). The court ruled that the lives of private-sector employees in “dangerous jobs” are “no less worthy of protection” than those in the public sector.
EEOC v. U.S. Steel Corp. and United Steelworkers (W.D. Pa., 2013)
Remember to separate medical information from the rest of the personnel records. The EEOC won a $109,000 jury verdict for an employee with epilepsy who was fired shortly after having a seizure. He had worked for the company only a week before the seizure. He was not allowed to return to work. The company failed to engage in the interactive communication process. Another factor in the decision was the company’s failure to meet the federal requirement to keep employees’ medical information in a separate, more secure file than other personnel records.
EEOC v. Western Trading Co. (D. Col., 2013)
Short extension of leave is almost always “reasonable.” A company settled for $50,000 after firing an employee who requested a short extension of medical leave for stroke recovery. Her doctor provided a specific date for return to work without restrictions. The company allegedly refused to grant the medical extension and terminated the employment. The EEOC alleged failure to reasonably accommodate and no showing of undue hardship for the company if it had been flexible and granted the short extension.
EEOC v. REDC Default Solutions LLC (N.D. Texas, 2013)
Legislative and Administrative Action
FLSA amendment would end special disability wage. Rep. Gregg Harper (R., Miss.) has introduced a bill (HR-831) to discontinue the special subminimum wages that are paid to certain disabled workers. The special wage has drawn fire due to abuses. On the other hand, many nonprofit employment programs for those with special needs are dependent on this special wage. Without it, they may cease to exist, leaving many disabled people without employment, job coaches and vital support that have enabled them to have any sort of income and to be more functional in society and live more rewarding lives.
EEOC rules restrict criminal background checks, BUT states are moving to expand them. The EEOC, followed by the Office of Federal Contract Compliance Programs (OFCCP), issued opinions that criminal background checks have an adverse impact upon certain racial and ethnic groups and are suspect under the antidiscrimination laws and contract-compliance rules. The EEOC issued guidance about proper and improper use of arrest/conviction records in employment decisions, seeking to restrict their use. At the same time, a number of states are expanding the requirements to do these same arrest/conviction-record employment searches—most recently, Arizona, Arkansas, Maryland, New Jersey and Virginia. The EEOC takes the position that any state law in conflict with its own guidance is invalid and illegal. Yet the states require the background checks, or employers face state sanctions for illegality.
Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at email@example.com.