Gender Discrimination

Food company settles OFCCP charges of adverse impact hiring discrimination. A national food distributor has agreed to pay approximately $200,000 and change its hiring practices. The Office of Federal Contract Compliance Programs (OFCCP) charged that the company’s hiring practices discriminated against women. In a nine-month period, the company hired only six out of 90 qualified female applicants (6.6%) for “order selector” positions at one of its facilities. Out of the male applicants, the company hired 40 of 150 qualified applicants (26.6%). The OFCCP considered this disparity too great to be random and too great to avoid a conclusion of gender discrimination. The situation was heightened by evidence that a number of the rejected female applicants had experience and credentials which were equal to and greater than the men who were hired. The settlement monies will go to women who were not hired, and a number of those will also be offered jobs. This was a no-fault settlement because it was reached in a conciliation process, before the OFCCP proceeded to the enforcement stage. OFCCP v. Nash Finch Co. (Administrative Settlement, 2012). 

Religion/National Origin Discrimination

Offensive mannequin and one comment were not enough to create harassment case. A Jewish hospital employee of Mexican origin filed a case on religious/national origin’ harassment and for retaliatory discharge after he complained about the harassment. The harassment consisted of three incidents. There were mannequins in one area of the hospital. The supervisor noticed that one had a “Hitler-style mustache” and thought it would be funny to position the arm in a Nazi salute. The Jewish-Mexican employee saw this, was offended and put the arm back down before the end of the day. He then called the internal complaint hotline about the offensive incident. During the call he also stated that he heard that the same supervisor had previously referred to the hospital’s cleaning crew as “those Mexicans,” allegedly in a negative tone. The employee then transferred to another location. At that location he was critiqued for performance issues and complaints by patients about his work. This critique eventually led to discharge. He filed a Title VII case on religion, national origin and retaliation. In the case, he added the evidence that the supervisor who posed the mannequin had also once noticed the large Star of David necklace worn by the employee and said, “That’s gaudy!” This was further evidence of anti-Semitic animosity.

The court granted summary judgment, dismissing the case. The incidents were not sufficiently severe or pervasive to constitute illegal harassment. Neither the mannequin pose nor the Mexican comment were directed at the employee. Though insensitive, there was no indication the less-than-a-day mannequin pose was intended to be anti-Semitic. Not every Hitler reference or parody has such an intent. The jewelry comment had no religious reference attached. It was a large piece of jewelry, and the court would not interpret a religious meaning to an otherwise neutral comment. Finally, the performance critique and discharge were by a different supervisor, in a different location. The evidence was that this supervisor had no knowledge of the employee’s prior hotline complaint and so could not have acted in retaliation. De La Rosa v. Hanger Prosthetics and Orthotics, Inc. (D. Ariz., 2012).

National Origin Discrimination

Deputy sheriff can maintain retaliation case for investigation of her citizenship status. A 13-year veteran deputy sheriff of Mexican descent made an internal written complaint about alleged improper treatment of and derogatory and discriminatory comments made to and about Mexican inmates in the county jail. The following day, she was suspended pending an investigation of her own status—was she a U.S. citizen or legal resident? The deputy was able to produce the evidence of citizenship and was reinstated. However, the court validated her ensuing suit for retaliation under 42 U.S. Code § 1983, against the county, the sheriff and two other personally named defendants. The judge found a substantial foundation that the reason for the sudden investigation of the deputy’s legal status was her complaint about improper treatment and national origin discrimination, a matter of public concern. Garcia v. Arapahoe Co. Sheriff’s Office, et al. (C.D. Col., 2012).

Disability Discrimination 

Failure to confer with coach/guardian can violate interactive process. Some disabilities render the person less capable of communicating without assistance. This may be true for visual and hearing conditions and is often the case with intellectual disabilities. A kitchen worker with an intellectual disability was capable of doing the job if his supervisor was reasonably sensitive to his understanding abilities and manner of direction. His accommodation plan included a request to consult with a third-party job coach or his guardian regarding accommodation requests and before any tangible employment decisions. The employee did make requests for accommodation, which seem to have been ignored. There was no communication with the designated third party. He was then fired, again with no consultation with the designated third party. This violated the established accommodation plan and the ADA-required interactive process. The company agreed to settle the ensuing case for $255,000 plus a series of compliance requirements. EEOC v. Bannes Health (Administrative Settlement, 2012).

State employee cannot sue under ADA-Title II. The U.S. Supreme Court has ruled that state agencies are immune from suit under the ADA’s Title I employment sections due to the 11th Amendment’s “sovereign immunity” clause. (Employees can file cases under the Rehabilitation Act if the agency takes federal funds for a program they work under.) Title II of the ADA, however, specifically applies to state and all other government agencies. Title II prohibits discrimination by any public entity “in any public services, benefits or activities.” A university employee alleged she was discharged due to failure to accommodate her spinal conditions. She sued under Title II, claiming the language covered any discrimination, including employment actions, by an entity which provided public services. The court disagreed. It ruled that Title I and II are mutually exclusive. Title II is limited to those who are recipients or participants of the public services and not the employees of those services. Ewell v. Bd. of Regents of the U. of Oklahoma (10th Cir., 2011). This is the fourth court to make this finding (also the 3rd, 6th and 9th Circuits). However, the 11th Circuit has allowed a Title II employment case. So other cases may be brought to test the waters in other circuits.

History of drug use vs. current drug use. The ADA does not protect an employee from the consequences of current drug use. However, there is a “safe harbor” for those who have a “history” of use, have completed a treatment program and are no longer using. Where is the transition point? In Shirley v. Precision Castparts Corp. (S.D. Tex. 2012), an employee was abusing prescription painkillers at work. Instead of discharging him, as it could have, the company allowed a leave for treatment with the condition that he complete treatment. After two days, the employee checked out of the program, against the doctor’s advice. He was fired. He sued under the ADA, claiming he had a protected disability as a “former user.” The court disagreed, finding “current use” means “recent use.” The employer could infer the use was current, especially since the person failed to complete treatment and checked out after only two days. There must be a “sufficient time” after the last use to qualify for the “safe harbor” protection.

One year is enough time, and college perceived employee as drug dependent and disabled. A mailroom supervisor at a private college became dependent on prescription pain medication following a series of back surgeries. He tested positive for an “excessive amount” of opiates. He entered and completed a treatment program for addiction. He continued to take a different prescription medication for his continuing surgeries and pain, monitored by his physician, along with opiate-blocking medications. A year after the completion of the drug-treatment program, the college again ordered a drug test. It again showed the presence of prescription pain medication. The college fired the employee. In this case, the employee did qualify under the ADA’s “safe harbor” as a person with a record of past treatment. Further, the college did not establish that the prescription medication level was “excessive.” It did not ascertain that he was taking the medication under his doctor’s monitoring and treatment advice. Thus, the termination violated the ADA, based on the employer’s perception of drug addiction, instead of a valid foundation. The jury awarded $300,000, plus attorney fees and costs. Fowler v. Westminster College (D. Utah, 2012).

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

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By Bob Gregg

EEOC announces 2013 priorities. The Equal Employment Opportunity Commission (EEOC) has announced its four-year (2013–2016) Strategic Enforcement Plan. The agency plans to devote additional attention to the issues of identifying and eliminating discriminatory recruiting and hiring barriers; enforcing equal-pay laws; protecting immigrant, migrant and other vulnerable workers; preventing harassment; preserving access to the legal system; and addressing “emerging issues.” Emerging issues identified in the plan include the ADA Amendments Act standards, pregnancy accommodation, and coverage of LGBT under Title VII provisions “as they may apply.” This last item recognizes the growing de facto inclusion of LGBT discrimination under Title VII, often as “gender stereotyping,” even though the law does not specifically include those as protected categories.

National Origin Discrimination

In EEOC v. PBM Graphics, Inc. (M.D. NC, 2012), the company will pay $334,000 to “on-call” temporary workers. “On-call” workers wait to be called in only “as needed.” The suit, under Title VII, alleged that PBM established a “core group” of Latino on-call workers who were told to report every day unless called off. They became, in effect, regulars. Other on-call workers, U.S. citizens, were still only on-call and only called when the “core group” was not sufficient, thus seriously diminishing their employment.

EEOC v. Hamilton Growers, Inc. (M.D. Ga., 2012) was a case brought under Title VII, the FLSA and the Migrant & Seasonal Agricultural Workers Protection Act. The EEOC alleged that the company laid off virtually all of its U.S. citizen farm workers, almost all of whom were Black, and replaced them with H-2A guest workers from Mexico. Contrary to the stereotype of replacing higher-paid U.S. workers with lower-paid foreign labor, the company allegedly paid higher rates to the H-2A workers than to the few U.S. employees it did retain. The EEOC alleged that this was also done in an effort to motivate the remaining U.S. employees to quit. Again, the company denied the charges while settling the case for $500,000.

Disability Discrimination

Educating women to tolerate harassment was not a reasonable request for accommodation. An employer received numerous complaints about a male employee’s sexual comments, staring and following of female workers. He produced certification of a Pervasive Developmental Disorder (PDD) which caused low control of these behaviors. He requested the reasonable accommodation of having his treating therapist educate the female staff so they would understand his disability and be more tolerant of the behaviors. The employer denied that accommodation, and he was terminated for continued sexual harassment. He sued under the ADA and Rehabilitation Act for failure to accommodate. The court dismissed. It found the requested accommodation to be “unreasonable on its face, as a matter of law.” No one should have to accommodate by tolerating ongoing and overt sexual harassment. It also found the plaintiff to not be a “qualified person with a disability.” His disability rendered him unable to follow valid rules of workplace conduct; therefore, he could not meet essential functions of the job. McElwee v. County of Orange (2nd Cir., 2012).

Gender Discrimination

The fact that harassment stopped is not enough to avoid liability; employer has a duty of care to take corrective action. A county secretary complained that the planning office’s legal counsel subjected her to a pattern of overt verbal and physical sexual comments, touching and sexual gesturing. When she complained to the department director, he laughed and agreed that the attorney was “a pervert,” then did nothing. At about the time of the complaint, the secretary announced that she was pregnant. The harassment stopped. Nonetheless, the secretary filed a harassment case. The county defended, claiming that the harassment ceased after her complaint, so there was no liability. The court disagreed. It ruled that an employer has a duty to actively address harassment situations. Doing nothing is not adequate. Just because the harassment happened to coincidentally stop, fortuitously, does not excuse the employer from its obligation to actually address and correct the attorney’s behavior. The county’s nonaction on the complaint fell below the required duty of care. Henricks v. White County (N.D. Ind., 2012).

Religion Discrimination

Is veganism a religion? A hospital required all employees to have a flu shot. It did exempt those whose religion prohibited them from vaccination, under Title VII’s reasonable-accommodation requirements. One employee refused to get the shot, claiming that she was vegan and the flu vaccine was made using an egg-based medium. Thus, the shot would put an animal product in her system. The hospital fired her for not following its policy. She sued for religious discrimination, claiming a sincere religious belief in her vegan practice. The hospital claimed her social beliefs and lifestyle did not equate to a religion under Title VII. However, the court found sufficient foundation for the case to proceed. Title VII covers “moral or ethical beliefs . . . held with the strength of religious views.” The plaintiff’s strongest point is that she quoted Biblical scripture about dietary restrictions and purity while refusing the flu shot. Chenzira v. Cincinnati Children’s Hospital (S.D. Ohio, 2012).

Veterans Discrimination

Laid-off status is a valid “re-employment position.” The Uniformed Services Employment and Re-Employment Rights Act (USERRA) requires that service members returning from active duty be reinstated to the job they left, including to the position their job became while they were gone (such as reclassifications to a higher level, pay increases, enhanced duties, etc.). This is called the “escalator principle.” Upon return from deployment, the plaintiff was informed that his job had been eliminated in a layoff of an 18-person unit, so there was nothing to restore him to. He sued. The court ruled in favor of the company. The law requires reinstatement to the position one “would have had absent military interruption.” If he had not been called to duty, the plaintiff would have been laid off in the unit elimination. He is entitled to no better treatment than had he been employed the whole time, so his laid-off status is exactly what his job “escalated to.” The employer is not required to create a new or different job. Milhauser v. Minco Products, Inc. (8th Cir., 2012)

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanclark.com

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Chiropractic clinic was not a tribal business. Even though all stock was owned by the Cherokee Nation, a chiropractic clinic was incorporated under the state laws of Oklahoma. It operated off of the reservation, contracted to serve a U.S. Army base. It was open to business for all of the service members and civilians on the base and others, overwhelmingly non-Cherokees. A fired technician filed age-discrimination and Title VII suits. The clinic moved for dismissal, claiming Sovereign immunity. The court denied the motion: A “separate legal entity” status incorporated under Oklahoma law precluded it from sharing in the Cherokee Nation’s sovereign immunity. Somerbolt v. Cherokee Nation Distributors (10th Cir., 2012).

Salvation Army waived immunity when it took federal money. Many organizations have a legal or constitutional exclusion from suit, but when you take the money, you take the rules that come with the contract. Even though the Salvation Army is clearly a religious organization and immune from many employment laws, it can be sued by a rejected job applicant with a disability. It took federal money to provide social services. The Rehabilitation Act applies to all contractors who receive federal funds. Taking the money was a voluntary waiver of any immunity from suits under that act. Doe v. Salvation Army (6th Cir., 2012).

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post Who Can’t Be Sued for Discrimination? appeared first on DiversityInc.

Racial Discrimination

Racial names do not justify slapping customer. A white customer suspected of shoplifting was escorted to a security area for questioning. The customer’s white friend then barged into the area, cursing at the store employees, one of whom was Black. She used the N-word toward the Black store employee, who reacted by slapping the verbally abusive customer in the face. The police were called and both customers were arrested. The store then fired the employee for having slapped the customer, in violation of its no-violence policy and no-physical-contact-with-customers policy. The fired employee filed a Title VII race-discrimination case, alleging that Kmart was promoting a racially hostile environment and “ratifying hate speech” by firing the victim of harassment. The court ruled against the employee. The customer’s behavior was clearly harassing and improper. However, the store took prompt action to have the police remove the offender. The company had policies on how to deal with customers for these situations and how to raise complaints without escalating a situation. Slapping a customer was against policy and not warranted by a verbal situation. The employee’s escalation to the physical level was unwarranted and justified discharge. Lee v. Kmart Corp. (D. Minn., 2012).  For more on the discrimination and the N-word, read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words.

Hostile supervisor loses discharge case. A Cuban-born manager filed national-origin and race-discrimination cases under Title VII and 42 U.S. Code §1981 after he was discharged. The evidence showed that the manager’s employees filed complaints about his supervisory behaviors. The evidence was that he yelled and swore at employees, used a “brutal and belittling manner,” demeaned them as they were dealing with customers, and generally “created a fearful environment.” When human resources met with him about these concerns, the manager refused to acknowledge any of the issues and expressed that he would not change his management style. He was fired as a result. The court found valid reason for the discharge and no evidence of any similarly situated non-Latino manager. The only other managers who were cautioned about rough supervisory behaviors had immediately recognized issues, expressed a sincere interest in change and corrected the behaviors, instead of digging in their heels and refusing to acknowledge the concerns. The manager’s case was dismissed. Martinez v. W.W. Granger, Inc. (8th Cir., 2012).

Religious Discrimination

Proselytizing judge loses case. A Michigan State Court administrator filed a complaint about the chief district judge’s use of the courtroom to proselytize. She alleged that he used his judicial position and authority to promote his particular religious beliefs, in violation of the Constitution. The judge then fired the administrator. She sued. The federal court jury awarded $734,000 in economic, compensatory and punitive damages. The appellate court confirmed the verdict, plus attorney fees. It found that the administrator’s complaint was clearly constitutionally protected; it addressed a matter of serious public concern. The chief district judge’s actions were clearly retaliatory against a citizen’s right to freely speak out against a government official’s alleged violations of the Constitution. Pucci v. Somers (E.D. Mich., 2012).

Disability Discrimination

Essential function can depend on number of other employees to bear the burden. A nurse suffered a stroke. She rehabilitated enough to return to work, but not full time. She could work limited hours with no on-call duties. This meant the other nurses had to put in extra duty hours and pull more frequent on-call nights, weekends and holidays. The nurse could not provide a return-to-full-time estimate and was ultimately terminated for inability to meet the essential scheduling requirements. She filed an ADA case and lost. There was no duty to convert a full-time job to part time. The court ruled that “A job function may be considered essential by virtue of the limited number of employees available to perform the work.” The ADA does not require accommodation by shifting essential functions and extra burden onto others. Azzam v. Baptist Healthcare Affiliates, Inc. (W.D. KY, 2012).

TSA immune from most employment suits. A diabetic Transportation Security Administration employee had a foot infection, took leave and returned with a fitness-for-all-duties doctor’s certification. His TSA supervisor refused to let him return because he “was too much of a liability.” He then, with EEOC support, sued under the Rehabilitation Act. The court dismissed the case. It ruled that the legislation creating TSA exempted the agency from liability under the Rehabilitation Act, FLSA, ADEA and several other employment laws. The court made a broad interpretation of the general clause in the Act giving TSA the power to set and enforce its employment standards “notwithstanding any other provision of law.” National security overrides all other interests. Field v. Napolitano (1st Cir., 2011).

Family and Medical Leave Act

Double damages for failure to give proper notice of change in FMLA policy. A company had an FMLA policy, providing 12 weeks per calendar year. So each January 1, there was a fresh 12 weeks available. It then changed to a “rolling” method, giving 12 weeks’ leave in a 12-month period measured back from the current usage. It did not send notice to employees about this change. In April, a 36-year employee requested and was granted FMLA. He had taken FMLA the prior calendar year as well. The company terminated the employment a month prior to his expected return because it now counted the prior year’s FMLA (pre-January 1) as part of the use in the past rolling 12 months. The effect was not only loss of a job; it also cut him off from retirement benefits he would have had in just two more years. In the FMLA suit, the court found bad faith on the part of the employer. It could not hold employees to a new policy that had not been communicated to them. (The FMLA generally requires a 60-day written notice of policy changes before they become effective.) The company’s actions were like springing a trap door without warning. The bad-faith interference with FMLA rights warranted double damages, an adjustment of the discharge date by two years to create eligibility for retirement benefits, and attorney fees, for a total of over $400,000. Thom v. American Standard, Inc. (6th Cir., 2012).

Click here to read more court cases on diversity legal issues.

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached at rgregg@boardmanlawfirm.com.

The post Racial Discrimination: Black Employee Fired After Being Called the N-Word appeared first on DiversityInc.

The partner at Boardman & Clark spoke with DiversityInc and gave a high-level presentation on compliance, training and the legalities in Diversity Training Goes Way Beyond Compliance. He provided six reasons for companies to go above and beyond basic compliance training. These include:

1. The focus on compliance training is aimed at saving money, while diversity training is about making money.
2. Courts frequently hold companies liable for allowing discriminatory cultures to flourish.
3. More and more decisions involving significant punitive damages occur when companies fail to give basic compliance training.
4. Courts have ruled that when the people in charge aren’t given the right training, there is liability.
5. Training should emphasize respect for the workplace and carry a message.
6. Specific training on issues, such as generational differences, often needs to be held.

Read more of these insights in Diversity Training Goes Way Beyond Compliance.

The post 6 Reasons Your Company Needs More Than Compliance Training appeared first on DiversityInc.

Bob Gregg, a partner in Boardman Law Firm, shares his roundup of diversity-related legal issues. He can be reached at

The child-labor duties and hour restrictions are not the only concerns regarding employment of teenagers. There are a growing number of cases involving sexual harassment and other abusive-environment issues. Teens are among the most vulnerable, most likely people to be harassed or abused in the workplace. Yet, because they are often part-time, low-wage, short-term employees, they too often receive the least attention, the least information and, unfortunately, the least concern when they try (sometimes naively, without knowing the right process or even the right terms) to express concerns.

Employers who hire teens have a special duty of care to actually pay more attention and devote more concern than is given to adult employees. The following cases are illustrative. (For more information, see Child Labor Duty of Care at Child Labor Articles.)

See articles on Developing the Future Workforce

Wisconsin new state-budget bill eliminates child-labor hour restrictions. The Wisconsin legislature has eliminated hour restrictions for 16- and 17-year-old employees in private-sector jobs. The old restrictions limited them to working only six days a week or 50 hours during non-school weeks and 26 hours during the school year, and a guarantee of eight hours of sleep before the school day began. The legislature has removed those limits, and teenagers can now work adult hours seven days a week, double shifts or more. There is still a restriction on working during school hours; however, a teen can work night shifts as long as he or she is released in time to get to school. Most restrictions remain in place for those under age 16 during the school year to permit a 40-hour work week during the summer and other weeks with no school. The provisions were added to the budget bill and passed without any public hearing. The legislators have not explained how this provision was relevant to the state budget. The sponsors have stated that this is intended to bring the state closer to federal child-labor rules.

Court disagrees with Department of Labor (DOL)’s internship guidelines. In 2010, the Department of Labor issued a six-factor test for determining whether student interns were truly “interns” who could work without pay or were employees entitled to at least minimum wage and overtime. In Solils v. Laurelbrook Sanitarium and School, Inc. (6th Cir., 2011), a federal appeals court rejected the DOL’s six factors, finding them “not helpful.” It simplified the issue into a one-part balance of whether the “primary benefit” of the work is for the organization’s operational needs or for the student’s/intern’s learning and development. In this case, it found that the work was for the student workers’ education and development.

Restaurant must post “guilty notice” in spite of appeal. A restaurant chain lost a case over sexual harassment of teenage employees by an adult male manager. In addition to monetary damages, the court ordered that notices be conspicuously posted in all of the chain’s 20 restaurants, informing all employees of the jury verdict and the penalties for sexual harassment. The company appealed the jury verdict and sought an injunction against posting the notices while the appeal was pending. The court declined. It found no irreparable harm and ordered the notices to be posted, plus a $1,000-per-day fine for each day of non-compliance. EEOC v. Management Hospitality of Racine, Inc. (E.D. Wis., 2011)

Donut shops settle case of sexual harassment of teen employees. The owners of a chain of Dunkin Donut franchises entered a settlement and six-year consent order. The franchise company denied any wrongdoing. The case alleged that a male manager at one of the stores engaged in harassment of female employees, including teenagers, grabbing, rubbing and attempted kissing and describing sexual acts he wanted. The company management allegedly received complaints but took no action until employees reported the matter to local police and the manager was arrested. The settlement includes:

•         $290,000 to be divided among eight former employees

•         Posting of notices about the settlement in all 14 of the company’s franchise operations

•         Sexual-harassment training for all employees in all stores every two years

•         The company must give every employee and new hire a wallet-sized card on how to file discrimination complaints with the company.

EEOC v. College View Donuts, LCC (N.D. NY, 2011)

See articles on Retention and Work/Life and articles on Talent Development and Mentoring

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