By Barbara Frankel

In all likelihood, the government will resolve the budget issues, and the automatic $1.2 trillion in budget cuts known as sequestration won’t be triggered in the first week of March. But if it happens, there’s been web chatter about companies’ benefiting from EEOC cuts because there would be fewer discrimination lawsuits.

Actually, the exact opposite is true. I spoke with Gil Casellas, the former chairman of the EEOC, and Bob Gregg, an attorney who specializes in discrimination law and writes a monthly column for us. Your company’s potential for costly lawsuits is actually much higher if sequestration or other major budget reductions occur. The EEOC would lose between 6.5 percent and 8.2 percent of its budget ($23 million to $30 million), according to the American Federation of Government Employees (AFGA).

What’s important to your company is where the EEOC chooses to make the cuts.

Casellas points out that the EEOC’s budget for litigation support is usually relatively small, and unless the entire category is cut, “which is not likely given the obligations the commission has to court as a litigating party,” smaller decreases in this area wouldn’t have much impact.

Fewer Cases Resolved Quickly

But if the cuts are directed toward field personnel, “the slowdown of investigations would be felt by charging parties as well as employers, whose wait times for charge resolution will increase dramatically,” says Casellas.

In other words, the mediation and arbitration that usually results in settlements and quick ends to discrimination charges wouldn’t happen, “and uncertainty of outcomes as well as delay doesn’t benefit the majority of employers who seek speedy resolution.”

Gregg notes that past cuts to the EEOC budget led to more work for plaintiffs’ attorneys as cases dragged on. In George W. Bush’s administration, from 2001–2008, the EEOC lost 25 percent of its staff and the backload of complaints grew dramatically.

“The EEOC screens out a lot of cases so employers get them resolved with a minimum of fuss,” Gregg says. With diminished resources, employers end up with lengthier litigation and public-relations nightmares.

EEOC Numbers 

The EEOC already had its budget reduced by $7 million last year, leading to a 9 percent staff cut, according to the AFGA, the union that represents EEOC employees. This comes at a time when the caseload is up.  As a result, the EEOC filed only 122 lawsuits in FY 2012, according to an article on Lexology, less than half the 261 filed in FY 2011. The authors note that if the EEOC tries to “do more with less,” the emphasis may be on more high-profile, large-scale discrimination claims against employers.

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CONTACT: Christine Nazer
Justine Lisser
(202) 663-4191
TTY: (202) 663-4912
newsroom@eeoc.gov

EEOC REPORTS NEARLY 100,000 JOB BIAS CHARGES
IN FISCAL YEAR 2012

Commission Obtains $365 Million for Victims of Workplace Discrimination;
Reduces Charge Inventory by 10 Percent for Second Consecutive Year

WASHINGTON—The U.S. Equal Employment Opportunity Commission (EEOC) today announced that it received 99,412 private sector workplace discrimination charges during fiscal year 2012, down slightly from the previous year. The year-end data also show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The fiscal year runs Oct. 1 to Sept. 30.  The fiscal year 2012 enforcement and litigation statistics, which include trend data, are available on the EEOC’s website at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

Additionally, the EEOC achieved a second consecutive year of a significant reduction in the charge inventory, something not seen since fiscal year 2002.  Due to a concerted effort, the EEOC reduced the pending inventory of private sector charges by 10 percent from fiscal year 2011, bringing the inventory level to 70,312.  This inventory reduction is the second consecutive decrease of almost ten percent in charge inventory.  Also this fiscal year, the agency obtained the largest amount of monetary recovery from private sector and state and local government employers through its administrative process — $365.4 million.

In fiscal year 2012, the EEOC filed 122 lawsuits including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits. The EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million.

EEOC also continued its emphasis on eliminating systemic patterns of discrimination in the workplace.  In fiscal year 2012, EEOC completed 240 systemic investigations which in part resulted in 46 settlements or conciliation agreements. These settlements, achieved without litigation, secured 36.2 million dollars for the victims of unlawful discrimination. In addition, the agency filed 12 systemic lawsuits in fiscal year 2012.

“These remarkable achievements are a credit to the commitment of the EEOC’s staff and the product of strategic and efficient investment of critical budget resources in recent years, said EEOC Chair Jacqueline A. Berrien.  We look forward to building on these accomplishments and further advancing the agency’s mission as we implement our new Strategic Enforcement Plan in the coming year.”

As part of its Open Government efforts to make the greatest amount of useful data available to the public, the EEOC introduced several new features in the fiscal year 2012 data tables. The Commission released new tables showing sex harassment, harassment generally, and pregnancy discrimination which contain only those charges filed with the EEOC.  In the past, tables for these three categories, which are subsets of other bases, had listed all charges filed with both the EEOC and its state and local Fair Employment Practice Agency (FEPA) partners. Since no other charts include both FEPA and EEOC filings, these categories will now be harmonized with all the other data charts.

For the first time this year, the EEOC has released three separate data tables indicating the impairments/bases for ADA charges broken down by charges received, resolutions, and merit factor resolutions.  Previously, the breakdown was only available for merit factor resolutions.  Beginning last fiscal year, the EEOC began providing U.S. state and territory charge data on its website, www.eeoc.gov.

Additionally, in response to requests for this data, the Commission released a new table indicating the type of discriminatory action alleged by statute.  In fiscal year 2012, discharge was the most frequently-cited discriminatory action under all statutes, followed by “terms and conditions” of employment and then discipline.

Overall, the agency secured both monetary and non-monetary benefits for more than 23,446 people through administrative enforcement activities – mediation, settlements, conciliations, and withdrawals with benefits. The number of charges resolved through successful conciliation, the last step in the EEOC administrative process prior to litigation, increased by 18 percent over 2011.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available on its website at www.eeoc.gov.

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EEOC states that employers can discriminate in favor of people with disabilities or older workers. An Equal Employment Opportunity Commission discussion letter states that nothing in the Americans With Disabilities Act (ADA) or the Age Discrimination in Employment Act (ADEA) prohibits an employer from hiring only people with disabilities, or people over 40, or from discriminating against people somewhat over 40 in favor of people even older. The language of these laws cover only one-way discrimination; they do not cover those without disabilities or the more youthful. This is different from the other EEOC laws, which prohibit discrimination against any race, any religion, any national origin and both genders, equally; one cannot discriminate in favor of one over another. Employers should be cautious about any reliance upon this EEOC letter. It will only apply if the rejected party’s complaint is limited solely to being of a younger age or not having a disability. The moment the plaintiff claims that a preference for a person with a disability or an older person led to rejection of qualified people of a different race, sex, national origin, etc., then the EEOC will likely see a viable discrimination case. So the letter probably has only a very limited real-life application.

Age Discrimination

“He’s going to leave here at 62, and I’ll see to it!” It is difficult to defend an age-discrimination case when the discharged employee’s manager has made comments like the above. The manager also stated, “He’s been here long enough and he ought to go on Social Security.” The manager claimed the employee was terminated for poor performance. However, the court found that her overt statements about age undermined the poor-performance defense. Hale v. ABF Freight System, Inc. (6th Cir., 2012). A message from this case is that even if there might have been a performance problem, a manager can destroy any defense of a case by unwise, prejudicial statements. These may be made in angry frustration over real poor performance, but will overshadow any performance issue and lose the case.

Six-and-a-half years makes a difference. The ADEA protects older workers and applicants, including those older than others within the over-40 group. However, the courts recognize “approximately the same” age. Thus, a 60-year-old cannot effectively claim it was age discrimination to hire a 58-year-old, because they are approximately equal in age. The 6th Circuit has adopted a six-year range. A 57-year-old tech-college employee was fired and replaced by a 51-year-old. The employer argued that the case should be dismissed under the six-year “approximately the same” age rule. However, the court found a six-and-a-half-year age difference and ruled that there was enough difference in age to allow a prima facie ADEA case. Blizzard v. Marion Tech College (6th Cir., 2012).

Disability Discrimination

$4.85 million settlement due to discriminatory leave policy. A trucking company’s leave practice automatically terminated anyone unable to return to work after 12 weeks of medical leave, regardless of reason. This conformed with the Family and Medical Leave Act but violated the ADA, which requires consideration of a “reasonable amount of leave.” The EEOC brought suit due to the failure to consider disability exceptions to a rigid policy. In addition to the money, the settlement also included revision of policies, training of supervisors and employees, and appointment of a monitor—at company expense—to assure ADA compliance. EEOC v. Interstate Distributor Co. (D. Col., 2012). [For years the courts have ruled that the FMLA and ADA have different requirements, and simply allowing the 12 weeks for FMLA is not sufficient for ADA compliance. The courts have also routinely found fault with rigid leave policies and “no fault” (no excuse) attendance discharge policies which do not allow the interactive consideration process required by the ADA.]

Family and Medical Leave Act

School district has burden of proving that teachers did not work enough hours. A teacher was denied tenure at the end of his probationary period, though he received the highest possible ratings in almost all evaluation areas. The downfall was the “excessive absence” due to gall bladder surgery in the months before. He sued, claiming FMLA retaliation. The district defended by claiming the teacher had not worked the 1,250 hours necessary to be covered by FMLA—he was three hours short. However, he claimed to have regularly worked an hour a day outside of normal hours on items integral to teaching—preparing lessons, materials, etc. The court found that under the FMLA, the employer has the burden to “clearly demonstrate” that an employee did not work enough hours to be eligible. The court recognized that teachers often devote extra time “outside the contract negotiated hours.” Since the school district could not prove otherwise, the court found in favor of the teacher on the hours issue. Donnelly v. Greenburgh Central School Dist. (2nd 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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Additionally, the government will use another $1.9 billion to purchase fractioned land allotments from current proprietors and return that land to the tribe. The deal also includes a government-funded scholarship for American Indian youth.

“These settlements fairly and honorably resolve historical grievances over the accounting and management of tribal trust funds, trust lands and other non-monetary trust resources that, for far too long, have been a source of conflict between Indian tribes and the United States,” said Attorney General Eric H. Holder Jr. in a statement.

The lawsuit initially was filed in 1996 by Blackfeet tribe leader Elouise Cobell after she witnessed those who leased American Indian land gain wealth from selling its resources. There was no accounting of the royalties from this land that was held in trust for them by the government, actions that prolonged poverty in the American Indian community. Cobell died in 2011 from cancer.

“We all are happy that this settlement can finally be implemented,” said lead attorney Dennis Gingold in a statement. “We deeply regret that Ms. Cobell did not live to see this day.”

Another 60 similar class-action lawsuits against the government have not yet been settled. American Indian tribes across the country, including the Osage tribe in Oklahoma, the Chippewa tribe in Minnesota and the Nez Perce tribe in Idaho, await resolution and payout.

The post $3.4B Class-Action Lawsuit Ends: 350,000 American Indians to Receive Payout appeared first on DiversityInc.

Starbucks failed to accommodate server with dwarfism. A job applicant had short height because of the condition of dwarfism. A Starbucks store refused to place her in a barista job. She claimed she could do the job using a stool. However, the management did not even try this accommodation. It concluded, without facts, that she would “pose a danger to customers and employees.” When the ADA case was filed, Starbucks quickly settled for $75,000 and agreed to provide training on proper ADA procedures to managers. The EEOC praised Starbucks for its prompt resolution of the issue. EEOC v. Starbucks Coffee Co. (W.D. Tex., 2011). 

Employee’s clothing too modest for Catholic facility. A non-Catholic was hired to work in a nursing home operated by the Catholic Church. Because of her own Church of the Brethren beliefs, the employee wore very modest clothing, including long dresses, long sleeves and a hair cover. The nursing director informed the employee that her garb made her stand out in a way that bothered some residents and did not fit into the operation or its mission. When the employee insisted her attire was a function of her faith and that she would not modify the clothing, she was fired. She sued for religious discrimination. The court granted judgment to the nursing home based upon the First Amendment and the Title VII deference to religious organizations. The decision was based on what was appropriate for a Catholic service environment. A religious-based employer is not required to accommodate the religious practices of other faith employees when they even minimally conflict with the organization’s views of what is or is not a proper environment for its own faith. Kennedy v. St. Joseph Ministries, Inc. (4th Cir., 2011).  For best practices on religious inclusion, read Starting Religious Resource Groups.

Be sure you really hang up before you say what you really think―race and sex comments warrant discharge and union’s refusal to pursue grievance. A company manager gave training on its anti-harassment policy and zero-tolerance requirements. The next day, an employee present at the training left a voicemail for that trainer to complain about his supervisor. (So far, a protected act.) Then, failing to realize he had not actually hung up, he decided to “entertain” his coworkers by launching into a profane derogatory tirade of the manager and the anti-harassment training she had given. He used the N-word and made gross comments about her breasts. All was clearly recorded on the voicemail. He was fired, despite his 29-year tenure with the company. The union then refused to pursue his grievance process to the arbitration level and withdrew. The employee sued the company for unfair discharge, as well as the union for breach of its duty of fair representation. The court found against him on both grounds. He had clearly and intentionally violated the anti-harassment policy’s prohibitions on use of derogatory racial and sexual epithets and slurs. The union could validly consider this in its decision on which cases it should take to arbitration and was neither arbitrary nor unfair in its decision of non-representation. Robeson v. U.S. Steel Corp. (E.D., Mich., 2011). Read NBA Star John Amaechi: Hate Speech Goes Beyond N- and F-Words for more on stereotypes and racism.

Excess skin was a serious medical condition. A city employee took FMLA for a gastric-bypass surgery. She then lost more than 150 pounds. This left large areas of excess skin that hung from her arms and abdomen. She requested FMLA to have surgery for this and was denied. The employer considered it only cosmetic. She was fired when she took time off for the surgery. A jury ruled for the employee. The medical testimony was clear that the excess skin was itself a serious condition which, if uncorrected, could cause serious infections. The employer should have considered the medical verification before denying the leave. Alcazar-Anseimo v. Chicago (N.D. Ill., 2011). For more on FMLA, read FMLA: What Employers Need to Know.

Car salesman has valid constructive-discharge claim for age harassment. In Dediol v. Best Chevrolet, Inc. (5th Cir., 2011), the court found a valid claim of age harassment and constructive discharge. A 65-year-old was hired as a car salesman. His manager allegedly began daily comments about age, never calling him by his name but always “old man,” “pop” and “you old motherf***er.” The manager steered customers away from him and then escalated to more profane statements and physical threats. The salesman complained to higher management, but nothing was done. The manager reacted to the complaint by threatening to beat up the salesman and “charged” at him. The salesman left and did not return to work. The court found ample evidence to support a harassment and constructive-discharge case. For ways to avoid age discrimination complaints, read Things NEVER to Say to Older Coworkers.

Company overreacts to workers-compensation disability determination. An employee with a work-related elbow injury received a permanent partial (30 percent) disability determination. There were partial restrictions on mobility and an evaluation for not doing “a lot of heavy lifting.” However, the company interpreted this disability determination as meaning the employee could do no lifting whatsoever and could not use hand tools, and it banned him from returning to his job. The company seemed to jump to unfounded conclusions with no assessment and no interactive process with the employee. In the ADA suit, the court found discrimination for “regarding” the employee as having a disability. Jones v. Nissan North America (6th Cir., 2011).

Wisconsin legislature proposes eliminating conviction-record discrimination protection. The Wisconsin Fair Employment Act currently prohibits job discrimination against those with conviction records unless the crime was “substantially related” to the job or the work environment. Assembly Bill 286 would remove that protection and allow employers to fire or not hire anyone convicted of a felony, without any assessment of relatedness to the work. Further, AB 286 would prohibit local governments from enacting their own antidiscrimination rules on conviction status and would void those that currently exist. The legislature believes that the state should set uniform standards, rather than allow local governments to exercise discretion or consider local needs. For more on fairly hiring applicants with criminal records, How to Fairly Hire Applicants With Criminal Records.

Read more legal articles here. 

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

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