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  1. EEOC Settlements During the First Quarter of 2018

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    EEOC settlements last quarter included calling a veteran with PTSD “psycho,” firing a pregnant bartender who could not fit into hot pants, and refusing to hire a recovering drug addict under medical supervision.  I highlight these plus the other resolutions announced by the Equal Employment Opportunity Commission.

    Ridiculing a veteran with PTSD is low, even for Wyoming employers.  The supervisor at the manufacturing company referred to him as “psycho” to coworkers. Because he obtained therapy on Thursdays, the supervisor referred to “Psycho Thursdays.”  The veteran hit his limit of abuse and quit. EEOC settled with the employer for $75,000.

    *   *   *   *   *   *   *   *

    Americans with Disabilities Act helps keep people with addiction or mental health issues on the job and off the streets.  For example, Volvo North America offered a job conditioned on passing a physical examination.  Applicant then disclosed he was in a medically-supervised treatment program for recovering drug addicts, which prescribed him suboxone, used to treat opioid dependence.  When he reported for duty, employer said, “no thanks,” because he used suboxone.

    The ADA requires employers to make individualized assessments as to whether physical or mental conditions impact a person’s ability to perform the job.  In this case, Volvo did not make any such assessment.  EEOC tried to negotiate before filing suit.  After suing, Volvo agreed to pay $70,000 plus other consideration.

    *   *   *   *   *   *   *   *

    Uniform enforcement of personnel policies used to be a mantra for employers to AVOID lawsuits.  Problems arise, however, when enforcing a policy to comply with one law fails to factor in another law.  This happens frequently when leave policies don’t account for disability discrimination laws.  For example, a casino worker used all his leave under the Family and Medical Leave Act, but requested another four weeks to deal with his condition.  Employer denied employee’s request.  EEOC reminded the casino of its obligation under the ADA to reasonably accommodate people with disabilities.  EEOC believed the Casino could accommodate another four weeks of leave.  (Maybe not if the employer were a micro-employer.)  Casino paid $140,000.

    Nicks Sports Grill has an employee uniform: body-hugging shirt and short hot pants.  Ms. King, a bartender showed up for work with Capri pants and a top over the tight shirt because of her pregnancy.  According to the EEOC, “Even bars with provocative uniforms cannot discriminate by using dress code to oust a pregnant employee.”  EEOC settled for $24,000.

    *   *   *   *   *   *   *   *

    Fast food restaurants that employ teenagers should take special care of their employees, I believe.  Instead, some owners or managers think the young women they employ are for their amusement, or worse.  Again, the EEOC stepped in to address long-standing sexual harassment that included requests for sex, offensive comments and unwanted sexual touching.  Employer paid $340,000 to 15 former employees.

    *   *   *   *   *   *   *   *

    Few employers SAY they fire someone because of an illegal reason, such as age discrimination.  Instead, they point to on the job mistakes. Montrose Memorial Hospital allegedly wanted to get rid of longtime employees with 10 or 20 or more years of service in favor of “fresher” nurses. Often, younger workers cost less, too. EEOC alleged the employer was harsher on older workers and more lenient on younger workers when it came to performance deficiencies, resulting in the forced termination of 29 older workers. The hospital paid $400,000 to settle.

    I list the other resolutions below. Often, EEOC settlements appear low compared to settlements negotiated by experienced employment law attorneys.

    RACE DISCRIMINATION. African-American foreman complained about hostile work environment that included, “n*****,” “boy” and “monkey.” Instead of taking immediate and appropriate corrective action, management promoted one of the harassers to supervise the foreman.

    ______________________________

    $150,000
    RELIGIOUS DISCRIMINATION.

    Employer: Congratulations, you’re hired! You start October 3.

    Employee: I can’t work October 3; that’s Rosh Hashanah, a Jewish holiday.

    Employer: Never mind, you’re NOT hired.

    ______________________________

    $94,541
    Muslim security guard asked for an exception to the grooming policy. Employers must accommodate sincerely held religious beliefs unless it causes undue hardship. Keeping the beard was not a hardship to employer.

    ______________________________

    $90,000
    Hospital requires employees to get flu shots unless they claim a religious exemption by Sept 1. Three employees asked late and were fired.

    ______________________________

     

    $89,000

    Employee did not want work mandatory overtime on Saturdays because of her Sabbath. Employer fired her. Respect employee’s Sabbath, says the EEOC.

    ______________________________

     

    $38,500

    PREGNANCY DISCRIMINATION.   Employee for provider of hospice care, memory care and other services asked for light duty to accommodate pregnancy-related medical restrictions. The accommodation: termination of employment.

    ______________________________

     

     

    $80,000

    SEXUAL HARASSMENT. “Grab ‘em by the p**sy” might work for the President, but it constitutes sexual assault. Such conduct, plus verbal assaults and vulgar comments toward female staffers occurred at a private correctional facility. Employer won in trial court, but the Ninth Circuit ruled for EEOC and the 16 women. Then, the employer settled.

    ______________________________

    $550,000
    RETALIATION. Employee placed by temp. agency complained of sexual harassment. Employer decided to send her back instead of investigating. That does not work.

    ______________________________

    $90,000

    One employee encouraged other employees to complain about a racially discriminatory comment. Aloha Auto Group fired that employee.

    ______________________________

    $30,000

    AGE DISCRIMINATION. Staffing agency for information technology work stopped the process to sign up applicant when it learned of his date of birth,1945, because “age will matter” to its employer customers.

    ______________________________

    $50,000
    Oral surgery practice had a policy requiring employees to retire at age 65. That ain’t legal, said the EEOC after employer fired Ms. Ruert four days after her 65th birthday party.

    ______________________________

    $47,000

    DISABILITY DISCRIMINATION. Health care company fired liver transplant patient after she exhausted her company-approved leave. Also refused to rehire her several months later.

    ______________________________

    $85,000
    Lowe’s employee worked his way up to manager despite having a spinal cord injury that limited the use of one arm. For six years he worked successfully with accommodation. Lowe’s then removed the accommodation and demoted him.

    ______________________________

    $40,000
    Kentucky Fried Chicken owner in Atlanta did not want the manager to use her prescription for her bi-polar disorder.   He forced her to flush them.   When she informed him she would continue to take medications according to doctor’s orders, he fired her. EEOC settled the case for $30,000.

    ______________________________

    $30,000
    The Coleman Company required employees to sign broad severance agreements for severance pay. The agreement purported to interfere with rights to contact EEOC or accept any EEOC settlement. Agreements that interfere with employees right to file with the EEOC or cooperate with EEOC are illegal. EEOC did not disclose the amount paid, if any.

    ______________________________

    ??
    Cheesecake Factory did not effectively accommodate deaf dishwasher. It could have considered using a sign language interpreter or closed captioning for orientation video.

    ______________________________

    $15,000
    InsideUp, a marketing business hired employee with breathing problems: asthma, COPB and emphysema. Employee sought an accommodation of working on the ground floor, so he would not have to use stairs. InsideUp turned the law upside down by firing employee instead of engaging in the interactive process for an accommodation.

    ______________________________

    $10,500
    Equal Pay. Female janitor wanted to be paid the same as male janitors. When she asked for an increase, the company retaliated by assigning her additional work and then firing her.

    ______________________________

    $36,000

    © 2018 by Merrick Law, LLC and  Jeff Merrick, Oregon Litigation Attorney

  2. Another Public Records Law Victory

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    Portland Mayor Ted Wheeler

    Yesterday, Judge Souede ordered Mayor Wheeler to produce records in the case of Tyler Bechtel vs. City of Portland and Mayor Wheeler.

    It was another hard-fought battle.  Ultimately, Mayor Wheeler broke the law by withholding records.  Here’s a copy of the order, and here’s the Oregonian article on it.

    My take on what we learned from Mr. Bechtel’s investigation is when it comes to homeless shelters, Mayor Wheeler and the Joint office of Homeless Services do not want input from the public other than, “I agree:”  No suggestions on how to do it better and certainly no contrary voices.  In court, avoiding “a successful protest” was among the reasons they put forth for secrecy.  Portland citizens can expect more guerilla tactics of backroom decisions, announcing done deals, and then “show hearings.” 

     Government by ambush.  Mr. Bechtel discovered the authorities had already selected the property and had deal points in hand by October, 2017.  However, authorities waited until school vacation, middle of Hanukkah and days before Christmas before offering the public a look-see at the idea.  Why did they wait to disclose it?  To minimize the number of people to whom they would have to pretend to listen?  The SE Foster shelter was a fait accompli prior to any public input.

    The landlord owner is Winson International LLC, a business entity that did not exist before January, 2018.  Who is behind that new entity is not clear.  We do know the county agreed to pay $2 million to lease the property.  

    Citizens have good ideas that could have been shared.  Why rent for $2 million when the county could condemn / purchase the building?  Who will get priority to have a bed:  Veterans?  Recently evicted?  Portlanders?  Oregonians?  Will there be addiction services?  What about budgeting for “clean and safe” workers to keep the immediate vicinity a bit cleaner and safer — hoping workers will find needles before children? 

    Regardless of the value of the information the court ordered produced (we have yet to see it),  Mr. Bechtel’s public records requests uncovered a process that disrespects the people who really care.  250 – 300 people showed up for that December 2017 meeting despite Hanukkah, Christmas and school break. 

    Jeff Merrick, Oregon Litigation Attorney

    ©2018 by Merrick Law, LLC and Jeff Merrick. The above is not intended as legal advice. It is for general information purposes only. Reading it or attempting to contact me does not mean I am your attorney. I only represent people after we sign a written contract.

  3. A Win for My Client and Government Accountability

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    Reporter Beth Slovic and Kimberly Sordyl, a strong advocate for schoolchildren won their public records lawsuit.  Each asked Portland Public Schools for public records on employees who are on paid leave.  They believed management was parking people on paid leave instead of resolving whatever allegations or problems put them on leave.  I represented Kim Sordyl.

    The school district refused to provide the records.

    Slovic and Sordyl asked the District ATtorney to order the records produced.  That’s the process.  The DA acts as a judge.  The DA ordered production of the public records.  Nevertheless, the school district refused.  Instead, it sued Slovic and Sordyl as a way to appeal the DA’s ruling.

    Kim Sordyl hired me as her attorney after her original attorney died.  I briefed the issues and pushed for a hearing.  Judge Matarazzo ruled in favor of disclosure – a win for Ms. Sordyl, the Press and transparency and government accountability.

    Here’s The Oregonian article on the case.

    Jeff Merrick, Oregon Litigation Attorney

    ©2018 by Merrick Law, LLC and Jeff Merrick. The above is not intended as legal advice. It is for general information purposes only. Reading it or attempting to contact me does not mean I am your attorney. I only represent people after we sign a written contract.

  4. Suing an Oregon Attorney – Statutes of Limitations

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    Every claim in Oregon has time limitations. When a claim is not filed on time, it is lost forever. This article summarizes some of the statutes of limitations for claims against civil lawyers (not criminal lawyers).

    WARNING AND DISCLAIMER: Hire a lawyer. This article is no substitute. It skims the surface. Plus, everyone’s situation differs, including claims for minors or elders.

     

    What’s the statute of limitations for legal malpractice in Oregon?

    Oregon clients must sue their attorneys within two years from “discovery” of the claim.

    What does “Discovery” of a claim mean? Continue Reading

  5. Suing an Oregon Attorney for Fraud

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    Oregonians may sue their attorneys for fraud just the same as we can sue others for fraud.

    WARNING AND DISCLAIMER: Hire a lawyer. This article is no substitute, and everyone’s situation differs.

    What do I have to prove to win a fraud lawsuit against my Oregon attorney? Continue Reading

  6. EEOC Resolutions Last Quarter

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    Threatening women not to get pregnant; “maximize longevity” as an excuse to prefer younger applicants; and who paid $9.8 million because it required “no restrictions” before allowing workers back from medical leave?  These were among the 26 resolutions announced last quarter by the Equal Employment Opportunity Commission (EEOC).  I summarize them below. Continue Reading

  7. Legal Malpractice Primer

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    Great attorneys care for their clients with skill, wisdom and diligence.  Unfortunately, some attorneys fail in one or more of those categories. When lawyers do not “own up” to their mistakes and settle, a client may need to sue.  This article sets forth what a client must prove to win a legal malpractice case in Oregon and what attorneys sometimes offer as defenses.  Depending on the facts, a client may have other claims against attorneys, including breach of contract, fraud, theft and breach of fiduciary duty. Continue Reading