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.
Retaliation by publicizing complaint. After an employee alleged violation of the Americans with Disabilities Act (ADA), the company wrote all 146 other union electricians advising them of the complaint, the employee’s disability, their rights with respect to talking with EEOC investigators, and attorney contacts. Hmm. EEOC thought, “By publicizing Marsh’s charge in this manner, employer sought to interfere with the rights of workers and witnesses to communicate freely with the EEOC and to file charges of their own.” Employee thought publicizing his disability would mark him as damaged goods and limit his future work opportunities. The court held the jury could find this to be an “adverse employment action” and could interfere with or intimidate the other electricians.” After the court ruled, employer paid $45,000 to settle.
Age discrimination. Floyd Cardwell, with over 20 years of experience in the food and beverage industry, applied for a job at Ruby Tuesday in Boca Raton, Florida. He did not get the job and asked why. Company said it wanted a candidate who could “maximize longevity.” That, EEOC alleged, is strong evidence of age discrimination, and the restaurant settled for $45,000 plus a consent decree. Nearly all the settlements I report contain consent decrees to require the companies to educate, train, monitor, and /or report on complying with EEO laws.
Unequal Pay. High school friends applied for and got job offers from the local pizza place. They compared offers, and Pizza Studio offered the boy 25 cents per hour more. When she called the company, it withdrew the offers from both kids. EEOC helped them get some money, but did not report how much. EEOC also forced employer to change policies, analyze its wage data, and report to the EEOC.
The most egregious pregnancy discrimination claim this time was a California orchid grower that paid $110,000 to resolve allegations it told female employees they should consider themselves fired if they got pregnant, and the employer did not reinstate moms after childbirth.
Also, a Minneapolis hospital refused to accommodate a pregnant nurse’s lifting restrictions even though it accommodates nurses who suffer work injuries. EEOC alleged it violated anti-discrimination laws protecting pregnant woman and Americans with disabilities. Hospital paid $95,000.
The ADA requires an interactive process, in which the employer and employee try to accommodate each other’s needs. Several employers, however, still require its employees to have a doctor’s note saying they can perform all duties without any restrictions. American Airlines and Envoy Air had such a policy. They paid $9.8 million in stock to resolve the claim.
“Redskins,” really? Managers at Reliable Nissan in Albuquerque allegedly failed to take prompt remedial action to address harassment against non-whites and non-Christians. The slurs included “redskins,” “drunken Indians,” and the N-word. Hispanics and Muslims were the brunt of derogatory comments and jokes, too. Yes, we’d agree that was a hostile work environment. Employer agreed to pay $205,000 to three employees who filed complaints and 11 other minorities who worked in that environment.
I list the other resolutions below, without noting non-monetary terms. Often, EEOC settlements appear low compared to settlements negotiated by experienced employment law attorneys. That’s possibly due to some of these individuals not having personal attorneys. Of course, we do not know both sides of the story, and employers will settle cases despite having good grounds to fire someone.
|DISABILITY DISCRIMINATION. Kaiser Aluminum withdrew job offer after applicant’s medical records showed a 10-year-old workplace injury. A rare example of a case where the employer offered the construction worker a job in addition to paying money.
|What a coincidence? Phlebotomist sought accommodation to not staff mobile blood drive due to sickle-cell anemia pregnancy complications. Employer denied but then granted her request. While on maternity leave she sought a permanent accommodation. On February 24, employee said she’d return on 2/28. Employer fired her effective 2/27, saying it decided to “backfill” her position immediately.
|Home healthcare company fired bi-polar employee within one day of learning of her disability and request for leave. One wonders how many companies would be pleased to pay $25,000 for the “privilege” of discriminating.
|Manufacturer of steel casings required nerve-conduction studies for carpal tunnel syndrome instead of testing each applicant’s ability to safely perform the job. Court found the practice unlawful. Case will move forward on damages.
|To be determined
|Employer’s intrusive pre-job-offer medical questionnaire, which contained disability-related questions, violated ADA.
|PREGNANCY DISCRIMINATION. Employer protested, “We did not fire her for becoming a mother.” However, when she tried to return to work, employer said her job was gone and for reasons the EEOC said were phony.
|Pregnant packer asked packaging company for a bit of help to do her job. Employer did her one “better.” It put her on involuntary leave of absence.
|Ichiban Japanese Steakhouse allegedly fired its server / bartender because she was pregnant.
|SEXUAL HARASSMENT. Meat packing company allegedly subjected women to unwanted touching and comments. This is not the first time the EEOC sued “Farmer John.” Last time was for not hiring African Americans.
|Washington-based Trans-Ocean Seafoods did not protect women clam diggers from male employee who made sexually explicit comments about and in front of female workers, including a 17-year-old and her mother. Settlement split among three workers.
|In North Dakota’s oil patch, employer’s manager and workers harassed man because of his gender and sexual orientation, including giving him a Santa cap with a Spanish slang word for homosexual.
|Bojangles Restaurants paid to settle claim by transgender employee who it fired after she reported sexual harassment.
|RETALIATION. A cruise director for American Queen Steamship stood up for a victim sexual harassment. He confronted the high-ranking manager, who was friends of the harasser. Manager threatened him. Cruise director then reported to his own boss, who took no action. Employer fired the cruise director.
|SEX DISCRIMINATION. A loan company allegedly fired employee because he is transgender and did not conform to company’s gender-based expectations. EEOC sued. Court abated for arbitration, which awarded money damages. Then, court case resolved upon entry of an 18-month consent decree.
|SEX AND RACE DISCRIMINATION. Majestic Steel allegedly discriminated in hiring against females and by race in the positions of web developer and receptionist / office specialist.
|RACE DISCRIMINATION. Local 100 of the United Labor Unions fired two African-American organizers but kept the white organizer. Job was to recruit public school employees. Although the African-American workers recruited more people than the white guy, employer fired them for not recruiting enough.
|UNEQUAL PAY – GENDER. You’ve heard the lament that Fred Astaire was praised for his dancing while Ginger Rogers did the same dances backward and in heals? It’s kinda like that. Sales representatives and others received base pay and commissions. It paid women a lower base pay and required women to sell more to earn the same commission as men.
|Community Pharmacy paid female pharmacy tech up to $4 / hour less than a male tech and fired her two days after complaining.
|UNEQUAL PAY – NATIONAL ORIGIN. Winner Ford dealership hires technicians to install accessories on cars. Chinese technicians did not like being paid up to $3 / hour less than non-Chinese workers. When one complained, the boss reprimanded him and threatened to fire him if he sought legal advice.
(c) 2017 by Jeff Merrick, Oregon Litigation Attorney. 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.