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.
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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.
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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.
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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.
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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.|
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.
|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.|
|Hospital requires employees to get flu shots unless they claim a religious exemption by Sept 1. Three employees asked late and were fired.|
|Employee did not want work mandatory overtime on Saturdays because of her Sabbath. Employer fired her. Respect employee’s Sabbath, says the EEOC.|
|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.|
|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.|
|RETALIATION. Employee placed by temp. agency complained of sexual harassment. Employer decided to send her back instead of investigating. That does not work.|
|One employee encouraged other employees to complain about a racially discriminatory comment. Aloha Auto Group fired that employee.|
|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.|
|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.|
|DISABILITY DISCRIMINATION. Health care company fired liver transplant patient after she exhausted her company-approved leave. Also refused to rehire her several months later.|
|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.|
|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.|
|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.|
|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.|
|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.|
© 2018 by Merrick Law, LLC and Jeff Merrick, Oregon Litigation Attorney