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Monthly Archives: September 2014

Magnolia Personal Care Home Sued by EEOC for Pregnancy Discrimination

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Assisted Living Facility Fired Employee Due to Pregnancy, Federal Agency Charges

OXFORD, Miss. – Magnolia NA, LLC, dba Magnolia Personal Care Home, an assisted living facility located in New Albany, Miss., violated federal law when it hired an employee and then discharged her a few hours later because of her pregnancy, the U.S. Equal Employment Oppor­tunity Commission (EEOC) alleged in a lawsuit filed today.

According to the EEOC’s suit, Magnolia hired an employee to work as a kitchen assistant. On her first day of work, she informed her supervisor of her pregnancy. Three hours later, the administrator terminated the employee and later replaced her with a non-pregnant employee, the EEOC said.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit (EEOC v. Magnolia NA, LLC d/b/a Magnolia Personal Care Home, Civil Action No. 3:14-cv-00210) in U.S. District Court for the Northern District of Mississippi, Oxford Division, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process. The EEOC seeks injunctive relief to prohibit Magnolia from failing to hire and discharging employees because of pregnancy in the future. In addition, the EEOC seeks equitable relief in the form of reinstatement and back pay as well as and compensatory and punitive damages.

“The law is clear — employers cannot refuse to hire or discharge women because of their pregnancy,” said Katharine W. Kores, district director of the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee and portions of Mississippi. “It is unfortunate that this kind of unlawful behavior is even an issue in 2014. Combating pregnancy discrimin­ation remains a priority for this office and we will continue to work to eliminate it until it is no longer an issue.”

Magnolia NA, LLC is a Mississippi company with its principal office in Lyon, Miss.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.

EEOC Sues Hufcor for Sexual Harassment and Retaliation

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Company Did Not Stop Harassment and Punished Employee for Her Complaints, Federal Agency Charges

MILWAUKEE, Wis. – Hufcor, Inc., of Janesville, Wis., the world’s leading manufacturer of operable and accordion partitions, violated federal law by allowing a female machine operator to be sexually harassed and then retaliating against her for resisting that harassment, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to John Rowe, director of the EEOC’s Chicago District, which includes Wisconsin, the agency’s investigation revealed that Katy Degenhardt, who worked as a machine operator at Hufcor’s Total Quality Plastics (TQP) division in North Prairie, Wis., from May 7, 2007, to Feb. 20, 2013, was touched inappropriately on a regular basis by her shift coordinator for three years until he was finally fired in May 2012.

Rowe said the EEOC found that Degenhardt repeatedly reported the harassment and the retaliation to which she was subjected to Hufcor and TQP officials, but the plant manager retaliated against her for her complaints by denying her breaks, assigning her difficult work, trying to reduce her wages, denying her advancement opportunities and taking other adverse actions. Rowe said that co-workers supported Degenhardt’s claim that she was punished where others were not punished for the same actions, and that Hufcor and TQP did not take corrective action until Degenhardt hired a lawyer.

TQP ceased operations in July 2013. Hufcor’s alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and retaliation for complaining about it. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks compensatory and punitive damages for Degenhardt, an order barring future discrimination and other relief. The suit, captioned EEOC v. Hufcor, Inc., d/b/a Total Quality Plastics (Civil Action No. 2:14-cv-1186), was filed in U.S. District Court for the Eastern District of Wisconsin in Milwaukee and assigned to U.S. District Judge Callahan.

“Sexual harassment is utterly unacceptable in a 21st century American workplace,” Rowe said. “No one should ever have to endure such misconduct, and the EEOC is here to help victims fight it and achieve justice and civility where they have to work every day.”

EEOC Trial Attorney Dennis McBride who will litigate the case on behalf of the agency, said, “Despite the focus on sexual harassment over the past 20 years, it continues to be an area which demands our attention-especially where women are working in male-dominated environments. Retaliation against employees exercising their rights to complain about mistreatment is also an ongoing problem the EEOC needs to combat. And fighting discrimination is always in the public interest. So we have at least three important reasons for pursuing this case.”

EEOC Chicago Regional Attorney John C. Hendrickson said, “Our experience has been that sexual harassment is a violation which effective management can readily avoid if it is determined to do so. If word comes down from the top-and is understood to be serious-that management will not stand for harassment and retaliation and people who engage in it do so at the risk of their jobs, it has a way of going away. On the other hand, in the absence of good management, sexual harassment and retaliation can quickly get out of control and expose the employer to a serious risk of loss.”

According to its website, Hufcor is a privately held U.S.A. corporation and is the world’s leading manufacturer of operable and accordion partitions. Hufcor is headquartered in Janesville, Wis., and also has manufacturing facilities in Australia, China, Germany, Malaysia and Mexico. Its export markets are Western Europe, Africa, the Middle East, Asia, Australia, Europe, Canada and Mexico.

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Iowa, Minnesota, North Dakota, South Dakota and Wisconsin, with Area Offices in Milwaukee and Minneapolis. The case will be litigated by attorneys in the Milwaukee Area Office.

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

EEOC Sues Kroger for Sexual Harassment

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Company Failed to Stop Abuse of Female Teen Employee in North Little Rock Despite Her Complaints, Federal Agency Charges

LITTLE ROCK, Ark. – Major nationwide retail grocery store chain Kroger violated federal law by failing to prevent the sexual harassment of a teenage female employee over a period of several years, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

According to the EEOC’s suit, Kroger hired the employee as a courtesy clerk at a North Little Rock store when she was 15 years of age. She experienced sexual comments from a male co-worker almost twice her age over a period of several years. The employee’s repeated complaints to store management failed to stop the harassment until she finally called the company’s hotline number for assistance.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. The Kroger Company and Kroger Limited Partnership I, d/b/a Kroger, Civil Action No. 4:14-cv-00564) in U.S. District Court for the Eastern District of Arkansas, Western Division, after first attempting to reach a voluntary pre-litigation settlement through its conciliation process. The EEOC is seeking injunctive relief prohibiting Kroger from tolerating sexual harassment in the future and compensatory and punitive damages for the female employee.

“Companies must have sexual harassment policies – and enforce them – to ensure that the workplace is free of such abuse,” said Katharine W. Kores, district director of the EEOC’s Memphis District Office, which has jurisdiction over Arkansas, Tennessee and portions of Mississippi. “They must also take immediate corrective action when they learn of such misconduct and ensure that it never recurs. Ignoring the rights of a young, vulnerable teen worker is especially unconscionable.”

According to its website, www.thekrogerco.com, Cincinnati-based Kroger is one of the world’s largest grocery retailers, with fiscal year 2013 sales of $98.4 billion.

The EEOC recently updated its Youth@Work website (at http://www.eeoc.gov/youth/), which presents information for teens and other young workers about employment discrimination. The website also contains curriculum guides for students and teachers and videos to help young workers learn about their rights and responsibilities in the workforce.

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

Does An Employer Have to Accommodate an Employee’s FMLA Requirements?

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While employees have certain rights in the workplace, thanks to the Labor movement, the Americans With Disabilities Act (ADA), and even the Family and Medical Leave Act (FMLA), not all of these acts work in the same way.

For example, employees are not granted the same strict protection under FMLA as the Reasonable Accommodation guidelines under the ADA.

Baby StrollersAs we discussed last week, Reasonable Accommodations are only applicable to an employee with a disability. That person can make a request to accommodate their needs such as a chair to sit on while working, or scheduled breaks to take medication. According to the ADA, the employer is required to meet all reasonable requests without retribution against the employee.

However, the FMLA has no such requirements. An employee can take leave under FMLA when an employee’s family member (spouse, child, or parent) needs special attention because of a health or disability reason. FMLA allows (or requires) an employer to give unpaid leave to an employee to care for other people’s issues.

There are other stipulations about FMLA that must be met before the employee is given that leave:

  1. The employer must have 50 or more employees.
  2. The employee must work at the company for 12 months.
  3. In those 12 months, the employee must work 1,250 hours (an average of 24 hours per week).
  4. If these stipulations are met, the employee is allowed up to 12 weeks unpaid medical leave to care for himself or herself, or a family member with a serious health condition.

If these conditions are not met, an employee cannot obtain leave through FMLA and an employer is not obligated to give it. It’s always worth asking your employer, but if you can’t meet the above criteria, then you may need to make other arrangements for you or your family member.

If you have other questions about FMLA, the ADA, or any other workplace concerns, you can contact the Cassis Law Office at (502) 736-8100.

Photo credit: Dena (Flickr, Creative Commons)

DSW Will Pay $900,000 to Resolve EEOC Age Discrimination Case

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Federal Agency Charged Discount Shoe Chain Illegally Fired Older Workers

CHICAGO – DSW Inc., with over 10,000 employees nationwide, will pay $900,000 to end an age discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC had charged that DSW, formerly known as Designer Shoe Warehouse, discriminated against seven former management employees in its Midwest Region and a class of former employees, by firing employees over the age of 40 years old during a “reduction in force.” The EEOC said the company terminated older employees because of their age and retaliated against certain employees who opposed orders to discriminate against older workers. The EEOC’s complaint covered DSW’s field personnel in DSW’s Midwest Region and DSW’s Corporate Home Office employees.

The EEOC’s lawsuit was brought under the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits age discrimination in employment. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its statutory conciliation process. The case, EEOC v. DSW Inc., Civil Action No. 14-cv-07153, was filed on Sept. 15 in U.S. District Court for the Northern District of Illinois, Eastern Division. EEOC Trial Attorneys Jeanne Szromba and Laura Feldman and Supervisory Trial Attorney Diane Smason litigated the case on behalf of the government.

DSW opted for a negotiated end to the case with EEOC immediately after the lawsuit was filed. U.S. District Court Judge Gary Feinerman of the Northern District of Illinois entered a consent decree resolving the lawsuit on Sept. 19, less than a week after the case was filed. The decree provides $900,000 in monetary relief to the victims and requires DSW to report to the EEOC for the next three years on all employee complaints of age discrimination arising out of the regions covered by the decree. The company must also train all its employees in these locations on the prevention and eradication of age discrimination, and also revise its anti-discrimination policy.

“Age discrimination is a real problem in employment today,” said the EEOC district director in Chicago, John Rowe, who managed the EEOC’s administrative investigation of the charges of discrimination underlying the lawsuit. “Too many employers fail to see the value of the experienced portion of their workforce. But when an employer charged with such discrimination works with the EEOC to fix the problem, everyone wins.”

John Hendrickson, the EEOC’s regional attorney in Chicago, said, “We’re pleased that DSW worked to resolve this suit so quickly, without the need to go through expensive and time-consuming litigation. Instead, DSW chose to focus on making changes in its workplace and compensating victims. As a result, the day when those put out of work are compensated and the day when DSW is able to again focus 100% on its business will be here sooner rather than later.”

EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov.

Apria Healthcare Sued by EEOC for Disability Discrimination

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Company Fired Warehouse Clerk After Surgery for a Tumor, Federal Agency Charged

ALBUQUERQUE, N.M. – Apria Healthcare Group, Inc., an Albuquerque home respiratory services and medical equipment company, violated federal law by discharging a warehouse clerk because she had had serious tumor surgery, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on September 18.

In its suit, the EEOC said that Apria Healthcare fired Hilda Padilla after she returned from a medical leave to remove a 23-pound tumor. The EEOC said that Padilla returned to work on July 6, 2009, only one week after she returned from a medical leave, and provided Apria with notice of her medical restrictions. After Apria learned of the seriousness of Padilla’s surgery, it terminated her, the EEOC said.

Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA), which prohibits employment discrimination based on disability. The EEOC filed suit in U.S. District Court for the District of New Mexico (EEOC v. Apria Healthcare Group, Inc., Civil Action No.1:14-cv-00851-LAM-KBM) after attempting to reach a pre-litigation settlement through its conciliation process.

The lawsuit asks the court to order the employer to provide Padilla with appropriate relief, including back wages and compensatory and punitive damages, and to permanently enjoin the company from engaging in any further disability discrimination. The EEOC also asks the court to order the company to institute and carry out policies and practices that eradicate and prevent disability discrimination in the workplace.

“One would hope that a health care organization would be the employer least likely to fire someone because she was recovering from serious surgery,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office, which has jurisdiction over Arizona, Colorado, Wyoming, Utah, and parts of New Mexico, including Albuquerque. “Such conduct is not only cruel and insensitive, it’s illegal, and the EEOC is here to combat it.”

EEOC Area Director Derrick Newton added, “Employers have an obligation to not base employment decisions that affect people’s lives upon assumptions relating to a person’s disability — or what the employer believes is a disability.”

Apria Healthcare provides home respiratory services and medical equipment to patients with special needs.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

School District Found to Have Engaged in ‘Bait and Switch’ on Teaching Assistant Unemployment Benefits

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In Tameka Gladney v. Mississippi Department of Employment Security, the Mississippi Court of Appeals reinstated a teacher assistant’s unemployment benefits finding that the district had been less than fair to her. At the end of the 2012 school year, the school principal in Aberdeen, Mississippi, announced to the teacher’s assistants that she needed to lay off two people because of a lack of funds. She asked for volunteers and Tameka Gladney was one of the volunteers. The principal told Ms. Gladney to send the district a letter stating that she would not return the next year due to a lack of funds in the district.

Before sending the letter, Ms. Gladney specifically asked if writing the letter would make it look like she was voluntarily leaving her job. The principal told her no and thanked her for volunteering. Ms. Gladney then submitted her letter that announced that she was leaving due to lack of funds and was returning to college the next year.

The next day, the principal decided that due to some of the “drama” in allowing employees to volunteer, she would just pick the two employees for the reduction in force. She did not pick Ms. Gladney and did not ask or tell Ms. Gladney to withdraw her letter. After Ms. Gladney left the school district and filed for unemployment benefits, the school district stated that the separation was due to a “RIF/lack of work.” Shortly after that, however, the school district changed its mind and challenged her claim. The Mississippi Department of Employment Security (MDES) claims examiner denied benefits finding that Ms. Gladney had voluntarily quit without good cause and ordered her to repay the benefits she had already received. An administrative law judge, the MDES Board of Review, and the Monroe County Circuit Court all affirmed the claims examiner’s decision to deny the benefits and Ms. Gladney appeal.

The Court of Appeals held that MDES’s finding that Ms. Gladney voluntarily quit her job without good cause was not supported by substantial evidence. The court found that it was undisputed that Ms. Gladney volunteered to be part of the reduction in force and that the school district accepted her letter stating that she would not return due to lack of funds in the district. By the time the principal changed her mind on accepting volunteers, the school district had already accepted Ms. Gladney’s resignation letter. Ms. Gladney remained under the impression that she was part of the RIF and this impression was confirmed by the district’s initial response to her claim for benefits.

“we liken the school district’s actions to a ‘bait and switch’ for which Gladney should not be penalized. Gladney was led to believe she was part of the RIF once she turned in her letter. She was never told her letter was rejected or asked to withdraw the letter.”

Without substantial evidence to support the MDES decision, the court reversed the lower decision, ordered the repayment of the past benefits, and reinstated her benefits going forward.

This decision is a good example of why it is essential to stick to a plan when implementing a reduction in force. The principal’s change in the procedure, from taking volunteers to selecting the candidates herself, at the least caused confusion and at worst was seen as arbitrary. Employers should also make sure that all clerks responding to unemployment claims are on the same page as the decision-makers. The clerk’s affirmation of Ms. Gladney’s belief that her termination was involuntary was an essential part of the court’s decision. If engaging in a reduction in force, be sure that any representations afterwards are consistent.

U.S. Department of Labor Proposes Pay Transparency Rule for Employees of Federal Contractors

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On September 17, 2014, the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) published a Notice of Proposed Rulemaking in the Federal Register to implement Executive Order 13665, which was signed by President Obama on April 8, 2014. Generally, the proposed rule would prohibit federal contractors from maintaining pay secrecy policies and would amend the equal opportunity clauses in Executive Order 11246 to provide protections to workers who talk about pay. The rule would apply to federal contractors with a federal contract worth more than $10,000 and entered into or modified on or after the effective date of the final rule, as well as to federal subcontractors working under such a covered federal contract.

Specifically, the proposed rule would prohibit federal contractors and subcontractors from discharging or otherwise discriminating or retaliating against any employee or applicant for discussing, disclosing or inquiring about their compensation or that of another employee or applicant. Federal contractors and subcontractors also would be required to incorporate a prohibition against compensation disclosure discrimination into their existing employee manuals or handbooks and to disseminate the nondiscrimination provision to employees and job applicants through electronic or physical postings.

The proposed rule provides employers with two defenses to allegations of discrimination. One such defense, the “general defenses provision,” would allow an employer to take an adverse action against an employee who violates a legitimate workplace rule in connection with the compensation disclosure or inquiry. The OFCCP provided the following example of where the general defenses might apply: The contractor may have a rule that prohibits employees from being disruptive in the workplace, and an employee may violate that rule by standing on her desk and repeatedly shouting out her pay. The second defense, the “essential job functions defense provision” generally would shield from liability contractors who take an adverse action against an employee who discloses confidential compensation information with which the employee has been entrusted as part of the employee’s essential job functions.

Notably, the OFCCP’s proposed rule would expand the protections that already exist under Section 7 of the National Labor Relations Act (NLRA), which gives non-management and non-supervisor employees the right to engage in protected concerted activities, including disclosing and discussing their wages. The proposed rule applies to all employees regardless of position, and therefore, it would extend pay secrecy protections to managers and supervisors.

The changes are not final. The OFCCP has asked for public comments on the proposed rule by December 16, 2014. After considering those comments, OFCCP will issue a final rule. However, the proposed revisions appear consistent with the Obama administration’s increased focus on pay equity and transparency as a means to eradicate gender- and race-based pay discrimination.

What This Means for Employers

The OFCCP’s Notice of Proposed Rulemaking is yet another step the OFCCP is taking in its ongoing, high-profile movement against pay discrimination based on gender and/or race and ethnicity. While the proposed changes are not yet in effect and are subject to change following a public comment period, federal contractors and subcontractors to whom the rule would apply if finalized should stay abreast of the status of the rule. Contractors also should consider developing training for managers, supervisors, recruiters and human resources staff on pay secrecy issues, in the event the rule is finalized.

As noted above, the proposed rule also highlights the existing pay secrecy protections that exist under the NLRA. Employers may want to review their policies and practices that could potentially run afoul of these existing protections—such as confidentiality and social media policies—to ensure that they are currently in compliance with the law.

Finally, the proposed rule appears to signal the OFCCP’s continued focus on pay discrimination, which federal contractors can anticipate will remain a key issue and focus of the OFCCP during compliance reviews. Contractors should ensure that they are meeting their obligations to at least annually review their compensation practices to diagnose and address any potential issues of pay discrimination—before they are uncovered by the OFCCP in a compliance review.

Roseland Community Hospital Sued By EEOC for Pregnancy Discrimination

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Agency Charges South Side Hospital Refused to Accommodate And Fired Pregnant Employee

CHICAGO – Roseland Community Hospital, on Chicago’s South Side, violated federal law when it refused to accommodate an employee with a high-risk pregnancy and fired her instead, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed in federal district court here today.

John Rowe, the director of the EEOC’s Chicago District, who managed the agency’s administrative investigation, said Roseland refused to accommodate the employee consistent with her medical restrictions by not requiring her to be available to restrain disorderly and combative patients, and went on to fire her. Rowe said that on the other hand, a male security guard with an injury sought an accommodation so that he would not be required to restrain patients, and he was assigned to a desk job.

“You can’t deny a female employee a temporary change in her duties due to her pregnancy while providing the same accommodation to a man. That’s pregnancy discrimination and it can’t pass muster under federal law,” Rowe said.

Pregnancy discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit, EEOC v Roseland Community Hospital, N.D. Ill., No. 14 C 7235, in U.S. District Court for the Northern District of Illinois after first attempting to reach a pre-litigation settlement through its conciliation process. The suit has been assigned to District Judge Charles P. Kocoras and Magistrate Judge Jeffrey Cole. The EEOC’s litigation of the case will be led by Supervisory Trial Attorney Diane Smason and Trial Attorney June Calhoun.

John Hendrickson, the EEOC Chicago District’s regional attorney, said, “Roseland Community Hospital is an exceptionally important institution in the community it serves. One would hope that it would be a beacon for compliance with all our civil rights laws, particularly those which prohibit discrimination on account of pregnancy. This is not what appears to have happened here. We are hopeful that this litigation will remedy the situation and make matters right.”

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Minnesota, Wisconsin, Iowa, North Dakota and South Dakota, with Area Offices in Milwaukee and Minneapolis.

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

EEOC Sues Rock-Tenn for Disability Discrimination

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Human Resources Manager Fired Because of Coronary Artery Disease, EEOC Says

DETROIT – Rock-Tenn Company, a worldwide paper and packaging manufacturer, violated federal law by firing a human resources manager because of coronary artery disease, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to the EEOC’s lawsuit, Glen Janisch began working for Rock-Tenn in October of 2010 as the human resources manager for its Battle Creek, Mich., plant. In January 2011, Janisch underwent open-heart coronary bypass surgery and was authorized for short-term disability leave through mid-April 2011. However, in early March 2011, he received medical clearance from his doctor to return to work, initially for half days, on March 21 and promptly notified Rock-Tenn of his return date. Despite Janisch’s imminent return on a date certain, Rock-Tenn terminated him on March 10 of that year.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from discriminating against employees because of such medical conditions. The EEOC filed suit Case No. 1:14-cv-00973, in U.S. District Court for the Western District of Michigan after first attempting to reach a pre-litigation settlement through its administrative conciliation process. The agency seeks to recover monetary compensation for Janisch in the form of back pay and compensatory damages for emotional distress as well as punitive damages.

“It’s disturbing that Rock-Tenn fired its own human resources manager during his recovery, especially since he was getting ready to return to his duties,” said EEOC Indianapolis Regional Attorney Laurie Young, whose jurisdiction includes Michigan. “The EEOC is here to fight for the rights of people like Glen Janisch, who only wanted to get well and come back to work for his company.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.