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Monthly Archives: November 2014

What Constitutes Workplace Harassment?

By | Discrimination, Sexual Harassment, Workplace Harassment | No Comments

The question of workplace harassment is a question I often hear. It’s also one of the most difficult to answer. It’s not a question of knowing or not knowing what it is. Rather, the meaning of the word is different from its legal definition.

Oftentimes, when I get a call about workplace harassment, the person will say that he or she is harassed on a daily basis at work, which is causing them extreme emotional distress. The caller can’t take it anymore. She wants to quit, but needs the job. She feels like she’s stuck, and doesn’t know where else to go.

Big OfficeI ask the caller to discuss the situation and tell me about their work situation. She — or sometimes he — will tell me about how the job is unbearable, her boss is insane, and a complete nightmare to work with! The boss screams and yells at my caller, calling her stupid, or otherwise insulting her. She is asked to work weekends and is contacted at all hours to take care of some situation or other.

Though this situation may be harassment, it is also — sadly — completely legal. An employer is allowed to yell and cuss at you. They can be rude and insensitive. It is only considered illegal harassment if the harassment is related to age, race, gender, disability, national origin, religion or sexual harassment. Basically, if they call you names or make inappropriate jokes about one of those issues, it’s illegal. If they’re just mean and insensitive, it’s not.

Years ago, when I was younger, I worked at a law firm where many lawyers would regularly yell and scream at the secretaries. The secretaries were constantly crying, and we had a lot of turnover within their ranks. Every week brought a new face because they would quit due to the poor treatment. Needless to say, I don’t work at that law firm anymore.

It comes down to this: having a jerk for a boss is not illegal. He or she can be rude, and it’s not against the law. But if their harassment becomes an issue of age, race, gender, disability, national origin, religion, or sexual harassment — the “Big 7″ — then it is illegal, and you have grounds for a workplace harassment lawsuit.

If you’re experiencing workplace harassment at your job, and feel a legal response is your only option, please contact the Cassis Law Office at (502) 736-8100.

Photo credit: Phil Whitehouse (Flickr, Creative Commons)

What You Should Know about EEOC and the Enforcement Protections for LGBT Workers

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Recent events, including the filing of two EEOC lawsuits on behalf of transgender employees and an amicus brief in the 7th Circuit related to coverage of sexual orientation, have triggered increased interest about protections for lesbian, gay, bisexual and transgender (LGBT) individuals under federal employment-discrimination laws. The information below highlights what you should know about the EEOC’s enforcement efforts in this area.

Overview

The EEOC is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices – for example, by reporting incidents of sexual harassment to their supervisor or human resources department – or against those who file EEOC charges or cooperate with an EEOC investigation. Also, where these federal laws apply, they protect all workers, regardless of sexual orientation or gender identity.

Employers and employees often have questions about whether discrimination related to LGBT status is prohibited under the laws the EEOC enforces. The Commission’s Strategic Enforcement Plan (SEP), adopted by a bipartisan vote in December of 2012, lists “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as an enforcement priority for FY2013-2016. This enforcement priority is consistent with positions the Commission has taken in recent years regarding the intersection of LGBT-related discrimination and Title VII’s prohibition on sex discrimination.

In 2012, the EEOC held that discrimination against an individual because that person is transgender (also known as gender identity discrimination) is discrimination because of sex and therefore is prohibited under Title VII of the Civil Rights Act of 1964. See Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012). The Commission has also found that discrimination against lesbian, gay, and bisexual individuals based on sex-stereotypes, such as the belief that men should only date women or that women should only marry men, is discrimination on the basis of sex under Title VII. See Veretto v. United States Postal Service, EEOC DOC 0120110873 (July 1, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that men should only marry women); Castello v. United States Postal Service, EEOC DOC 0520110649 (December 20, 2011) (accepting Title VII sex discrimination claim alleging that supervisor harassment was motivated by sexual stereotype that having relationships with men is an essential part of being a woman); Complainant v. Dep’t of Homeland Sec., EEOC DOC 0120110576 (August 20, 2014) (reaffirming prior findings that federal employees discriminated against on the basis of sexual orientation can establish violations of Title VII based on the sex stereotyping theory).

Consistent with these Commission rulings (and case law from the Supreme Court and other courts), the Commission has instructed our investigators and attorneys that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment. Therefore, the EEOC’s district, field, and area offices have been instructed to take and investigate (where appropriate) charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition).

In addition, investigators and attorneys were instructed that lesbian, gay, and bisexual individuals also may bring valid Title VII sex discrimination claims, and that the EEOC should accept charges alleging sexual-orientation-related discrimination. These allegations might include, for example, claims of sexual harassment or other kinds of sex discrimination,such asadverse actions taken because of the person’s failure to conform to sex-stereotypes (such as those listed above).

Charge Data

In January 2013, the EEOC began tracking information on charges filed alleging discrimination related to gender identity and/or sexual orientation. In the final three quarters of FY 2013 (January through September), EEOC received 667 charges raising allegations of sex discrimination related to sexual orientation and 161 charges alleging sex discrimination based on gender identity/transgender status. In the first three quarters of FY 2014, the EEOC had received 663 charges alleging sex discrimination related to sexual orientationand140 charges alleging sex discrimination on the basis gender identity/transgender status.

The chart below shows charges resolved between January 2013 and June 30, 2014 that included an allegation of sex discrimination related to gender identity or sexual orientation:

FY2013

FY2014 through 3rd Q

Total

Sex – Gender Identity / Transgender

Sex – Sexual Orientation

Total

Sex – Gender Identity / Transgender

Sex – Sexual Orientation

Total Receipts
801 160 667 784 140 663

Pending
173 45 133 386 74 319

Resolved
628 115 534 398 66 344

Settlements
62 9 55 38 10 30

Withdrawal w/Benefits
33 6 28 22 22

Reasonable Cause
16 7 9 1 1 1

% Reasonable Cause
2.5% 6.1% 1.7% 0.3% 1.5% 0.3%

Successful Conciliation
10 3 7

Unsuccessful Conciliation
6 4 2 1 1 1

Merit Resolutions
111 22 92 61 11 53

% Merit Resolutions
17.7% 19.1% 17.2% 15.3% 16.7% 15.4%

No Reasonable Cause
420 78 357 251 33 223

Administrative Closures
97 15 85 86 22 68

Monetary Benefits
$1,874,148 $421,701 $1,561,671 $884,659 $149,933 $747,225

Note: Charges may have multiple allegations so totals will not tally with breakdowns of specific bases or issues.

Further information on our charge receipts and resolutions under Title VII can be found here.

Litigation Activity

The Commission has begun to file LGBT-related lawsuits under Title VII challenging alleged sex discrimination. Most recently the Commission filed two lawsuits involving sex discrimination against transgender individuals:
•EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla. Civ. No. 8:14-cv-2421-T35 AEP filed Sept. 25, 2014). The EEOC sued Lakeland Eye Clinic, a Florida-based organization of health care professionals, alleging that it discriminated based on sex in violation of Title VII by firing an employee because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The EEOC’s lawsuit alleges the employee performed her duties satisfactorily throughout her employment. However, after she began to present as a woman and informed the clinic she was transgender, Lakeland fired her.
•EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014). The EEOC sued Detroit-based R.G. & G.R. Harris Funeral Homes Inc., alleging that it discriminated based on sex in violation of Title VII by firing a Garden City, Mich., funeral director/embalmer because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes. The lawsuit alleges that an individual had been employed by Harris as a funeral Director/Embalmer since October 2007 and had always adequately performed the duties of that position. In 2013, the worker gave Harris a letter explaining she was undergoing a gender transition from male to female, and would soon start to present (e.g., dress) in appropriate business attire at work, consistent with her gender identity as a woman. Two weeks later, Harris’s owner fired the transgender employee, telling her that what she was “proposing to do” was unacceptable.

Additionally the Commission has filed several amicus briefs and successfully conciliated charges involving these issues.

Federal-Sector Enforcement

In the Federal Sector, EEOC has been implementing the SEP priority with regard to the coverage of LGBT individuals in a variety of ways:
•Tracking gender identity and sexual orientation appeals in the federal sector.
•Issuing federal sector decisions finding that gender identity-related complaints and sexual orientation discrimination-related complaints can be brought under Title VII through the federal sector EEO complaint process.
•Establishing an LGBT workgroup to further the EEOC’s adjudicatory and oversight responsibilities, with the goal of issuing an LGBT federal sector report.
•Issuing guidance, including instructions for processing complaints of discrimination by LGBT federal employees and applicants available on EEOC’s public web site.
•Providing technical assistance to federal agencies in the development of gender transition policies and plans.

Training and Outreach

Finally, EEOC staff are addressing LGBT legal developments in numerous outreach and training presentations to the public. During the first three quarters of FY 2014, field office staff conducted over 350 events where LGBT sex-discrimination issues were among the topics discussed. These events reached a wide variety of audiences, including employee advocacy groups, small employer groups, students and staff at colleges and universities, staff and managers at federal agencies and human resource professionals. To assist in this outreach the EEOC developed a brochure, Gender Stereotyping: Preventing Employment Discrimination of Lesbian, Gay, Bisexual or Transgender Employees.

Angel Medical Center to Pay $85,000 to Settle EEOC Disability Discrimination Suit

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Hospital Failed to Accommodate and Then Fired Nurse Undergoing Cancer Treatments, Federal Agency Charged

ASHEVILLE, N.C. – Angel Medical Center, Inc., a full-service critical access hospital located in Franklin, N.C., will pay $85,000 and furnish other relief to settle a disability discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that the hospital unlawfully refused to accommodate a nurse undergoing cancer treatments and subsequently fired her because of her disability.

According to the EEOC’s lawsuit, Susan Williams began working for Angel Medical Center in December 2009 as a full-time registered nurse. In December 2011, following an absence for treatment for cancer, Williams attempted to return to work at the hospital. At the time, she was still undergoing chemotherapy treatments. According to the suit, Williams sought an accommodation that would allow her to complete the necessary chemotherapy treatments while remaining a full-time employee. The EEOC alleged that the hospital refused to accommodate Williams and instead fired her.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which protects employees from discrimination based on their disabilities and requires employers to provide disabled employees with reasonable accommodations unless doing so would be an undue hardship for the employer. The EEOC filed suit in U.S. District Court for the Western District of North Carolina, Bryson City Division (Equal Employment Opportunity Commission v. Angel Medical Center, Inc.; Civil Action No. 2:13-CV-00034) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to monetary damages, the two-year consent decree settling the suit requires that Angel Medical Center revise its disability accommodation process policy, and provide annual training to the hospital’s managers, supervisors and employees on the ADA, its reasonable accommodation requirements and the revised Disability Accommodation Process policy. Additionally, the hospital will post an employee notice concerning the lawsuit and employee rights under federal anti-discrimination laws, and will provide periodic reports to the EEOC identifying individuals who request accommodations under the ADA and the outcome those requests.

“We hope that this case reminds employers that they must accommodate disabled employees’ requests for leave for medical treatment unless granting leave would pose an undue hardship,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District. “We are happy to have resolved this matter for Ms. Williams and hope that we have prevented similar situations from happening to other persons with disabilities.”

The EEOC is responsible for enforcing federal laws prohibiting discrimination in employment. More information about the EEOC is available on its website at www.eeoc.gov.

2014 Global Ethics Benchmarking Report Reveals Workplace Retaliation On The Rise

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We recently released our 2014 Global Ethics Benchmarking Report, an annual report that contains a thorough analysis of the previous five years of whistleblower hotline reporting data, that gives the market insight into emerging trends. Sadly, one of the unfortunate trends we found in 2013 was retaliation. For the second straight year, retaliation increased as a factor in reports. The leading type of retaliation is found within the Retaliation for Whistleblowers category, representing 57% of all retaliation cases. And, we aren’t the only ones to report high rates of retaliation; the 2013 National Business Ethics Survey (NBES) uncovered similar results, with 21% of reporters saying they faced some form of retribution. To put it in perspective, that’s 6.2 million Americans. This number is largely unchanged from the previous year’s 22%. (In 2007 it was only 12%.)

Why Retaliation Is Dangerous

Well, 1. It’s illegal. As stated in SOX section 1107:

“Whoever knowingly, with the intent to retaliate, takes any action harmful to any person, including interference with the lawful employment or livelihood of any person, for providing to a law enforcement officer any truthful information relating to the commission or possible commission of any Federal offense, shall be fined under this title or imprisoned not more than 10 years, or both.”

And under Dodd Frank Section 922’s Whistleblower Retaliation Protections:

“In general – no employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower…”

The same sentiments are addressed in Section 21F of the Securities Exchange Act of 1934.

So, we know why it’s wrong – retaliation is illegal. But not only is it wrong, it’s also flat out bad for your organization. According to Ethics Resource Center’s report, “Retaliation In The Workplace: Why It Matters And What Companies Can Do About It,” effects of retaliation include: “blocking open communication, driving out good workers to jobs in a safer environment, and undermining ethics cultures by reducing the odds workers will report misconduct.” In addition to that, the 2013 NBES survey states that 34% of employees said they have chosen not to report for fear of retaliation from leadership. If employees are afraid to report internally, companies will lose the opportunity to solve issues before being exposed to public scrutiny or intervention by law enforcement.

What Is Considered Retaliation?

The descriptions of retaliation outlined in the Dodd-Frank Whistleblower Retaliation Protections provide a good outline for what constitutes retaliation, but they certainly can’t and don’t cover all possible scenarios. The 2014 SCCE CEI session, “Preventing Retaliation: Ten Solid Steps to Create A Speak Up Culture,” provided further insights into what kinds of actions count as retaliation, including:
1. Subtle Retaliation: “Mildred, I don’t want you to speak in my meetings anymore, because you brought up a complaint.”
2. Failing to Honor Anonymity: If an employee wants to report anonymously and you bring up their name… that is retaliation!
3. Change of Work Responsibilities
4. Exclusion from Desirable Assignments

These examples show that retaliation isn’t always glaringly obvious. As stated in the SCCE session, “We are lowering the bar on what counts as retaliation – it’s not just being fired, demoted, etc. – it could be making weird faces at someone, making you feel demeaned.” The takeaway here is that we need to be more aware than ever, because retaliation is many things to many different people.

The Cost Of Corporate Retaliation

1. WRPS – $200 Thousand

Shelley Doss, former environmental compliance specialist for WRPS, was fired in October of 2011 after “raising concerns to her supervisors about nuclear and environment safety, permit and record-keeping violations”. OSHA has ordered that WRPS pay Doss $200 thousand for attorney’s fees, interest, back pay and damages. Read more.

2. M.K. Battery- $990 Thousand +

Former M.K. Battery sales representative, David McIntosh, was fired after reporting to the Department of Defense that M.K. Battery had failed to disclose critical product information to the Army. After selling batteries to the army for use in their Humvees, M.K. Battery changed the manufacturing process around the batteries, cutting their lifespan in half. McIntosh has received $990 thousand for reporting the misconduct and is on track to receive more for his termination. Read more.

3. Chicago State University – $3 Million

After firing senior legal counsel, James Crowley, for reporting misconduct by top university officials in 2010, Chicago State University was ordered by a Cook County judge to pay Crowley 3 million dollars for attorney’s fees, reinstatement, front pay, interest, double back pay and punitive damages. The court also ordered the school to give Crowley his job back or pay further financial penalties. Read more.

Implementing Robust Anti-Retaliation Provisions

Preventing retaliation starts with having a culture that values and encourages open communication. Your anti-retaliation policies should be clear and concise, but not too concise so as to give the impression that the topic is low priority. During an SCCE CEI session I learned, for example, it’s better to stay away from one line policies like: “We do not tolerate any form of retaliation.” Short anti-retaliation policies could give employees the impression that anti-retaliation isn’t important to the company, even if it is.

Likewise, the location of your anti-retaliation policies also impacts perceptions of importance. Featuring anti-retaliation policies at the front of your Code visually tells employees: “This is important; we want to address it first and foremost.” By the same token, placing anti-retaliation policies at the end of your Code could have the opposite effect – giving employees the impression that it is an afterthought and not very important to the company.

Mid-tier management is a critical area to focus on in terms of culture and detecting misconduct – CEB’s Q1 2014 Edition of Risk Intelligence Quarterly reveals that 70% of employees go to a direct manager to report (troubling when you consider that only 58% of managers feel that they are prepared to handle reports of misconduct). It’s therefore vital that you train your mid-tier managers to receive reports of misconduct from employees and help communicate the anti-retaliation message throughout the organization. This training should cover all aspects of taking a report, interviewing the employee for as many details as possible and submitting the information via the correct channels. This doesn’t mean you don’t need an anonymous whistleblower hotline; to the contrary, your managers should be trained to utilize the leadership web forms that are part of your whistleblower program to report the misconduct that is brought to their attention. This has the added benefit of allowing you to track your reporting program as a whole, rather than just the calls that come in through the hotline, giving you a more comprehensive picture.

Retaliation is illegal, negatively impacts corporate culture and is extremely costly. Are you confident in your anti-retaliation measures or is it time to re-evaluate and implement new practices to ensure you are promoting a positive work environment?

by Jillian Heim

Amsted Rail’s Hiring Practices Violate Disability Discrimination Law, EEOC Charges in Lawsuit

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Medical Clearance Process Derails Applicants’ Hopes for Employment, Federal Agency Says

ST. LOUIS — Amsted Industries, Inc. and Amsted Rail Co. Inc., a leader in the manufacture of steel castings for the rail industry, improperly used physical tests and applicants’ health histories in the hiring process at their Granite City, Ill., facility, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today. The result of these practices, according to the agency, was to deny employment opportunities to a class of people who had a history of carpal tunnel syndrome or who Amsted believed might develop that condition.

According to the EEOC’s suit, during Amsted’s hiring process, the company asks applicants if they have a history of carpal tunnel syndrome and gives them a nerve conduction test, even though the most current relevant published medical literature does not support the use of such tests alone, or the use of prior medical history alone, to predict the development of carpal tunnel. Based on the results, Amsted refused to hire Montrell Ingram and at least fifty other applicants because they had a history of carpal tunnel syndrome, tested positive on the nerve conduction test, or both.

Such conduct violates the Americans with Disabilities Act of 1990 (ADA). The EEOC filed suit in U.S. District Court for the Southern District of Illinois (EEOC v. Amsted Indus. Inc. and Amsted Rail Co., Inc., Case No. 14-cv-01292-JPG-SCW) after first attempting to reach a pre-litigation settlement through its conciliation process. Through its suit, the EEOC seeks to end Amsted’s discriminatory hiring practices and obtain back pay and other damages for the individuals who were denied jobs at Amsted as a result of those practices.

“People applying for jobs deserve a level playing field, free from discrimination based on past medical conditions or the possibility of developing future medical conditions,” said District Director James R. Neely, Jr. of the EEOC’s St. Louis District Office.

EEOC Regional Attorney Andrea G. Baran added, “Employment decisions, including hiring decisions, must be based on a person’s ability to perform the job, not on stereotypes, assumptions or conjecture. An individualized assessment of the applicant’s present ability to safely perform the job duties is required if an employer screens out an applicant based on medical tests or exams in the hiring process.”

Eliminating barriers in recruitment and hiring is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The St. Louis District Office oversees Missouri, Kansas, Nebraska, Oklahoma, and a portion of southern Illinois. Further information about the EEOC is available on its website at www.eeoc.gov.

Consent Decree Ends EEOC Race Discrimination Lawsuit Against Battaglia Distributing

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Grocery Wholesaler Allegedly Tolerated Harassment on Ashland Avenue Docks

CHICAGO – A federal district judge has entered a $735,000 consent decree resolving a race harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The case, EEOC v. Battaglia Distributing Corp., Inc., No.13-cv-5789, had been pending in U.S. District Court for the Northern District of Illinois, Eastern Division, in Chicago.

The EEOC had charged that Battaglia, a grocery wholesaler and manufacturer, tolerated a workplace that was racially hostile to its African-American dock workers. The company is located on South Ashland Avenue in Chicago.

Based upon the findings of an EEOC administrative investigation managed by Chicago Acting District Director Julie Bowman, the lawsuit alleged that since at least 2007, black employees had been harassed due to their race, including being subjected to racial slurs, such as the “N-word,” by co-workers and managers. The suit also alleged that management failed to take action against the harassment despite complaints from employees.

“This case was resolved before the parties had conducted any depositions or incurred any significant costs of discovery,” noted EEOC Regional Attorney John Hendrickson. “We expect that the training and other injunctive relief called for in the decree will make Battaglia a stronger employer going forward. Resolutions of this nature are positive for both the employer and the employees.”

EEOC General Counsel David Lopez said, “No employee should have to endure racial harassment in order to earn a living. I am pleased that we were able to resolve this case and hope that it can serve as an example to other employers.”

Under the terms of the decree which was entered Nov. 10, 2014, Battaglia will pay $735,000 to a group of current and former African-American employees. Among other relief provided under the decree, Battaglia will also have to provide its managers with training on Title VII of the Civil Rights Act of 1964, which prohibits racial discrimination on the job, and report regularly to the EEOC on any complaints it has received, as well as provide other data to demonstrate that it has not retaliated against any of the participants in the litigation.

Supervisory Trial Attorney Gregory Gochanour and Trial Attorneys Ethan Cohen and Richard Mrizek led EEOC’s litigation efforts.

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Minnesota, Illinois, 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 website at www.eeoc.gov.

How Do You Calculate Damages for Emotional Distress?

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Emotional distress is the stress and emotional hardship someone suffers in an employment law case. It’s similar to “pain and suffering,” which is commonly heard in personal injury lawsuits. Someone may experience emotional distress because of a hostile work environment or workplace harassment.

Montgomery County Kentucky Courthouse

Montgomery County Kentucky Courthouse

While the signs of ” target=”_blank” rel=”nofollow”>emotional distress aren’t usually visible, they’re very real, and it’s possible for a plaintiff to ask for compensation in an employment lawsuit. The state of Kentucky allows for lost wage recovery, emotional distress recovery, and attorney fees if you win. The emotional distress is calculated primarily based on the plaintiff’s testimony.

A jury will hear the testimony of the plaintiff, as well as anyone close to the plaintiff, such as family or friends. The jury will then decide how much to award.

Determining how much a plaintiff should receive is based on what they ask for. The plaintiff must itemize each damage claim, in the form of lost wages, as well as the emotional distress itself, and assign it a dollar value. This can include medication, therapy, psychologists or psychiatrists, and so on. The jury will then determine what, if anything, the plaintiff should receive. They can award anywhere from one dollar to the requested amount.

The judge has final say over how much is to be awarded. If the judge believes the jury’s decision is too high, he or she can lower it. The judge can also increase the award as long as it does not exceed the amount asked for. I once represented a client on a case where the jury awarded $1 million in emotional distress, but the judge struck it down because he believed there was not enough evidence to warrant the claim. As a result, the plaintiff received nothing.

There is no exact math to calculate how much a plaintiff should ask for. However, he or she should ask for something reasonable in order to be seen fairly and taken seriously. Asking for $1 million for being worried for a week will not win the jury to your side. However, a woman who was sexually harassed, fired, became depressed, and couldn’t work for a year could reasonably ask for $1 million. It depends on the case and the testimony. If you’re not sure, ask your employment law attorney.

If you have suffered emotional distress as a result of workplace harassment or an illegal firing, or have other questions about employment legal issues, please contact the Cassis Law Office at (502) 736-8100.

Murphy School District No. 21 to Pay $138,000 to Settle EEOC Age Discrimination Lawsuit

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Federal Agency Says School Used Retirement Plans That Were Facially Discriminatory

PHOENIX — Murphy School District No. 21 used an early retirement incentive plan which granted greater economic benefits to employees based upon their younger age, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in an age discrimination lawsuit settled today.

The EEOC’s suit had alleged that the school district adopted an early retirement incentive plan in the 1980s that clearly granted more favorable benefits to younger employees based on their age. The Older Workers Benefit Protection Act, which became effective in 1992, amended the Age Discrimination in Employment Act (“ADEA”), to outlaw early retirement incentive plans which discriminated on the basis of age. The school district’s early retirement incentive plan then became facially discriminatory.

Such alleged conduct violates the ADEA, which prohibits employers, including state and local governments with 20 or more employees, from discriminating against individuals because of their age. The EEOC filed suit (EEOC v. Murphy School District No. 21, 2:14-CV-00721-PHX-JJT), in the U.S. District Court for the District of Arizona in Phoenix, after exhausting its conciliation efforts to reach a voluntary pre-litigation settlement.

The settlement reached by the agency and school district and entered by the court as a consent decree, will substantially compensate over two dozen retired employees. It also requires the school district to change its policies about age discrimination and to provide training on the ADEA to its employees and administrators.

EEOC Regional Attorney Mary Jo O’Neill said, “Early retirement incentive plans which are facially discriminatory need to be changed. Discrimination on the basis of age is simply illegal. People in their 60′s should not be penalized merely because they want to continue working. A retirement plan which states, for example, that employees 52 years old will receive a greater economic benefit than an employee 61 years old for retiring early is discriminatory on its face.”

Rayford O. Irvin, District Director of the EEOC’s Phoenix District Office, added, “We will continue to vigorously pursue our mission of fighting employment discrimination on all fronts, including discrimination based on age. The Age Discrimination in Employment Act was enacted to eliminate discrimination based on age 40 years of age or older. We will actively pursue cases where the type of overt age discrimination alleged in this case exists.”

The EEOC is responsible for enforcing the nation’s laws prohibiting employment discrimination. EEOC’s Phoenix District Office has jurisdiction for Arizona, Colorado, Utah, Wyoming, and part of New Mexico (including Albuquerque). Further information about the EEOC is available on its web site at www.eeoc.gov.

EEOC Issues FY 2014 Performance Report

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Agency Continues to Maintain Progress in Meeting Strategic Enforcement Goals Despite Sequestration and Government Shutdown

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) continued to make progress toward accomplishing its goals and fulfilling its mission during fiscal year (FY) 2014, which ended Sept. 30. Because of the lingering effects of sequestration and the government shutdown, the EEOC fought hard to overcome extraordinary fiscal constraints and operational challenges in FY 2014.

“Despite these hurdles, the employees of the EEOC remain committed to meeting the needs, addressing the challenges, and seizing upon the opportunities of the 21st century workforce,” said EEOC Chair Jenny R. Yang. “Increased hiring achieved at the end of FY 2014 and investments in technology should enable us to more effectively investigate charges in a timely fashion, while also improving the quality of our intake and investigations.”

In FY 2014, the EEOC continued to implement its Strategic Plan for FY 2012-2016, as well as its Strategic Enforcement Plan (SEP). The agency met, partially met, or exceeded target results in all 14 measures in the Strategic Plan the EEOC reported in its annual Performance and Accountability Report (PAR) posted yesterday. The SEP establishes priorities and integrates all components of the EEOC’s private, public, and federal sector enforcement. Its purpose is to focus and coordinate the EEOC’s programs in order to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.

The EEOC secured $296.1 million in monetary relief for victims of employment discrimination in private sector and state and local government workplaces through mediation, conciliation and other administrative enforcement. The EEOC also secured $22.5 million in monetary relief for charging parties through litigation, and $74 million in monetary relief for federal employees and applicants. More importantly, in each of these categories, the agency obtained substantial targeted equitable relief to remedy violations of equal employment opportunity laws and prevent future discriminatory conduct in the workplace.

The agency received 88,778 private sector charges in FY 2014, a decrease of about 5,000 charges from FY 2013. In addition, a total of 87,442 charges were resolved, 9,810 fewer than in FY 2013, which is likely due to the government shutdown and the effects of sequestration. While a hiring freeze and attrition shrunk the number of agency staff between FY 2012 and FY 2013, the agency hired more than 300 staff at the end of FY 2014, adding needed resources to improve service to workers and employers in investigating and resolving charges of discrimination.

The agency’s outreach programs reached 236,140 persons during the year through participation in 3,512 no-cost educational, training and outreach events. EEOC’s national Training Institute trained over 18,000 individuals at more than 420 events that targeted SEP priorities, including small businesses, vulnerable workers, underserved geographic areas and communities, and emphasized new statutory responsibilities, issues related to migrant workers, human trafficking and youth.

EEOC’s mediation program for private sector charges continues to be a successful and integral part of the agency’s work. In FY 2014, the EEOC’s national mediation program secured 7,846 mediated resolutions out of 10,221 conducted. The agency obtained $144.6 million in benefits for individuals through mediations.

EEOC filed 133 merits lawsuits during FY 2014. This included 105 individual suits, 11 non-systemic class suits, and 17 systemic suits. Legal staff resolved 136 merits lawsuits for a total recovery of $22.5 million. At the end of the fiscal year, the EEOC had 228 cases on its active docket.

The agency continues to build a strong national systemic enforcement program. During the fiscal year, the agency completed 260 systemic investigations, resulting in 78 settlements and conciliation agreements securing approximately $13 million in monetary relief. Systemic lawsuits comprised 13 percent of all merits suit filings, and by the end of the year, represented 25 percent of all active merits suits, the largest proportion of systemic suits on EEOC’s active docket since tracking began in FY 2006.

In its federal sector program, the agency resolved 3,767 appeals, including 43 percent of them within 180 days of their receipt. During FY 2014, the EEOC received 4,003 appeals of final agency actions in the federal sector, a 5.7 percent decrease from the 4,244 such appeals received in FY 2013.

The EEOC’s FY 2014 PAR is posted on the agency’s web site at http://www.eeoc.gov/eeoc/plan/2014par.pdf. Comprehensive enforcement and litigation statistics for FY 2014 will be available on the agency’s website in the near future.

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

ACM Services to Pay $415,000 to Settle EEOC Class Race, Gender Discrimination and Harassment Suit

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Contractor Shunned Blacks and Women for Jobs, and Harassed and Fired Two Women for Opposing the Discrimination, Federal Agency Charged

BALTIMORE – ACM Services, Inc., a Rockville, Md.-based environmental remediation services contractor, will pay $415,000 and provide comprehensive equitable relief to resolve a class race, gender discrimination and harassment lawsuit, the U.S. Equal Employment Opportunity Commission (EEOC) announced today. The EEOC had charged that ACM Services engaged in a pattern or practice of race and sex discrimination in hiring and also harassed two women based on sex, race and national origin and retaliated against them.

According to the EEOC’s suit, ACM Services exclusively used word-of-mouth recruitment practices for field laborer positions with the intent and effect of failing to recruit black job applicants. The EEOC said that ACM Services also refused to hire black job applicants, or female applicants for field laborer positions. The EEOC also alleged failure to preserve employment applications.

The EEOC charged that ACM Services also subjected two Hispanic female employees to harassment based on sex, national origin, and race and engaged in unlawful retaliation against them because they opposed the harassment and discrimination and that the retaliation resulted in their terminations. The EEOC also alleged that one of the Hispanic female employees was subjected to harassment because of her association with black persons.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits discrimination and harassment based on race, sex and national origin. Title VII also forbids employers from retaliating against individuals who oppose discrimination. The EEOC filed its lawsuit in U.S. District Court for the District of Maryland (U.S. EEOC v. ACM Services, Inc., Civil Action No. 8:14-CV-2997-PWG), after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $305,000 in monetary relief for a class of persons not hired or recruited because of race or sex and $110,000 in monetary relief to the two Hispanic female employees, the three-year consent decree resolving the lawsuit enjoins ACM Services from engaging in any future race, sex, or national origin discrimination or retaliation, and provides substantial non-monetary relief.

Among other things, ACM Services will:
•implement numerical goals for hiring qualified black applicants and female applicants, including both permanent and temporary or contingent workers, for field laborer positions;
•create a job opportunities advertisement program to recruit a diverse pool of qualified applicants for field laborer positions and refrain from using word-of-mouth recruiting as its sole method for seeking job applicants;
•conduct extensive self-assessment of hiring and work assignment practices to ensure non-discrimination and compliance with the terms of the consent decree;
•pay for advertising of the class claims process; and
•submit reports to the EEOC concerning numerical hiring goals and other consent decree compliance issues.

The EEOC will be conducting a claims process over the next 35 months to identify eligible claimants and determine awards.

“It is well-established that diversity is good for business,” said EEOC Philadelphia District Director Spencer H. Lewis, Jr. “We encourage all employers to take a proactive approach in ensuring that their recruitment practices and workplaces are free of discrimination.”

EEOC Philadelphia Regional Attorney Debra M. Lawrence added, “We are pleased that ACM Services worked with us to resolve this lawsuit quickly and without engaging in protracted litigation. These affirmative measures will benefit all employees and applicants. All employers should consider proactive measures to foster equal employment opportunities for job applicants and workers.”

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.

The EEOC Philadelphia District Office has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio.

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