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Monthly Archives: December 2014

What is Sexual Orientation Harassment?

By | Employment Law, Sexual Harassment | No Comments

Despite the recent legal changes that recognizes same-sex marriages, people can still be fired in Kentucky for being gay. And if they are harassed at work for being gay (it’s called sexual orientation harassment, there’s nothing that can legally be done.

According to the Kentucky Civil Rights Act, the only categories that are protected are those of age, gender, race, disability, nation of origin, religion, and sexual harassment.

Stressed - Mike HoffLet’s say an employer pulls an employee from his or her workstation, announces their sexual orientation, and then fires that employee for being gay. An employee may be able to file a suit for infliction of emotional distress, but as the law stands, the firing is legal.

However, we’re beginning to see more cases that can cross over into sexual harassment complaints. Sexual harassment lawsuits can be filed regardless of the genders involved. The Supreme Court Case, Oncale v. Sundowner Offshore Services, said male-on-male sexual harassment is just as illegal as any other form of sexual harassment. In Oncale, the plaintiff was a male who said his male coworkers often harassed and abused him, which the Supreme Court decided was clearly sexual harassment. The case is often used as support for sexual orientation harassment cases.

Will Sexual Orientation Harassment Eventually Become Illegal?

Yes, I believe it will become illegal. While it may not be illegal currently, the social landscape is changing dramatically. We’ve already seen same-sex marriage bans ruled illegal in several states, including Kentucky. And there have been federal bills that have been drafted that make sexual orientation harassment illegal, although that doesn’t make it a law. However, I think we’ll see it become the eighth protected category in the workplace.

Is Sexual Orientation Harassment Still Worth Talking to a Lawyer About?

Absolutely. While someone who is being harassed at work may not be able to sue because of his or her orientation, if there are certain words spoken about or to that person, or certain actions that take place, he or she may be able to file for sexual harassment. If co-workers or supervisors have used certain language or taken certain actions, there’s a better chance of having some sort of legal recourse. If you’re not sure, it’s always better to call an attorney and find out for sure.

If you’re experiencing sexual harassment or sexual orientation harassment at work, and feel a legal response is your only option, please contact the Cassis Law Office at (502) 736-8100 to see what you can do.

Photo credit: Mike Hoff (Flickr, Creative Commons)

Paloma Blanca in Albuquerque Settles EEOC Disability Discrimination Suit for $145,000

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Employee’s Firing Was Because of Disabilities, Federal Agency Charged

ALBUQUERQUE, N.M. – Paloma Blanca Health Care Associates, LLC, d/b/a Paloma Blanca Health and Rehabilitation, which owns and operates a health and rehabilitation center in Albuquerque, has agreed to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) for $145,000 and other relief, the agency announced today.

According to the EEOC’s suit, EEOC v. Paloma Blanca Health Care Associates, LLC, d/b/a Paloma Blanca Health and Rehabilitation, 14-CV-0235 JCH/SCY, Paloma Blanca refused to reasonably accommodate Doug Johnson’s disabilities. The company then fired him because of his medical conditions and/or because he requested the reasonable accommodations he needed.

In January, 2008, Paloma Blanca hired Johnson as a driver in its Paloma Blanca Health & Rehab Center in Albuquerque. As a driver, Johnson drove a van and took nursing home patients to medical appointments. Approximately two years later, Paloma Blanca began to require Johnson to perform the duties of the central supply clerk position in addition to his regular driving duties. In this capacity, Johnson ordered medicines, diapers and any items the facility needed (with the exception of food items). In November of 2011, Johnson had a heart attack and was also diagnosed with other medical conditions, including unstable angina, coronary artery disease, diabetes mellitus and neuropathy. Johnson requested a reasonable accommodation for his disabilities, in the form of a request for leave under the Family Medical Leave Act (FMLA). Paloma Blanca approved 12 weeks of FMLA leave for Johnson and notified him of their decision by letter dated Nov. 28, 2011.

After only five weeks of FMLA leave, in a letter dated Jan. 5, 2012, Paloma Blanca notified Johnson that it had eliminated his position and were laying him off due to a “reduction in force” effective Dec. 31, 2011. However, no other employees were subjected to a reduction in force at that time, the EEOC said, and there were no department- or facility-wide reductions in force during December 2011.

Disability discrimination, including the failure to make reasonable accommodation for disabilities, violates the Americans with Disabilities Act of 1990 (ADA). The EEOC filed suit in U.S. District Court for the District of New Mexico after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the substantial monetary relief, the decree requires Paloma Blanca to expunge from Johnson’s personnel file any references to the allegations of discrimination, Johnson’s participation in the lawsuit or his disabilities. It also provides an injunction against any future employment practices that discriminate or retaliate and requires Paloma Blanca to review and distribute to employees its policies regarding disability discrimination and retaliation. The company also agreed to provide its employees with training regarding disability discrimination and procedures for handling requests for reasonable accommodation. Finally, Paloma Blanca will post a notice emphasizing the company’s equal employment opportunity policy and reaffirming its commitment to providing reasonable accommodations for employees and applicants with disabilities.

“Employers must address employee requests for reasonable accommodation of their disabilities and must assure that employment decisions are not based on them,” said Regional Attorney Mary Jo O’Neill of the EEOC’s Phoenix District Office. “They must comply with federal law or be subjected to the EEOC’s vigorous enforcement of the rights of the disabled to fair treatment under the law. One would hope that a health and rehab center in particular would be more sensitive and attentive to the rights and needs of employees with medical conditions.”

EEOC Albuquerque Area Director Derick L. Newton added, “We are pleased that this employer is now taking appropriate steps to assure that reasonable accommodation procedures are in place and publicized in the workplace. We are also very pleased that we could assist Doug Johnson to resolve this matter at a time when he was most vulnerable.”

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

Well Servicing Companies to Pay $1.2 Million to Settle EEOC Suit for Race Harassment, Retaliation

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Blacks, Hispanics and Indians Verbally Abused and Punished for Complaining, Federal Agency Charged
DENVER – A federal judge in Casper, Wyo., has approved a $1.2 million settlement in a case brought by the U.S. Equal Employment Opportunity Commission against Dart Energy Corp. and two related companies, the federal agency announced today. The EEOC had charged well servicing companies Dart Energy Corp., Beckman Production Services, Inc., and J&R Well Service, LLC with violating federal law prohibiting race and national origin harassment and retaliation. The EEOC sought monetary and injunctive relief for more than a dozen men who claim that they had to endure racially derogatory comments and jokes on a regular and repeated basis.

According to the EEOC’s suit, truck pusher Ken Nelson, as well as other J&R employees, regularly used terms like “wetback” and “beaner” to refer to Hispanic employees, “wagon burner” to refer to Native American employees, and the “N-word” to refer to black employees. Nelson was also accused, among other things, of referring to shovels as “Mexican backhoes” and stating that “Custer should have killed all the Indians.”

The EEOC’s accusations extended to J&R rigs as well. According to the EEOC’s amended complaint, minority employees on the rigs regularly heard racist terms and demeaning remarks about green cards and deportation. Terms such as “n—-r-rigging” and telling employees to “n—-r a pipe down” were also common, according to the EEOC’s complaint.

According to EEOC, several individuals complained to management, but their complaints were minimized or ignored entirely. The EEOC reported, for example, that Area Supervisor Jim Ferguson responded to employee complaints by telling complaining employees that they could quit, or by saying that he was sick of everyone coming to him and that everyone simply needed to do their jobs.

Further, the EEOC said, several men were demoted or fired after taking their complaints of discrimination to the Wyoming Department of Employment Labor Standards Division.

All this alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits race and national origin harassment and retaliation for complaining about it. The EEOC filed suit (EEOC v. Dart Energy Corp. et al., Case No. 13-cv-00198-SWS (D.Wyo.) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to paying $1.2 million, the defendants in the case are also subject to a three-year consent decree which requires extensive training on employment discrimination laws, the establishment of a toll-free anonymous complaint line, and annual surveys of employees to ensure that discrimination is not occurring at J&R facilities. The defendants are also enjoined from engaging in any future employment practice which discriminates on the basis of race and/or national origin, and from retaliating against individuals who oppose such practices. J&R and Beckman will report to the EEOC twice a year for the decree’s duration.

“This case is the latest in a series of successes the Commission has had addressing egregious racial and national origin harassment,” said EEOC General Counsel David Lopez. “This type of outrageous discrimination sadly still exists. Employers in the oil and gas industry should heed this settlement and renew their efforts to ensure that employees are treated equally regardless of race or national origin.”

EEOC Regional Attorney Mary Jo O’Neill added, “The type of blatant racist conduct alleged in this case has no place in the workplace. We believe that our lawsuit and the significant relief obtained in this settlement will send the message, not only to the defendants, but to the entire industry that the EEOC will not this kind of misconduct – or retaliation for complaining about it.”

EEOC Trial Attorney Sean Ratliff expressed his pride in the individuals who brought the original complaints.

Ratliff said, “Working in the oil and gas industry can be dangerous enough. Employees shouldn’t have to fight bigotry at the same time. I commend these men for standing up for their rights. I hope that their efforts will inspire others to do the same.”

Denver Field Director John Lowrie added, “The Wyoming Department of Employment Labor Standards Division partnered with the EEOC by taking the charges and beginning the investigation, which was then completed by the EEOC. The EEOC partners with state and local Fair Employment Practices Agencies (FEPAs), such as the Wyoming FEPA, in order to enforce employment discrimination laws.”

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

Disability Network Will Pay $38,500 to Settle EEOC Disability Discrimination Lawsuit

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Non-Profit Whose Mission Is to Help Disabled Individuals Failed to Accommodate and Then Fired Deaf Employee, Federal Agency Charged

DETROIT – Metropolitan Detroit Center for Independent Living, d/b/a Disability Network / Wayne County, will pay $38,500 and provide equitable relief to settle a federal disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s suit, Disability Network denied a deaf employee, who worked as an independent living specialist for the non-profit, reasonable accommodations such as TTY equipment, a video phone and the ability to use text messaging. The complaint also alleged that Disability Network rejected the employee’s requests, failed to provide him with alternate accommodations, and finally fired him because he is deaf.

Such alleged conduct violates the Americans with Disabilities Act (ADA). After first attempting to reach a pre-litigation settlement through its conciliation process, the EEOC sued Disability Network (EEOC v. Metropolitan Center for Independent Living d/b/a Disability Network / Wayne County, Case No. 4:14-CV-12118) in U.S. District Court for the Eastern District Court of Michigan.

In addition to the $38,500 in monetary relief, the five-year consent decree settling the suit provides for training on the ADA and enjoins Disability Network from terminating an employee on the basis of disability or failing to provide reasonable accommodations in the future.

“The hypocrisy of this non-profit – whose very mission is to help disabled individuals – disadvantaging and then firing someone because of a disability — is mind-boggling,” said EEOC Trial Attorney Nedra Campbell. “Disability Network, of all people, should understand the importance of working toward reasonable accommodations for a deaf employee. It only goes to show that the EEOC has its work cut out for it – and we will certainly continue our fight for the rights of the disabled.”

Metropolitan Detroit Center for Independent Living, d/b/a Disability Network / Wayne County-Detroit is a Michigan non-profit corporation whose primary function is to provide services for people with disabilities.

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