THIS IS AN ADVERTISMENT

Monthly Archives: February 2015

EEOC Joins Federal Partners to Produce Resource Guide for Employers

By | Employment Law | No Comments

Guide Creates Central Repository of User-Friendly Information and Resources to Increase Employment Opportunities for People with Disabilities

WASHINGTON – On Tuesday, Feb. 3, at a Summit on Disability and Employment, the White House announced a new guide for employers that compiles key federal and federally funded resources related to the employment of people with disabilities. The resource guide, Recruiting, Hiring, Retaining, and Promoting People with Disabilities, provides employers with plain language technical assistance tools in an easy-to-use question-and-answer format. The guide was produced by the Curb Cuts to the Middle Class Initiative — a federal interagency effort working to increase equal employment opportunities and financial independence for people with disabilities.

The goal of the Curb Cuts to the Middle Class Initiative is to coordinate and leverage existing resources across the federal government. The U.S. Equal Employment Opportunity Commission (EEOC) enforces Title I of the Americans with Disabilities Act (ADA), and the Office of EEOC Commissioner Chai R. Feldblum has played a leadership role in the Curb Cuts Initiative.

As Commissioner Chai Feldblum explained, “We have heard time and time again that employers do not want to visit ten government websites to access the information they need. This resource guide is an example of federal agencies coming together to respond to the needs of employers by creating a central repository of user-friendly information and resources. I am proud of the integral role the EEOC played in putting this resource guide together.”

“This resource guide underscores the EEOC’s commitment to conduct proactive outreach and education to help businesses strengthen efforts to recruit, hire, retain, and promote people with disabilities,” said EEOC Chair Jenny R. Yang.

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. For more information, go to www.eeoc.gov.

EEOC Seeks to Improve Federal Sector Equal Employment Opportunity Complaint Process

By | Employment Law | No Comments

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) has issued an advance notice of proposed rulemaking (ANPRM) on the equal employment opportunity (EEO) complaint process in the federal sector, the agency announced today. The ANPRM, which has been coordinated with other federal agencies, is posted for public inspection today and will be published in the Federal Register tomorrow.

The ANPRM signals the first public comprehensive review of the federal sector EEO complaint process undertaken by the EEOC in several decades. The ANPRM contains a series of questions intended to encourage new thinking about the federal sector process.

The EEOC became responsible for the federal sector EEO complaint process in 1979 when it inherited a complaint process from the Civil Service Commission. Through rulemaking over the past decades, the EEOC has enhanced the process it inherited. The EEOC is interested in hearing from the public whether the current process can be improved, and if so, whether far-reaching reforms are necessary or whether the process requires only a modest fine-tuning.

EEOC Chair Jenny Yang said, “I am encouraged by the prospect of reform to the federal sector complaint process, and I am pleased that Commissioner Feldblum has agreed to take the lead in this effort.” The last significant change to the federal sector EEO complaint process occurred in 1999. “For years, many people have discussed the possibility of reform,” said Commissioner Chai Feldblum. “The Commission is vitally interested in how to make the complaint process work better. I and my colleagues look forward to hearing from interested stakeholders and the public on this issue and working to create a more efficient and effective process that will benefit both federal employers and employees.”

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

EEOC Releases Fiscal Year 2014 Enforcement and Litigation Data

By | Employment Law | No Comments

Percentage of Claims Alleging Retaliation Reaches Record High, While Number of Charges Decrease

WASHINGTON-The U.S. Equal Employment Opportunity Commission (EEOC) today released a comprehensive set of fiscal year 2014 private sector data tables providing detailed breakdowns for the 88,778 charges of workplace discrimination the agency received. The fiscal year ran from Oct. 1, 2013, to Sept. 30, 2014.

The number of charges filed decreased compared with recent fiscal years, due in part to the government shutdown during the reporting period. While charge filings were down overall compared to the previous fiscal year, first quarter charge filings–which included the period of the shutdown–were 3,000 to 5,000 less than the other quarters.

Among the charges the EEOC received, the percentage of charges alleging retaliation reached its highest amount ever: 42.8 percent. The percentage of charges alleging race discrimination, the second most common allegation, has remained steady at approximately 35 percent. In fiscal year 2014, the EEOC obtained $296.1 million in total monetary relief through its enforcement program prior to the filing of litigation.

The number of lawsuits on the merits filed by the EEOC’s Office of General Counsel throughout the nation was 133, up slightly from the previous two fiscal years. A lawsuit on the merits involves an allegation of discrimination, compared with procedural lawsuits, which are filed mostly to enforce subpoenas or for preliminary relief. Monetary relief from cases litigated, including settlements, totaled $22.5 million.

“Behind these numbers are individuals who turned to the EEOC because they believe that they have suffered unlawful discrimination,” said EEOC Chair Jenny R. Yang. “The EEOC remains committed to meaningful resolution of charges and strategic enforcement to eliminate barriers to equal employment opportunity.”

The updated data include the popular tables of Statutes by Issue and Bases by Issue. “Bases” refers to the protected characteristics giving rise to the discrimination, such as sex or age. In contrast “issue” is the discriminatory action, such as discharge or failure to promote.

More specifically, the charge numbers show the following breakdowns by bases alleged in descending order.
•Retaliation under all statutes: 37,955 (42.8 percent of all charges filed)
•Race (including racial harassment): 31,073 (35 percent)
•Sex (including pregnancy and sexual harassment): 26,027 (29.3 percent)
•Disability: 25,369 (28.6 percent)
•Age: 20,588 (23.2 percent)
•National Origin: 9,579 (10.8 percent)
•Religion: 3,549 (4.0 percent)
•Color: 2,756 (3.1 percent)
•Equal Pay Act: 938 (1.1 percent) but note that sex-based wage discrimination can also be charged under Title VII’s sex discrimination provision
•Genetic Information Non-Discrimination Act: 333 (0.4 percent)

These percentages add up to more than 100 because some charges allege multiple bases, such as discrimination on the bases of race and color, or sex and retaliation.

In fiscal year 2014, 30 percent of the charges filed with EEOC alleged the issue of harassment on various bases, such as race harassment or harassment on the basis of disability. Preventing harassment through systemic enforcement and targeted outreach is a priority issue for the Commission. The January 14, 2015 Commission meeting focused on Workplace Harassment. The new table for All Harassment Charges includes sexual harassment as well as other forms of harassment. Sexual Harassment still remains as a separate table, joined by new tables showing charges of Race Harassment as well as Charges Alleging Harassment Other than Sexual Harassment.

Discharge continues to be the most common issue for all bases under Title VII, the ADEA and the ADA. Allegations of harassment for all bases were the next most frequently cited issue, with the exception of race. For the basis of race, discriminatory terms and conditions of employment was the second most frequently cited issue (9,332), with harassment being the third (9,023).

The updated tables also include Charges by State. The greatest number of charges were filed in Texas (8,035), followed by Florida (7,528) and California (6,363).

The EEOC enforces the nation’s laws prohibiting discrimination in employment. Further information about the EEOC is available at www.eeoc.gov.

What You Should Know about the EEOC and Enforcement of the Americans with Disabilities Act

By | Employment Law | No Comments

July 26, 2014 is the 24th Anniversary of the Americans with Disabilities Act (ADA) which was signed into law by President George H.W. Bush in 1990. Title 1 of the ADA makes it illegal for employers to discriminate against qualified job applicants and employees based on their physical or mental disabilities. The law also requires employers to provide reasonable accommodations to job applicants and employees who need them because of their disabilities, unless doing so would impose an undue hardship on the operation of the employer’s business. These requirements apply to businesses with 15 or more employees, and state and local governments.

We are proud of our efforts to enforce this landmark law and will continue to work to eradicate disability discrimination. To that end, the Commission recently adopted a Strategic Enforcement Plan, identifying certain emerging issues under the ADA as a national enforcement priority.

Since EEOC began enforcing the ADA in July 1992 the number of charges alleging disability discrimination has grown from just over 15,000 in FY 1993 to near 26,000 last fiscal year. Through the resolution of these charges during the investigatory process and conciliation, the EEOC has obtained millions of dollars in monetary benefits, most recently obtaining $109.2 million for the victims of disability discrimination in FY 2013. A few recent and notable conciliations are highlighted below:
•A nationwide systemic investigation of a major retail establishment was successfully resolved by a conciliation agreement when the employer agreed to pay $2.3 million to a class of 76 individuals whom the EEOC found were denied reasonable accommodation under the ADA. Under the agreement, the employer has also agreed to make significant changes to its reasonable accommodation policies and practices nationwide; to conduct issue specific training for employees on the ADA and reasonable accommodations.
•In an ADA leave policy case, the Chicago District conciliated a charge for over $1.6 million. Approximately 2,000 individuals were affected by the employer’s nationwide policy of denying additional leave as a reasonable accommodation for a disability. The conciliation agreement included provisions requiring the employer to revise its disability leave policy at all of its facilities nationwide, post a notice for all employees, conduct ADA training for all managers, supervisors and Human Resources personnel and EEOC monitoring of any revisions or modifications of its leave policy for the term of the agreement.

Since July 2013 alone, the Commission has filed more than 50 lawsuits alleging disability discrimination. The Commission filed these lawsuits to seek relief for discrimination victims with a variety of impairments, including cancer (e.g., breast cancer, basal cell carcinoma, and colon cancer), dwarfism, epilepsy, deafness, blindness, retinitis pigmentosa, Fuchs Endothelial Dystrophy, Usher’s Syndrome, traumatic brain injury, HIV, multiple sclerosis, spinal stenosis, neuropathy, herniated discs and other back impairments, diabetes, anemia, coronary artery disease, end-stage renal disease, PTSD, narcolepsy, depression, anxiety disorder, and dyslexia.

The alleged discrimination has included failure to provide reasonable accommodation (including the failure to provide appropriate leave for disability-related needs or treatment); asking prohibited disability-related questions of employees; refusing to hire qualified applicants based on myths, fears, or stereotypes concerning certain impairments, and discharging qualified workers on the basis of disability.

A few notable cases addressed by courts or resolved over the past year are highlighted below:
•EEOC v. Hill Country Farms. The EEOC obtained the largest award ever under the ADA and the largest award in the history of the EEOC – $240 million for the class of men with intellectual disabilities. The EEOC alleged that a food processing plant in Iowa subjected a group of 32 workers with intellectual disabilities to a hostile work environment, discriminatory pay, and other discriminatory terms of employment for many years. Specifically, the company paid the men only $65 a month for full-time work, subjected them to abusive verbal and physical harassment, restricted their freedom of movement, required them to live in deplorable and sub-standard living conditions, and failed to provide adequate medical care. In September 2012, the court entered partial judgment for the EEOC and ordered the company to pay class members $1.3 million in back pay for work they performed between 2007 and 2009. In May 2013, a jury returned a verdict of $240 million for the class (reduced by the court to $1.6 million because of the ADA’s damages cap). Ultimately, the court ordered payment of $3.4 million for the class members. In May 2014, the Eighth Circuit Court of Appeals affirmed the entry of judgment in favor of the EEOC.
•In EEOC v. Ford Motor Company. The EEOC sued Ford Motor charging that the company’s denial of a particular employee’s request to work from home up to four days a week as an accommodation for her irritable bowel syndrome violated the ADA. Harris was a resale steel buyer whose job primarily required telephone and computer contact with coworkers and suppliers. Ford’s telecommuting policy authorized employees to work up to four days a week from a telecommuting site. The district court granted summary judgment for Ford Motor, holding that attendance at the job site was an essential function of the employee’s job, and that her disability-related absences meant that she was not a “qualified” individual under the ADA. The U.S. Court of Appeals for the Sixth Circuit reversed the lower court, explaining that “the law must respond to the advance of technology in the employment context . . . and recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.” The Appeals Court held that the “highly fact-specific” question was whether presence at the Ford facilities was truly essential, and that a jury should decide that issue.
•EEOC v. Princeton Healthcare. The EEOC sued Princeton HealthCare System (PHCS), alleging that its fixed leave policy failed to consider leave as a reasonable accommodation, in violation of the ADA. According to the EEOC, since PHCS’s leave policy merely tracked the requirements of the federal Family Medical Leave Act (FMLA), employees who were not eligible for FMLA leave were fired after being absent for a short time, and many more were fired once they were out more than 12 weeks. Under the consent decree settling the suit PHCS will pay $1,350,000, which the EEOC will distribute to employees who were unlawfully terminated under PHCS’s former policy. PHCS also is prohibited from having a blanket policy that limits the amount of leave time an employee covered by the ADA may take. PHCS must instead engage in an interactive process with covered employees, including employees with a disability related to pregnancy, when deciding how much leave is needed. In addition, PHCS can no longer require employees returning from disability leave to present a fitness for duty certification stating that they are able to return to work without any restrictions. PHCS also agreed that it will not subject employees to progressive discipline for ADA-related absences, and will provide training on the ADA to its workforce.

Other significant resolutions of EEOC cases involving leave and attendance policies from previous years include Interstate Distributor, ($4.85 million nationwide resolution challenging maximum 12-week leave policy), Supervalu ($3.2 million resolution challenging termination of approximately 1,000 employees at the end of medical leave),Sears ($6.2 million resolution challenging automatic termination policy and failure to accommodate employees injured at work) and Verizon ($20 million nationwide resolution challenging “no fault” attendance policy).

In fiscal year 2013, the Commission’s outreach, education and technical assistance efforts focused on increasing voluntary compliance with federal equal employment laws and on improving employee and employer awareness of rights and responsibilities under federal employment discrimination laws, especially among underserved groups and in underserved areas. To this end, in FY 2013 the EEOC reached more than 60,000 individuals with information concerning the ADA through 850 outreach and education events. This is in addition to the hundreds of thousands of people educated about the ADA over the past 24 years.

The Commission has developed a robust catalogue of technical assistance documents on the ADA as well as publications outlining how the law may apply to medical conditions, and the workplace rights of individuals with those conditions. On May 15, 2013, the EEOC issued updates on four of these documents to address how changes in the definition of “disability” as a result of the 2008 Americans with Disabilities Act Amendments Act (ADAAA) may affect who is covered under the ADA. The revised documents include the following:
•Cancer in the Workplace and the ADA
•Diabetes in the Workplace and the ADA
•Epilepsy in the Workplace and the ADA
•Persons with Intellectual Disabilities in the Workplace and the ADA

Additionally, the EEOC has recently issued guidance designed to address questions from mental health providers concerning their role in the reasonable accommodation process, as well as the employment of veterans with disabilities.

We will continue our efforts to eradicate discrimination in the workplace by enforcing federal anti-discrimination laws and educating employers and employees about their rights and responsibilities.

Skanska USA Building to Pay $95,000 to Settle EEOC Racial Harassment and Retaliation Lawsuit

By | Employment Law | No Comments

Building Contractor Ignored Complaints of Racial Harassment and Fired Black Employees in Retaliation, Federal Agency Charges

MEMPHIS, Tenn. – Skanska USA Building, Inc., a building contractor headquartered in Parsippany, N.J., will pay $95,000 to settle a racial harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s suit, Skanska violated federal law by allowing workers to subject a class of black employees who were working as buck hoist operators to racial harassment, and by firing them for complaining to Skanska about the misconduct. Skanska served as the general contractor on the Methodist Le Bonheur Children’s Hospital in Memphis, where the incidents in this lawsuit took place. The class of black employees worked for C-1, Inc. Construction Company, a minority-owned subcontractor for Skanska. Skanska awarded a subcontract to C-1 to provide buck hoist operations for the construction site and thereafter supervised all C-1 employees while at the work site.

The EEOC charged that Skanska failed to properly investigate complaints from the buck hoist operators that white employees subjected them to racially offensive comments and physical assault. The EEOC alleged that after Maurice Knox, one of the buck hoist operators, complained about having urine and feces thrown on him at the job site, Skanska cancelled its contract with C-1 Inc., and immediately fired all of its black buck hoist operators. With assistance from the Memphis Minority Business Council’s president, Skanska reinstated the contract with C-1 and recalled the black buck hoist operators to work. The white employees, however, continued to subject the buck hoist operators to racial harassment on a daily basis.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (EEOC v. Skanska USA Building, Inc., Civil Action No. 2:10-cv-02717) in U.S. District Court for the Western District of Tennessee after first attempting to reach a pre-litigation settlement through its conciliation process.

During litigation, Skanska asserted that it did not employ the sub-contracted buck hoist operators. The U.S. District Court for the Western District of Tennessee ruled in favor of Skanska, granting summary judgment. After the EEOC appealed, the U.S. Court of Appeals for the Sixth Circuit reversed the ruling and remanded the case. The Sixth Circuit acknowledged that it had not previously applied the joint employer theory in a Title VII case. According to the joint employer theory, two separate entities are considered to be joint employers if they share or co-determine essential terms and conditions of employment. The Sixth Circuit adopted the joint employer theory in the Title VII context and held that there was sufficient evidence to hold Skanska liable as a joint employer because Skanska supervised and controlled the day-to-day activities of the buck hoist operators.

Besides the $95,000 in monetary relief, the three-year consent decree settling the lawsuit enjoins Skanska from subjecting employees to racial harassment or retaliating against any employee who lodges a discrimination complaint. The consent decree also requires defendant to provide in-person training on race discrimination and retaliation, maintain records of any complaints of racial harassment, and provide annual reports to the EEOC. Knox intervened in the EEOC’s lawsuit and settled his claim separately for an undisclosed amount.

“Employees should not have to endure a racially hostile work environment to make a living,” said Faye Williams, regional attorney for the EEOC’s Memphis District Office, which serves Tennessee, Arkansas and portions of Mississippi. “This case highlights the importance of companies providing training in the workplace on anti-discrimination laws for its employees.”

According to company information, Skanska USA Building, Inc. is a building contractor with approximately 3,000 employees and 26 offices nationwide. Skanska acts as a general contractor for many construction sites, including the Methodist Le Bonheur Children’s Hospital in Memphis, which was completed in 2010.

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