EEO Decisions in the News-Private Industry
If you have specific EEO related questions or wish to receive technical assistance, please contact our EEO Specialist at 866-421-1166.
NOTE: Both government and private industry EEO/AA cases often apply to both entities; however, to make your research quicker, we have separated them on this site.
DISCLAIMER
This information is published with the understanding that neither Beacon Group, L.L.C., the author(s), nor the publisher is engaged in rendering legal, accounting, or other professional services through its website.
_____________________________
First Wireless Group To Pay $435,000 To Settle EEOC Suit For Unequal Wages And Retaliation
November 3, 2008
A New York-based company that refurbishes cell phones at its factory in Long Island will pay $435,000 to settle a wage discrimination and retaliation suit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced on November 3.
The EEOC had charged that First Wireless Group, Inc. engaged in a pattern or practice of race and/or national origin discrimination against a class of Hispanic workers by paying them less for doing the same job as Asian employees and by firing those who complained about the unlawful pay disparity.
http://www.eeoc.gov/press/11-3-08.html
_____________________________
Filipino Nurses Entitled to Back Pay After Pay Disparity
Alden Mgt. Servs. Inc. v. Chao, 7th Cir., No. 07-3828
June 25, 2008
The 7th U.S. Circuit Court of Appeals ruled that several Chicago-area nursing homes owe a group of Filipino nurses more than $1 million in back pay because they were paid less than nurses who are U.S. citizens.
Alden Management Services, paid Filipino nurses less than it paid registered nurses who are U.S. citizens. The focus was on whether Alden violated the Immigration Nursing Relief Act and it was decided that Alden had paid the nurses less because of the fact that they were non-citizens. Alden was ordered to pay the difference for the time they were employed under H-1A visas.
Alden argued that the back pay order was invalid because the complaint had not been filed by neither a nurse nor a union. The district court entered judgment for the secretary.
Employers should note that the back-pay in this case extended beyond the typical two-year limit. Victims of pay disparity may be awarded back-pay for as long as workers continue to receive less pay than the law requires.
_____________________________
ADEA: Supreme Court Decides on Age Discrimination Disparate Impact Case
6/19/08 Meacham v. Knolls Atomic Power Laboratory, No. 06-1505
The U.S. Supreme Court placed the burden of persuasion on employers in Age Discrimination in Employment Act (ADEA) disparate impact claims, making it more difficult for employers to defend themselves from ADEA impact claims.
This decision encourages employers to take an analytical approach when deciding the factors for reductions in force (RIFs).
During a layoff, Knolls Atomic Power Laboratory, a contractor with the U.S. Navy allowed a buyout for 100 employees; however, Knolls continued to have 31 salaried jobs which needed to be eliminated.
To make their selections, employees were evaluated based upon three factors (performance, flexibility, and critical skills), along with total years of service. Thirty of the thirty-one employees RIFed were over 40 and a disparate impact class action was filed.
The decision of the Supreme Court was the burden of persuasion falls on the person who wants an exemption (to the ADEA) in the law to apply.
Bottom Line: If an employer is considering a RIF, it would behoove that employer to carefully review the criteria for selecting those who will be released. Ensure that a criterion is objective, with little room for subjective evaluation. Also, it would be beneficial to conduct an Impact Ratio Analysis on the statistics prior to taking action.
_____________________________
ADEA: Supreme Court Rules: Basing Disability Benefits on ‘Pension Eligibility,’ is not discriminatory
June 2008 Ky. Ret. Sys. v. EEOC, U.S., No. 06-1037
The Supreme Court ruled that a state’s disability retirement plan that disqualifies employees in hazardous jobs from receiving disability retirement benefits if they become disabled after reaching age 55 does not violate the Age Discrimination in Employment Act (ADEA).
The Supreme Court held that awarding disability benefits based on pension status is not age discrimination unless pension status is a “proxy for age.”
A benefit program will be reviewed independently, apart from the impact it may have on people who are over 40. If it benefits younger people, the court will look at it further to decide if the distinction is age-determined.
The Court noted that an employee claiming disparate treatment must prove that age motivated the employer’s decision. The Court added that ADEA permits an employer to condition pension eligibility upon age, thus it must be decided whether a plan that lawfully makes age in part a condition of pension eligibility and treats workers differently in light of their pension status, automatically discriminates because of age.
The Court found that in the Kentucky case, pension status did not serve as a proxy for age, and the disparity in treatment had a clear non-age-related rationale of treating a disabled worker as if he/she had become disabled after becoming eligible for normal retirement benefits, rather than before.
The Court concluded,” The rule we adopt today for dealing with this sort of case is clear.” “Where an employer adopts a pension plan that includes age as a factor, and that employer then treats employees differently based on pension status, a plaintiff, to state a disparate treatment claim under the ADEA, must come forward with sufficient evidence to show that the differential treatment was ‘actually motivated’ by age, not pension status.”
____________________________
SUPREME COURT DECIDES ON RETALIATION CASESMay 27, 2008
The U.S. Supreme Court issued two opinions relating to illegal retaliation, as it pertains to EEO issues. The Court decided retaliation is a valid issue and should be allowed protection, even in Age Discrimination in Employment Act (ADEA) cases.
In Gomez-Perez v Potter, Postmaster General, a 45 year old postal worker claimed she was retaliated against after she filed an administrative ADEA complaint. The First Circuit Court of Appeals said that the ADEA prohibits discrimination based on age; however, it does not cover retaliation. The Supreme Court reversed the ruling of the appeals court. For a copy of the decision, go to: http://www.supremecourtus.gov/opinions/07pdf/06-1321.pdf
In CGOCS West, Inc. v. Humphries, a minority employee complained to his managers that a co-worker was dismissed because of discrimination (race/black). Soon following his allegations Humphries was terminated and he claimed illegal EEO retaliation for his expression of concern. The Supreme Court agreed with Humphries. For a copy of the decision, go to:
http://www.supremecourtus.gov/opinions/07pdf/06-1431.pdf
______________________________________________
EEOC SETTLES CASE INVOLVING DISCHARGE OF SEVEN MIDDLE EASTERN CREW MEMBERS FROM THE CRUISE SHIP PRIDE OF ALOHA
May 2008
The EEOC announced the settlement of a federal lawsuit against NCL America, Inc. for $485,000 to seven former employees and remedial relief. The EEOC alleged NCL America discharged seven Middle Eastern crew members from various positions on the cruise ship “Pride of Aloha.” NCL America denied that it had acted improperly against these crew members in agreeing to resolve the lawsuit.
“We are very pleased with this outcome, and NCL America should be applauded for its commitment to prevent discrimination by agreeing to the comprehensive injunctive relief in this case,” said Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, which includes Hawaii.
As part of the two year consent decree resolving the case, NCL America agrees to pay the crew members $485,000. With respect to the injunctive relief, NCL America further agrees, among other things, to revise its policies to ensure a workplace that promotes EEO, to hire an EEO consultant, and to provide training to its managers and employees on the company’s equal employment policy and complaint procedure.
______________________________________________
This is a federal case; however, it is a good lesson on how to handle pregnancy leave.
EEOC SETTLES SEX BIAS CASE WITH STATE CORRECTIONS DEPARTMENT FOR ALMOST $1 MILLION
May 2008
Corrections Department Provided Lesser Benefits to Female Corrections Officers Who Gave Birth While on Workers’ Compensation Leave
The New York State Department of Correctional Services will pay nearly $1 million to settle a sex discrimination lawsuit filed by the EEOC and the U.S. Attorney for the Southern District of New York, the two offices announced today. The EEOC and the United States had charged the Corrections Department with violating federal law by providing inferior benefits to female employees on maternity leave.
The EEOC suit, filed under the Equal Pay Act of 1963 (Case No. 07-CV-2587 in U.S. District Court for the Southern District of New York), charged that the Corrections Department gave male employees with work-related injuries up to six months of paid workers’ compensation leave. Female employees could be granted the same leave, but pregnant employees on such leave were involuntarily switched to maternity leave at or around the time they gave birth. The Corrections Department’s maternity leave policy requires that women first use their accrued sick or vacation leave with pay; then, if approved, sick leave with half pay and then sick leave without pay.
The EEOC charged that switching women from workers’ compensation leave to maternity leave resulted in lesser benefits for those women due to their sex, violating the Equal Pay Act (EPA). The EPA is a federal law requiring that employers pay men and women equally for equal work.
The U.S. Attorney for the Southern District of New York joined the lawsuit by adding claims under Title VII of the Civil Rights Act of 1964. The U.S. Attorney’s Office alleged that the Corrections Department engaged in a pattern and practice of employment discrimination on the basis of sex as a result of its categorical determination that a female employee who gives birth to a child should be transferred from workers’ compensation leave and benefits without making a determination whether, on an individual basis, an employee continues to be eligible for workers’ compensation leave and benefits.
The court granted final approval of an Order and Stipulation Providing for Injunction and Affirmative Relief, which provides $972,000 in compensatory damages, liquidated damages, back pay and interest to 23 female Corrections employees. The back pay, which includes the value of leave some women were forced to take, has already been paid.
The Corrections Department agreed to several elements of injunctive relief as to all its facilities statewide. It has amended its workers’ compensation directive to provide that no female Corrections officer shall be removed from workers’ compensation benefits due to pregnancy or the birth of a child, and it will provide anti-discrimination training to employees across the state, along with training in the administration of workers’ compensation benefits to its personnel employees. The Corrections Department will also give to each female employee preparing to take a maternity leave a packet of all applicable policies, procedures and benefits.
____________________________________
JANUARY 24, 2008
HENREDON FURNITURE INDUSTRIES TO PAY $465,000 FOR RACIAL HARASSMENT, HANGMAN’S NOOSES
EEOC Settles Class Suit for Black Employees at Racially Hostile Workplace
HIGH POINT, N.C. — The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of a racial harassment lawsuit for $465,000 and significant remedial relief against Henredon Furniture Industries, Inc. on behalf of African American employees who were subjected to a persistent racially hostile work environment at a furniture plant.
According to the EEOC, from approximately 1998 through January 2006, African American employees at Henredon’s High Point manufacturing plant were subjected to racial slurs and name calling — including the “N-word” — as well as threats by hangman’s nooses that were displayed at the plant. The suit alleged that the harassment occurred almost daily. Henredon Furniture, a subsidiary of Furniture Brands International, operated a furniture plant in High Point, N.C., until January 2006. Furniture Brands International is America’s largest home furnishings manufacturer.
“This case is the latest indicator that racial harassment in general, and nooses in particular, remain persistent problems at some job sites nationwide,” said EEOC Chair Naomi C. Earp. “It’s time for corporate America to be more proactive in preventing and eliminating racist behavior in the workplace. The EEOC intends to make clear that race and color discrimination in the workplace, whether verbal or behavioral, is unacceptable and will not be tolerated.”
In addition to the $465,000 in compensatory damages to be divided among the seven class members, the three year consent decree resolving the case (EEOC v. Henredon Furniture Industries Inc., Case No. 1:06CV00744, filed in the U.S. District Court for the Middle District of North Carolina), includes injunctive relief enjoining Henredon Furniture from engaging in racial harassment or retaliation; requires anti-discrimination training; requires the posting of a notice about the settlement; and requires the company to report complaints of racial harassment to the EEOC for monitoring.
EEOC Charlotte District Director Reuben Daniels, Jr. said, “This settlement should remind employers of the potentially serious consequences of failing to take effective action to prevent and remedy racial harassment. It is in the best interest of all employers to create inclusive, discrimination-free work environments in accordance with the law.”
Lynette A. Barnes, regional attorney for the federal agency’s Charlotte District, which oversees North Carolina, Virginia, and most of South Carolina, added: “The EEOC is committed to the elimination of racial discrimination in the workplace as evidenced by the prosecution and resolution of this case, in addition to many others nationwide. We will not hesitate to take action against companies that allow employees of any race to be subjected to ongoing harassment.”
The Commission has observed a surge of racial harassment cases over the past two decades, some of which involve hangman’s nooses and verbal threats of lynching. Racial harassment charge filings with EEOC offices across the country have more than doubled from 3,075 in Fiscal Year 1991 to approximately 7,000 in FY 2007 (based on preliminary year-end data).
In addition to investigating and resolving charge filings brought to the EEOC, the agency has sued more than three dozen employers this decade in noose cases and reached several major settlements. In one recent case, the EEOC obtained more than $1 million for a black worker who was racially harassed and choked with a noose by his coworkers in a company bathroom.
____________________________________
JANUARY 15, 2008
JUDGE GRANTS FINAL APPROVAL FOR $6.2 MILLION PARTIAL SETTLEMENT OF HISTORIC UNION DISCRIMINATION CASE
Sheet Metal Workers’ Local 28 Discriminated Against Blacks and Hispanics for Years, Suit Says
NEW YORK – A federal court has granted final approval for a $6.2 million partial settlement for black and Hispanic sheet metal workers who suffered discrimination by their union, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.
The EEOC and the State and City of New York, along with the Lawyers’ Committee for Civil Rights Under Law in Washington, DC and the New York law firm of Debevoise & Plimpton LLP representing the minority members, had sued Local 28 of the Sheet Metal Workers’ International Association in New York City (Local 28) for providing fewer job opportunities to the workers because of their race or national origin for many years. Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits race and national origin discrimination by labor organizations. The partial settlement was reached through intense negotiations between the plaintiffs and Local 28.
Judge Robert L. Carter of U.S. District Court for the Southern District of New York granted final approval of the settlement, which would compensate minority members of Local 28 for lost wages for the years 1984 to 1991. The parties have also agreed to significant changes in the union’s job referral system as well as monitoring systems aimed at equalizing members’ access to job opportunities. Litigation of the remaining claims of union members who suffered discrimination after 1991 continues, as do settlement negotiations, in an effort to obtain a prompt and fair resolution of those remaining claims.
“We hope that these developments are an indication that, with the recent change in leadership, the union has decided, after many years of costly litigation, to work with the court and the plaintiffs in obeying the court orders and to begin to resolve the outstanding claims against it,” said Spencer Lewis, the District Director of the EEOC’s New York office.
“This is a significant step forward in what has been a decades-long process to end discrimination against black and Hispanic members of Local 28 and restore their lost wages,” said Joshua Rubin, Senior Counsel at the New York City Law Department. “We will continue working to ensure good practices at the union going forward and to help others reclaim their compensation.”
____________________________________
JANUARY 2, 2008
LOCKHEED AGREES TO RECORD SETTLEMENT
The settlement, announced on Wednesday, January 2, is the biggest award ever obtained by the Equal Employment Opportunity Commission on behalf of an individual in a racial discrimination case.
Lockheed Martin has agreed to pay $2.5 million to end a racial discrimination suit brought by an electrician who says he was subject to harassment and threats to his life during the two years he worked for the giant military contractor.
The settlement, announced Wednesday, January 2, is the biggest award ever obtained by the Equal Employment Opportunity Commission on behalf of an individual in a racial discrimination case. The consent decree reached with Lockheed has been filed in the U.S. Court for the District of Hawaii and is subject to the court’s approval.
In addition to the payment to Charles Daniels, an African-American avionics electrician who worked for the company from September 1999 to August 2001, Lockheed fired or barred from rehiring the team leader and four co-workers who verbally abused him. The company also agreed to establish a special anti-discrimination training program at its aircraft logistics centers.
The investigation and litigation took six years. But the long journey resulted in an outcome that likely will grab the attention of the corporate world.
“The EEOC hopes the settlement will send a message that racial harassment and discrimination will not be tolerated,” said William Tamayo, EEOC regional attorney for San Francisco. “We hope that Lockheed Martin will set a new tone in the industry.”
The company, however, accuses the EEOC of distorting the facts of the case. Daniels and the agency said his co-workers told him, “We should do to blacks what Hitler did to the Jews” and threatened to lynch him.
Those incidences didn’t come up in internal investigations.
“We couldn’t find any reference to those words being used,” said Joe Stout, director of communications for Lockheed Martin Aeronautics Co.
In a statement, the company stressed that the alleged conduct “involved a small number of first-line employees in a small, single operating unit of the company.”
Stout said that the consent decree is not an admission of guilt.
“We did not settle because we felt we had liability,” Stout said. “If this had proceeded to trial the facts would have substantiated that the company took the matter seriously, investigated and implemented appropriate remedial actions given the facts that had been reported.”
The case arose despite Lockheed’s no-tolerance policy on racial discrimination. The trouble started when one of Daniels’ colleagues lashed out against him following a decision by South Carolina to remove the Confederate flag from the Statehouse. Daniels, a Navy veteran, was part of a team that serviced military aircraft in Florida, Washington state and Hawaii.
“He decided to take it out on the first black person he saw, which was me,” Daniels said in a conference call with the media.
The situation escalated as the team moved from location to location. “It was pretty humiliating,” he said. “I was probably one of the highest-paid and top electricians at Lockheed at the time.”
The bullying became more sinister on Whidbey Island, Washington. While the team worked there, Daniels’ colleagues hinted that they could easily kill and dispose of him.
They said that “they could put my body 10 feet away from the road and I never would be found,” according to Daniels.
When he approached the Lockheed HR department, he was rebuffed, Daniels said. Officials waved off the discrimination, saying “boys will be boys,” and warned Daniels not to prosecute the company. They also continued assigning Daniels to the same team and eventually laid him off.
“They really just want to see if they can chase you away,” Daniels said. “I really didn’t expect [justice] after Lockheed Martin told me, ‘We never lose.’ ”
So, on his second-to-last day of work at Kaneohe Marine Corps Air Station in Hawaii, he filed a discrimination charge with the EEOC office in Honolulu.
“It takes an act of courage to stand up to the largest military contractor in the world and say that I have rights as a human being,” said Raymond Cheung, an EEOC attorney who led the government’s case.
This kind of case is becoming more prevalent at the EEOC. The number of racial harassment charges filed with the agency has risen from 3,075 in fiscal year 1991 to about 7,000 last year. In February 2007, the agency launched a national education and enforcement campaign to eliminate racial bias.
“We hope that this settlement bolsters the [EEOC] chairwoman’s initiative to deal with racial discrimination in the workplace,” Tamayo said.
Daniels’ attorney Carl Verady urged people who are suffering from discrimination to turn to the EEOC rather than their company for help.
“EEO internal processes turn out to be a cover-up … or a vehicle for the human resources people to expose the complainant,” Verady said. “Go to the EEOC. That is where your protection lies.”
Stout asserts that Lockheed embraces diversity.
“It is one of our core values,” he said. “We spend a great deal of time educating our workforce about it.”
OCTOBER 27, 2007GLOBAL DRILLING COMPANY TO PAY $290,000 FOR RACIAL HARASSMENT, INCLUDING NOOSESEEOC Says Helmerich & Payne Subjected Black Workers to Racist Behavior on Oil Rig
BIRMINGHAM, Ala. — The U.S. Equal Employment Opportunity Commission (EEOC) today announced the settlement of a discrimination lawsuit for $290,000 and significant injunctive relief against Helmerich & Payne International Drilling Co. (H & P) on behalf of African American men who were subjected to a racially hostile work environment on an oil rig. H & P is an energy oriented company engaged in contract drilling primarily in the United States, South America, and Africa.The racial harassment in the case including hangman’s nooses displayed on Rig 108, derogatory racial language, and race-based name calling, all of which was directed at black employees. In addition to the nearly $300,000 in compensatory damages to be apportioned among the seven class members, the two-year consent decree settling the case (EEOC v. Helmerich & Payne International Drilling Co. Case No. 3:05-CV-691) contains the following injunctive relief:
- Enjoins H & P from engaging in racial harassment or retaliation;
- Requires that H & P conduct anti-discrimination training and post a notice about the settlement;
- Requires that H& P redistribute to the workforce its policies prohibiting racial harassment; and
- Requires reporting certain complaints of harassment or retaliation to the EEOC for monitoring.
“We are pleased that H & P has taken these important steps to improve its work environment,” said C. Emanuel Smith, regional attorney for the EEOC’s Birmingham District, which includes Alabama, most of Mississippi, and the Florida Panhandle. “The monetary relief for the victims in this case should remind employers that there is a high price to pay for racial harassment.”
Commenting from agency headquarters in Washington, EEOC Chair Naomi C. Earp said:
“A noose is a racial icon that constitutes a severe form of harassment under Title VII of the Civil Rights Act. Nooses are closely associated with racial intimidation, violence and death, and therefore have no business in the workplace. It’s time for corporate America to be more proactive in preventing and eliminating racist behavior. The EEOC intends to make clear that race and color discrimination in the workplace, whether verbal or behavioral, is unacceptable and will not be tolerated.”
The EEOC has observed an increasing trend of racial harassment cases over the past two decades, some of which involve hangman’s nooses. Racial harassment charge filings with EEOC offices nationwide have more than doubled from 3,075 in Fiscal Year 1991 to approximately 7,000 in FY 2007 (based on preliminary year-end data). In addition to investigating and resolving charge filings brought to the EEOC, the federal agency has sued about three dozen employers this decade for racial harassment involving nooses.
EEOC Birmingham District Director Delner Franklin-Thomas, said, “Despite what some may think, overt forms of race and color discrimination have resurfaced in today’s workplace - in addition to new and more subtle forms of racism. There has been strong evidence over the past two decades, as shown in this case, that racist language and nooses are far too common on the job.” ________________________________________________________________
OCTOBER 23, 2007
AT&T TO PAY $756,000 FOR RELIGIOUS BIAS AGAINST JEHOVAH’S WITNESSES
EEOC Wins Jury Verdict for Two Fired Customer Service Technicians
JONESBORO, Ark. - The U.S. Equal Employment Opportunity Commission (EEOC) today announced a favorable jury verdict of $756,000 in a religious discrimination lawsuit brought against AT&T Inc. on behalf of two male customer service technicians who were suspended and fired for attending a Jehovah’s Witnesses Convention.
The jury of nine women and three men awarded the two former employees, Jose Gonzalez and Glenn Owen (brothers-in-law), $296,000 in back pay and $460,000 in compensatory damages under Title VII of the 1964 Civil Rights Act. During the four-day trial, the jury heard evidence that both men had submitted written requests to their manager in January 2005 for one day of leave to attend a religious observance that was scheduled for Friday, July 15, to Sunday, July 17, 2005. Both men testified that they had sincerely held religious beliefs that required them to attend the convention each year. Both men had attended the convention every year throughout their employment with AT&T — Gonzalez worked at the company for more than eight years and Owen was employed there for nearly six years.
Commenting on the case, in U.S. District Court for the Eastern District of Arkansas, Jonesboro Division (Case No. 3:06-cv-00176), before Judge Leon Holmes, former employee Joe Gonzalez said, “I am very pleased with the jury’s verdict.” Glenn Owen added, “I’m glad that the justice system works and that the jury saw what was going on and corrected it.”
Title VII of the Civil Rights Act of 1964 prohibits religious discrimination and requires employers to make reasonable accommodations to employees’ and applicants’ sincerely held religious beliefs as long as this does not pose an undue hardship.
“In this case, AT&T forced Mr. Gonzalez and Mr. Owen to choose between their religion and their job,” said Faye A. Williams, regional attorney for the EEOC Memphis District Office. “Title VII does not require that an employee make that choice in order to maintain gainful employment.”
EEOC supervisory Trial Attorney William Cash, Jr., who tried the case with agency attorney Darin Tuggle, said, “Protecting the rights of employees to be free from religious discrimination is an important part of the EEOC’s mission.”
Religious discrimination charge filings (allegations) reported to EEOC offices nationwide have substantially increased from 1,388 in Fiscal Year 1992 to 2,541 in FY 2006. The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at http://www.eeoc.gov/ ________________________________________________________________
OCTOBER 16, 2007
EEOC AND B & H REACH $4.3 MILLION SETTLEMENT IN NATIONAL ORIGIN DISCRIMINATION CASE
Hispanic Employees Paid Less Than Non-Hispanics, Denied Promotion and Health Benefits, Federal Agency Says
NEW YORK - The U.S. Equal Employment Opportunity Commission (EEOC) today filed a complaint and entered into a consent decree in federal district court with B & H Foto and Electronics Corp., resolving a national origin discrimination case on behalf of Hispanic workers at one of the largest retail sellers of photographic, computer and electronic equipment in the metropolitan area.
The EEOC’s lawsuit, filed under Title VII of the Civil Rights Act of 1964 alleged that B & H paid Hispanics in its warehouses less than non-Hispanic workers and failed to promote them or provide them health benefits based on their national origin (EEOC v. B & H Foto and Electronics Corp., No. 07- CV-9241). The court filed complaint is resolved simultaneously through the voluntary settlement of this matter by consent decree under which B & H agrees to comply with the requirements of Title VII; equalize the wages of Hispanic employees to their non-Hispanic coworkers; and to work with the EEOC in a claims process to distribute $4.3 million in monetary relief to individuals who were paid less, not promoted, or denied benefits because they are Hispanic.
“We commend B & H for working cooperatively with us to resolve this matter without protracted litigation,” said EEOC New York Trial Attorney Louis Graziano. “We encourage other employers to follow B & H’s example of resolving this case expeditiously and in good faith.”
The lawsuit and consent decree are filed in the United States District Court for the Southern District of New York. The decree, in addition to proving for distribution of the multi-million dollar settlement fund, also requires employer training, notice posting, adoption of an anti-discrimination policy, reporting to the EEOC, and monitoring by the EEOC for the following five years.
EEOC New York District Director Spencer H. Lewis, said: “Employees are entitled to work in an environment free of pay disparity and discrimination due to a person’s national origin. Every individual deserves the freedom to compete in the workplace on a fair and level playing field.” ________________________________________________________________
OCTOBER 5, 2007
$27.5 MILLION CONSENT DECREE RESOLVES EEOC AGE BIAS SUIT AGAINST SIDLEY AUSTIN
Law Firm Partners Brought Within Protection of Federal Law Against Employment Discrimination
CHICAGO - The international law firm of Sidley Austin LLP will pay $27.5 million to 32 former partners who the U.S. Equal Employment Opportunity Commission alleged were forced out of the partnership because of their age, under a consent decree approved by a federal judge. (EEOC v. Sidley Austin LLP, N.D. Illinois No. 05 C 0208.)
The EEOC brought the suit in 2005 under the federal Age Discrimination in Employment Act (ADEA). A major issue in the case was whether partners in the law firm were protected as employees under the ADEA. The decree was signed by Federal District Judge James B. Zagel of the Northern District of Illinois yesterday afternoon, October 4, 2007, and entered on the court’s docket this morning. The decree provides that “Sidley agrees that each person for whom EEOC has sought relief in this matter was an employee with the meaning of the ADEA.”
The consent decree also includes an injunction that bars the law firm from “terminating, expelling, retiring, reducing the compensation of or otherwise adversely changing the partnership status of a partner because of age” or “maintaining any formal or informal policy or practice requiring retirement as a partner or requiring permission to continue as a partner once the partner has reached a certain age.”
Ronald S. Cooper, General Counsel of the EEOC, said, “This case has been closely followed by the legal community as well as by professional services providers generally. It shows that EEOC will not shrink from pursuing meritorious claims of employment discrimination wherever they are found. Neither the relative status of the protected group members nor the resources and sophistication of the employer were dispositive here.”
Cooper added, “The demographic changes in America assure that we will see more opportunities for age discrimination to occur. Therefore, it is increasingly important that all employers understand the impact of the Age Discrimination in Employment Act on their operations and that we re-emphasize its important protections for older workers.”
The $27.5 million will be paid by Sidley Austin to 32 former partners of the firm for whom the EEOC sought relief because they either were expelled from the partnership in connection with an October 1999 reorganization or retired under the firm’s age-based retirement policy.
The amounts of the individual payments to the former partners were submitted under seal and approved by the court. The average of all the payments to partners under the decree will be $859,375. The highest payment to any former partner will be $1,835,510, and the lowest payment $122,169. The median payment (the value in the middle of all payments) is $875,572.
During the term of the decree, which expires Dec. 31, 2009, Abner Mikva, retired Federal Court of Appeals Judge and former Member of Congress and White House Counsel, will deal with any complaints received from Sidley partners and report to the EEOC.
The EEOC litigation team has been headed by John Hendrickson, Regional Attorney for the Chicago District, and includes Supervisory Trial Attorney Gregory Gochanour and Trial Attorneys Deborah Hamilton, Laurie Elkin, and Justin Mulaire. Proceedings in the U.S. Court of Appeals for the Seventh Circuit were handled by Carolyn Wheeler and Jennifer Goldstein of the EEOC Office of General Counsel’s Appellate Services.
Hendrickson said, “The EEOC v. Sidley Austin litigation has always been a high priority for both our agency and the law firm, and the litigation has reflected that-tough, determined, professional. The litigation has yielded a number of important legal decisions, ensuring the protection of professionals from discriminatory employment actions and ratifying the authority of EEOC to investigate and obtain relief for victims of age discrimination on its own initiative.”
Hendrickson added, “The public has benefited because the EEOC and Sidley were able to sit down and talk with each other and craft a workable resolution in a complex lawsuit. That doesn’t always happen. Not all employers are resolved to deal with tough issues and to get on with business. Sidley was so resolved, and today’s decree reflects its determination to get this case behind it and to address a situation which the EEOC believed required its attention.”
George Galland, Jr. of the Chicago law firm of Miner Barnhill & Galland acted as a mediator in the case and facilitated the parties’ negotiations. ________________________________________________________________
October 1, 2007
UNITED HEALTHCARE OF FLORIDA TO PAY $1.8 MILLION FOR SAME-SEX HARASSMENT AND RETALIATION
EEOC Settles Suit Charging Male Former Regional Vice President With Victimizing Male Former Senior Accounts Executive
MIAMI - The U.S. Equal Employment Opportunity Commission (EEOC) today announced that United HealthCare of Florida, Inc. will pay $1.8 million to settle a same-sex harassment and retaliation lawsuit charging that the male former regional vice president of key accounts subjected a male former top senior account executive to repeated verbal sexual harassment in Sunrise, Fla.
According to the EEOC’s lawsuit in U.S. District Court for the Southern District of Florida, Miami Division (Case No. 06-61483-CIV-MOORE/GARBER), after the high ranking senior account executive complained several times to upper management, United HealthCare retaliated against him by subjecting him to discipline and denying him stock options and commissions. The account executive even complained to the former and current chief executive officers of the employer’s parent company (United HealthGroup, Inc.) who did not take remedial action to correct the unlawful discrimination. The top executive could no longer tolerate the retaliatory conduct, so he quit, the EEOC said.
The three-year consent decree settling the suit requires United HealthCare of Florida to pay $1.8 million to the former employee in back pay, damages, and his private attorneys’ fees and costs. United HealthCare must also distribute a new anti-harassment policy to all of its employees in Florida; train all its employees (including managers) at the Sunrise facility on federal employment discrimination laws including sexual harassment and retaliation; post a notice of resolution of the lawsuit; and report to EEOC twice annually about any harassment or retaliation complaints based on harassment, and the actions taken by United HealthCare to resolve such complaints.
“The EEOC will continue its comprehensive efforts to enforce its mission of eradicating sexual harassment in the workplace - whether the victim is a male or female, an hourly worker or an executive,” said EEOC’s Miami District Director Federico Costales.
Nora E. Curtin, regional attorney of the Miami District Office, added, “Employers cannot disregard a complaint of sexual harassment because it comes from a male employee. All employees are entitled to a workplace where they are not targeted because of their gender.”
Sexual harassment charge filings by men (reported to the EEOC and state/local agencies nationwide) have trended upward from 9% of all sexual harassment charges in Fiscal Year 1992 to 15% in FY 2006. ________________________________________________________________
September 6, 2007
L.A. WEIGHT LOSS TO FACE TRIAL FOR SEX BIAS AND RETALIATION
EEOC Class Suit Charges Company with Discrimination Against Men
BALTIMORE - A federal court has ruled that the U.S. Equal Employment Opportunity Commission (EEOC) may proceed to trial with its class sex discrimination lawsuit against L.A. Weight Loss Centers, Inc. (LAWL) on behalf of qualified male applicants nationwide.
In his ruling, U.S. District Judge William D. Quarles, Jr., of the U.S. District Court for the District of Maryland, decisively rejected LAWL’s court filed motions to dismiss the case. The court held that the testimonial evidence alone that was presented by the EEOC, including discriminatory admissions by various high-level LAWL officials, entitled the EEOC to present its case at trial. The court also granted partial summary judgment to the EEOC regarding LAWL’s failure to maintain relevant employment records.
The EEOC sued LAWL in February 2002 under Title VII of the 1964 Civil Rights Act alleging that the company engaged in a pattern or practice of disparate treatment against men in its recruiting, hiring, and assignment of employees. In its suit (Civil Action No. WDQ-02-0648), the EEOC also charged that LAWL disciplined and ultimately terminated employee Kathy Koch, a trainer with the company, in retaliation for attempting to hire male applicants and for her complaints that LAWL failed to hire qualified male applicants because of their gender.
“We are pleased by the court’s ruling allowing the EEOC to proceed to trial,” said EEOC Regional Attorney Jacqueline McNair, whose Philadelphia District includes Maryland. “This case is an example of the EEOC’s focus on systemic litigation. Employers should be mindful that Title VII’s prohibition against sex discrimination protects men, as well as women, from being denied employment opportunities based on their gender.”
On March 9, 2007, LAWL filed a motion for summary judgment to dismiss the case, arguing that the EEOC could not establish a prima facie case that LAWL engaged in a pattern or practice of sex discrimination. LAWL also contended that Title VII’s limitations period for filing an individual charge of discrimination limited the scope of relief that the EEOC could obtain in a pattern or practice discrimination lawsuit.
The EEOC also filed a motion for partial summary judgment, arguing that LAWL failed to comply with the statutory obligation to preserve records relevant to the retaliation claim on behalf of Koch, and to preserve hiring and other employment records relevant to the pattern or practice claim. The EEOC requested that the court issue an injunction requiring LAWL to preserve relevant records and give an adverse inference jury instruction regarding the destruction of these employment records.
The court held that in a pattern or practice case under Section 707 of Title VII, the EEOC’s remedies are not limited by the 180 or 300-day period for filing an individual charge of discrimination. The court also granted an injunction and adverse jury instruction against LAWL based on its failure to preserve relevant evidence regarding EEOC’s retaliation claim.
The EEOC litigation team in the case, led by EEOC Supervisory Trial Attorney Tracy Hudson Spicer, EEOC Senior Trial Attorney Corbett Anderson, and EEOC Senior Trial Attorney Ronald Philips, added, “The court’s ruling is noteworthy because it reaffirms the important principle that the EEOC possesses broad statutory authority to remedy systemic violations of Title VII in their entirety, not simply portions of a systemic violation that happened to occur within the charge filing period applicable to individual plaintiffs. We’re pleased that a jury will have an opportunity to hear the evidence and decide this case.”
LAWL recently announced that it is changing its name to Pure Weight Loss, Inc., which describes itself as one of the largest weight loss companies nationwide with nearly 400 centers. More information about the company is available on its web site at http://www.pureweightloss.com/.
The EEOC enforces federal laws prohibiting employment discrimination based on race, color, gender, religion, national origin, age, disability and retaliation. Further information about the EEOC is available on its web site at http://www.eeoc.gov/. __________________________________________________
AUGUST 2007
FINAL RULING: EXPANDS VETERANS COVERAGE AND CHANGES MANDATORY JOB LISTING. The new regulations are effective September 7, 2007.
The Office of Federal Contract Compliance Programs (OFCCP) published its final rule for Veterans’ AAP requirements. Veterans’ affirmative action will now be addressed by two separate sections of 41 Code of Federal Regulations (CFR). The current provisions of Part 60-250 will continue to apply to contracts made on or before December 1, 2003. However, the new section in 41 CFR, Part 60-300, will apply to contracts made after December 1, 2003. The new contract threshold of $100,000 is what contractors must meet before they are required to prepare a written Veterans’ AAP.
For a copy of the OFCCP Questions and Answers page on the changes, go to:
http://www.dol.gov/esa/regs/compliance/ofccp/faqs/jvafaqs.htm
In a nutshell: USERRA Compliance:
–USERRA applies to every employer, regardless of size or business sector. There is no minimum number of employees threshold as in many other employment laws.
–All employers must grant military leave, on request of the service member involved. Employers may ask for documentary proof that the leave is military, which often comes in a letter from the unit’s commander. Leave can be for required training as well as for extended service.
–Leave is unpaid under the law, although some companies pay leave-takers their salary or the difference between their military and civilian pay, for purposes of both patriotism and retention. Employers must also continue to offer health benefits for up to 24 months. The first 31 days are at the employee’s normal rate of contribution. The remainder is handled like COBRA, with the employee liable for 102 percent of the full premium.
–In normal times, the employee’s job is protected for up to 5 years of cumulative military service. When leave-takers return, they must be placed in the position they would have had if they had stayed. Credit toward pensions and seniority must be awarded as if the individual never left.
__________________________________________________
August 31, 2007
Interim Guidance on the use of Race and Ethnic Categories in Affirmative Action Programs
Beginning in 2007, employers, including Federal contractors, will report data about the racial, ethnic, and gender composition of their workforces on a revised Standard Form 100, Employer Information Report (commonly referred to as the “EEO-1 Report”). The revised EEO-1 Report must be filed for the first time by September 30, 2007.
OFCCP currently requires contractors to collect and maintain information about the gender, race, and ethnicity of their employees in the five race and ethnic categories used on the previous EEO-1 Report: Blacks, Hispanics, Asians/Pacific Islanders, and American Indians/Alaskan Natives. In light of the changes to the EEO-1 Report, OFCCP is drafting proposed amendments to the recordkeeping and affirmative action program (AAP) regulations at 41 CFR parts 60-1 and 60-2 designed to require the use of consistent race and ethnic categories in the Executive Order 11246, as amended (Executive Order) program.
Comments: OFCCP will publish a proposed regulatory change in the Federal Register “soon,” which means it will be several months before the final rule is published. It is not feasible for the government to expect contractors to have it/report it both ways, therefore, OFCCP will allow the new standards (required by EEOC) to be utilized and no citations (based upon the race and ethnic categories) will be issued if an audit is conducted, i.e., contractors are permitted to prepare AAPs using the racial and ethnic categories provided under the OFCCP regulations or the EEOC new categories. To review this OFCCP guidance, go to their web site at: http://www.dol.gov/esa/regs/compliance/ofccp/EEO1_Interim_Guidance.htm
__________________________________________________
August 20, 2007
CAESARS PALACE TO PAY $850,000 FOR SEXUAL HARASSMENT AND RETALIATION-Supervisors Forced Sex on Hispanic Female Workers, EEOC Charged
LAS VEGAS - Caesars Palace will pay $850,000 to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC had charged that the Las Vegas resort/casino’s Latina kitchen workers were subjected to repeated and sometimes severe sexual harassment.
In its 2005 lawsuit against Desert Palace, Inc., doing business as Caesars Palace, the EEOC asserted that male supervisors would demand and/or force female workers to perform sex with them under threat of being fired. Women, predominantly monolingual Spanish speakers, were forced to have sex in makeshift sex rooms. In addition, EEOC claimed that supervisors performed other lewd acts on or in front of women, including unwanted sexual touching.
The EEOC also charged that management failed to address and correct the unlawful conduct, even though women complained about it. Further, the EEOC said, when workers complained about the unlawful conduct, they were retaliated against in the form of demotions, loss of wages, further harassment, discipline or discharge.
Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a voluntary settlement.
“In a case like this where many of the workers were monolingual Spanish speakers, victims of sexual harassment often feel further isolated, marginalized and unable to vindicate their rights,” said Anna Park, Regional Attorney for the EEOC’s Los Angeles District. “This case also illustrates that employers need to ensure their policies and procedures provide adequate avenues for complaint and redress to non-English speakers.”
Under the three-year consent decree resolving the case, Caesars Palace agreed to pay $850,000 to the employees identified by the EEOC to have been sexually harassed or retaliated against. As part of the injunctive relief, Caesars Palace further agreed: (1) to provide training to all employees in English or Spanish; (2) to provide semi-annual reports to the EEOC regarding its employment practices for a period of three years; and (3) to revise its employment policies and procedures to conform to its obligations under Title VII. The EEOC filed the suit and consent decree in U.S. District Court for the District of Nevada (EEOC v. Caesars Entertainment, Inc., et al., 2:05-CV-0427-LRH-PAL).
Olophius Perry, District Director for the Los Angeles District Office, said, “Nevada employers need to be vigilant in protecting workers who have the courage to speak out against egregious discriminatory acts such as those alleged in this suit. The EEOC is determined to protect the civil rights of all workers, and that includes protecting their right to protest illegal mistreatment.”
Caesars Palace is owned and operated by Las Vegas-based Harrah’s Entertainment, which has more than 80,000 employees.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at http://www.eeoc.gov/. __________________________________________________
August 2007
FEDERAL AGENCIES REQUIRED TO USE EMPLOYMENT VERIFICATION
SYSTEM BY OCTOBER 2007.OMB issued guidance which requires federal agencies to begin using a new program meant to verify citizenship status for all new hires, including contractors. The program should be implemented by October 1, 2007.According to an OMB memo (M-07-21), the Employment Eligibility Verification Program, or “E-Verify,” which is operated by U.S. Citizenship and Immigration Services, is meant to confirm employment eligibility of workers.
Formerly known only as the “basic pilot program,” E-Verify allows employers to verify name, birth date, and Social Security numbers. For non-citizens, it provides immigration information against federal databases. The program is also expected to tighten controls on wage and tax reporting.
Agencies are required to provide a contact person to USCIS by August 24. For more information, go to:
http://www.whitehouse.gov/omb/memoranda/fy2007/m07-21.pdf __________________________________________________
$51,525,235 Recovered in FY 2006 for 15,273 Workers Subjected to Discrimination. Improvements at OFCCP Produce Record Financial Recoveries for Record Number of American Workers in Fiscal Year 2006
The Employment Standards Administration’s Office of Federal Contract Compliance Programs (OFCCP) enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended. These laws prohibit federal contractors and subcontractors from discriminating in employment based on race, gender, color, religion, national origin, disability or covered veteran status.
In Fiscal Year 2006, OFCCP recovered a record $51,525,235 for a record 15,273 American workers who had been subjected to unlawful employment discrimination. Of that record recovery, 88% was collected in cases of systemic discrimination - those involving a significant number of workers or applicants subjected to discrimination because of an unlawful employment practice or policy. The $51.5 million reflects a 14% increase over recoveries in FY 2005 and a 78% increase over FY 2001.
Fiscal Year Remedies Compliance Evaluations
2006 $51,525,235 3,975
2005 $45,156,462 2,730
2004 $34,479,294 6,529
2003 $26,220,356 4,698
2002 $23,975,000 4,135
2001 $28,975,000 4,716
Initiatives at OFCCP Yield Dividends
OFCCP’s initiatives of the last several years are making it a more effective and efficient civil rights enforcement agency. Compared with years past, OFCCP more quickly and accurately screens contractor establishments for indicators of potential discrimination with its Active Case Management (ACM) system. Under ACM, which was fully implemented in each of OFCCP’s regions in FY 2005, the agency opens more reviews than it did in the past and the agency uses automated statistical tools to rank and prioritize establishments for further review based on the probability that discrimination would be uncovered during a full-scale review. Although OFCCP completed fewer reviews in Fiscal Year 2005 and 2006 than in previous years, its ACM process has effectively enabled it to better target systemic discrimination.
OFCCP is using ACM to identify and resolve cases of systemic discrimination with greater frequency. OFCCP is monitoring a larger portion of the federal contractor universe than it has in the past and it is prioritizing its resources to addressing the worst offenders of the law.
ACM is an effective mechanism for targeting systemic discrimination: In FY 2005 and 2006, OFCCP closed an average of 11.7% evaluations with a conciliation agreement, compared with 6.7% of evaluations closed with a conciliation agreement in FY 2004.
Clearer Guidance and More Enforceable Standards
Since 2001, OFCCP has enacted policy initiatives and directives to provide clearer guidance for employers and more enforceable standards for OFCCP.
Compensation Standards
In June 2006, OFCCP published in the Federal Register interpretive standards for evaluating compensation practices, providing contractors with the first definitive guidance on the subject ever. The standards will provide the agency a stronger basis for pursuing investigations of possible systemic compensation discrimination because of their transparency and because of their consistency with court rulings on pay discrimination law. OFCCP also conducted 31 Corporate Management Compliance Evaluations (CMCEs), also known as “Glass Ceiling” audits, in FY 2006.
Internet Applicant Rule
OFCCP also recently published a rule clarifying provisions of the recordkeeping requirements for federal contractors concerning who is an “applicant” in the context of the Internet and related electronic data technologies.
Compliance Assistance Efforts
OFCCP also continued to build upon its comprehensive compliance assistance program, conducting more than one thousand compliance assistance events in each of the last three years. OFCCP’s recently enhanced monitoring of the federal contractor universe encourages selfmonitoring by contractors. Compliance assistance outreach helps employers prevent unlawful discrimination in their workplaces by providing them with the information necessary to effectively monitor their workplaces.
Strong Enforcement
A significant portion of the recoveries came from cases referred to the Office of the Solicitor (SOL) for enforcement litigation. In FY 2006, OFCCP obtained over $15 million in financial remedies for more than 3,340 workers in cases referred to SOL. OFCCP also now involves SOL attorneys earlier in its review process and more often in conciliation meetings with contractors.
Financial Remedies Obtained Through SOL Enforcement:
FY 01: $810,000
FY 02: $130,000
FY 03: $11,756,573
FY 04: $11,756,573
FY 05: $6,389,582
FY 06: $15,104,124
Referred Systemic Discrimination Cases
FY 01: 8
FY 02: 4
FY 03: 12
FY 04: 10
FY 05: 16
FY 06: 9
______________________________________________________________________
July 6, 2007
EEOC AMENDS AGE BIAS REGULATIONS TO CONFORM WITH SUPREME COURT RULING
WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) today issued revised regulations on age discrimination in the workplace in accordance with a 2004 Supreme Court decision, General Dynamics Land Systems, Inc. v. Cline. The updated regulations, published in today’s Federal Register, are available on www.eeoc.gov.
The revised regulations clarify that the Age Discrimination in Employment Act (ADEA) does not prohibit employers from favoring an older employee over a younger one when both are protected by the Act. The EEOC initially proposed these changes in 2006 and, after receiving public comments on its proposal, unanimously voted to approve the revisions. The public comments were largely supportive of the revisions, with both business and labor groups supporting the changes.
“With the graying of the American workforce, the ADEA has become more relevant than ever to both employers and employees,” said EEOC Chair Naomi C. Earp. “These revisions harmonize the Commission’s age discrimination regulations with the Supreme Court’s ruling in Cline, which clarified the law on this question. The decision, along with the revised regulations, will aid the EEOC in its enforcement efforts.”
The ADEA protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. The ADEA applies to employers with 20 or more employees, including state and local governments. It also applies to employment agencies and labor organizations, as well as to the federal government.
The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC and the laws it enforces is available on its web site at http://www.eeoc.gov/. ________________________________________________________________
SUPREME COURT SAYS OLDER WORKERS CAN BE TREATED BETTER THAN YOUNGER WORKERS - March 2004
The U.S. Supreme Court has issued a decision saying the “Age Discrimination in Employment Act (ADEA) does not prohibit employers from treating older workers better than younger workers. The ruling came from the case of General Dynamics Land Systems, Inc. v. Cline (No 02-1080), and Justice David H. Souter was the majority opinion. The vote was 6-3. In 2002, the 6th U.S. Circuit Court of Appeals heard the case and said a group of 200 employees over the age of 40 could proceed with their age discrimination suit against the company. At issue was the claim that the company cut off rights to retiree medical benefits for everyone except those over 50 years of age on the qualifying date. Those who filed the class action case were ages 40 - 49.
Be careful, however, before revising your retirement packages without first consulting legal advisors. There could be impact on the Employee Retirement Income Security Act (ERISA) requirements.
________________________________________________________________
TRAINING REQUIREMENTS FOR MANAGEMENT AND EMPLOYEES: California Proposition 54 Rejected - October 2003
Proposition 54, the Racial Privacy Initiative, which would have prohibited state and local governments from using race, ethnicity, color or national origin to classify current or prospective students, contractors or employees in public education, contracting, or employment operations, was defeated. California voters rejected the measure that would have ended collection of racial data. ________________________________________________________________
Courts Agree With Employer Who Banned Confederate Flag From Workplace
2003: Coburg Dairy in Charleston, SC, won a lawsuit filed by Matthew Dixon, complaining that his constitutional rights and the public policy of South Carolina had been violated when he was fired for refusing to remove confederate flag stickers from his toolbox. The U.S. Court of Appeals for the Fourth Circuit made two critical points when making the decision for the employer: 1) The First Amendment to the U.S. Constitution protects citizens only from government or state interference with their rights to free speech. Coburg Dairy is not a state entity, and therefore any actions they take would not violate the Constitution. 2) Even if Dixon were a state employee, he still could have been lawfully fired for his refusal to remove the decals, and the employer acted in an effort to keep conflict among its employees at a minimum and to avoid potential liability for racial harassment under federal law. ________________________________________________________________
Recent OFCCP Settlements in Southeast U.S.:
- Perdue Farms, Dillon, South Carolina - Affected Class (hiring) (gender and race) - Total $1.7 million
- Jimmy Dean Foods, Newbern, Tennessee - Affected Class (hiring) (gender-women) Total $1,140,000
- Oliver Rubber, Asheboro, NC - Affected Class (gender - women) - Total $336,324
- McKesson Atlanta Distribution Center, Atlanta, GA - Affected Class (hiring) (gender - women) - Total $156,215
- Boise Cascade, Charlotte, North Carolina - Affected Class (hiring) (race - minorities) Total $181,718
- The Medical University of South Carolina (MUSC), Charleston, SC - Disparate Impact (gender-women) Total $115,720
- Pictsweet Frozen Foods, Bells, Tennessee - Affected Class (hiring) (black and white Applicants)- Total $2,388,059
NOTE: Sexual harassment cases seem to be escalating. Several of the recent EOC rulings have included settlements in favor of the complainants. To emphasize the seriousness of these decisions (and the high dollar awards), we have provided more in depth information relating to a few of the cases (below). Remember: Employers are responsible for establishing effective sexual harassment policies and training employees and managers to fully understand requirements. ________________________________________________________________
Pizza Hut to Pay $360,000 for Settlement of Sexual Harassment Complaint
July 2003 - The EEOC announced the settlement of a sexual harassment lawsuit against Pizza Hut, the national restaurant chain based in Dallas, Texas, for $360,000 on behalf of four female former employees who were subjected to a sexually hostile work environment. The settlement also includes a number of anti-discrimination training obligations, review of appropriate complaint procedures, and record-keeping and reporting obligations to be monitored by the EEOC over the duration of the two year term of the Consent Decree.
Among other things, the EEOC’s lawsuit alleged that former female employees were sexually harassed by a co-worker at a Pizza Hut restaurant in Diamond Bar, Calif. The harassment included sexual touching and groping.
The lawsuit also alleges that Pizza Hut had notice of the sexual harassment and failed to prevent and/or promptly correct the unlawful behavior. In addition, the suit charged the employer with the constructive termination of the women. ________________________________________________________________
EEOC Wins $1.55 Million Dollar Jury Verdict in Sexual Harassment Suit Against Florida Restaurant
The EEOC today announced that a jury in Federal District Court in Tampa, Florida, has returned a $1,550,000 verdict in a major sexual harassment lawsuit brought by the EEOC and the private law firm of Florin, Roebig & Walker, P.A. The lawsuit was originally brought against Applebee’s International, Inc., Rio Bravo International, Inc. and Innovative Restaurant Concepts, Inc. for sexual harassment occurring from approximately 1994 until early 1998 at their formerly owned Rio Bravo Cantina restaurant in Clearwater, Florida.
The jury rendered a verdict in favor of the EEOC and private plaintiffs, awarding $10,000 each to the five women represented in the case to compensate them for the emotional pain and suffering they endured, and awarded punitive damages against the remaining two corporate defendants in the amount of $500,000 each forthree of the five women.
The EEOC lawsuit, filed in 1999, said that former waitresses and hostesses were subjected to egregious acts of verbal and physical sexual conduct on the part of one of the employer’s assistant managers and, despite repeated complaints to management, the corporate defendants failed to take necessary steps to stop the harassment. The harassment of the young women included touching, groping and rubbing their breasts, legs and buttocks in a sexually offensive manner; forcing the women to sit on the assistant manager’s lap before leaving their shifts; attempting to kiss them; and making graphic, offensive sexual remarks. EEOC asserted that the women repeatedly complained to management about the sexually offensive conduct; however, the corporate defendants failed to implement corrective action, allowing the behavior to continue and escalate. ________________________________________________________________
The Supreme Court Decides On Constitutionality of Gay Sex Law
Associated Press
On April 24, 2003, the Supreme Court struck down a ban on gay sex, ruling that the law was an unconstitutional violation of privacy. The 6-3 ruling reverses course from a ruling 17 years ago that states could punish homosexuals for what such laws historically called deviant sex. Laws forbidding homosexual sex, once universal, now are rare. Those on the books are rarely enforced but underpin other kinds of discrimination, lawyers for two Texas men had argued to the court. The men ”are entitled to respect for their private lives,” Justice Anthony M. Kennedy wrote. ”The state cannot demean their existence or control their destiny by making their private sexual conduct a crime,” he said.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer agreed with Kennedy in full. Justice Sandra Day O’Connor agreed with the outcome of the case but not all of Kennedy’s rationale. Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas dissented.
________________________________________________________________
Judge: Woman Can’t Wear Veil in ID Photo
A Florida judge ruled Friday that a Muslim woman cannot wear a veil in her driver’s license photo, agreeing with state authorities that the practice could help terrorists conceal their identities.
After hearing three days of testimony last week, Circuit Judge Janet C. Thorpe ruled that Sultaana Freeman’s right to free exercise of religion would not be infringed by having to show her face on her license. Thorpe said the state “has a compelling interest in protecting the public from criminal activities and security threats,” and that photo identification “is essential to promote that interest.” ________________________________________________________________
04/09/2003: EEOC Announced Largest Sexual Harassment Settlement Ever in New York
On April 9, 2003, the U.S. Equal Employment Opportunity Commission (EEOC) announced its largest sexual harassment settlement ever in the state of New York for $5.425 million and significant remedial relief on behalf of a class of female workers at Lutheran Medical Center (Lutheran), a hospital based in Brooklyn, New York.
In the lawsuit filed under Title VII of the Civil Rights Act of 1964 (EEOC v. Lutheran Medical Center, No. 01-5494, E.D.N.Y.), EEOC alleged that Dr. Conrado Ponio, during his employment at Lutheran, abused his authority by sexually harassing a class of female employees when conducting employment related medical examinations. The sexual harassment included invasive touching and intrusive questions about the employees’ sexual practices. Additionally, the EEOC alleged that Lutheran knew or should have known of the sexual harassment and failed to take adequate measures to prevent such harassment. Eight female employees had filed charges with EEOC that led to the litigation, which was filed after the agency exhausted its conciliation efforts to reach a voluntary pre-litigation settlement.