EEOC Resolutions for 3rd Quarter

logoHostile “huddles?” Slavery in paradise?  Employer website photos evidence discrimination? Severance agreements discourage EEOC complaints?   These cases caught my eye during my review of the EEOC resolutions announced in the Third Quarter of 2014.  Blurbs on them and a summary of all settlements follow.

EEOC continues efforts to maintain its jurisdiction / employee access.

Cardiac Science Corporation laid off 57 employees and offered them severance agreements. One of the employees previously filed an EEOC charge, and the company retaliated by stopping severance payments. When EEOC read the agreements, it said, “Wait, they’re all defective!” All 57 agreements could be read as prohibiting employees from filing EEOC charges of discrimination.

The case reminds me of EEOC’s long-time stance against agreements that discourage employees from filing charges or participating in investigations. Not just severance agreements, but also pre-employment arbitration agreements and settlement agreements.

Previously, so long as the agreements “carved out” the right to file charges and participate in EEOC investigations, employers felt protected. Lately, however, EEOC has been more aggressive. It has challenged common provisions such as (1) broad releases covering all claims, (2) nondisparagement, (3) nondisclosure, (4) certification that the employee has not filed any charges as of the date of the agreement, and even (5) cooperation clauses that require employees to promptly notify the company of contacts relating to legal proceedings. These provisions, says EEOC, can discourage people from filing EEOC claims or cooperating with the EEOC.

McCormick & Schmicks paid $1.3 million to resolve race discrimination claims.

Baltimore locations of Portland-based McCormick & Schmicks allegedly did not want African-Americans in front-of-the-house jobs. EEOC alleged a pattern or practice of refusing to hire black workers for those jobs and denying those job assignments to existing African-American employees. M & S established a $1.3 million claim fund and signed a consent decree setting forth recruitment, and hiring goals, among other things.

EEOC’s allegations included that the employer’s web advertising for job opportunities “contained visual depictions of employees that expressed a preference for non-black workers to the ordinary reader.” Employers, advertising agencies, and employees should take note.

Close to Slavery in Hawai’i as employers abuse Thai Farmworkers

$2.4 million settled the claim of national origin discrimination and retaliation against 500+ Thai farmworkers.  Global Horizons extracted exorbitant fees form Thai workers for the opportunity to work in Hawai’i, which resulted in “debt bondage,” according to EEOC. Once there, denial or delay of pay made things worse, as did having passports confiscated.  Production quotas, denial of food and water, unsanitary conditions and other indignities did not apply equally to non-Thai workers.

Hostile Huddles.

Seemed like a nice idea.  Employees would gather each morning to discuss milestones in their personal lives.  One employee was not comfortable with all the talk of religious and church activities.  He objected to the mandatory meetings.  He filed an EEOC charge, and the company fired him.  EEOC settled for $80,000

Here’s my table of the other settlements.  Again, the settlements usually include additional terms such as training, posting legal duties, reporting to the EEOC, etc.

Race Discrimination / Retaliation

Joint Apprenticeship and Training Committee of the Sheet Metal Workers discharged African-American trainee just two weeks before graduating a 4-year apprenticeship program. JATC cited poor performance despite apprentice’s having satisfactorily completing nearly all eight terms

$34,500

Temporary African-American employee. Boss wanted him gone because of his race. Supervisor refused to discriminate. She hired him into a permanent position. Boss retaliated, eventually terminating the supervisor.

$45,000

Age Discrimination

DSW, Inc., the shoe store, fired employees over age 40 during a reduction in force. EEOC alleged DSW retaliated against employees who opposed the orders to discriminate.

$900,000

Pregnancy Discrimination.

 
Merry Maids is a little less happy after paying to settle allegations that it fired a Team Captain because of pregnancy-related health issues.   She said the issues were minor and did not prevent her from working.

$40,000

Timing, Timing, Timing. Arkansas employer fired a lab technician the same day she let the employer know she was pregnant.

$30,000

Timing, again. Atlanta retailer fired new employee two days after hiring her, immediately after she told the store manager she was pregnant

$15,000

Sexual Harassment / Discrimination

Jennifer worked in traditionally male profession: apprentice electrician. She complained about the harassment, but the company did not investigate or take action.

$55,000

McDonald’s franchise managers harassed four female workers, including teens. Two quit. Innuendo, comments, touching = hostile work environment.

$200,000

Wells Fargo manager and another female bank teller allegedly sexualized the workplace. Gestures, graphic sexual comments, images, touching, suggesting that other women wear sexually provocative clothing = hostile work environment. One worker quit.

$290,000

Restaurant manager sexually harassed female hostess, including propositions, grabbing body parts, and attempts to kiss. This stuff still happens!

$15,000

Oh, oh, O’Reilly auto parts paid for the conduct of female manager who allegedly groped and made sexually offensive comments to male employee.   O’Reilly allegedly did not respond to his complaints adequately.

$35,000

Employer wanted to protect woman from the risk of being assaulted.   So, it only wanted men to work as its part-time courtesy van driver.

$10,500

Unequal Pay. Note to employers: Don’t discriminate against HR directors. They’ll figure it out. This woman noticed the company paid her $35,000 less than her predecessor and $19,000 less than the employer’s minimum salary range for the company.

$182,500

Disability Discrimination

All that and a bag of chips. Walgreens fired an 18-year employee with Type II Diabetes after she ate a $1.39 bag of chips. Store security did not understand nor seek to understand her note of explanation as to why she did not pay first, “My sugar low. Not have time.”   EEOC claimed disability discrimination. The judge noted that the employer failed to allege “misconduct that is unrelated to her disability.”

$180,000

Nursing home fired cook and dietary aid shortly after she began working when he supervisor noticed the worker did not have full use of her left arm.

$35,000

Different nursing home rescinded offer to hire after because of hearing impairment.

$75,000

Job applicant said reason for leaving last job was “medical.”   Popeye’s Chicken manager asked him to disclose what “medical” meant. When applicant said “HIV,” manager said he ain’t working at Popeye’s.

$25,000

Company erroneously placed short-term employee on disability leave.   It revoked leave and fired him two days before he was released to return to work. EEOC said employer violated ADA. Complying with leave laws is not a safe harbor against possible ADA violation.

$20,000

Company terminated employment offer employee disclosed he had a TENS unit to deal with back pain / impairment. Company said, “no place to charge the unit during the day.”   Employee said, “I don’t need no stinking charger.”

$37,500

Retaliation. Manufacturer fired a maintenance mechanic and human resources assistant after they complained about discrimination.

$92,500

Copyright 2014 by Jeff Merrick

Jeff Merrick