GINA, transgender employees, methadone use, and a temporary restraining order prohibiting retaliation during litigation are among the issues raised in cases resolved by the Equal Employment Opportunity Commission last quarter. As usual, I’ll highlight the cases that struck me and provide basic data on the other settlements.
Doctors Need Different Medical History Questionnaires for Pre-employment Physicals.
Doctor questionnaires frequently ask about family history of heart disease or cancer. Conditional employment offers pending medical examinations are not uncommon. If you combine the two . . . problem. The Genetic Information Non-Discrimination Act (GINA) prohibits employment discrimination on the basis of genetic information, and family medical history counts as genetic info. The employer agreed to provide “significant relief,” including stopping the practice and training management.
Transgender Employment Rights.
Brittany Austin presented as male when hired by Deluxe Financial Services Corp. After years of satisfactory work, she informed her supervisor that she was transgender and began to present as a woman. Employer refused to let her use the women’s restroom. Coworkers, including supervisors, used hurtful epithets and intentionally referred to her as “he” and “him.”
EEOC sued under Title VII alleging sex discrimination. Employer settled for (1) payment of $115,000, (2) letters of apology and reference, and (3) a consent decree that includes providing health insurance without exclusion for medically necessary care based on transgender status, among other relief.
Don’t Discriminate Against Methadone Users, says the EEOC. Staffing agency asked for a urine sample. Client disclosed she was in a medically-supervised methadone treatment program. The agency replied it would not hire her. This conduct violated the Americans with Disabilities Act (ADA). Agency paid $50,000 to applicant.
TRO to Protect Witnesses and Claimants.
EEOC sued Evans Fruit of Yakima, Washington over sexual harassment of female farmworkers. EEOC obtained a TRO and preliminary injunction against the company and manager after they had threatened and intimidated workers who had helped the EEOC. Employer prevailed in in the district court, and the case settled while on appeal to the Ninth Circuit for $272,000 to 20 claimants. What struck me, however, is the strategy of seeking a TRO against termination or other retaliation against witnesses or claimants. Often, people fear asserting their rights because putting food on the table today is more urgent than asserting their rights to a workplace free from harassment.
Cameras to Monitor Hostile Workplace.
Cheddar’s Casual Café was too casual. Sexual harassment was rampant. Managers requested sexual favors and were grabby. Women’s complaints did not change the situation.
Employer agreed to pay $450,000 to 15 workers. The settlement, like many others, required the employer to train employees on harassment and report future complaints to the EEOC. Unlike others, this settlement also required the maintenance of workplace cameras and monitoring of workplace behavior. Next time, “she said” will have video confirmation, or not.
ADA Standards Differ!
Employers get in trouble when they comply with one law or use standards set for other contexts without also considering the Americans with Disabilities Act. Two cases in point.
A paper manufacturer required forklift drivers to pass U.S. Dept. of Transportation physical examinations. DOT exams are not required for forklift drivers, but the company used it as a surrogate. The effect was to keep qualified people with disabilities from the job. ADA requires employers to conduct individualized assessments of employees’ ability or determine if a reasonable accommodation would enable them to work. Employer paid $180,000.
Cessna Aircraft relied on workers’ compensation guidelines with respect to hiring employees. Once again, employer did not make individualized assessments of whether the employees could perform the essential functions of the job. Employer paid two employees a combined total of $167,500.
Dumb Employer Award.
This quarter’s dumb employer award goes to Seymour Midwest, a tool manufacturing company. Its email-based interview asked the applicant if he were in the ideal age range of 45-52. He was older; the company did not hire him, and paid $100,000 to settle his age discrimination claim. Maybe next time, they’ll also publish their ideal race and gender.
Below is my summary of other resolutions. Note that nearly all settlements included non-monetary consideration, some of which is very significant.
|NATIONAL ORIGIN / SEXUAL HARASSMEMT. Vail Condo Association allowed housekeeping manager to sexually harass Mexican female employees, including attempted rape, sex talk, propositioning, graphic sexual pictures, groping, and physically assault. Also, he threatened women with termination and deportation if they complained.||
|NATIONAL ORIGIN / RETLAIATION. Mining company subjected employee to harassment based on Polish ancestry. Ethnic slurs, offensive graffiti.||
|SEX DISCRIMINATION – REFUSAL TO HIRE. Mavis Tire Supply did not hire women in its 140+ stores as managers, mechanics and tire technicians. Settlement to be divided among 46 women||
|AGE AND SEX DISCRIMINATION. Medical device and equipment manufacturer engaged in pattern of NOT hiring women over age 40 during a three-year period when it hired more than 70 sales people. Settlement is for class of rejected job applicants.||
|RELIGION DISCRIMINATION. Hebrew Pentecostal is a Christian religion that does not work from sunset Friday to sunset Saturday. Employer asked the bookkeeper to work Saturdays. Employee refused and requested the accommodation of working Sundays or late nights. Employer fired him.||
|DISABILITY DISCRIMINATION. Employer Presence Health did not return employees on medical leave to their positions or other suitable and available positions. Instead, it terminated them or placed them on disability leave. On behalf of a class, EEOC settled for monetary and other relief.||
|DISABILITY DISCRIMINATION. Employee visually impaired due to diabetes requested adaptive technology. Employer never responded to accommodation request and removed him from his job.||
|DISABILITY DISCRIMINATION. Applicant disclosed prior back injury during post-offer medical examination. Exam showed no abnormalities or restrictions. Yet, employer wanted applicant to pay for $2,000 MRI, which applicant could not afford. Employer deemed this a rejection of the conditional offer. Court judgment: $33,000 back pay and interest plus $62,500 in compensatory damages.||
|DISABILITY DISCRIMINATION. Employer refused to extend additional unpaid leave after surgery for herniated disk. Fired her. Refused to rehire.||
|SEXUAL HARASSMENT. County Market Store subjected class of women to sexual harassment that included unwelcome physical contact. Employer must provide annual training and report to EEOC all complaints, among other consideration.||
|SEXUAL HARASSMENT. The manager at Taboo 2 Bar subjected six female servers to groping, indecent exposure, sex talk, quid pro quo promises. Servers who rejected sex offers got less profitable jobs. Some quit because of intolerable working conditions. Judgment to be addressed in Taboo 2’s bankruptcy.||
|SEXUAL HARASSMENT. Manager grabbed breasts of groundskeeper / housekeeper, exposed himself, touched other women employees and engaged in other repeated and egregious harassment. Supervisor of manager took no action. When one victim threatened to report to higher supervisor and harasser’s wife, they fired her.||
|SEXUAL HARASSMENT. Grocery store manager harassed Sharon B. with lewd comments, requests for sex, physical harassment and sexual assault. Store owner failed to act.||
|SEXUAL HARASSMENT. Warehouse manager regularly harassed women with comments, gestures, propositions, physical touching, and offered money for sex. He created a culture such that male workers followed his lead and harassed coworkers. Company no longer operating.||
|RACE DISCRIMINATION. Manufacturing company hired white applicant instead of biracial man who had passed all job assessment tests and had previous related work experience.||
|AGE DISCRIMINATION. “Younger and peppier” employees is what the equipment rental company owner wanted. He terminated a 52 year old, seeking “young blood.”||
|AGE DISCRIMINATION. Popeye’s employment application asked for date of birth. During interviews, the general manager asked two different applicants how old they were and told them they were “too old” to work for the restaurant. EEOC sued on behalf of three applicants, ages 54, 40 and 58.||
|SEX DISRIMINATION – PAY. Female director of operations found the pay stub of the man whose job she filled. She was paid less than the three male directors.||
|SEX DISRIMINATION – PAY. Female purchasing director paid less than men.||
|SEX DISCRIMINATION – PAY + RETALIATION. Female order selector paid less than males. When bosses learned of her plan to file a charge, boss told supervisor to fire her without making it look unlawful, including unwarranted disciplinary actions.||
|PREGNANCY DISCRIMINATION. Pharmacy fired two pregnant employees within weeks of each other.||
|PREGNANCY + DISABILITY DISCRIMINATION. Licensed practical nurse had a medical condition that was controlled with medication. When she became pregnant, she ceased the medication, causing her symptoms to become uncontrolled. Her doctor placed employee on bed rest. Three days later, the company fired her for absences related to pregnancy and medical condition.||
|PREGNANCY DISCRIMINATION. Moving company did not believe it was safe for pregnant woman to perform the packer job. Owner told crew leader to not bring her to work because of her size and because she looked terrible. Employer fired her that same day.||
|PREGNANCY DISCRIMINATION. Employer told temporary staffing agency not to send woman to the job because she was pregnant. Employer was afraid she’d be hurt in the warehouse. Employer paid the settlement.||
Jeff Merrick, Mediator