Must employer accommodate a religious belief that its biometric time clock is a “Mark of the Beast?” May employee obtain a temporary restraining order against imminent termination? Under what circumstances can criminal background checks constitute discrimination?
Answers to these questions plus summaries of all EEOC resolutions reported last quarter follow.
Mark of the Beast in Coal Country.
CONSOL Energy began tracking employees’ time and attendance using biometric hand scanning. Mr. Butcher, a 35 year employee, objected. This was the Mark of the Beast, which would cause him eternal torment and keep him from his Lord. CONSOL tried to reason with Mr. Butcher: The machine leaves no mark; you can use your left hand (Revelations refers to the right hand). The employer did not offer any other way to track time and attendance.
So, Mr. Butcher retired. A judge and a jury found Mr. Butcher sincere and the employer failed to accommodate his religious belief. The judge awarded $586,860.
TRO prevented firing.
Ms. Ramirez worked at a family-owned bakery for 14 years, often enduring derogatory comments about Mexicans. She filed EEOC charges; the company retaliated with a defamation lawsuit. An arbitrator ordered reinstatement, but the company delayed reinstatement. Next time the company tried to fire her, the EEOC ran to court, and the judge found the employer gave no legitimate business reason for the firing and EEOC was likely to succeed on the merits.
As applied, Criminal History Screen cost BMW $1.6 million.
BMW switched logistics contractor. The contractor allowed former employees to reapply. When the contractor used BMW’s criminal conviction guidelines on incumbent employees, 80% of those disqualified were African American.
When a screening method disproportionately excludes people by race, the employer must evaluate whether the policy is job related and consistent with business necessity. BMWs policy resulted in terminating many long-term employees whose convictions were long ago and regardless of whether misdemeanor or felony. BMW agreed to rehire many employees and change its guidelines.
Several Non-Hiring Cases Last Quarter.
- Target paid $2.8 million. Its employment assessments disproportionately excluded applicants based on race and sex. Also, one of the assessments performed by psychologists constituted a pre-employment medical examination, which an employer may not use before extending an employment offer.
- No ambiguity about a trucking company’s pre-offer medical exams. It paid $200,000.
- Dunkin’ Donuts hired a young guy and said he could start Friday. He said, as a Seventh-Day Adventist, he could not work sunset Friday through sunset on Saturday. Dunkin’ Donuts withdrew the offer. It paid $22,000 to end the lawsuit.
- A trucking company used a strength exam as a condition of employment. The exam adversely impacted women and people over 40. The exam did not precisely measure the strength actually required by the jobs, and company agreed to stop using it.
- Two hiring cases involved age. Enterprise Rent-A-Car paid $425,000 to resolve allegations that it did not hire people over 40 into management trainee positions. A legal staffing company withdrew an offer for temporary work shortly after learning that the attorney was age 70. It paid her $85,000.
- Health care company paid $80,000 to settle ADA claim arising from revoked job offer after learning of worker’s multiple sclerosis that had not yet developed major symptoms.
- “Congratulations, you’re hired. Did you say your wife is disabled? Never mind.” A conversation along those lines cost Waste Connections, Inc. $45,000.
- Food service company that rejected applicant with a record of heatstroke and renal failure paid $40,000.
Wild Times at the Call Center.
Male and female supervisors, 13 of them, harassed female and male employees: groping touching, propositioning. Male employees who did not want lap dances or respond to repeated sexual advances by female supervisors were accused of being gay – that is, sexually harassed both physically and through gender stereotyping. The employer paid $600,000.
The Rest of the Resolutions.
Here’s my summary of other third quarter resolutions. As with the settlements above, consideration usually includes more than money. Often, regular training and promises to comply with law are part of the settlements.
Sexual Harassment / Discrimination
After default, jury awarded $2,425,000 compensatory plus $15 million punitive damages for rape, attempted rape, groping, and being fired for opposing the harassment by two sons of the owner and another male supervisor of Moreno Farms.
|Women in traditionally male jobs with Con Edison complained about harassment and unequal treatment. They worked with men in the field, power stations and other strenuous activities. Allegedly, the employer denied opportunities for training, equal jobs, and discriminated in performance evaluations and overtime assignments.||$3.8 Million|
|Indiana grocer simply believed that men should be night-crew stockers. It denied women those jobs.||$200,000|
|Shift coordinator regularly touched a woman machine operator. After she complained to the supervisor, she received more difficult work, less money, and other adverse actions.||$120,000|
|Toyota salesman hired an assistant. Part of the assistance he wanted was sexual, apparently. When she said, “no,” he said, “you’re fired.”||$30,000|
Bar told cocktail waitress to begin her maternity leave early, soon after she started to show.
|Hired in May, employee told employer in June that she wanted maternity leave in August. Supervisor began planning to cover her work. However, when owner learned of the pregnancy, he fired employee.||$48,000|
|Aircraft mechanic fired after she notified company she was pregnant and had a medical condition.||$60,000|
Dialysis clinic fired 14 year employee for exceeding its medical leave policy. She needed more than four months to deal with her mastectomy and chemo. Company did not rehire her when released without restrictions two months later. Instead, it hired a freshly-minted nurse.
|Brookdale Senior Living failed to engage in interactive process within reasonable terms after worker sought temporary modified work schedule, ergonomic chair and lighting adjustments for fibromyalgia. Brookdale wanted her to return to work without any restrictions.||$112,500|
|Trucking company also required employees to be 100% before returning to work. No leave beyond 12 weeks. No transfer to light duty.||$300,000|
|Orion Energy worker needed wheelchair and an automatic door opener to return to work. Orion said no door opener and allegedly fired him for seeking accommodations.||$160,000|
|Roto Rooter denied Iraq War veteran reasonable accommodation for service-related disability||$100,000|
|Care center did not care to employ an administrator after she disclosed her epilepsy during medical exam.||$42,000|
|Mississippi HomeCare learned of employee’s epilepsy from seizure and failed to engage in interactive process.||$100,000|
|Manufacturing company did not let senior employee — who lost his right hand on their job — bump junior employee during reduction in force.||$65,000|
|Rehab facility fired admissions director while out on medical leave, just one week before she could return to work.||$55,000|
|Temp agency refused to place woman with hearing impairment||$25,000|
Florida adult entertainment club fired African American bartender and the manager who opposed and refused to participate in discrimination.
|Manager in a Cleveland company frequently used racial and sexual slurs and treated African American employees less favorably.||$80,000|
Age and Sex Discrimination
Private school questioned fitness of new hire after learning he had retired from prior job. Ageist and sexist comments preceded his prompt termination.
Blind Veterans Association questioned two employees about retirement plans. Then, it reclassified their jobs. Then, it refused to consider the 76 and 70 year old employees for newly created jobs for which they were well qualified.
|Wisconsin employer fired two employees when they reached age 62, after having worked there for 16 and 25 years.||$140,000|
Female police officer in Kauai reported harassment. She became target of several internal affairs investigations. EEOC found reasonable cause to believe retaliation. Police cleared her record and paid.
|Female employee questioned why she earned less than men. Company demoted her to worse job that she could not perform because of arthritis and carpal tunnel syndrome. Then, employer refused accommodations.||$72,500|
|The first time she complained about being slapped on her butt, nothing happened. The second time she complained, she got fired.||$50,000|
|An employee of Daimler Trucks was fired after only the first complaint about being “touched on her buttocks inappropriately.” (as compared to “appropriate?”)||$40,000|
|Texas Oil Field Services Company fired its only woman roustabout after she reported sexual harassment.||$30,000|
Jeff Merrick, Mediator