It is very important for prospective employers to tread carefully when they learn an applicant is pregnant. Brown & Brown of Florida, learned an expensive lesson on pregnancy discrimination and recently settled a legal claim (EEOC v. Brown & Brown of Florida, Inc.) related to this issue.
The plaintiff, Nicole Purcell applied for an entry-level position at brokerage firm of Brown & Brown in Daytona, Florida. She was shortlisted for the position after multiple rounds of interviews. The company gave her an offer of employment. Once the plaintiff received the offer, she contacted the company’s Employee Services Coordinator to accept and asked the coordinator about maternity benefits, while announcing that she is pregnant.
About 30 minutes after the call, the coordinator sent the plaintiff an email rescinding the job offer citing that the company needed somebody in the position “long term.”
The plaintiff filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC in turn filed a federal lawsuit on her behalf against Brown & Brown. This lawsuit was later settled for $100,000 – quite a hefty price tag for what amounts to 30 minutes of employment.
Takeaways for Employers
Had the company engaged in an interactive conversation with the applicant regarding any limitations she might have developed related to her pregnancy, and whether any potential limitations existed affecting her ability to do her job that could be accommodated, it is possible that much that followed could have been avoided.
Here are some DOs-and- DON’Ts that might be helpful for employers faced with a similar situation.
- Don’t assume that a pregnant applicant (or employee) is unable to do a job or will be absent for an extended period of time.
- Do engage in the interactive process with the pregnant employee (or applicant) and discuss any limitations she might have performing essential job functions because of her pregnancy and what accommodations can be made.
- Do document all discussions with pregnant employees (or applicants) relating to the interactive process and possible accommodations.
- Do assure the pregnant employee (or applicant) that the company complies with all federal and state laws regarding pregnancy leaves.
- Don’t renege an offer of employment (or terminate an existing employee) because the individual is pregnant.
A lawsuit recently filed by the EEOC against SLS Hotel South Beach serves as a reminder to all employers that discrimination in employment decisions can lead to an EEOC claim.
In this lawsuit, the EEOC has alleged that a group of at least 15 Haitian workers (all of them dishwashers or stewards) were treated differently than Hispanic workers with similar duties by hotel management because of their race, national origin, or skin color before being fired from the hotel in 2014.
Specifically, the EEOC’s complaint alleges that the workers were specifically told by managers, supervisors and chefs not to speak Creole, even to each other, while Hispanic workers were not reprimanded for speaking Spanish at work. The EEOC also claims that managers and chefs called the black Haitian dishwashers disparaging names, including “f—–g Haitians,” and referred to them as “slaves.”
Finally, the EEOC contends that the Black Haitian steward/ dishwashers were unlawfully replaced with light-skinned Hispanics when the company chose to outsource the steward/dishwasher positions without providing the black Haitian employees an opportunity to apply to the staffing agency before their termination. The terminations, per the complaint, were not performance-based
Take Home for Employers
Every organization should ensure that their Human Resources Department investigates all claims brought by employees to ensure there are appropriate checks and balances. Complaints should not just sit on a desk catching dust. There needs to be policies in place that provide set guidelines on how employee complaints are handled. Furthermore, there needs to be follow up with the employee who makes the complaint to ensure they are aware that their complaint is handled and is taken seriously by the company.
The only safeguard for HR is to ensure they practice due diligence when dealing with all complaints and document all necessary information from investigations. Documentation and thorough investigations are key to ensure that discriminatory practices are prevented and deterred in the workplace. Furthermore, employers should not avoid liability by using a staffing agency to discriminate when they cannot lawfully do so on their own.
Big News for PEOs and PEO Clients
Last week, Congress passed the “Small Business Efficiency Act
” (SBEA). The SBEA promises to make life easier for Professional Employment Organizations (PEOs) and their clients.
The SBEA authorizes changes to the Internal Revenue Code to establish “Certified Professional Employer Organizations” or “CPEO.” To be certified, a PEO must meet specified background and experience requirements, undergo financial review and meet bonding requirements.
Once certified, PEOs will enjoy certain benefits, including:
- Clear statutory authority to collect and remit federal employment taxes as an employer for payroll and tax purposes;
- No more wage-base “restart” for certain payroll tax purposes for PEO customers that join or leave a PEO relationship mid-year; and
- Specified federal tax credits which customers would be entitled to claim if there were no PEO relationship.
The IRS must issue regulations to implement the SBEA by July 1, 2015. The SBEA becomes effective on January 1, 2016.