Tag Archives: EEOC

NEW TOOL: The EEOC Makes It Easier For Employees To File Discrimination Charges

Watch out employers!  The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide.  With this new tool, employees are now able to easily initiate a charge with the EEOC.

Using this new system, employees are able to file a discrimination charge with the EEOC online.  In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation.  Specifically, employees who have filed an EEOC charge can use this new portal to:

  • Provide and update contact information;
  • Upload documents to the charge file;
  • Check the status of his or her charge;
  • Agree to mediation; and
  • Receive charge documents and messages from the EEOC.

REMINDER — Engaging In The Interactive Process Is An Ongoing Duty

The interactive process is not a “one and done” affair.  This is something that employers tend to forget when trying to provide a reasonable accommodation to a disabled employee.  To properly comply with the Americans with Disabilities Act (ADA), sometimes employers must engage in the interactive process numerous times to meet their statutory obligations.  Failure to do so can prove costly – as one medical center recently learned.

What Happened?

On September 13, 2017, the EEOC announced that a Mississippi medical center (Vicksburg Healthcare, LLC, dba River Region Medical Center) agreed to pay $100,000 to settle a federal disability discrimination lawsuit filed against it by the EEOC.

According to the lawsuit, the medical center refused to engage in the interactive process with an employee who had requested an accommodation for a disability.  The employee had taken approved sick leave in order to have shoulder surgery.  Before her sick leave expired, the employee contacted her employer and requested a reasonable accommodation of an extension of her leave, or to return to work on light duty – because her healthcare provider had said she needed more time to fully recover from the surgery.

Rather than engage in the interactive process with the employee, the medical center refused to extend the employee’s leave of absence and also refused to temporarily place the employee in an available light-duty position for which she was qualified.  Instead, the medical center terminated the employee.

What’s wrong with that?

While the employer had already provided the employee with one reasonable accommodation for her disability (time off from work to undergo surgery), the Americans with Disabilities Act requires employers to engage in an “interactive process” with an employee who has a disability to determine what kind of reasonable accommodations it can provide.

As the title to this article suggests – this is an ongoing duty.  Employers cannot “rest on their laurels” once one accommodation is provided and refuse to consider providing additional accommodations when the one provided is no longer sufficient.  Instead, the employer must re-engage in the interactive process to determine whether an alternative accommodation can be provided.

Most importantly to employers (and of critical significance in this case), when a leave of absence is provided as a reasonable accommodation, employers cannot be inflexible in the amount of leave provided.  An employer cannot simply provide a fixed amount of leave to an employee and, when that leave is exhausted, refuse to provide any other accommodation.  Instead, the employer must re-engage in the interactive process with the employee and possibly consider extending additional leave or some other type of accommodation.

Final Thoughts

Providing reasonable accommodation to disabled employees is not a “one-size fits all” process.  Different employees have different needs when it comes to accommodation.  Two employees with the same disability can require different accommodations to perform the essential functions of the position.  One employee might only require one accommodation, while another employee might require multiple accommodations or even new accommodations at a later date.  The only way to determine what will reasonably accommodate an employee is to engage in the interactive process with the employee as many times as necessary to determine what type of accommodation, if any, will work for this particular employee’s situation.

Could your organization potentially be accused of Employment Discrimination?

Federal law (Title VII) prohibits discrimination based on: race, color, religion, sex (including pregnancy), national origin, mental or physical disability, age, gender, genetic information, and citizenship.

Recently Palantir Technologies in Palo Alto, CA settled a claim of $1.66 million for discrimination against Asian applicants in the hiring and selection process of their engineering positions, even though they employed and hired several Asian candidates. We can take away two lessons from this case:

  1. Take care when using an Employee Referral Program in your recruitment process.
    1. Although your best employees may refer great applicants, they may not refer an adequate flow of diverse applicants. The EEOC found that Palantir’s preference for referrals in the screening process resulted in disproportionate number of non-Asians in the applicant pool (adverse impact).
      • If you use an Employee Referral Program, find ways to assure you are encouraging a diverse applicant pool and test your results.
  2. Look at the numbers.
    1. The hiring ratio for 3 of Palantir’s engineering positions were found to be grossly discriminate.
    2. Check your hiring ratio’s.
  • One way to check your hiring ratio’s is by using the 4/5ths rule (or 80% rule). Although use of this test will not assure that the EEOC will not pursue a claim, it is one tool that they have used to show positive or negative diversity in the hiring process.
  • More recently the EEOC has been using a different hiring test. In the case against Palantir the EEOC compared the company’s hiring rate of Asian candidates to the rate that would likely occur if Palantir simply selected from the qualified candidate pool randomly. In this case, the position of Quality Assurance Engineer Intern Palantir hired 17 non-Asian’s and 4 Asian applicants (19%) from a pool of 130 qualified applicants (73% of the applicants were Asian). The EEOC concluded the likelihood that they would choose an Asian was 1 to 1 Billion.

Additional Information For Employers

South carolina employer Learns a $45K Lesson about Retaliation

Desco Industries, Inc. has agreed to pay $45,000 to settle a retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  In this lawsuit, the EEOC claimed that the company terminated an African American employee in retaliation for complaining about race discrimination.

According to the charge, the employee (Daniel Worthy) had been employed by Desco through a staffing agency.  During his employment, Worthy expressed interest in the forklift position to the warehouse foreman.  Based on his discussion with the foreman, Worthy was lead to believe that he was “next in line” for an open forklift position.

However, Worthy (who is African American) later saw a non-black employee operating a forklift and he complained to the staffing agency that he had been discriminated against because of his race.  The staffing agency passed the complaint onto the company and, within days of receiving the complaint, Worthy was terminated.

In its charge, the EEOC alleged that Worthy had been terminated in retaliation for complaining about discrimination.

This settlement serves as a reminder to all employers that employees who report suspected employment discrimin­a­tion are protected from retaliatory adverse employment actions under federal law.  Prior to terminating any employee, it is recommended that employers review the employee’s personnel file and verify that the employee has not recently engaged in any protected action (like reporting discrimination), which may make the termination appear retaliatory.  If there is a recent protected activity, employers should consult with an HR Professional or an employment attorney before terminating the employee.

Houston manufacturing facility Learns a $150K Lesson about Religious Discrimination and Retaliation

U.S. Steel Tubular Products, Inc., a subsidiary of United States Steel Corporation, has agreed to pay $150,000 to settle a religious discrimination and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC).  In this lawsuit, the EEOC claimed that the company engaged in religious discrimination during its pre-employment drug screening process.

Specifically, according to the EEOC, the company had hired Stephen Fasuyi a member of the Nazirite sect of the Hebrew Israelite faith, as a utility technician. The job offer was contingent upon Fasuyi passing a pre-employment drug test.  The test used by the company was a hair follicle drug test, which requires cutting hair from the subject’s scalp, which went against Fasuyi’s sincerely held religious beliefs (the Old Testament forbids him from cutting hair from his scalp).  In accordance with this belief, Fasuyi refused to allow the drug testing company to cut hair from his scalp and, instead, offered alternatives — like pulling hair from his beard.  The company refused to entertain Fasuyi’s proposed alternatives, sent him home and, later, revoked the offer of employment.

In its charge, the EEOC maintained that  Fasuyi’s religious beliefs should have been accommodated during the pre-employment testing.

This settlement serves as a reminder to all employers that they are required to consider providing religious accommodations to job applicants when such accommodations are requested.

The Verdict is in — Sexual Orientation is a protected class under Title VII

Is sexual orientation discrimination prohibited under Title VII?

This question, which has long plagued employers, has been recently decided by the Seventh Circuit Court of Appeals. In a landmark decision (Hively v. Ivy Tech Community College of Indiana), the 7th Circuit held that discrimination on the basis of sexual orientation is a form of discrimination that is prohibited under Title VII. This holding aligns with the position taken by the EEOC in its July 2015 administrative decision (Baldwin v. Foxx) that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sex discrimination under Title VII”.

The Case

The plaintiff (Hively) was a lesbian and was open about her sexual orientation. She had been working as a part-time adjunct professor for Ivy Tech Community College for several years. Throughout her employment with the college, Hively applied for several full-time positions for which she was qualified, but she never received an interview. In 2014, the college failed to renew Hively’s contract for the 2014-2015 academic year – effectively terminating Hively’s employment with the college.

Following her termination, Hively filed a lawsuit in the Northern District of Indiana claiming that she was terminated in violation of Title VII – specifically that she was discriminated against because of her sexual orientation.

The college argued that Title VII’s protections did not extend to sexual orientation discrimination and, the trial court agreed – dismissing Hively’s claims.

Hively, however, appealed her case to the Seventh Circuit. After a long battle in court, the 7th Circuit concluded that “discrimination on the basis of sexual orientation is a form of discrimination” and that it “would require considerable calisthenics” to remove the “sex” from “sexual orientation” when applying Title VII to a claim of discrimination based on sexual orientation..

Why Should I Care?

This decision is significant to employers across the United States because this is the first case where a federal appellate court has confirmed that sexual orientation is a protected class under Title VII.

While several states (California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Utah, Vermont, Washington, and Wisconsin) have already included sexual orientation (and, in some cases, gender identity/transgender) under their state anti-discrimination laws, this case sends the message to all employers that Title VII’s protects private workers based on sexual orientation and gives LGBT plaintiffs in other Circuits ammunition to fuel the argument that Title VII protections extend to the LGBT workforce.

In light of this decision, it is recommended that employers in the Seventh Circuit take steps to verify (and ensure) sexual orientation is treated the same as any other protected class in all aspects of their business. This includes updating handbook policies to specifically include sexual orientation to the list of protected classes, training managers and supervisors about the new LBGT protections and verifying that the organization’s hiring, discipline and discharge procedures comply with Title VII.

For employers outside of the Seventh Circuit, this case may be a sign of things to come in your own jurisdictions. It is advisable that employers in states whose state anti-discrimination statutes do not have express protections against sexual orientation practices strongly consider taking similar steps to ensure that sexual orientation is treated the same as any other protected class in all aspects of their business.

Remember Employers — Religious Accommodation Is Not Optional

The EEOC recently filed a lawsuit against a South Carolina trucking company for religious discrimination.

The Claim

The company refused to grant religious accommodation to a Hebrew Pentecostal truck driver who told them that he could not work on the Sabbath for religious reasons. Rather than engage in the interactive process and discuss potential accommodations, the company fired the employee.

Why Should I Care?

Within the past year, the EEOC has pursued several religious discrimination claims relating to an employer’s failure to accommodate an employee’s religious belief and many of those claims involved an employee requesting an accommodation to not work on the Sabbath.

In light of this trend, employers need to remember that an employee’s religious practices and beliefs must be accommodated by an employer — unless it creates an undue burden for the company. In addition, employers are required to engage in the interactive process with the employee to determine the type of accommodation that can be provided. In short, as noted by the EEOC, “employers have an obligation to endeavor to fairly balance an employee’s right to practice his or her religion and the operation of the company.”

The EEOC has developed information to educate employers, employees, and the public about religious discrimination, including Questions and Answers: Religious Discrimination in the Workplace and Best Practices for Eradicating Religious Discrimination in the Workplace. Last December, EEOC released documents for employees and employers that focused on discrimination against people who are or are perceived to be Muslim or Middle Eastern, and an accompanying background summary.

It is recommended that employers review these materials and provide training to their management staff regarding providing religious accommodation.

Texas Roadhouse Learns a $12 Million Lesson about Age Discrimination

The U.S. Equal Employment Opportunity Commission (EEOC) has settled with national restaurant chain, Texas Roadhouse, to resolve a nationwide age discrimination case. The EEOC had charged Texas Roadhouse with violating the Age Discrimination in Employment Act (ADEA) and in engaging in a pattern and practice of discriminating against job applicants who were over 40 years of age by systematically rejecting these “older applicants” for customer-facing jobs, including hosts, servers, server assistants and bartenders.

When commenting on the $12 million settlement, EEOC Deputy General Counsel James Lee confirmed that “The EEOC will vigorously protect the rights of job applicants to ensure that hiring decisions are based on abilities, not age.”

This settlement serves as a reminder to all employers that an applicant cannot be rejected because of his/her age. As explained by EEOC New York District Director Kevin Berry said, “Identifying and resolving age discrimination in employment is critical for older Americans. The ability to find a new job should not be impeded because an employer considers someone the wrong age.”

EEOC reminds employer that an employee’s request for religious accommodation is protected activity under Title VII

The EEOC has long-taken the position that an employee’s request for religious accommodation is protected activity and, under Title VII, employees are protected against retaliation for making such a request. This position is reflected in both the EEOC’s Enforcement Guidance on Retaliation and in its Questions and Answers: Religious Discrimination in the Workplace.

Despite this guidance, in a recent case (EEOC v. North Memorial Health Care), an employer has taken the position that an employee’s request for a religious accommodation is not protected from retaliation under Title VII because it does not fall under the two categories of Title VII protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.

While this employer’s argument has not yet been ruled on by the Court (the Court is currently considering the employer’s motion for summary judgment relating to this point), there are lessons that employers can learn from this case – the most important being that an employee’s request for religious accommodation may be construed as protected activity under Title VII.

As such, it is recommended that employers follow these best practices when responding to an employee’s request for religious accommodation:

  • Establish policies and processes for handling requests for religious accommodation and provide training to managers and HR regarding these policies and processes;
  • Review any request for religious accommodation on a case-by-case basis;
  • Ensure that any adverse employment actions taken against employees are taken for legitimate, nondiscriminatory reasons.

Warning to employers – do not ignore reasonable accommodations during the hiring process!

S&B Industry, Inc., a Fort Worth cellphone repair facility has learned an expensive lesson regarding its obligation to provide reasonable accommodation to job applicants. Following receipt of an EEOC change, the employer has agreed to pay $110,000 to settle an EEOC lawsuit that alleged that the company violated federal law by denying employment to two hearing impaired individuals. The suit also alleged that S&B Industry denied the applicants a reasonable accommodation during the application process.

The case

According to the lawsuit, two young women, Katelynn Baker and Tia Rice, went together to apply for jobs in the company’s cellphone repair facility. The two girls went through an interview and orientation process during which they used American Sign Language to speak to each other, and the company became aware that they were hearing impaired.

During this process the girls asked a supervisor to provide written information about the position they were applying for. At first the supervisor complied, but then refused to continue writing information for Baker and Rice, thereby refusing to provide them with a reasonable accommodation. Baker and Rice were then told that S&B Industry would not be hiring them.

The Americans with Disabilities Act (ADA) protects employees and applicants from discrimination based on their disabilities and requires employers to make reasonable accommodations to employees and applicants’ disabilities as long as this does not pose and undue hardship.

Take away for employers:

The ADA prohibits covered employers from discriminating against people with disabilities in the full range of employment, including recruitment and hiring. An employer is free to hire the applicant of their choice as long the decision is not based on a disability. In addition, the employer should provide a reasonable accommodation to applicants so that they have an equal chance to be successful during the hiring process.

Joel Clark, senior trial attorney for the EEOC, added, “Managers refused to discuss these applicants’ reasonable requests for accommodation, but instead just assumed they could not do the job.  The ADA was enacted to prevent that kind of misguided, fear-driven reaction.”