EEOC FY 2015 Report

Robin Shea at Constangy has a great article with graphs and charts for the EEOC FY 2015.

http://bit.ly/1SaRg3H

Racists Comments Can Be Protected Activity. What?

In a recent decision from the National Labor Relations Board Division of Judges, racist comments are protected so long as the comments are not imminent threats. On June 5, 2015, Administrative Law Judge, Randazzo, ruled that Cooper Tire & Rubber Company (hereinafter “Respondent”) violated the National Labor Relations Act by terminating an employee for making racist comments.

On January 7, 2012, the Respondent participated in a lockout of the employees. Among those employees was Anthony Runion, a Caucasian male. During the course of the lockout, the Respondent brought in replacement workers, which included several African Americans. As the replacement workers were entering the main gate, Runion began to make several racist comments about smelling “KFC fried chicken” and “watermelon.” On March 1, 2012, the Respondent discharged Runion alleging that Runion’s racist comments violated the Respondent’s harassment policy.

The ALJ concluded that although Runion’s remarks were racist, offensive, and clearly inappropriate, the Respondent violated the NLRA when it fired Runion for remarks that were used in the context of a strike. Further, any comments made by Runion while on the picket line are protected conduct so long as the comments do not constitute a threat.

http://www.nlrb.gov/cases-decisions/administrative-law-judge-decisions

Social Anxiety Disorder Is ADA Disability

Christina Jacobs worked as a deputy clerk at a courthouse in New Hanover County, North Carolina. Jacobs was assigned to provide customer service at the courthouse front counter. After suffering from several panic attacks and extreme stress from her position at the front counter, Jacobs went to one of the supervisors to request a role that involved less direct interpersonal interaction. The supervisor instructed Jacobs to seek medical attention. Once the stress and panic attacks began to increase, Jacobs submitted a second request for an accommodation. Jacobs was terminated following the second request. The United States Fourth Circuit Court of Appeals determined that social anxiety disorder qualifies as a disability because it hinders a person’s ability to interact with others. The court explained that the ADA imposes a good-faith duty upon employers, to engage with their employees, to identify a reasonable accommodation when one is requested.

 

http://www.ca4.uscourts.gov/Opinions/Published/132212.P.pdf

Sexual Harassment in the Workplace

Sexual harassment in the workplace is a common occurrence. There are women, and some men, who suffer from repeated sexual harassment. According to The Restaurant Opportunities Center United, 70 percent of female food service workers are victims of sexual harassment from their bosses. Moreover, 90 percent of women have experienced sexual harassment from customers. Being placed is a hostile work environment is never easy to handle. Reporting this type of harassment should always be a priority.

 

http://rocunited.org/new-report-the-glass-floor-sexual-harassment-in-the-restaurant-industry/

U.S. Supreme Court Case - Potential Victory for Pregnant Employees

 

On March 25, 2015 the United States Supreme Court remanded a pregnancy discrimination case back to the United States Court of Appeals for the Fourth Circuit Court. Petitioner Young was a part-time driver for respondent United Parcel Service (UPS). Young became pregnant in 2006 after suffering from several miscarriages. Young was advised to not lift more than twenty pounds during her pregnancy. However, as a part-time driver for UPS, Young was required to lift parcels weighing up to seventy pounds. Young requested a light-duty job accommodation, but UPS denied the request. Young filed a suit alleging the company violated the Pregnancy Discrimination Act (PDA).

The District Court granted UPS summary judgment, concluding, that Young could not make out a prima facie case of discrimination under McDonnell Douglas. The Fourth Circuit affirmed. The US Supreme Court concluded that that Young created a genuine dispute as to where UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers. In reaching this conclusion, the Court relied on the second clause of the PDA, which was determined to be unclear and open to interpretation. The Court had concerns as to “what other applicants or employees” was initially intended to mean. Further, Young presented evidence that UPS accommodates most non-pregnant employees with lifting limitations, yet, refuses to accommodate pregnant employees. The case was remanded, shifting the burden to UPS to provide a reason for refusing Young’s accommodation.

 

http://www.jdsupra.com/legalnews/employment-law-april-2015-29617/

 

Racial Preference of Patient Not a Defense to Discrimination

Plaintiff, an African-American female, filed a claim against Pals of Pasadena Hospital alleging violation of 42 U.S.C. § 1981 for intentional racial discrimination. In August 2013, an elderly Hispanic female was admitted to the hospital after being mugged by an African-American male. At the request of patient’s family, the hospital directed Plaintiff that she could not care for the patient because of Plaintiff’s race. The United States District Court for the Middle District of Florida Tampa Division ruled in favor of the Plaintiff, and concluded that the hospital prevented the Plaintiff from performing her job because she is an African-American. The hospital argued that the Plaintiff was not prevented to do her job on the basis of any “racial animus or hostility.” The court refused to accept this argument and explained that the hospital still discriminated against the Plaintiff based on her race. Dysart v. Palms of Pasadena Hospital, LP, 2015.

 

http://hr.cch.com/ELD/DysartPalms.pdf

 

Protection of Religious Beliefs in Workplace

Title VII of the Civil Rights Act of 1964 prohibits discrimination against any individual because of such individual’s religion in the workplace. Under Title VII, “religion” encompasses all aspects of religious observance, practice and belief. 42 U.S.C. §2000e(j). An employer is required to accommodate an employee based on religion unless the employer can show that it cannot reasonably accommodate the employee’s practice without undue hardship on the conduct of the business. For example, Courts have held that an employer’s refusal to allow an employee to wear a khimar is not discriminatory under Title VII. A khimar could be safety hazard to other employees because it could be used to smuggle weapons and contraband, thus placing an undue hardship on the employer. EEOC v. The Geo Group, 616 F.3d 265 (3d Cir. 2010).

Disciplinary Action including False Statements was not Adverse Action

Patricia Wagner left her job after receiving a written reprimand, including false statements, from the sheriff. Wagner sued the sheriff under 42 U.S.C. § 1983 alleging she suffered an adverse employment action in retaliation of her protected speech. On appeal, The United States Court of Appeals for the Eight Circuit concluded that Wagner could not prove her prima facie case of retaliation. Further, the Eight Circuit explained “a reprimand is an adverse employment action only when the employer uses it as a basis for changing the terms or conditions of the employee’s job for the worse.” Wagner left her job on her own and thus, did not suffer a termination, cut in pay or benefits, or change in job duties or responsibilities. Wagner v. Campbell, 2015.

 

http://hr.cch.com/ELD/WagnerCampbell030415.pdf

ACLU Assists Pregnant Employee (Asheville, North Carolina)

After being employed with Sava Senior Care’s Brain Center Health and Rehabilitation in Weaverville, NC for two years, Jamie Cole was unable to return to work due to a complicated pregnancy. In April 2013 Cole’s doctor recommending that she no longer do any lifting. Cole submitted a Reasonable Accommodation Acknowledgement form, which was denied. Cole was informed that she could not return to work until there were no restrictions at all. The Federal Pregnancy Discrimination Act requires that pregnant workers receive the same treatment as other temporarily disabled workers. Cole has filed a complaint with the EEOC alleging that she was discriminated against based on her pregnancy. The Americans Civil Liberties Union is helping Cole with her case pro bono. Along with Cole’s case, pregnancy discrimination is an important issue in North Carolina because the state is one of four with no laws of its own protecting pregnant or breastfeeding employees.

http://www.citizen-times.com/story/news/local/2015/01/10/battling-right-work-pregnant-nc/21570149/​

Workplace Harassment Still Major Employee Concern

According to EEOC Chair, Jenny R. Yang, approximately 30 percent of all charges filed with the EEOC are based on workplace harassment. To prevent workplace harassment, Yang is establishing a task force to bring together experts from the employer community to identify effective strategies to prevent and remedy workplace harassment. Yang hopes to deter workplace harassment by making sure employees are informed of their rights, and by informing employers on how to best implement and enforce harassment policies. Legal Counsel of the EEOC expressed that having a policy is insufficient if it is not communicated understandably to the workforce.

http://www.eeoc.gov/eeoc/newsroom/release/1-14-15.cfm

Does any statute of limitations apply?

On January 6, 2015, the D.C. Circuit held that the six-year statute of limitations for suits against the United States does not apply to Title VII actions by federal employees. In February 1995 two federal employees filed an administrative complaint alleging “Racial Discrimination against African Americans in the Department of Commerce.” After complying with EEOC guidelines for over ten years, the complaint was dismissed on July 16, 2010. On appeal, relying on Supreme Court precedent, the D.C. Circuit explained that following the six-year statute of limitations would undermine Congress’s goal of encouraging employees to resolve their employment discrimination disputes administratively. The case was remanded for further proceedings.

http://hr.cch.com/ELD/HowardPritzker.pdf

Security Guards Entitled to Overtime

On January 8, 2015, the California Supreme Court concluded that security guards, who spent on-call hours at construction sites, were entitled to compensation for all on-call hours. CPS Security Solutions employed security guards to provide security at construction worksites. During the weekdays and weekends the guards were required to reside in a trailer provided by CPS while being on-call for eight hours. The guards were not compensated for these eight hours. Due to CPS being in control of the guards’ actions and movement for eight hours, the state high court determined that compensation was required.

Mendiola v. CPS Sec. Solutions, Inc., No. S212704, 2015 WL 107082, at *2 (Cal. Jan. 8, 2015)