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)

Because I focus my practice on employment law and most of my clients are employees, I consult with dozens of people who have been treated horribly at work and many who have been fired.  The law in North Carolina is not favorable for employees so I have to give many people the bad news that they have no legal claim.  The majority listen to me and, while perhaps not happy with the information I give them, understand that there is no legal claim available to them.  However, there are people each week who get mad at me for giving them bad news. They may say nasty things to me during the consultations, send me nasty emails or even go on websites to give nasty reviews or make nasty comments.

Every now and then there is a person who truly appreciates the advice and counsel I have provided. Those people understand that the law in this state is the problem. And sometimes those people provide wonderful feedback like this that helps to make me feel my work for employees is worthwhile:

From: *******
To: *****@theangellawfirm.com
Sent: Wednesday, October 29, 2014 5:36 PM
Subject: Lesson Learned!

Good Afternoon Mr. Angel,

 

I just wanted to thank you for meeting with me this afternoon and being honest about this case and I'm elated!!! I guess you say, "I 'm just doing my job", well everyone is not as candid and honest as you were this afternoon.  I would rather hear the truth and move forward than waste money on charlatans and  frivolous claims and that was worth whatever I had to spend for your services. I wish I would have  gone to you first ,  well lesson learned.  Thanks again and feel free to post my comment on your blog!​

Supreme Court Invalidates Recent NLRB Social Media Cases

On June 26, 2014, the Supreme Court concluded that three of President Obama’s appointments to the National Labor Relations Board (NLRB) made in January 2012, without Senate confirmation, were unconstitutional. As a result, more than 700 decisions from the NLRB from January 4, 2012 through July 31, 2013 are now invalid. The NLRB must now reconsider many decisions that affect both union and non-union workers. The decisions include cases where the NLRB limited the rights of employers in the workplace. The most impactful decisions the NLRB can expect to reconsider are its cases focused on social media, and the employer’s limitation to regulate employees’ social media post.

In 2008, Anthony Booth and Jerry Brown filed charges against the County and the Union with the EEOC and the Florida Commission of Human Rights.  The charges stated issues with the County and Union’s response to past internal complaints.  In 2007, Booth named Brown as a witness in a grievance he filed against the supervisor of station 14.  As a result of the grievance, the plaintiffs and supportive coworkers were transferred to different stations.  The plaintiffs allege that the harassment in their workplace was a direct result of the charges filed with the EEOC and FLHR, and that the County and Union condoned it.  

After the charges were filed, Booth and Brown began to be harassed by their coworkers.  Memos,  along with newspaper articles, naming both Booth and Brown were being placed all around the station.  The memo gave a description of the discrimination charges filed by the plaintiffs and discussed the possibility of Union prices increasing due to the charges.  The plaintiffs began to complain that they felt unsafe around their coworkers and in their work environment.  Due to these complaints, the County required the men to complete fitness-for-duty examinations before being allowed to continue working. The Eleventh Circuit reversed the district court’s entry of judgment in favor of the County, and ordered that judgment be entered against the County.  While affirming the district court’s entry of judgment against the Union, the Eleventh Circuit agreed that the Union retaliated against the plaintiffs by mentioning their names in the memos.  The Eleventh Circuit held that the examinations ordered by the County were sufficient proof to support the Title VII retaliation claim.  Booth v. Pasco Cnty., Fla., 12-14194, 2014 WL 3031177 (11th Cir. July 3, 2014).

http://media.ca11.uscourts.gov/opinions/pub/files/201213389.pdf

New Accommodations for Pregnant Employees

On July 14, 2014, the EEOC issued the Enforcement Guidance on Pregnancy Discrimination, which intends to provide guidance regarding the Pregnancy Discrimination Act (PDA).  Under the PDA, “an employer cannot discriminate against and employee on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work.”  42 U.S.C. § 12101.  By issuing this new guidance, the EEOC hopes to reduce the number or pregnancy discrimination claims by requiring employers to offer reasonable accommodations to pregnant workers.

Executive Order Expands Protections to LGBT Federal Employees

On July 21, 2014, President Obama expanded anti-discrimination protections to federal employees and federal contractors through an executive order that prohibits discrimination on the basis of sexual orientation or gender identity.  Executive order 13672, which is enforced by the EEOC, has increased the protections offered for federal LGBT (Lesbian, gay, bisexual, and transgender) workers.  The EEOC relies on several circuit court decisions in regards to transgender discrimination.  In Hopkins, the Supreme Court held that under Title VII, “an employer may not take gender into account in making an employment decision.”  Prince Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989).

Racial Discrimination within International Truck and Engine Corporation

In 1996, Matthew Whitfield—an African American—applied for an open electrician position at Navistar’s plant in Indianapolis.  Whitfield was told that he could not be hired because his experience could not be proven.  In 2001, Whitfield along with 26 other Plaintiff’s sued Navistar under Title VII, alleging Navistar discriminated in hiring and maintained a racially hostile work environment.  Under Title VII, employers may not “discriminate against any individual with respect to his . . . privileges of employment, because of such individual’s race[.]” 42 U.S.C. § 2000e-2(a)(1).

 

In 2013, the district court dismissed Whitfield’s claim, and ruled that Whitfield’s evidence did not show proof of discrimination.  On appeal, the United States Court of Appeals for the Seventh Circuit reversed and held that Whitfield satisfied his burden of proof for showing discrimination, and that Whitfield demonstrated that he was more qualified than white comparators.  The court further explained that Whitfield providing proof that his file was labeled with the word “black” was sufficient to determine discrimination.  Whitfield v. Int'l Truck & Engine Corp., 13-1876, 2014 WL 2547772 (7th Cir. June 6, 2014).

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2014/D06-06/C:13-1876:J:Cudahy:aut:T:fnOp:N:1359095:S:0

Employee Not Required Give Return To Work Date -FMLA

Susan Gienapp worked at Harbor Crest, a residential nursing care facility in Fulton, Illinois.  In January 2011, Gienapp informed the company’s top manager that she needed time off to care for her daughter.  Gienapp’s daughter was diagnosed with thyroid cancer.  Gienapp was granted leave under the Family and Medical Leave Act (“FMLA”).  Under FMLA, employees are allowed upto 12 weeks’ unpaid leave annually to care for children with serious health conditions. 29 U.S.C. § 2612(a)(1).

 

On March 29, Gienapp was terminated from her job because she failed to inform the company of the date she would return from leave.  The United States Court of Appeals, Seventh Circuit, held that Gienapp had complied with the FMLA even though she did not inform the company of her anticipated return date.  The statute requires that an employee gives notice and Gienapp complied.  At the time of the leave, Gienapp was unaware of when she would return because the doctors did not know how long her daughter would have to undergo treatment.  The higher court reversed the lower court’s decision, and remanded the case with instructions to grant summary judgment for Gienapp. Gienapp v. Harbor Crest, 14-1053, 2014 WL 2854816 (7th Cir. June 24, 2014).

http://law.justia.com/cases/federal/appellate-courts/ca7/14-1053/14-1053-2014-06-24.html

Recent Federal Employee Title VII Opinion

            Tahar Ahmed has been employed as an Immigration Enforcement Agent for U.S. Immigration and Customs Enforcement (“ICE”) since 2003.  In 2009, Ahmed applied for the position of Deportation Officer.  Ahmed was notified on October 1 that he was not selected for the position.  Ahmed brought an employment discrimination action against the U.S. Department of Homeland Security alleging that he was denied the position of Deportation Officer based on his religion, race, and national origin: a violation of Title VII of the Civil Rights Act of 1964.

            The United States Court of Appeals, First Circuit, held that a reasonable jury would find that Ahmed was a victim of discrimination based on one of more of his minority characteristics.  Title VII prohibits an employer to discriminate against an employee solely based on his/her religion, race, and national origin.  The court explained that Ahmed provided sufficient evidence that showed a pattern of bypassing minorities for promotion in the Boston ICE office.  Based on the historical evidence offered by Ahmed that there was a complete absence of black and Arab Deportation Officers, and Hispanics felt discouraged about applying for promotions, the court vacated the judgment of the district court and remanded the case for further proceedings.  Ahmed v. Johnson, 13-1054, WL 2111236 (1st Cir. May 21, 2014).

http://media.ca1.uscourts.gov/pdf.opinions/13-1054P2-01A.pdf