Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

During the past several weeks, the EEOC has issued numerous press releases concerning settlements reached around the country in lawsuits filed by the EEOC.  In Baltimore, the EEOC settled a disability discrimination lawsuit against Marlow 6 Theater for $20,000. The allegations in the suit were that the movie theater fired a concession manager once it discovered that she had HIV.  The theater also agreed to significant remedial relief, including training for all employees and managers on the ADA, posting notices at it's facilities "affirming its commitment to complying with the ADA", that they be enjoined from discriminating on the basis of disability and be monitored by the EEOC for compliance with the ADA for 5 years.

LAZ Parking LLC, a parking company doing business in 16 states, agreed to pay $46,000 to settle a religious discrimination lawsuit filed by the EEOC.  In Atlanta, the EEOC filed its lawsuit alleging that LAZ discriminated against a Muslim woman by terminating her because of her religious beliefs and her refusal to remove her head covering.  The consent decree also requires LAZ to provide equal opportunity training, reporting and posting of anti-discrimination notices.

In North Carolina, Tuscarora Yarns agreed to pay $230,000 to settle a lawsuit filed by the EEOC alleging sexual harassment and retaliation.  The lawsuit claimed that the former plant manager harassed Ms. Martinez by propositioning her for sex, making unwelcome sexual comments, inappropriately touching her and trapping her in an office where he sexually assaulted her.  She escaped from the office and called the police.  The former plant manager was arrested for sexual battery, but eventually pled guilty to a reduced charge of assault on a female.  Martinez, who worked at the plant for approximately 2 years, was suspended when she complained about the sexual harassment.  Tuscarora Yarns also agreed to redistribute its sexual harassment policy to employees, post its harassment policy in both English and Spanish, and provide annual training at the plant where the incident occurred to managers, supervisors and employees.  Ms. Martinez was also represented by the Southern Poverty Law Center, based in Alabama.

Tony's Lounge Inc. and Italia Bakehouse and Bistro, LLC, operating as Tony's Restaurant was sued by the EEOC alleging that the restaurant sexually harassed a teen-aged hostess and two young female cooks.  The vice president of Tony's Lounge abused the individuals by repeatedly making unwelcome sexual advances, touching the young women and making sexually explicit comments.  Tony's agreed to pay $75,000 to settle the suit, agreed to provide sexual harassment training to all managers and adopt a clear policy on preventing sexual harassment.  Tony's also agreed not to rehire the vice president, who left the company shortly before the suit settled.

In Kansas City, Cactus Grill agreed to pay $150,000 as the result of a lawsuit being filed by the EEOC alleging that an older assistant manager sexually harassed and then terminated a teenage female server.  Before this incident occurred, there had been at least one other complaint about this assistant manager.  Cactus Grill also agreed to update it's anti-discrimination policy, redistribute the policy to all employees, train its managers and assistant managers in all its restaurants and report to the EEOC all complaints it receives concerning sexual harassment for a period of 2 years. 

Practice pointer.  The EEOC continues to pursue claims on behalf of employees who have been discriminated against around the country.  The cost to employers includes the settlement amount, legal fees, loss of productive time to defend themselves and bad publicity as a result of the EEOC's press releases whenever it settles a case.  Reviewing policies on a regular basis, training at least annually and properly investigating complaints must be done by employers to reduce exposure for harassment and discrimination claims. 

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                 On November 3, 2010, Legal Times reported that the National Labor Relations Board's (NLRB) Hartford office filed a Complaint against American Medical Response of Connecticut, Inc. alleging that the ambulance service illegally terminated Dawnmarie Souza, for posting negative comments about her supervisor on her personal Facebook page. The NLRB contends that American Medical Response wrongfully denied Ms. Souza her union representation during the investigatory review, and that the NLRB was charging that the company “maintained and enforced an overly broad blogging and internet posting policy.” The NLRB, in their press release, stated that her supervisors “threatened her with discipline because of her request for union representation….Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, which led to further negative comments about the supervisor from the employee.” Ms. Souza was fired three (3) weeks later.

Today, Molly DiBianca, in her blog, The Delaware  Employment Law Blog, reported that an employee and her supervisor were Facebook friends.  After the employee filed a charge of discrimination with the EEOC, the supervisor unfriended the employee.  When the employee later added a claim for retaliation, one of the facts supporting the claim was the fact that the supervisor unfriended her.  As Ms. DiBianca wrote, "The employee felt the "unfriending" was the equivalent of what getting the “cold shoulder”—just in a virtual or electronic context.  Although the cold shoulder is not the traditional type of workplace retaliation, it can constitute an adverse employment action under the Burlington Northern standard—especially when it’s one of several “bad facts” tending to show that the employee was singled out after filing a complaint."

Practice pointers.  With the NLRB entering the social networking fracas, there is one more governmental agency for employers to be concerned with when dealing with social networking in the workplace.  When considering whether to implement or change a social networking policy, employers now need to consider the concept of "protected activity" as viewed by the NLRB. 

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Roy Williams, in the Birmingham New, wrote an interesting article that appeared in today's paper.  The EEOC turns 45 this year, and the current Chairwoman, Jacqueline Berrien, was in Birmingham yesterday, citing the city as an example in overcoming racism.  Ms. Berrien, graduated from Harvard Law School and began her legal career in Birmingham, clerking for now-retired Judge U.W. Clemon in 1986.  Ms. Berrien is quoted as saying that "Birmingham is a wonderful example of a city that has not hidden from its history, but embraced it and learned from it."  When the EEOC was formed in 1965, Ms. Berrien noted that newspapers commonly advertised for positions "that only men and whites need apply" to, and that women were discharged if they became pregnant.  The EEOC how has jurisdiction over claims arising from, among other things, age discrimination, disability discrimination and discrimination based on family medical history pursuant to the Genetic Information Non Discrimination Act (GINA).  EEOC statistics from 2009 indicate that race discrimination still comprises the most common claim with the EEOC, with over 28,000 charges filed, or 36% of the charges filed with the EEOC.  Sex discrimination comprised 30%, national origin almost 12% and religious discrimination totaling 3.6%.   Interestingly, a second EEOC Commissioner, Constance Barker, has Alabama ties, since she is originally from Montgomery. 

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