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

Earlier this week, the EEOC issued a press release emphasizing that: 

1.  Private sector bias charges hit an all-time high in FY 2011.  A total of 99,947 charges of employment discrimination were filed in 2011.  Retaliation allegations totaled 37,334, Race discrimination charges tototaled 35,395, Disability discrimination charges totaled 25,742 and Age discrimination totaled 23,465.  In the first full year of the Genetic Information Nondiscrimination Act (GINA), 245 charges were filed. 

2.  A record amount of money was recovered in FY 2011.  The EEOC recovered $455,600,000 in monetary relief through the administrative program and litigation.  This is $51,000,000 more than FY 2010.  The EEOC filed more than 300 lawsuits , and litigation efforts resulted in $91,000,000 of relief.  ADA claims produced the largest increase in monetary relief of all the statutes, with $103,400,000.  This was a 35.9% increase from FYI 2010.

3.  The pending inventory of charges was reduced for the first time in 10 years.  In FYI 2011, the EEOC resolved 112,499 charges, leaving an inventory of 78,136 of pending charges. 

Practice pointer.  Employers must continue to educate their workforce as to the employment laws that apply, and the consequences of violating them.  There seems to be more publicity about EEOC activities, and I anticipate this year will continue to show a steady, if not greater, number of charges being filed with the EEOC.  Employers must take any charge seriously, and respond in an appropriate manner, which may include involving legal counsel.  For those who remember Hill Street Blues, as Sgt Esterhaus would say in every show, "Hey, let's be careful out there". 

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Cheryl Perich was a teacher at the Hosanna-Tabor Church school in Michigan.  She taught mostly secular subjects, but also taught one 45 minute religious class and attended chapel with her class.  She was "called" a teacher by the school, completed religious training and was a "commissioned minister" at the school.  She was diagnosed with narcolepsy, and threatened to file a lawsuit against the Church under the Americans With Disabilities Act.  She claimed that she was terminated in retaliation for threatening to file the lawsuit, while the school said she was terminated for insubordination and failure to follow internal dispute resolution procedures.  In a unanimous decision, the Supreme Court found a "ministerial exception" to employment discrimination laws, holding that the courts stay out of the way of the hiring and firing of clergy.  Chief Justice John Roberts wrote that "When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us...The church must be free to choose who will guide it on its way."  Justice Roberts further wrote that:  "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important...But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."  The Court found that the ministerial exception is not a jurisdictional bar to a lawsuit, but an affirmative defense.  The Court also made it clear that there was not a rigid formula for deciding which religious employees would qualify for the ministerial exception.  Future cases will be need to be decided by the courts based on the specific facts of each situation. 

Practice pointer.  This lawsuit was brought on behalf of Ms. Perich by the EEOC.  The Obama administration argued in support of Ms. Perich.  In rejecting the EEOC's arguments, Justice Roberts also wrote that reinstating Ms. Perich "would have plainly violated the church's freedom", and "would operate as a penalty on the church for terminating an unwanted minister:"  Justice Thomas wrote a concurring opinion, as did Justice Alito, who was joined by Justice Kagan.  A copy of the entire 39 page opinion can be found at the NYTimes. 

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The EEOC recently released FY 2011 statistics.  According to the EEOC press release, 99,947 charges were filed during fiscal year 2011, which ended on September 30, 2011.  This is the most charges filed in the 46 year history of the EEOC.  The EEOC also recovered $365 million on behalf of those who filed charges, also a record number.  FY 2011 ended with 78,136 pending charges, a decrease of 8,202 charges from FY 2010.  The EEOC filed 261 lawsuits in FY 2011, including 23 alleging systemic allegations affecting large numbers of employees, 61 alleged multiple victims, and 177 individual lawsuits.  The EEOC's private sector mediation program recovered more than $170 million in monetary benefits for complainants, also an historic high.  The number of mediations that were resolved totaled 9,831, another record.  In the federal sector, the EEOC resolved 7,672 requests for hearings, recovering more than $58 million for the complainants.  For a comprehensive 86 page report, you can view the FY 2011 Performance and Accountability Report issued by the EEOC.

Practice pointer.  I believe that the bad economy is driving the increase in numbers of charges filed with the EEOC.  Employers need to be aware that if the economy does not significantly improve in 2012, the number of charges may go even higher.  As you have often seen me write, train, train, train and document, document, document. 

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As we approach the end of the 2011 Fiscal Year, September 30, the EEOC is once again busy filing suits around the country.  This year, the focus appears to be on the ADA, with over 20 suits being filed over the last 2 months.  These suits include claims involving the following disabilities:  Cerebral Palsy (McDonald's), Alcoholism (Old Dominion Freight Lines), Deafness (McCormick & Schmick's), Asthma (Insource Performance Solutions, LLC and LeGrand North America, Inc.), Epilepsy (Buy-Rite Thrift Store), Blindness (Bank of America and ITT Tech), End Stage Renal Disease (G2 Secure Staff, LLC), Traumatic Brain Injury (Outback Steakhouse), Psoriatic Arthritis (The Scooter Store), Cancer (SITA Information Networking Computing USA and The Area IV Senior Citizens Planning Council, Inc.), Gastro-Intestinal condition (Ford Motor Company), Diabetes (Kohl's Department Stores), Multiple Sclerosis (National HealthCare Corporation), a Double Amputee (J.A. Thomas and Associates), Fibromyalgia (The Children's Hospital in Colorado)and Hearing Impaired (Jewish Community Center of Greater Washington).  As you can tell, these lawsuits have been filed against companies big and small, for profit and non-profit, across the country and in many different industries.  These lawsuits come on the heels of a $75,000 settlement reached between the EEOC and Starbucks as the result of a dwarf barista, who needed a stepladder or stool to reach the coffee machines, who was fired after 3 days on the job. For a complete listing of 2010 press releases by the EEOC, you can visit their website.

Yesterday, in Texas, the EEOC filed a lawsuit against Bass Pro Shops alleging that stores in Houston, Louisiana and Alabama illegally discriminated against Black and Hispanic workers and job applicants, and retaliated against employees who raised questions and destroyed records.  The investigation began 6 years ago, and in April, 2010, the EEOC issued a Cause Determination finding that Bass discriminated against its' employees and applicants.  After attempting to negotiate a resolution since then, which was not successful, the EEOC filed its' lawsuit. 

Practice pointer.  The EEOC continues to be very aggressive in pursuing lawsuits around the country alleging numerous causes of action over which they have jurisdiction.  Getting sued by the EEOC is expensive, time consuming and can lead to negative publicity.  When an employer receives notice of a charge, it is important that the company take the appropriate steps to protect itself, from conducting an investigation, taking the appropriate corrective actions if necessary, responding to the charge in the proper manner, and treating the process with the time and attention it needs.  Failure to do so can lead to a disaster.

E-Verify.  Recently, I gave a presentation to the Greater Birmingham Apartment Association.  The use of E-Verify must be consistent with the Memorandum of Understanding (MOU) signed by the employer, Department of Homeland Security and the Social Security Administration.  One of the requirements in the MOU is that E-Verify cannot be used until after the employee is hired.  One of the attendees indicated that they use a third party to do background checks, criminal checks and use E-Verify.  When a company uses such a third party, it is important that E-Verify be used after hire, and not a part of the pre-employment screening.  I would also recommend that the employer review the MOU that the third party has with DHS and SSA.  The employer should also review the contract, if any, between it and the third party, to confirm that they are operating in compliance with the E-Verify program and with Alabama's new Immigration Law, assuming the E-Verify portions are upheld as constitutional.  Finally, on a side note, there was an interesting article published in the Wall Street Journal yesterday reporting an interesting coalition of liberals, conservative, Tea Party members and Libertarians who are against Congress passing a bill requiring the mandatory use of E-Verify by all employers in the United States.

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Immigration.  As I was driving to work yesterday, I passed a Taxi, stopped in the middle of the road, with flashers flashing, waiting to pick someone up to take them to work (I reached this conclusion by the way the person was dressed and the fact that the Taxi is there on a regular basis at the same time.  However, this was the first time I saw it in the middle of the road).  My first thought was that this would be in violation of Alabama's new Immigration Act, once it is effective, since the Taxi was impeding the normal flow of traffic while picking up a person for work at another location.  This conduct would subject both the driver and the passenger to criminal charges and possibly the forfeiture of the Taxi.  Is this what the law is supposed to cover?

Social Media.  An interesting piece in the Birmingham News this morning by Kevin Scarbinsky pointing out that the NCAA charged North Carolina with an NCAA violation by not properly monitoring several football players "social networking activity that visibly illustrated potential amateurism violations within the football program..."  Is this a sign of things to come in the workplace, if employers engage in improper conduct, use social networking sites to discuss it, and the company did not know about it? 

Class actions.  The United States Supreme Court ruled in favor of Wal-Mart, denying to certify a class action lawsuit with as many as 1.6 million women as members of the class alleging sexual discrimination.  In a 5-4 decision, with Justice Scalia writing the majority opinion, the Court found that there were too many managerial decisions being made to certify the claims as a class action.

Sexual Harassment Settlement.  Recently, the EEOC announced a $1.95 million settlement with U.S. Security Associates to resolve a sexual harassment lawsuit brought by the EEOC.  The EEOC alleged, in the lawsuit, that Mr. Hargrove, the district manager for USSA in Birmingham, sexually harassed several female employees by subjecting them to unwelcome sexual demands, demeaning gestures, inappropriate touching, and other offensive conduct.  One of these employees, Jamie Marks, had previously filed her own suit against USSA and received a $2.7 million jury verdict.  6 other females intervened in the EEOC's case.  As part of the settlement, USSA agreed to pay $1.95 million to the women.  USSA also entered into a Consent Decree, for a period of 42 months, and agreed to revise it's policies and procedures and train all staff on anti-harassment procedures.  USSA also agreed to hire a consent decree coordinator who will be responsible for monitoring USSA's compliance and submitting periodic reports to the EEOC. 

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Meridith Levinson published an article in PCWORLD on April 30 entitled "How to File an EEOC Employment Discrimination Charge:  Many tech professionals over 40 have tales of how age discrimination is rampant in the field."  The article discusses the belief in the IT world that once you are over 40, age discrimination is common.  She notes that many people dye their hair, male and female alike, leave dates of graduation off resumes and work experience that may "date them" to be over 40.  The article sets forth EEOC statistics from 2010 showing that the EEOC processed nearly 100,000 discrimination and retaliation charges, filed 271 suits and resolved 315 suits and won $85.1 million on behalf of "victims of discrimination".  Remedies under the Age Discrimination in Employment Act include reinstatement to their position as if there had been no discrimination, including back pay and benefits, double damages if there was a willful violation and attorney's fees.  Ms. Levinson goes on to detail how to file a charge, emphasizing how easy it is to do and that a charging party does not need an attorney to file a charge.  She points out that there is an intake form consisting of 4 pages, which can be done at the EEOC office or printed from the EEOC's website. Once the form is completed, it is provided to the EEOC, either in person or by mail.  The article goes on to talk about what happens next: the employer is notified by the EEOC and is asked to respond, mediation may take place, and if unsuccessful, the EEOC will investigate the charge.  If the EEOC determines that there may be a violation, they will either issue a right to sue letter, or in a small percentage of cases, file a lawsuit in the EEOC's name on behalf of the aggrieved person.

Practice pointer.  This article is an excellent description of how the EEOC process is started, and how the charge is handled by the EEOC.  It is interesting to me that this article is directed at a very focused group:  IT workers over 40.  I would not be surprised to see an uptick in ADEA claims being filed in this industry based on this article. 

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This blog entry will be longer than normal for a variety of reasons.  My client has approved me blogging about this case, but has requested to remain anonymous, even though victorious.  This saga began in July, 2007, when my client, "S" decided to hire a new receptionist for its 50 person business.  "Ms. M", who was 19 at the time, applied for the job, with about 9 others.  After a review of the applications, S's front office manager, who was new to the job and making her first hire, interviewed less than 5 of the applicants.  She decided to hire Ms. M based on her work experience (including 4 jobs where she indicated that she answered the phone) and the fact that she interviewed well, including making good eye contact, speaking loudly and clearly, and appearing enthusiastic about the job.  Ms. M started work on Monday, and during orientation, S's front office manager found out that she was pregnant.  S's office manager ( who was on the job approximately 4 months and had no HR training) overheard this conversation, asked if she had heard correctly, and accused Ms. M of not being honest by not revealing her pregnancy.  Ms. M stated that she did not reveal the pregnancy during the interview because her sister had coached her not to tell anyone about it. Later that day, the office manager counseled Ms. M about having inappropriate conversations at the front desk, talking about her pregnancy, mother and boyfriend.  Ms. M underwent computer training on Monday, and also observed at the front desk to see what the receptionists were doing.  On Tuesday, Ms. M received additional computer training, and was asked to both observe and participate at the front desk: answering phones, paging, greeting customers as they walked in and entering information into the computer.  Although Ms. M admitted that the front office manager asked her to answer the phone, she only tried one time, and stopped because she didn't feel comfortable doing so. Ms. M was at the front desk again on Wednesday, but sat back and did not take the initiative to answer the phone, page or otherwise engage the customers.  At that time, the front office manager had some concerns that Ms. M would not be successful in the busy, fast paced environment and expressed concerns to the office manager and several of the owners.  The decision was made to see if she performed better on Friday (she was scheduled off on Thursday, since the job week consisted of 4 10 hour days).  Sometime during the week, Ms. M alleged that the office manager would not say "hey" to her, treated her differently than other employees, and commented in the break room on one occasion that she had no children because "children ruin your life".  On Friday, Ms. M worked with another receptionist who reported that Ms. M made one page over the intercom, answered one phone call and showed more initiative then she had previously, but still was not doing enough to learn the job.  During the course of the week, the front office manager had made detailed contemporaneous notes about the training of Ms. M, including the good and the bad.  The front office manager made the decision to recommend to one of the owners that she be fired, and the owner agreed.  The owner did not know that Ms. M was pregnant.  This was the first time the front office manager had to fire someone, so she asked the office manager to take the lead.  During the meeting, the office manager advised Ms. M that although she was good with her computer skills, she was not fast enough and did not have the interpersonal skills to be a receptionist for "S".  The office manager also made the statement, that was admitted by "S" that the job was not working out with all her stress, and her pregnancy.  The following Wednesday, Ms. M and her sister went to the EEOC to file a charge alleging pregnancy discrimination.  S received the charge in early September, and responded by sending a statement from both the office manager and the front office manager.  The office manager denied making any of the statements referring to pregnancy, while the front office manager wrote a 3 page, single spaced response, admitting that the comments were made,  outlining the training schedule and Ms. M deficiencies.  Shortly after the response was made, the office manager left her position, and it was disputed whether she was fired, quit, or if it was a mutual decision.  Fourteen months later, the EEOC requested additional information, such as names of employees, names of pregnant employees and their work status.  The information was provided within a week. 

The EEOC issued a Cause Determination, and the conciliation process began.  The EEOC initially demanded $50,000, although there was no breakdown as to back pay, front pay, compensatory damages or emotional distress.  After several rounds of negotiations, the final demand was $39,000, while "S" offered $2,500.  During the conciliation process, and before the EEOC filed its lawsuit, the Owner of "S" wrote several letters to the Regional Director begging the EEOC to meet with him and interview those individuals involved in the decision making process.  The EEOC refused.  During discovery, the regional attorney basically testified in his deposition that the EEOC was too busy to interview witnesses, even though they file less than 24 cases a year.  The EEOC filed the lawsuit on the last day of the fiscal year in 2009, with several other lawsuits alleging various other types of discrimination.  The lawsuit claimed, among other things, damages for medical expenses for Ms M having her child, job search expense and job training expenses.  At her deposition, Ms. M testified that she had no medical expenses since she was covered by Medicaid, and she had no job search expenses or job training expenses.  When asked for a breakdown of damages during his deposition, the EEOC's regional attorney could not provide a list of damages for any of the damages claimed, including back pay.  After the deposition, the EEOC filed a damage list, claiming over $50,000 in back pay.  Approximately 30 days before trial, this amount was reduced to just over $6,000.  Prior to trial, additional settlement negotiations were held, with the EEOC's final demand being $29,500 and "S's" final offer $5,000.  Even after the EEOC reduced the claim for back pay from over $50,000 to just over $6,000, it would not come down from its demand of $29,500.

The case went to trial at the end of February, and took 3 days to try.  The EEOC called as witnesses the front office manager, read the  deposition of the front office manager, the office manager, one of the owners for financial information, and Ms. M.  S called as witnesses the current front office manager, 3 receptionists who tried to train Ms. M, the owner who made the final decision to terminate Ms. M and another owner to talk about the fact that she was 39.5 weeks pregnant when she met Ms. M and offered to answer any questions she may have had. 

The 8 person jury, which consisted of  6 female jurors (4 Caucasian, 2 African American) and 2 male jurors  (1 Caucasian, 1 African American), took approximately 4 hours to return a verdict in favor of "S" and against the EEOC.

Special thanks to Robin Beardsley Mark, one of my partners, who tried this case with me. 

Practice pointers.

There are many lessons to be learned from this 4 year experience.  These lessons include:

                1.  Companies need to train their management  and staff as the various employment laws on a regular basis.

                2.  When training new employees, keep good notes.

                3.  When coaching or disciplining an employee, certain words should not be used, such as pregnancy.

                4.  When responding to the EEOC, what you say can and will be used against you.  Although there are many differing opinions amongst attorneys as to how to reply to an EEOC charge, the response must be done properly.                                         

                5.  When dealing with the EEOC when they are a party, it will be a very long, hard fought and expensive battle.

                6.  A lawsuit will cause a great deal of stress for the owners of a company and those employees who are involved as witnesses.

                7.  A great deal of time and effort, as well as money, will be spent defending  the lawsuit.

                8.  There will be publicity, especially if the EEOC wins.  In this case, the EEOC issued a press release during the trial, advising the press that the case was being tried.  My client received a call during trial from a  newspaper reporter.  Of course, the EEOC did not issue (as far as I know) a press release stating that they lost the case.  If they had won, the EEOC would have issued a press release, and there would  have been something published, at least in the newspaper. 

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It is hard to believe that another year, and another decade is soon behind us.  As one of my partners commented, it seems like just yesterday that we were worried about Y2K and the world coming to an end as we entered 2000.  This blog entry will be a series of brief comments about topics of interest in the employment arena.

EEOC Charges reach a record high.  The EEOC reports that it has received 99,922 charges for the fiscal year ending 2010.  The backlog of cases is just over 86,000, virtually unchanged from FYE 2009, growing only by 570 charges.   In FYE 2009, there were 93,277 charges filed, and in FYE 2008, there were 95,402, the previous record high. The EEOC resolved 104,999 cases during FYE 2010, recovering $319 million for claimants, an increase of $25.2 million from FYE 2009.  $142 million was recovered through the EEOC's mediation program.  The EEOC's Performance and Accountability report is available for review at www.eeoc.gov/eeoc/plan/2010par.cfm. 

EEOC turns its attention to Credit Reports.  The LA Times reported on December 27 that the EEOC is cracking down on the use of credit checks and criminal background checks in job screenings.  The EEOC sued Kaplan Higher Education Corp, "accusing the company of using a selection criterion for hiring and discharge-namely, credit history information-that has a significant disparate impact on black job applicants".  The EEOC lawyer that filed the lawsuit is quoted as saying that "Employers need to be mindful that any hiring practice be job-related and not screen out groups of people, even if it does so unintentionally".  Kaplan responded by stating that "We are an equal opportunity employer, and we are proud of the diversity of our workforce...[Kaplan] conducts background checks on all prospective employees.  For employees whose responsibilities include financial matters, such as those who advise students on financial aid, background checks also include credit histories." Kaplan intends to fight the lawsuit.

Social media infects juries.  The American Bar Association reports that at least 90 verdicts have been challenged as the result of jurors' internet conduct.  In 21 cases since January, 2009, judges have granted new trials or overturned verdicts.  The article reported that Reuters Legal recently reviewed tweets with the words "jury duty" for a 3 week period, and found "Tweets from people describing themselves as prospective jurors or sitting jurors popped up at the astounding rate of one nearly every 3 minutes".

NLRB Proposes New Posting Requirement of Employee Rights Under the NLRA.  In it's 75 year history, the NLRB has only issued substantive regulations one time, in 1975.  On December 22, the NLRB issued proposed regulations that would require all employers covered by the National Labor Relations Act (NLRA) to post a notice informing employees of their rights under the NLRA, including the right to unionize.  These proposed regulations apply to both union and non-union employers.  The NLRB is proposing that the notice be posted both by hard copy in a conspicuous place, as well as electronically, if the employer customarily communicates with its employees electronically.    Proposed sanctions include (1) finding that the failure to post as an independent Unfair Labor Practice, (2)  tolling the statute of limitations for filing Unfair Labor Practice Charges, (3) using the knowing failure to post the notice as evidence of unlawful motive in unrelated Unfair Practice Charges.  There is a 60 day comment period, after which the NLRB will probably decide how to proceed with the proposed posting requirement.

Alabama Employment Law Report  named as a top 100 Employment Law Blog.  The Delaware Employment Law Blog issued its 3rd annual list of 100 top employment law blogs.  I am pleased to announce that my blog has made the list for the 2nd year in a row.  I view this blog as an opportunity to blog on issues that interest me, and hopefully, both employers and employees.  The Delaware Employment Law Blog is an excellent blog as well, and certainly in my top 10.  I would recommend that you visit it regularly to stay informed on current issues in employment law. 

Wishing all of you a Happy New Year. 

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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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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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On October 18, 2010, a Department of Labor Administrative Law Judge (ALJ)issued his opinion in the case of OFCCP v. Florida Hospital of Orlando.  The Administrative Law Judge found that the hospital was a subcontractor of a managed care services provider's contract between TRICARE and Humana Military Healthcare Services, Inc., and was subject to the affirmative action obligations imposed on federal contractors.  The DOL's Office of Federal Contract Compliance Programs (OFCCP) affirmative action regulations require the preparation of annual affirmative action plans for women and minorities, certain veteran categories, and individuals with disabilities, imposes extensive and complicated record-keeping obligations for applicants and hires, and requires all non-executive vacancies being filled with external candidates to be listed with state workforce agencies.  TRICARE is the Department of Defense's (DOD) program that pays for the medical benefits for active duty and retired military personnel and their families.  OFCCP attempted to initiate an audit of the Florida Hospital of Orlando, and the hospital resisted, claiming it was not a covered government contractor.  The ALJ found that since the hospital participated in the TRICARE program, it was a federal subcontractor since they assumed the performance of the TRICARE administrator, Humana Military Healthcare Services, Inc.  In doing so, the ALJ rejected the DOD's argument that its program was one of federal financial assistance, and not a contract to provide actual medical services. 

Practice pointer.  This decision may have wide-reaching implications for health care providers who bill to TRICARE if they do not have an affirmative action plan in place to comply with OFCCP's requirements.  In today's economic situation, this decision may also result in increasing the cost of providing health care services, in a time when the federal government is attempting to emphasize making health care more affordable. 

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The Wall Street Journal reports today that more than 70,000 claims were filed with the EEOC for the first six months of the governmnet's fiscal year that ended on April 30, 2010.  This is a 60% increase from the same period last year.  The article looks at the increase from both the employer side and the employee side.  Due to layoffs, employees who are not able to find a new job quickly may be more likely to engage in the litigation process.  On the other hand, employers may be conducting layoffs improperly by replacing older workers with younger, lower paid workers.  Disability claims are also up 10% over the previous year, and more than 20% since 2007.  The increase is due, in part, to the amendments to the ADA that make it easier to qualify as being "disabled".  In light of the depressed economy, many employers are finding it more burdensome to accommodate their employees who are disabled due to the costs involved. 

Practice pointer.  As more charges are being filed with the EEOC, both by those employees who have been laid off, and by those employees who think that they may be laid off in an attempt to protect their jobs, employers must be more diligent than ever in training their workforce, documenting disciplinary problems, in making decisions about termination or reductions in force and in responding to the EEOC when a charge is filed. 

Another "Duh" moment

The American Bar Association Journal published one of those stories that make you wonder just how smart lawyers really are.  A California lawyer sued his law firm alleging that he was disciplined by having his pay cut, and ultimately fired after he refused to participate in the firm's weekend retreat titled a "New Warrior Training Adventure".  Among the activities, according to the lawsuit, was sitting naked in a circle with other man and discussing their feelings while passing around a wooden phallus.  The law firm contends that the retreat was not a job requirement, and the reduction in pay was part of his employment agreement.  The website for The Mankind Project, which runs the New Warrior Training Adventure, refers to the program as a "modern male initiation and self-examination" and that nudity "is NOT required" although "the VAST majority of men choose to participate". 

Practice pointers.

Of course, anyone can sue anyone for anything.  It does not mean that the suit will be successful.  Unfortunately, whenever a charge or suit is filed, it often results in a great deal of expense, both monetary (legal fees, expenses, manpower diverted to defending the suit instead of "real" work) and non-monetary (decrease in morale, distractions, bad publicity).

Additionally, this suit is a reminder that activities away from work may result in claims for harassment and/or discrimination.

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EEOC

As we are quickly approaching September 30, the end of the Government's fiscal year, I am reminded of a post I made last year about this time. On October 9, I wrote that the EEOC had filed 9 suits in Alabama and:   "Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?"  We will find out over the next couple of weeks if the EEOC again rushes to file a number of lawsuits before September 30, and if they will cover the various claims they have jurisdiction over. 

Immigration

A reminder that ICE has published a final rule, that became effective on August 22 concerning how employers can sign and maintain I-9 forms electronically.  The rule allows employers to maintain I-9's in paper form, electronically, or a combination of the two.  The rule provides that the electronic system must provide an audit trail every time an I-9 is created, completed, updated, modified, altered or corrected, and the person performing the action.  The electronic system must be able to provide confirmation to the employee if requested.  Finally, the employer has 3 days from date of hire to complete the verification section of the I-9 (the "Thursday Rule": start work on Monday and complete form by Thursday).  To avoid potential claims of discrimination, the I-9 forms should not be maintained with the personnel files.

In another one of those "DUH" moments, the New York Times reports that a successful restaurant owner in San Diego is facing up to 30 years in jail, millions in fines and the seizure of his restaurant if convicted of illegally hiring 12 undocumented immigrants.  The article notes that the Obama administration implemented a policy in April, 2009 taking a tougher stance on employers who hire illegal immigrants, In 2009, ICE conducted less then 1,500 investigations, while conducting over 2,000 investigation during the first 7 months of 2010.  The Bureau of Labor Statistics estimates that 1.4 million of the 12.7 million workers in the restaurant business are foreign born, and are in the United States both legally and illegally.  The Pew Hispanic Center, in 2008, estimated that about 20% of the 2.6 million chefs, and 28% of the 360,000 dishwashers, were in the US illegally.  Mr. Malecot, the owner of the French Gourmet restaurant in San Diego, employs about 120 full and part time workers.  In 2006, Mr. Malecot's business catered, for free, a benefit honoring a veteran returning from Iraq.  Since the dinner was held at an Air Force base, heightened security measures resulted in identity checks showing that one of the workers was an Algerian immigrant working illegally.  In 2008, ICE officials conducted an armed raid on the business, seizing computers, paperwork and arresting 12 workers.  Since being indicted, the business has lost at least $500,000 in catering jobs, which make up approximately 70% of the restaurant's revenue.  In June, the owner of two restaurants in Maryland was ordered to forfeit more than $700,000 in assets, and faces up to 10 years in prison after pleading guilty to hiring and harboring illegal immigrants.  And closer to Alabama, in Mississippi, another restaurant owner pleaded guilty to hiring illegal immigrants and received a sentence of 1 year in prison and faces fines of $600,000. 

Pandemic policy

Last year, the world was abuzz with concerns over the H1N1 virus or Swine Flu.  Although it was not as serious as many people feared, it did have an impact on millions of people.  This years newest concern is the "super bug"  that is resistant to most antibiotics.  Although we don't know how wide spread this "super bug" may be, it is a reminder that employers should have a Pandemic Policy in place in the event the workforce is decimated by the flu, the "super bug", or even a natural disaster such as an earthquake or hurricane.

Social Media

Social media continues to create havoc for the legal system.  The ABA Journal published a story on September 2 where a juror in Michigan, in a criminal case, published on her Facebook site that she thought the defendant was guilty, before the case went to verdict.  She wrote that she was "actually excited for jury duty tomorrow...it's gonna be fun to tell the defendant they're guilty".  The trial judge found her in contempt, fined her $250, and ordered her to write a 5 page essay on the Sixth Amendment, which guarantees defendants a right to a fair and impartial jury. 

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Americans With Disabilities Act Turns 20

This week marks the 20^th anniversary of the passage of the Americans With Disabilities Act. According to the Washington Post, the EEOC released a report indicating that “workers with targeted disabilities – including deafness, blindness, missing extremities, mental retardation, and partial and complete paralysis – represent less than 1% of the federal work force.” Based, in part, upon this report, President Obama issued an executive order requiring federal agencies to increase their efforts to hire 100,000 disabled employees over the next five years. “The order directs the office of Personnel Management, in consultation with the Labor Department, the EEOC and the Office of Management and Budget, to design strategies within 60 days for recruiting and hiring disabled workers. Personnel Managers at government agencies must be trained in employing the disabled. Agencies will then be required to development plans for recruiting and keeping the workers.” Also, this week, the House of Representatives passed legislation making the Internet and television more accessible to the disabled. The Bill, which now goes to the Senate, would require the telecommunications industry to caption on-line television programs and that telecommunications equipment that is used over the Internet be compatible with hearing aids. 

Practice pointer.  There has been quite a lot of recent activity concerning the accessibility of web sites for visually and hearing impaired individuals.  As with many laws, technology moves faster then the law can.  Businesses with web sites should be prepared to address these issues in the near future.

Update on Nursing Mothers

The U.S. Department of Labor, Wage and Hour Division, issuedFact Sheet No. 73 providing general information on the breakdown requirement for nursing mothers in the Patient Protection and Affordable Health Care Act which became effective on March 23, 2010. The DOL states that “employers are required to provide a reasonable amount of break time to express milk as frequently as needed by the nursing mother. The frequency of breaks needed to express milk as well as the duration of each break will likely vary.” The DOL further points out that a bathroom is not a permissible location even if private. The location provided must be functional as a space for expressing breast milk. The DOL believes that “a space temporarily created or converted into a space for expressing milk or made available when needed by the nursing mother is sufficient provided that the space is shielded from view, and free from any intrusion from co-workers and the public.” The break time only applies to employees who are not exempt from the FLSA’s overtime pay requirements. Employers with fewer than 50 employees are not subject to the FLSA break time requirements if compliance with the provision would impose an undue hardship. An undue hardship “is determined by looking at the difficulty or expense of compliance for specific employers in comparison with the size, financial resources, nature, and structure of the employer’s business.” The DOL further finds that “employers are not required under the FLSA to compensate nursing mothers for breaks taken for the purpose of expressing milk. However, where employers already provide compensated breaks, an employee who uses that break time to express milk must be compensated the same way that other employees are compensated for break time.”

Home Depot Male-on-Male Sexual Harassment Case Settles

I recently reported on the Home Depot case involving  store manager David Corbitt.  While on appeal before the 11^th Circuit in a rare en banc session, the case settled and the appeal was dismissed before the court could enter a ruling. In light of the fact that the 11^th Circuit decided to hear the case en banc, the December panel opinion was vacated.

Practice pointer.  In light of the 11th Circuit's granting of an en banc hearing, the issues raised in this case peaked the interest of the judges.  Since the case was settled before a decision was released, the 11th Circuit will need to find another case with similar issues in order to address the issues raised in this case. 

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The EEOC announced another large settlement involving a large Alabama company.  The EEOC issued a press release on July 1 announcing a $100,000 settlement with McGriff Industries, a Cullman company, to settle a racial harassment and retaliation lawsuit filed by the EEOC.  According to the EEOC, "certain employees and managers in the Cullman facility routinely  used racially derogatory comments, slurs, and insults directed at or about African-Americans. The racial  misconduct escalated to threats and intimidation, including a derogatory threat  to cut one of the black employees. White  and black employees were offended by the racial misconduct, but were rebuffed  and retaliated against -- one employee was terminated and another had  his work assignments changed -- when they complained."

Practice pointer.  Training.  Training.  Training.  Supervision.  Supervision.  Supervision.  I don't need to say any more. 

Health Care Reform amends FLSA to require breastfeeding breaks.  Nursing mothers are now allowed to take a reasonable break when they need to express breast milk, and employers are required to provide a private location, other than a bathroom.  This applies for up to one year after the child's birth.  Employers with less than 50 employees are exempt if "an undue hardship" would be imposed by causing the employer significant difficulty or expense. 

Practice pointer.  As the Obama administration continues to put it's mark on the workplace with new laws and regulations, this is just another one that is now in place and imposes new obligations on employers.

FMLA claim for depression rejected.  The 8th Circuit, in the case of Kobus v. The College of St. Scholastica, Inc. found that  an employer has no obligation to reasonably accommodate an employee under the ADA when the employee did not inform the employer that he needed an accommodation.  Kobus was a painter for the college, and due to personal and family issues, was diagnosed with depression and prescribed Paxil.  He told his supervisor that he was suffering from stress and anxiety, but did not mention the diagnosis of depression.  When he told his supervisor that he needed time off work to deal with his stress, the supervisor placed a FMLA from Kobus's mailbox.  Kobus responded that he did not need leave.  Shortly after, Kobus was written up for excessive absenteeism.  Kobus then asked for "mental health leave" and his supervisor again asked if he wanted FMLA leave, and Kobus advised him that he did not have a doctor to fill out the FMLA form.  Kobus submitted a letter of resignation and received 2 weeks severance.  Kobus never mentioned depression or his medications and did not mention his condition or FMLA leave during his exit interview.  Kobus then sued the College claiming he was forced to resign and he was denied his FMLA rights and was discriminated against under the ADA.  The trial court dismissed these claims on summary judgment, finding that Kobus did not pursue FMLA leave and  "in fact, expressly rejected it", and that the ADA claim was due to be dismissed since he never informed the College that he needed a reasonable accommodation due to a disability. 

Practice pointer.  This decision demonstrated the need to train supervisors on various laws that apply in the workplace, including FMLA and ADA.  The supervisor, even though no mention was made by Kobus for FMLA leave, offered to treat it as such, and Kobus refused.  The Court further found that the ADA was not violated since Kobus never informed the College that an accommodation was needed. 

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The EEOC continues to file suits and reach settlements around the country on a regular basis.  Most recently, the EEOC announced a settlement with a Starbucks store in Arkansas as the result of disability discrimination.  According to KATV, Chuck Hannay was not hired because he has multiple sclerosis.  The EEOC said that Hannay applied for one of six barista positions, but he was never contacted and individuals with less experience and ability were hired instead.  The Starbucks store agreed to pay $80,000, and was enjoined from discriminating on the basis of disability and retaliation.  According to EEOC Regional Attorney Faye Williams, "People with disabilities should have equal opportunities for employment....This case demonstrates the EEOC's commitment to combat discrimination that prevents individuals with disabilities from taking their rightful place in the work force.

In Houston, the EEOC announced that two Sonic Drive-In franchises, with common ownership and management will pay $55,000 to settle a sexual harassment lawsuit filed by the EEOC.  According to the EEOC, the primary owner of the franchises "promoted a young, unqualified family member to consecutively higher management positions within the restaurants and allowed him to use his position of power to sexually harass the teens starting in 2006".  The EEOC also contended that this manager permitted and encouraged other male employees and managers to join in the harassing conduct.  When a 17year old female rejected the sexual advance of the manager, he became abusive to her and threatened her with a knife.  In addition to the monetary settlement, the defendants were required to develop and implement new policies and procedures for addressing illegal discrimination in the workplace, and they must be approved by the EEOC prior to implementation.  Jim Sacher, the EEOC's regional attorney, was quoted as saying:  "This lawsuit was filed in order to protect some of our nation's most vulnerable and impressionable workers-teenagers who. often are newcomers to the workplace...."

Practice pointers.  The EEOC continues to be extremely active in pursuing lawsuits and settlements  around the country.  Press releases usually accompany the filing of lawsuits and the settlement of cases, resulting in negative publicity for the companies named.  It is important to implement proper policies and procedures, and train the entire workforce on a regular basis.  This includes family members. 

As mentioned in a previous post, the EEOC is concentrating on harassment of young workers.  As we are still in the summer employment season, now is the prime time for teenagers who have summer jobs to be harassed, discriminated against and otherwise mistreated.  Again, training and monitoring the workforce is a must.

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Oftentimes, when I give speeches, I tell the audience that I cannot make up stories that are stranger than what happens in real life.  Over the past several days, I came across two cases where the truth may be stranger than fiction.

In New York, Business Insider reports that Debrahlee Lorenzana filed a lawsuit against Citibank because "she is too hot".  Courtney Comstock, who wrote the article for Business Insider, reports that Ms. Lorenzana is 5'6", 125  pounds, and curvy.  Allegedly, she was told by her bosses that "as a result of the shape of her figure, such clothes were purportedly 'too distracting' for her male colleagues and supervisors to bear...". The Village Voice described her as "J.Lo curves meets Jessica Simpson rack meets Audrey Hepburn elegance-a head-turning beauty".  She complained to HR via phone and emails on a regular basis, and an HR investigation took place.  She alleges that after the investigation, things got worse. Allegedly, her clients were transferred to co-workers, and her performance deteriorated.  She received a letter putting her on probation for allegedly coming in late to work on 2 consecutive days: which apparently were a Saturday and Sunday, when the office was closed.  She was ultimately transferred to another branch, worked as a telemarketer, and was ultimately fired by a female manager, being told that the reasons for termination were her clothes at the previous branch and that she was not fit for the culture of Citibank.  The case will go to arbitration since she signed an arbitration provision when she was hired.

Practice pointer.  I suggest that you read the articles in Business Insider and The Village Voice for more details about the allegations.  Needless to say, they sound like a textbook case of sexual harassment and retaliation.  The comments, the delayed investigation by HR, emails sent to vice presidents that were ignored, the transfer, demotion and the ultimate determination to terminate her all raise questions, if the allegations are true.  Training all employees, including supervisors, as to company policies and procedures is very important, from dress code, to attendance, to anti-harassment/anti-retaliation.  Complaints of harassment must be taken seriously.

 In Georgia, the Atlanta Journal Constitution reported that  the ex-football coach at Savannah State University has filed suit alleging discrimination.  Robert Wells, the first white football coach in the 98 year old history of the  historically black university, alleges that he was fired one month after he accepted a one year contract extension because his fiance is black.  The suit also alleges that the school hurt his reputation saying he violated recruiting rules while recruiting 5 white football players.  In the lawsuit, Wells alleges that he was told that he "would never have the support of the citizens of Savannah because he is white and his fiancee is black" and that he was criticized by university officials for letting his fiancee host a "coach's show" on television, ride on a parade float with him and accompany him to away games.  ESPN's Outside the Lines did a story on the situation and there are many interesting statements made by both sides of this suit. 

Practice Pointer.  Whether the allegations made by Coach Wells are true or not, I want to emphasize that racial discrimination is racial discrimination: whether it is white discriminating against black, or vice versa.  Racial discrimination is illegal, and should not be tolerated in any workplace.

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The EEOC released fiscal year 2009 statistics this week: although the number of claims was down 2% from 2008's record level, 2009 had the second highest number of complaints ever filed with the EEOC.  According to the New York Times, disability claims rose by 10% to 21,451.  This is most likely due to the passage of the ADA Amendments Act of 2008, which expanded the coverage of the ADA.  The most frequently filed claims were for race, sex and retaliation.  National origin claims rose by about 5%, while religious claims rose by less than 1%.  Stuart Ishimaru, acting chair of the EEOC, was quoted by the New York Times as saying that equal employment opportunity "remains elusive for far too many workers", while urging employers to end discrimination at work. 

Practice pointer.  I anticipate that EEOC claims will remain relatively constant in 2010, and may even increase, based on several factors, including the state of the economy, additional funding for the EEOC, and increased awareness within the workforce of changes in the law and the ability to file claims with the EEOC.

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Last week, the Miami Herald published a story written by Diane Stafford entitled "Ready to hire? Don't ask wrong questions".  The story, referring to an article in The HR Specialist newsletter, listed a number of questions that may be asked during an interview that may be viewed as discriminatory.  Some of the questions listed are:

     Are you married?  Divorced?

     Do you have children? Do you plan to start a family?

     Do you rent or own your home?

     What church do you attend?

     Do you have a disability or illness?

As Ms. Stafford points out, "Some of these questions might seem laughable.  Some might seem logically designed to figure out how responsible and worthy the applicant might be.  But the threat of lawsuits prompts employers to tread carefully in personal probing." 

All of the above brings to light the use of the internet to conduct background investigations on potential employees (and even current employees).  Sources for internet background checks include search engines such as Google, social networking sites such as Facebook and Myspace, high school or college web sites, and even corporate web sites where the applicant worked prior to the application for a new job.  Sites that can be checked  also include news sources, such as newspaper or television websites, public records, such as assets, lawsuits, bankruptcy and home ownership, and the websites of religious institutions.

While many HR professionals will not ask questions such as those set out above, many will not hesitate to use the internet to conduct background checks.  They do so without realizing that they may get answers to questions that they otherwise could not or should not ask in the interview process.  One may be able to determine sex, race, age, family status, religious affiliation and even disabilities by performing internet research. 

Practice pointer.  When conducting internet background checks for potential employees, HR professionals need to be careful where they look and what they do with the information they discover if the information can form the basis for a claim of discrimination if the applicant is not hired.  Using the internet to conduct background checks may lead to claims of discrimination when an applicant is not hired.

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Congress recently approved funding the EEOC with $23 million to help reduce the backlog of cases currently pending with the agency, some for as long as 3 years.  According to Ethisphere, staff levels at the EEOC have dropped by approximately 25% over the last several years. Last year, the EEOC saw a 35% increase in backlogged cases.  There are currently tens of thousands of backlogged cases pending with the EEOC.  This is consistent with my November 11, 2009 blog entry indicating that the acting director of the EEOC reported at the annual meeting of the Labor and Employment section of the American Bar Association that they were hiring 250 new employees. 

Practice pointer.  As the new employees come on board for the EEOC, expect both an increase in the disposition of backlogged cases, as well as more aggressive enforcement of the various laws that the EEOC is responsible for. 

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Congress's latest employment law becomes effective on Saturday, November 21, 2009.  The Genetic Information Nondiscrimination Act (GINA) is designed to ban the misuse of genetic testing in the workplace.  GINA prohibits employers from requesting genetic testing or considering someone's genetic background in hiring, firing, disciplining or promoting.  Insurance companies will also be prohibited from requiring genetic testing, and cannot use genetic history, such as a history of heart disease or cancer to deny coverage or set the amount of premiums or deductibles.  Genetic information includes not only the individual's medical history, but also that of his/her family.  The law applies to health insurers, but not life insurers.  GINA applies to any employer with 15 or more employees.  The EEOC has released the revised "Equal Employment Opportunity is the Law" poster, which is mandatory for all covered employers. All federal posters need to be replaced to include GINA.

Practice pointer.  GINA is Congress's most recent employment law to take effect.  Like most other laws, the EEOC's interpretation may be different, and much more expansive, than the courts will ultimately interpret GINA to be.  For now, it is important for employers who are covered to replace their EEOC posters, and review and revise all forms/applications, etc. to make sure that the paperwork is in compliance with GINA.   The New York Times published an article addressing GINA on Monday, November 16 discussing the law and it's impact on the workplace. 

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It appears as if the EEOC is taking a more active role in filing lawsuits against employers in the name of the EEOC.  Over the last several weeks, the EEOC has filed at least  9 lawsuits in Alabama against various employers.  These lawsuits include alleged violations of the ADA against  two different employers when employees were terminated after the employers learned the employees were HIV positive, allegations that the Age Discrimination in Employment Act was violated when the employer failed to promote a 50 year old employee and hired a younger, less qualified individual, allegations that an employee was terminated because she was pregnant, and allegations that a racially hostile work environment existed because black employees were subjected to the use of the "N" word and the display of a noose in the workplace.  This trend appears to be occurring around the country, with notable cases being filed by the EEOC against Pace Airlines, which operated Hooters Air on behalf of an Asian flight attendant who was fired after complaining that only white workers were being promoted, and a case against a Chicago area automobile dealer alleging that female employees were called obscene epithets and female customers were call "dingbats".

Based on the timing of these lawsuits, it is difficult to determine if this will be a long term trend based on a change in EEOC philosophy, or if it was a last minute rush to file the suits before the end of the fiscal year, which ended September 30, 2009.  Is it possible the EEOC has quotas for the number of lawsuits it files?

The EEOC also recently announced a record $6.2 million settlement of a nationwide class action lawsuit against Sears over the firing of disabled workers.  According to Law.com, Sears fired numerous employees who took leave for work related injuries and that Sears "routinely declined to make accommodations to bring back employees who had taken workers' compensation leave or to offer them a brief extension of their leave to make it possible for them to return later". 

In other EEOC news, the Wall Street Journal today reports that there is a large increase in retaliation claims being filed by employees against employers.  For the fiscal year ending September 30, 2008, retaliation claims rose 23% to 32,690, more than a third of all claims filed with the EEOC.  Although many of the retaliation claims are filed together with underlying discrimination claims, as I often point out during speeches, an employer can be guilty of retaliation even if cleared of the underlying claim of discrimination. 

Practice Pointer.  As evidenced by the types of claims alleged in the lawsuits filed by the EEOC, it appears as if all types of discrimination may be occurring in the workplace.  It is a good time, as we get to the end of the calender year, for companies to review their policies and procedures, make sure that their work force, including supervisors, receives training on the companie's anti-discrimination policies, and that  HR continues to monitor the workplace to avoid claims of discrimination. 

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Recently, one of my partners, David Mellon, presented a talk entitled "Background Checks & Title VII: Discriination Lurking in the Shadows".  When a criminal background check is provided to an employer by a consumer reporting agency (CRA), the Fair Credit Reporting Act (FCRA), 15 U.S.C.Section 1681 et seq is applicable.  The FCRA creates obligations for both the CRA preparing criminal background reports and for employers using them.    A CRA may furnish a consumer report to an employer for employment purposes.  A CRA may not report arrests or other adverse information (other than convictions of crimes) that are more than 7 years old.  Before an employer (other than in the trucking industry) obtains a consumer report of criminal records from a CRA for purposes of employment decisions, the employer must do certain things, inlcuding providing the applicant with "clear and conspicuous disclosure" that the report may be obtainted for employment purposes, ensure that the disclosure is written in a document that consists only of the disclosure, and receive the applicant's written authorization to obtain the report. 

Recently, Law.com  reported that Bank of America Corp and Manpower Inc. were accused of discriminatory hiring practices when Manpower Inc. distributed fliers stating that qualified candidates "must be able to pass a background check and have no felonies or misdemeanors".  Although there is no federal law that specifically imposes any limitations on an employers' decision predicated on criminal records (although 4 states do, Hawaii, New York, Pennsylvania and Wisconsin), the EEOC has found that employer policies that reject job applicants with criminal records, even if they are neutral on their face, have a racially disparate impact.  In 1985, the EEOC issued a policy setting forth the business necessity standard for the consideration of convictions: 

     1.  The nature and gravity of the offesne.

      2. The time that has passed since the conviction and/or completion of the sentence.

      3.  The nature of the job.

The EEOC Policy Guidelines on Arrests reaffirms the 3 progned business necessity test set forth in their Policy Guidelines on Convictions.  The arrest guidelines go on to state that with respect to consideration of arrests, "a blanket exclusion of people with arrest records will almost never withstand scrutiny".

Practice Pointer.  In the event a company uses a CRA to conduct background investigations, that include criminal history, the company must ensure that all applicable rules and regulations are followed by the CRA, and any history of arrests or convictions be used in compliance with EEOC policies. 

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Hugh Butler filed his lawsuit against his former employer, Greif, Inc. alleging a violation of the anti-retaliation provision of the Americans with Disabilities Act (ADA).  Butler's attorney filed the charge with the EEOC, which is a pre-requisite to pursuing a claim under the ADA.  However, Butler failed to verify the charge since he did not sign it under oath, and under penalty of perjury.  The trial court granted summary judgment in favor of Greif.  On appeal, the Eleventh Circuit Court of Appeals affirmed the summary judgment, finding that the attorney's signature did not constitute a verification.  The court found that an attorney can verify the charge so long as he swears to the truth of the facts stated in the charge and has personal knowledge of those facts.  The charge could have been verified at any time while the charge was pending, but Butler failed to do so.  It should be noted that Butler failed to cooperate with the EEOC in their investigation, and thus dis-entitled him to any equitable relief, referring to a case from the Third Circuit that held that the "verification requirement should be subject to waiver "when equity so requires", such as when, as in that case, the employer responded to the EEOC charge on the merits, declined to challenge the sufficiency of the charge before the EEOC, and later attempted to move to dismiss the suit for lack of verification."

Practice Pointers.  From an employees' perspective, it is imperative that the EEOC charge be verified.  Employees must also cooperate with the EEOC during the investigation to take advantage of any equitable arguments they may have.  Employers need to remember that failure to  verify the charge can be remedied so long as the charge process is ongoing. 

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The Lilly Ledbetter Fair Pay Act of 2009, the passage of which was one of President Obama's main priorities, appears  ready to be signed into law.  President Obama is scheduled to sign the Act tomorrow morning, January 29, 2009.  The Act, which will amend Title VII, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Rehabilitation Act, will re-start the applicable statue of limitations each time a pay check or other benefits are paid for claims involving discrimination on compensation.  The law overturns the 2007 Supreme Court decision in Ledbetter v. Goodyear, arising out of Alabama.  In my opinion, the most important language of the Act is as follows:

"For purposes of this section, an unlawful employment practice occurs, with respect to discrimination in compensation in violation of this title, when a discriminatory compensation decision or other practice is adopted, when an individual becomes subject to a discriminatory compensation decision or other practice, or when an individual is affected by application of a discriminatory compensation decision or other practice, including each time wages, benefits, or other compensation is paid, resulting in whole or in part from such a decision or other practice."

The act purports to apply retroactively as set forth by Congress:  "This Act, and the amendments made by this Act, take effect as if enacted on May 28, 2007 and apply to all claims of discrimination in compensation...that are pending on or after that date."

Lily Ledbetter, who campaigned for President Obama, is quoted in the Birmingham News as follows:   "I will be treated like a second-class citizen by that corporation for the rest of my life," she said, noting that her retirement benefits reflect her lower pay. "But I have the satisfaction of getting this law changed back so that other people can still file."

Practice Pointer.  Now is the time for employers to review their pay polices and pay structure to make sure that there is no discrimination in pay under Title VII, ADEA, ADA and the Rehabilitation Act.  Employers should consider reviewing their pay practices from May 28, 2007, the effective date of this new law, forward.

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Danny Morton, the Sheriff of Blount County, Alabama, has agreed to resign effective January 15, 2009 due to allegations of sexual misconduct.   According to the Birmingham News, a female deputy sheriff, assigned to the drug task force, filed an EEOC charge on April 11, 2008 alleging that she was forced to drink alcohol while on duty, was fondled, kissed and sexually assualted.  At the time, Sheriff Morton denied the allegations of the complaint. 

A criminal investigation began, and a special proscecutor was appointed by the Attorney General's office.  An agreement was reached allowing Sheriff Morton to resign on January 15, 2009, and no criminal charges will be filed against him.  The article from the Birmingham News, dated December 16, 2008, is availble to read here.  There is no indication on how the EEOC charge is being handled at this time.

Practice Pointers.

1.  All employers must recognize that sexual harassment and other prohibited conduct can be engaged in at all levels: from the top, like a sheriff, to the bottom, of each organization.

2.  Employers should have a mechanism to report harassment, sexual or otherwise, to at least 2 people, in case their supervisor or CEO is the one accused of the wrongful conduct.

3.  Allegations of sexual harassment may give rise to a criminal investigaion and possibly charges for assault, rape, kidnapping or other crimes.

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