End of Fiscal Year Approaching: EEOC Busy Filing Cases
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.
