Posts belonging to Category discrimination

Although the Genetic Information Nondiscrimination Act (GINA) became law back in 2008, the EEOC — which enforces the law — has filed only two lawsuits since then charging employers with illegally asking employees/job applicants for their family medical histories.

One of those lawsuits — against Tulsa, Okla.-based Fabricut Inc. — was settled last week. The EEOC had charged the company with violating GINA by purportedly asking job applicant Rhonda Jones (whom it was considering for the position of memo clerk) for her family medical history as part of a post-offer medical exam. Fabricut asked Jones to — as a condition of its job offer — undergo an evaluation for carpal tunnel syndrome by her personal physician, and to undergo a pre-employment lab test and physical by its contract medical examiner. Although Jones’ doctor concluded she did not have CTS, the company says its medical examiner says she either had the syndrome or was predisposed to develop it, and it rescinded the job offer. Earlier this month, Fabricut agreed to settle the suit by paying $50,000 and offering other relief without admitting any wrongdoing.

Last week, the EEOC announced another GINA-related lawsuit, this one against Corning, N.Y.-based Founders Pavilion Inc., a nursing and rehabilitation center. According to the suit, the company conducted post-offer, pre-employment medical exams of applicants in which they were asked for their family medical history. The exams were repeated annually if the person was hired.

The EEOC also charged Founders with violating the Americans with Disabilities Act by firing one employee after refusing to accommodate her and refusing to hire two women because of perceived disabilities.

Elizabeth Grossman, the regional attorney in the EEOC’s New York District Office, had this to say in a statement:

GINA applies whenever an employer conducts a medical exam, and employers must make sure that they or their agents do not violate the law.”

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Although it’s been 35 years since the Pregnancy Discrimination Act was signed into law, pregnant women can still face a tough time in the workplace, particularly in occupations where being on your feet most of the day and/or lifting heavy objects are part of a regular day’s work. Although it met with little success last year, Senators Robert Casey (D.-Pa.) and Jeanne Shaheen (D.-N.H.) are reintroducing the Pregnant Workers Fairness Act in the Senate — just two days after Mother’s Day, not coincidentally — while several of their counterparts in the House are reintroducing it in that chamber as well.

More than three in five pregnant women in the United States (62 percent) are in the labor force, according to the National Partnership for Women & Families, which is actively promoting the legislation.

The PWFA would make it an unlawful employment practice for certain public and private employers to not make reasonable accommodations to the known limitations related to pregnancy, childbirth, or related medical conditions of a job applicant or employee, unless a covered entity can demonstrate that the accommodation would impose an undue hardship on its operations or business. It would also prohibit employers from requiring pregnant workers to take leave from their jobs if another reasonable accommodation is available that would allow them to continue working.

Proponents say the PWFA is necessary because, although existing laws prohibit organizations from discriminating against pregnant workers, the laws do not recognize pregnancy as a disability and do not compel employers to provide accommodations for expectant mothers. The new law would offer pregnant workers the same protection that other disabled employees — such as those who’ve injured their backs or suffered heart attacks — currently enjoy, supporters say.

PWFA advocates point to incidents in which pregnant workers have been denied bathroom breaks or compelled to take unpaid leave as examples of why the new law is needed.

“In a country that claims to value family and fairness, having a baby should not mean losing a job and jeopardizing family financial stability,” said NPWF president Debra L. Ness in a statement supporting the Act.

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A Davenport, Iowa, jury awarded the U.S. Equal Employment Opportunity just yesterday the largest-ever verdict in the agency’s history — more than $240 million — in a case involving the long-term abuse of workers with intellectual disabilities.

The class-action case against Hill Country Farms Inc., doing business as Henry’s Turkey Services, was actually covered by me back in April 2011 in this news analysis. Here, too, is the ruling by the U.S. District Court for the Southern District of Iowa, Davenport Division, in September 2012, granting the EEOC partial summary judgment to move forward and also ordering the Goldthwaite, Texas, company to pay the workers $1.3 million for unlawful disability-based wage discrimination.

Coupled with yesterday’s awards of $2 million and $5.5 million for each of the 32 mentally disabled turkey processing-plant workers, for punitive and compensatory damages, respectively, the total judgment — to be exact — comes to $241.3.

The links above, along with this release by the EEOC, spell out all the sad, sordid details of this now-historic case. But just to recap here, the EEOC lawsuit says that, for many years, the owners and staffers of Henry’s Turkey subjected the workers to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment, such as requiring them to live in deplorable and substandard living conditions, and failing to provide adequate medical care when needed.

The EEOC also claims verbal abuses, including frequently referring to the workers as “retarded,” “dumb ass” and “stupid.” Members of the class reported acts of physical abuse as well, including hitting, kicking, at least one case of handcuffing, forcing the men to carry heavy weights as punishment and being dismissive of complaints of injuries or pain.

“The verdict sends an important message that the conduct that occurred here is intolerable in this nation, and hopefully will help to restore dignity and acknowledge the humanity of workers who were mistreated for so many years,” says EEOC Chair Jacqueline A. Berrien.

According to this Fox News account, an attorney for Henry’s didn’t respond to a message seeking comment. But the company’s president, Kenneth Henry, told the Quad-City Times after the trial  that he planned to appeal, calling some of the evidence “terribly exaggerated.”

The news account also says it’s highly unlikely the now-defunct Henry’s Turkey Service has anywhere near enough remaining assets to cover the $7.5 million in damages each man was just awarded.

“Do you think I can write a check for that?” Kenneth Henry, 72, the company’s president, told the newspaper.

But federal officials are vowing to recover every last cent they can for the men, who had been “virtually enslaved” for many years, according to developmental psychologist Sue Gant, who  interviewed them at length for the EEOC, the account states.

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The Obama administration has made it clear that combatting pay discrimination is a major enforcement priority, and the Office of Federal Contract Compliance Programs’ recent rescission of two pay discrimination guidance documents in favor of broader, more flexible investigation procedures is yet one more sign of that, said Lynn Clements, an employment attorney at Jackson Lewis in Baltimore.

“The OFCCP felt the old standards were too restrictive and not transparent enough,” said Clements, who spoke today at the Society for Human Resource Management’s 2013 Employment Law and Legislative Conference, held just steps from the Capitol at the Washington Hyatt Regency.

The rescinded standards, which were established in 2006, included a component that allowed federal contractors to “self-evaluate” their pay practices, said Clements. Now the OFCCP wants to investigate “total compensation,” including benefits, shift differentials and incentive pay, she said. It wants to look at the total take-home pay of male vs. female employees and non-minorities vs. protected groups. It also wants to look at the impact of hiring decisions that may influence pay, she said. “The OFCCP will be looking at all the factors that influence pay in your organization — work assignments, training, job classifications, promotions.

“It wants to know whether women are being steered to company departments where there is less chance of advancement, for example,” said Clements. At a supermarket chain, for example, the meat department tends to be bigger and thus have more opportunities for advancement than the bakery department, which tends to be smaller, she said. If newly hired women are being steered toward the bakery department, this could pose a problem, she said.

If a federal contractor fails a preliminary compensation screen, she said, the OFCCP will request individual compensation data for each employee–and if the company stores such information electronically, it must now be sent to the agency in that form. “This will certainly make things easier for the OFCCP,” said Clements. “Will it make things easier for you? Probably not.”

Companies that are audited by the agency can expect it to comb through their data, searching over and over for any discrepancies, she said. “You can expect a significant increase in the costs to defend an audit and a significantly reduced ability to predict whether you’re in compliance,” she said.

Clements suggested HR leaders at federal contractors carefully review their pay policies — make sure the policies are thorough, or else, don’t have one at all, she said.

With respect to OFCCP audits in general, federal contractors should be aware that nothing prevents the OFCCP from sharing data it obtains from these audits with the EEOC, she said. So it behooves companies to periodically evaluate their screening and hiring procedures for adverse impact–and if it occurs, consider validating the procedures or else making changes.

Complying with the OFCCP’s reporting requirements regarding the hiring of minorities continues to be an area of struggle for many federal contractors, said Clements, not least due to the sheer volume of applicants via the Web, said Clements. The most important thing for HR at these companies to keep in mind is this, she said: When did the minoritiy applicants fall out of the process, and why? “If you can answer that, you’ll be in reasonably good shape,” she said.

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Can an employee’s connection to someone in a protected class be the basis for a successful harassment lawsuit?

It may be, according to the California appeals court ruling that allows former firefighter David Derr to proceed with his claim that a supervisor regularly harassed him for defending his lesbian daughter.

Derr, employed by the Kern County Fire Department for 29 years, claims James Rummell—who became department captain and Derr’s supervisor near the end of Derr’s tenure—made anti-gay remarks in his presence sometime during Rummell’s first year as supervisor. Upon learning Derr’s daughter was gay, Rummell allegedly started to regularly harass him about his daughter’s homosexuality.

According to court records, the harassing behavior reportedly included comments about how gays were “led in that direction” or had experienced childhood traumas that “twisted” them, as well as emails sent to Derr from Rummell’s wife saying his acceptance of his daughter’s homosexuality was a “blatant opposition to the commands of God.” Court records indicate Derr told Rummell he “did not want to hear any more such commentary,” and reiterated that he had a gay family member.

Derr was eventually granted a shift change, but Rummell allegedly continued to stay behind after his own shifts ended in order to further harass Derr, who began to show physical symptoms of stress including insomnia, chronic diarrhea and headaches. Derr attended counseling, but the fire department’s employee assistance program terminated the sessions after three appointments, reportedly informing Derr that “no further treatment was available” and that he should “suck it up” with regard to handling his treatment at the hands of Rummell.

Derr ultimately retired in July 2009, citing Rummell’s abuse among the reasons. He subsequently sued the department, claiming harassment. A lower court dismissed Derr’s complaint, but the appeals court decision reversed that ruling.

This state-level decision only applies to California-based companies, but exemplifies a “noticeable trend” in the workplace, says Ron Chapman, Jr., a Dallas-based labor and employment attorney with Ogletree, Deakins, Nash, Smoak & Stewart.

“Employees are becoming increasingly assertive, and that includes speaking out against perceived wrongs toward others,” says Chapman. “In other words, even when the employee affected by the alleged misbehavior does not complain, one of his or her co-workers might.”

Employers and HR leaders must react accordingly to protect employees as well as the organization, he says.

Depending on the circumstances, it could be unlawful if the person who complains becomes the target of harassment or retaliation, even if the underlying behavior complained about was directed at someone else. To help avoid liability and promote best practices, human resource professionals should update their policies and training programs to ensure they cover this type of scenario.”

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It’s been roughly three years since we reported that East Hanover, N.J.-based Novartis Pharmaceutical Corp., the U.S. arm of the Swiss drug maker, had been fined $250 million in punitive damages. It ultimately agreed to pay $152 million.

We mentioned at the time that the jury verdict served as a reminder of the very steep price companies can pay if they’re on the losing end of one of these class-actions.

Of course, that was prior to the Supreme Court’s Wal-Mart Stores Inc. v. Dukes decision, which made it a lot more difficult to certify class actions.

Well, the attorneys representing the plaintiffs in the Novartis case, Sanford Heisler LLP, are back, this time announcing a class-action case against Tokyo-based Daiichi Sankyo, in which six current and former female representatives are alleging discrimination.

In the complaint, the plantiffs’ attorneys allege that …

Daiichi Sankyo pays female sales employees less than male employees for doing the same work; promotes or advances female sales employees at a slower rate than male sales employees; treats pregnant employees and working mothers of young children adversely compared to non-pregnant employees, male employees, or non-caregivers; and subjects women to other discriminatory terms and conditions of employment.

And that …

 … a discrete group of predominantly male Daiichi executives and senior sales managers keep a tight rein on employment decisions, including decisions regarding sales employees’ compensation, advancement, and other terms and conditions of employment. Through this male-dominated leadership structure, the company has approved and implemented policies, practices and decisions that have systemically discriminated against female employees.

Several reporters were told by the company via email that it does not comment on pending litigation and “complies with all laws regarding equal opportunity and non-discrimination.”

I spoke to Tom Lewis, shareholder and chair of the Employment Litigation Group at Stark & Stark in Lawrenceville, N.J., to get his thoughts on the action.

Lewis predicts that the plaintiff’s attorneys will likely put “front and center” the fact that the firm is Japanese … that “a Japanese company wouldn’t treat its female employees as well as an American company would.”

“But let’s remember,” he adds, “that a class-action lawsuit like this has to be proven”—and that may not be easy.

Lewis notes that he’s represented many foreign-owned companies and his experience is that they “often go above and beyond the call of duty to make sure that, culturally, they’re complying with the laws of this country.”

He also suggests it makes perfect sense that the plantiff’s attorneys would select San Francisco to file the suit in, since the employment laws in California are much more employee-friendly.

We’ll have to watch and see how this case eventually plays out. But this much is certain: The plaintiffs in this case will have a tougher hill to climb in gaining class-action status.

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Healthcare facilities can be a virtual breeding ground for influenza, especially during this time of year. With that in mind, Indiana University Health Goshen Hospital recently mandated that all of its employees receive flu shots, for the well-being of patients and staff alike.

And they take the requirement seriously: A refusal to comply with the new directive is apparently a fireable offense, at least for some.

According to the hospital, 1,300 employees declined the vaccine. Eight of them, including at least three experienced nurses, were let go as a result.  

One of the nurses, Ethel Hoover, cited her religious beliefs as grounds for refusing the shot. She filed a religious exemption, two medical exemptions and two appeals in an attempt to forego the mandatory flu shot. Each request was denied, and Hoover’s employment with the hospital ended on Dec. 21, six days after the IU-imposed Dec. 15 flu shot deadline had passed.

IU Health is certainly not the first healthcare organization to mandate flu shots for its employees, and Hoover isn’t the first employee to challenge the legality of such a requirement.

Consider the recent case involving a vegan healthcare worker at a Cincinnati children’s hospital, who was fired after refusing a flu shot on the basis that chicken eggs are used in the preparation of flu vaccines. A federal court judge refused to dismiss the claim, determining it possible that the plaintiff’s veganism could be a moral or ethical principle she abides by with the same conviction as a religious belief.

Such cases should remind employers with a duty to accommodate for religious beliefs that performing individualized assessments may be wiser than imposing blanket policies “that apply across the board,” says Frank Chernak, partner and labor and employment attorney in the Philadelphia office of Ballard Spahr.

For instance, oblige employees to fill out a form stating the reasons why they seek an exemption, says Chernak. “Then you’re engaged in a dialogue with the employee. And maybe [you find] there’s another way to handle the situation, and to make an accommodation.”

For example, the Cincinnati hospital’s HR team could have explained to the vegan employee—who worked in customer service and didn’t have frequent, direct contact with patients—that a vaccination without animal products was also available. Or, in the case of Hoover, the organization could have considered putting her in a role with less or no patient contact during flu season, assuming such a move could be made without undue hardship.

 “A lot of employers will simply ask the employee, ‘Is there any reason you can’t do it?’ And have a form to document the employee’s reasons, whether it’s a medical exemption or a religious exemption,” says Chernak. “That’s a good way to do it.”

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According to Dr. James Knight, Melissa Nelson was the best dental assistant he ever had.

Unfortunately for her, she was also physically “irresistible” to Knight, who relieved Nelson of her duties at his Fort Dodge, Iowa-based dental practice in January 2010. Her firing came on the heels of Knight’s complaints that Nelson, an employee of 10-plus years, wore tight-fitting, “distracting” clothes at work, and his growing concerns that she posed a threat to his marriage.

In her subsequent lawsuit, Nelson claimed she was fired for her gender. The all-male Iowa Supreme Court, however, recently affirmed a lower court’s decision that her termination broke no discrimination law.

Nelson, a 32-year-old married mother of two, has denied that she dressed inappropriately at work, telling CNN she wore scrubs while on the job. Whatever she wore, Nelson’s appearance seems to have made an impression on her boss. For example, Knight reportedly once told Nelson that “if she saw his pants bulging, she would know her clothing was too revealing,” according to court documents.

And court records indicate that Knight’s allusions to Nelson’s physical attractiveness didn’t stop there. In another alleged exchange, Knight supposedly responded to a comment she made about her lackluster love life by saying, “[t]hat’s like having a Lamborghini in the garage and never driving it.”

Still, the relationship between the two—which both acknowledge never became sexual—seemed to remain cordial. Knight and Nelson swapped friendly text messages outside of work, and she didn’t allege sexual harassment in her lawsuit.

Nevertheless, she was terminated not long after Knight’s wife, who was employed at the same dental office, found out about the text message exchanges, and reportedly demanded that Knight fire Nelson. Knight did just that, telling Nelson that she had become a “detriment” to his family, and suggesting their professional relationship should end for the sake of both their families.

“The issue before us is not whether a jury could find that Dr. Knight treated Nelson badly,” wrote Justice Edward M. Mansfield. “We are asked to decide only if a genuine fact issue exists as to whether Dr. Knight engaged in unlawful gender discrimination when he fired Nelson at the request of his wife. For the reasons previously discussed, we believe this conduct did not amount to unlawful discrimination, and therefore we affirm the judgment of the district court.”

Yes, the Iowa Supreme Court came down on Knight’s side in this case. But he hasn’t exactly seen a groundswell of support elsewhere. The public backlash is well underway on Twitter, at Knight’s Yelp page and various other online forums, where countless users have disparaged the dentist, questioned his moral fiber and encouraged Iowans to boycott Knight’s dental practice.

So, while Knight’s day in court may have turned out in his favor, this particular staffing decision may wind up costing him more than some legal fees in the long run.

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Dillard’s Inc., the Little Rock, Ark.-based retail chain, has agreed to pay $2 million and commit to “extensive, company-wide injunctive relief” to settle a class action brought by the Equal Employment Opportunity Commission over what the agency said was an employee sick-leave policy that violated the Americans with Disabilities Act.

Under the policy, Dillard’s employees were required to disclose personal and confidential medical information to the retailer in order to be approved for sick leave. The EEOC filed its original lawsuit against Dillard’s in 2008 in federal district court on behalf of Corina Scott, a former cosmetics counter employee at a Dillard’s store in El Centro, Calif., and other employees who were required to disclose the exact nature of their medical conditions to be approved for sick leave since 2005. Although Scott and others had verifications from their doctors confirming they were absent for medical reasons, they did not feel comfortable disclosing this level of information to Dillard’s and, in fact, were advised against doing so by their doctors.

The EEOC argued that Dillard’s policy violated the ADA, which prohibits employers from making inquiries into the disabilities of their employees unless it is job-related and necessary for the conduct of business. The district court ruled that Dillard’s policy was “facially discriminatory” under the ADA. The EEOC also argued that Dillard’s policy limited the amount of health-related leave an employee could take and did not regularly engage in “an interactive process with employees to determine if more leave was allowed under the ADA as an accommodation of the employee’s disability.”

The EEOC said it expects to identify “thousands” of victims from across the U.S. through the claims notice process.

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A recent ruling in the case of A.D.P. v. ExxonMobil not only illustrates courts’ expanding definition of disability, but should remind employers of their limits in dealing with employees’ substance abuse problems.

In August 2007, an ExxonMobil employee—consistently ranked as a top performer throughout nearly 30 years with the company—informed her supervisors that she was an alcoholic, and would be taking leave to check into a rehabilitation program to address her alcohol dependency and depression.

At the time, there was no pending or threatened disciplinary action against her, and two representatives from the company’s HR department later testified they had only learned of the employee’s alcoholism after she had disclosed it voluntarily.

Upon her return to the job later that year, she was required to sign an agreement obligating her to abstain from alcohol and submit to random breathalyzer tests as a condition of her continued employment. Although she passed nine random tests over the next several months, a subsequent test showed a blood alcohol level between 0.04 percent and 0.05 percent. She was fired four days later.

She subsequently sued, claiming disability discrimination. The Appellate Division of the Superior Court of New Jersey ruled the testing requirement was indeed discriminatory on its face, as only self-identified alcoholics were subjected to the random breathalyzer tests.

A judge refused ExxonMobil’s motion to dismiss the case, finding the company had no safety consideration or business necessity that dictated requiring the test. The court also pointed out there were no signs the woman was suffering from the effects of her alcohol use, nor had her job performance been called into question since her return to work.

The court’s decision is “not surprising,” but holds a pair of important lessons for companies and their HR leaders, says Mark Spring, a Sacramento, Calif.-based partner in the employment law firm of Carothers DiSante & Freudenberger.

Employers and HR professionals need to make sure they are focusing on job performance [in such cases]. In this case, the employer’s focus on alcohol use—as opposed to job performance—is what got it in trouble. Had they simply implemented a reasonable suspicion testing program, allowing them to test after evidence of reasonable suspicion of on-the-job use or intoxication, this could have been avoided.”

The case also underscores the importance of treating conditions such as alcoholism and drug addiction like any other disability, says Spring.

As long as the disability is not impacting work, then the employer is going to be very limited in its ability to address any disability, including alcohol or drug addiction. I think some employers still have a hard time equating these conditions with more ‘traditional’ disabilities, and this can lead to violations such as what happened with this employer.”

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