HR That Works Blog

A review of the EEOC’s press release from the 30-day period between December 13 and January 13 reveals the following:

Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans 1/11/12

Family Dollar Stores of Virginia to Pay $45,000 to Settle EEOC Sexual Harassment Lawsuit 1/11/12

Matrix L.L.C. Will Pay $450,000 to Settle EEOC Race Discrimination and Retaliation Lawsuit 1/6/12

DynCorp to Pay $155,000 for Sex-Based Harassment and Retaliation In Iraq 1/6/12

Bank of Albuquerque Discriminated on the Basis of Age and Sex, EEOC Alleges in Lawsuit 1/4/12

Grand Central Partnership Fired Rastafarian for Complaining of Threatened Violence, EEOC Says 1/3/12

RCC Consultants, Inc. Sued for Disability Discrimination 12/29/11

EEOC Sues Midwest ISO for Disability Discrimination 12/23/11

Mesa Systems Sued by EEOC for National Origin Discrimination 12/23/11

American Apparel Agrees to Settle EEOC Disability Bias Suit for $60,000 12/19/11

Jim Robinson Ford-Lincoln-Mercury to Pay $56,000 to Settle EEOC Disability Lawsuit 12/16/11

EEOC Retaliation Case Against Cognis to Proceed, Federal Judge Orders 12/16/11

Wal-Mart to Pay $275,000 to Former Employee Fired after Cancer Surgery 12/16/11

EEOC Launches Small Business Task Force 12/15/11

EEOC Sues Wal-Mart for Disability Discrimination and Retaliation 12/15/11

B&B Pharmacy in Bellflower to Pay $70,000 for Disability Discrimination In EEOC Suit 12/15/11

M. Slavin & Sons to Pay $900,000 to Settle EEOC Discrimination Suit 12/15/11

Vitas Healthcare Sued By EEOC in Disability Discrimination Lawsuit 12/14/11

Dairy Queen Restaurant Sued By EEOC for Sexual Harassment and Retaliation 12/14/11

Federal Court Signs Order for Blockbuster Inc. To Pay Over $2m to Settle EEOC Suit for Sex, Race and National Origin Discrimination, Retaliation 12/14/11

UPS Unit to Pay $95,000 to Settle EEOC Disability Discrimination Suit 12/14/11

King Soopers to Pay $80,000 to Settle EEOC Disability Discrimination Lawsuit 12/13/11

Bottom line: The EEOC is cranking it up. Make sure you have your disability, discrimination, and sexual harassment training and tools up to date…or you could be the next press release!

The Case of Salas v. Sierra Chemical (2011) caused quite a stir because the appellate court dismissed a disability discrimination claim of undocumented alien based on unclean hands. Now the California Supreme Court will decide this far ranging issue. The appellate court essential took much of the teeth out of a legislative amendment to protect illegal aliens against discriminatory and other illegal workplace conduct…regardless of their status. We’ll be keeping an eye out for this one!

Docket
Court of Appeal Opinion

ELK GROVE, CA — The California Department of Fair Employment and Housing (DFEH) announced today that Air Canada must pay more than $325,000 in damages after the company fired one of its customer service representatives because of her disability. The Fair Employment and Housing Commission (Commission) found that Air Canada failed to accommodate the employee’s disability and then fired her because she could not lift cargo – a job function customer service representatives rarely perform.

“Employers must attempt to find reasonable modifications that allow employees with disabilities to keep working,” said the Department of Fair Employment and Housing Director Phyllis Cheng. “Using non-essential job functions as a pretext to deny employment to persons with disabilities is unlawful in California.” 

The employee, Caroline Messih Zemaitis, worked as a customer service agent for Air Canada at Los Angeles International Airport from 1993 to 2007.  Starting in 2004, she held a clerical position in the cargo division that did not involve physical labor.  In 2005 and 2006, Ms. Zemaitis injured her back, shoulder, knee and wrist, and her doctor restricted her from performing such tasks as heavy lifting and repeated bending.  She was able to keep working in the cargo division with minor accommodations such as Air Canada’s provision of a telephone headset and heating pad, and time off for physical therapy.  

When Ms. Zemaitis became pregnant, her back condition worsened and she took a medical leave of absence for about a year.  She tried to return to work in 2007 when her doctor released her with restrictions similar to those she had before, but Air Canada refused to respond to her many communications.  Instead, Air Canada terminated Ms. Zemaitis’s because she could not lift cargo, a job function the airline’s customer service agents rarely perform.

The Commission found during this precedential decision that Air Canada had violated the Fair Employment and Housing Act. It ordered them to pay Ms. Zemaitis $102,737 in back pay, $19,720 in lost benefits, and $125,000 for emotional distress.  Air Canada must further reinstate and pay Ms. Zemaitis $54,784 in wages plus interest and pay the State a $25,000 administrative fine.  The airline will also have to post a notice about their liability and develop a policy and train management on reasonable accommodations necessary to allow disabled employees to continue working.

The California Department of Fair Employment and Housing (DFEH) today announced its largest-ever administrative award of $846,300 against electrical supplier Acme Electric Corporation for firing an employee because he had cancer.  Headquartered in Lumberton, North Carolina, Acme Electric is a division of Actuant Corporation, a Wisconsin diversified industrial corporation that operates in more than 30 countries.

Charles Richard Wideman worked for Acme Electric as western regional sales manager overseeing sales operations in the company’s largest territory from February 2004 to March 2008.   He developed kidney cancer in 2006 and prostate cancer in 2007.  Mr.  Wideman’s cancers required two surgeries and numerous cancer-related outpatient appointments.  The company immediately granted his two requests for time off for surgery and recuperative leave.  However, Mr. Wideman requested further accommodation for the travel limitation his cancers caused from June 2006 through April 2007.  Acme Electric refused to grant or even acknowledge these accommodation requests.  Instead, in December 2007, Mr. Wideman’s supervisor gave him an unfavorable performance evaluation, criticizing him for insufficient travel.  On February 28, 2008, ignoring Mr.  Wideman’s need for accommodation the preceding year and failing to take into account his dramatically improved job performance, Acme Electric fired Mr. Wideman, relying on the insufficient travel pretext. 

After a three-day hearing, the State’s Fair Employment and Housing Commission found Acme Electric violated the FEHA by failing to accommodate Mr. Wideman’s known travel limitation due to his cancers, failing to engage in a good faith interactive process, discriminating against Mr. Wideman because of his disability, and failing to take all reasonable steps necessary to prevent discrimination from occurring.  To compensate Mr. Wideman for his losses, the Commission awarded him $748,571 for lost wages, $22,729 for out-of-pocket expenses and $50,000 for the emotional distress he suffered.  In addition, the Commission ordered Acme to pay $25,000 to the State’s General Fund as an administrative fine.  Acme must further comply with posting, policy changes, and training requirements ordered by the Commission.

Employer lesson: You can’t ignore ADA restrictions simply because it’s a pain to comply with. Any employee with a disability has to perform, with or without accommodations. In this case, had ACME attempted to accommodate Mr. Wideman…and he still could not perform to standard, then there is no liability. To learn about accommodating employees with cancer go to http://askjan.org/media/canc.htm

The Equal Employment Opportunity Commission has filed suit against insurer United Insurance Co. of America, accusing it of disability discrimination for withdrawing a job offer to a recovering drug addict in a methadone treatment program.

According to the lawsuit filed in U.S. District Court in Raleigh, N.C., in Equal Employment Opportunity Commission vs. United Insurance Co. of America, Craig Burns applied for a job as an insurance agent and representative at the Raleigh office of Chicago-based United Insurance, a Unitrin Inc. unit that provides life and accident and health insurance.

The insurer extended a job offer, conditional on his passing a drug test.

Mr. Burns is a recovering drug addict who has been enrolled in a methadone treatment program since at least 2004, according to the lawsuit.

His drug test showed the presence of methadone in his system. When United Insurance asked for a copy of his methadone prescription, he provided a letter from his treatment provider explaining his participation in the program. United then withdrew its job offer, according to the lawsuit.

Violation of ADA

The suit filed Tuesday alleges that the job withdrawal was due to Mr. Burns’ disability and violated the Americans with Disabilities Act.

“The effect of the practices complained of…has been to deprive (Mr.) Burns of equal employment opportunities and otherwise adversely affect his employment status because of his disability,” according to the EEOC suit, which seeks back pay, compensation, punitive damages and injunctive relief.

A Unitrin spokeswoman said the company does not comment on ongoing litigation.

Article courtesy of www.businessinsurance.com.

 The Jewish Community Center of Greater Washington (JCCGW) will pay $100,000 to a hearing-impaired assistant teacher to settle a disability discrimination lawsuit. The U.S. Equal Employment Opportunity Commission (EEOC) charged the JCCGW with violating the Americans with Disabilities Act for not providing reasonable accommodation to the teacher. Instead, the teacher was demoted to a lower-paying position and then fired due to her hearing impairment.

Click here to read more.

 The U.S. Equal Employment Opportunity Commission (EEOC) has sued the Children’s Hospital Association for discriminating against a job applicant who needs an accommodation for her disability. The applicant was offered a job with the Colorado Children’s Healthcare Access Program, but the offer was withdrawn because of her fibromyalgia. Under the Americans with Disabilities Act employers must provide reasonable accommodations to an employee with a disability.

Click here to read more.

One of the most significant changes the ADA Amendments Act made to the definition of disability is that now, when trying to figure out how limited a person is by his impairment, we ignore the beneficial effects of any mitigating measures he uses. This change has been very confusing to some, but once you figure it out, it really is not that difficult. All it means is that we now have to determine what effects an impairment would have if the person did not use any mitigating measures.

And just what are mitigating measures? They are things a person uses to treat his impairment or overcome any limitations the impairment causes. Examples include things like wheelchairs, hearing aids, medication, prosthetic limbs, and therapy.

How do we know how limited a person would be without his mitigating measures? First we need to know if he uses mitigating measures. In some cases it will be obvious – we will see his wheelchair or hearing aid or prosthetic limb. In other cases we may need to ask him or get medical documentation when appropriate.

Next we need to find out what would happen if the person did not use the mitigating measure. Again, in some cases it will be obvious. For example, if a person with a prosthetic leg does not use his prosthesis, he will be substantially limited in walking. If it is not obvious, there are various ways to figure out how limited the person would be without the use of a mitigating measure, such as:

• Find out what limitations a person experienced prior to using a mitigating measure,
• Find out the expected course of a particular disorder absent mitigating measures, or
• Look at readily available and reliable information of other types.

You may be wondering when this issue will arise. It usually comes up in the workplace when an applicant or employee requests an accommodation and the employer needs to determine whether that person meets the definition of disability and is therefore entitled to the accommodation. One important thing to remember is that ignoring the beneficial effects of mitigating measures only applies to determining whether someone has a disability. When looking at whether a person needs a reasonable accommodation we do the opposite – we will look at what limitations he has after he uses the mitigating measure. That is why the best approach is to make the disability determination a separate step from the reasonable accommodation process.

So you see, the ADA Amendments Act rule about mitigating measures is not that hard to apply. All it usually takes is some common sense. For more information, see JAN’s Accommodation and Compliance Series: The ADA Amendments Act of 2008 and ADA Library.

- Linda Carter Batiste, J.D., Principal Consultant, The Job Accommodation Network (www.askjan.org)

 EEOC Obtains $120,000 for Driver With Disability Denied Accommodation and Fired

SAN FRANCISCO — The Pepsi  Bottling Group, Inc. (NYSE: PBG) agreed to pay $120,000 and implement  preventive measures to settle a disability discrimination lawsuit filed by the  U.S. Equal Employment Opportunity Commission (EEOC), the agency announced  today.

According to the EEOC’s lawsuit, Pepsi terminated Eldridge Davis, a  driver at its Hayward, Calif., facility, for “job abandonment and  violation of the company attendance policy,” even though Davis had followed  proper procedure to inform his supervisor and the company that he could not  finish his route due to his disability and needed to take medical leave.

Davis, age 48, had worked for Pepsi since October 1996  and was promoted to driver in December 1999.

The Americans With Disabilities Act (ADA)  prohibits disability discrimination and requires employers to make reasonable  accommodations to employees with disabilities. This settlement resolves EEOC v. Pepsi Bottling Group, Inc., CV 09-4594 EMC, filed in 2009 in  U.S. District Court for the Northern District of California. Under the terms of the consent decree settling  the suit, Pepsi agreed to implement training on anti-discrimination laws, post a  notice at the work site on the settlement and other injunctive relief, in  addition to paying Davis  $120,000.

“Medical  leave is a widely recognized accommodation, and in Mr. Davis’s case, could  easily have been granted, avoiding the loss of a valuable and experienced  employee,” said EEOC San Francisco Regional Attorney  William R. Tamayo. “Since recent  amendments to the ADA  have broadened the definition of disability, forward-thinking employers may  want to re-evaluate their policies on workplace accommodations. Studies show that reasonable accommodations  are frequently no- or low-cost, with the added benefit of improving  productivity and morale, reducing turnover and building a diverse and loyal work  force.”

http://www.ca9.uscourts.gov/datastore/memoranda/2011/07/06/10-35729.pdf

The point is this: Just because an injured employee may not be able to return to work due to their injuries…they may be able to return to work by granting them an accommodation. Because Wal-Mart may not have engaged in an interactive dialogue the court let the case move forward. Wal-Mart was also being sued for wrongful termination. As stated by the court:

“Here, considering the facts in the light most favorable to Cox, Wal-Mart terminated her between seven and ten months after she invoked her OWCL rights. Cox has offered evidence that during those intervening months, Wal-Mart disciplined her unjustifiably on three occasions, and refused to accommodate her, even though before Cox invoked her rights, Wal-Mart found her performance acceptable and gave her accommodations. A reasonable jury could infer from this evidence that Cox’s termination was causally linked to her invocation of her OWCL rights.”