Brief summary of recent activity
The following summarizes the EEOC litigation activity for April and the beginning of May 2019. EEOC filed three lawsuits and settled 19 during the two months. Disability discrimination was the most prevalent type of discrimination with two disability lawsuits filed and 11 disability lawsuits settled.
Summary of lawsuit by type
• Club Demonstration Services, Inc. [5/8/19] EEOC alleges that the company refused to accommodate an employee in Juneau who required additional bathroom breaks due to a bladder condition and effectively terminated her. Over a year after the employee had been working, her manager informed staff they were no longer permitted to use the bathroom except during the lunch break or scheduled 15-minute break. The employee, who has had a neurogenic bladder condition for years, promptly submitted a doctor’s note requesting that she be allowed bathroom breaks as needed. The company failed to engage in the interactive process and repeatedly denied her requests. After months of working through physical discomfort and humiliation, the employees submitted another doctor’s note to no avail.
• Walmart Stores East, LP [4/30/19] EEOC alleges that Herbruck harassed Melinda Crooke, a line worker, when it learned about her disability-related symptoms and then retaliated against her for complaining. On a daily basis, her supervisors and co-workers mocked her using nicknames and physical imitations of her symptoms. The supervisor began following Crooke to the bathroom to time her breaks and one day shouted at her. After complaints to human resources led to no action, Crooke quit when the work environment got unbearable.
• Tosca Americana Italian Kitchen [5/9/19] EEOC alleges that the restaurant’s co-owner and executive chef routinely made offensive and inappropriate sexual comments to female employees, some of whom were under age 18, such as asking them out on dates, telling them that he loved them and wanted them, and asking one of them whether she needed help in the bathroom. He also engaged in unwelcome sexual touching by hugging them tightly, brushing up against and running his hands on their bodies and trying to kiss them. The 16 year old complained about the conduct but the restaurant filed to stop his behavior and she was forced to resign.
Summary of settlements by type
• Atlas Energy Group LLC [4/22/19] entered into a three-year consent decree and will pay $85,000 to a 52-year old production foreman with more than 20 years of industry experience who was pushed out of his job because of his age by a new, young superintendent. The company will also provide training on age discrimination to managerial and human resources employees; post a notice of employee rights; and report future age complaints to the EEOC.
• Ashley Distribution Services, Ltd [5/9/19] entered into a 2-year consent decree and will pay $75,000 in damages to an applicant who was not hired due to his perceived disability. The applicant applied for a yard driver position and was offered the position on the condition that he obtain a DOT medical certification, met the physical requirements of the job, and was able to show that he could perform the required job duties. He successfully completed the DOT medical exam and completed the company’s driving test but the company was concerned that he could not safely enter and exit the truck due to a rotator cuff injury disclosed during his DOT medical exam. The company will also adopt and distribute a written anti-discrimination policy which includes the ADA and provides a procedure for conducting an individualized assessment of any actual or perceived safety risk before rescinding a job offer; provide annual training to managers and human resources employees; and report to EEOC.
• Walmart Stores East, LP [4/30/19] entered into a conciliation agreement and will pay $10,000 to resolve allegations that a store in Indianapolis refused to provide a reasonable accommodation to an employee with a disability so that they could perform the essential functions of the job. Instead the employee was forced to resign. Walmart will also reissue its computer-based learning module pertaining to the policies against disability discrimination and accommodations.
• Crain Automotive Holdings [4/30/19] entered into a consent decree and will pay $2,100 in back pay and $25,000 in compensatory damages to a former employee to resolve allegations that the company refused to provide a medical leave of absence as an accommodation. The employee suffered from anxiety and depression and was fired because of her disability. The company will also revised its policies, disseminate a copy of the policy to all employees, and train all managers.
• Remedy Intelligent Staffing, LLC and Lornamead, Inc. [4/29/19] signed a 3-year consent decree and will pay $50,000 to settle allegations that the company’s refused to provide a reasonable accommodation to a long-term temporary employee that would have enabled him to continue to work after his kidney condition worsened, and instead ended his employment. The employee was hired by Remedy and assigned to work as a general laborer at a Lornamead facility. The employee suggested several accommodations; however, Lornamead directed Remedy to end his three-year assignment. Remedy failed to place the employee at another job with a different client.
• Cooper Machine Company [4/25/19] signed a 2-year consent decree and will pay $20,000 in wages and compensatory damages to an employee who was fired by the CFO after informing the company that she was required to take medication because of her disability, anxiety disorder. The company will also distribute a formal, written anti-discrimination policy to all employees at the site and provide training to all employees.
• Universal Diversified Enterprises, Inc. and Universal Diversified Solutions LLC [4/25/19] signed a 5-year consent decree and agreed to pay $30,000 to a sheet metal worker/installer who was not allowed to return to work after being cleared by his medical provider. He lost his left eye in an injury sustained outside of the workplace. The company will also adopt and distribute an ADA policy; schedule yearly employee and management training; post a notice of the lawsuit; and report all complaints of disability discrimination or requests for accommodations to EEOC.
• Golden Corral [4/23/19] signed a 2-year consent decree and will pay $31,000 to an employee who was accused of “being unwilling or unable to control her epilepsy.” The company will also train all employees; post a notice about the lawsuit, and provide semi-annual report to EEOC about disability discrimination complaints.
• Party City Corporation [4/22/19] signed a 3-year consent decree and will pay $155,000 to a qualified applicant who was not hired because of her disability. The applicant, who was on the autism spectrum and suffered from severe anxiety, was receiving services from Easter Seals to build her self-confidence, including around working and applying for a job. She received a job interview but when the hiring manager discovered that she was being accompanied by a job coach from Easter Seals, his attitude changed. The manager told the coach that Party City had hired people with disabilities with job coaches in the past and that it had not gone well. He also made disparaging comments about those employees. The consent decree enjoins Party City from discriminating against qualified applicants with job coaches in the future. Party City will revise its reasonable accommodation policy; train human resource employees on the new policy and distribute it to all employees; report to the EEOC on all denials of applicants with job coaches; and provide a notice regarding the decree to employees in the New England region.
• Safeway, Inc. [4/19/19] signed a 3-year consent decree and will pay $75,000 for damages of emotional distress and back pay to an applicant who was qualified for several jobs in Seattle. When he explained that he was deaf and would need an interpreter for the interview, the in-store hiring recruiter told him she did not know anything about providing an interpreter and then never got back to him about the interview. Safeway agreed to revise its career website and application to make it easier for applicants to request accommodations; include contact information on its ADA policy; conduct ADA and accommodation training and distribute a modified ADA/accommodation policy to all employees annually.
• Gulf Logistics Operating, Inc. [4/18/19] entered into a 2-year consent decree and will pay $25,000 to a deckhand who requested a referral to the company’s Employee Assistance Program for his situational depression. After being cleared by the company’s medical provider for full duty, he worked satisfactorily for two weeks and was fired because they believed that he posed a safety concern. The company will also develop a policy to protect applicants and/or employees from any form of disability discrimination and will provide training to all employees.
• Pulmonary Specialists of Tyler and Sleep Health [4/16/19] entered into a 3-year consent decree and will pay $30,000 to resolve allegations of disability discrimination. The company required employees to complete a medical questionnaire that were not job related nor required by business necessity. Specifically the questionnaire asked if employees had any of 20 listed medical conditions and whether the employee had an impairment or a disability, whether the employee had previous surgery or received a permanent disability rating. A former employee truthfully answered all of the questions indicating that she had been injured on-the-job in 1996, had back surgery, and was given a permanent partial disability rating. However, the surgery or disability did not impact her ability to perform her billing/collections work. Within a week after completing the questionnaire, the employee was terminated. The company will cease use of the questionnaire and implement policies prohibiting discrimination against persons with disabilities.
• Fastenal Company [4/15/19] signed a 2-year consent decree and will pay $50,000 in back pay, liquidated damages and compensatory damages to two female sales support employees who were paid lower hourly wages than their male coworkers in Manchester, PA. One of the women trained male coworkers after they were hired, but still received lower wages. The other women had 16 years of inside sales/customer services/buyer experience with similar companies and had an associate business degree prior to being hired but received lower wages than male co-workers who were college students. The company will also provide training, post a notice regarding the settlement and employee rights under the Equal Pay Act and Title VII, and will send reports to EEOC.
• PruittHealth-Raleigh, LLC [4/11/19] entered into a 2-year consent decree and will pay $25,000 in damages to a pregnant employee who was denied a reasonable accommodation with a medically imposed lifting restriction and then was required to resign. The company will also implement, adopt and distribute a written policy that provides the opportunity for modified duty for pregnant workers with medically imposed, pregnancy-related work restrictions on the same basis that modified duty is provided to non-pregnant employees who are similar in their ability or inability to work.
Race and Retaliation
• A&F Fire Protection Co., Inc. [4/24/19] entered into a three –year consent decree and will pay $407,500 to settle a race discrimination, hostile work environment and retaliation lawsuit. EEOC alleges that the company subjected a class of black and Hispanic employees to frequent use of slurs such as “n---r” and “s –c” in the workplace. The employees were retaliated against for complaining about and opposing the discrimination. After a supervisor refused to take retaliatory action against employees complaining, his job responsibilities were changed and his supervisory authority was reduced. Another employee was fired under pretextual circumstances. The company will also provide annual training; appoint an EEO coordinator, provide semi-annual reports to EEOC; revise and disseminate a revised anti-discrimination policy to all employees; post a notice of the lawsuit and a letter from the President affirming the company’s commitment to maintaining a workplace free of discrimination, hostile work environment and retaliation.
Race, Harassment and Retaliation
• Fanatics Retail Group Fulfillment, LLC [4/17/19] signed a consent decree and will pay $322,050 to employees who were subjected to racial slurs and comments such as “We don’t need any outbreak monkeys here.” Human resources officials also called African-American employees “baboons.” When an employee complained, the company failed to promote him as promised and continued to tolerate the hostile work environment. The company will also revise and redistribute the discrimination policy; train all employees; post a notice about the lawsuit and employee rights; create a hotline number to receive anonymous complaints of discrimination; and report to EEOC about compliance and future complaints of discrimination.
• Saint Thomas Health (STH) [4/18/19] entered into a consent decree and will pay $75,000 in compensatory damages to settle a religious discrimination lawsuit. Saint Thomas Rutherford Hospital in Murfreesboro, TN required all employees to have an annual flu shot, including employees of TouchPoint Support Services, the provider of food and environmental services. STH allowed a TouchPoint employee to wear a protective mask instead of having a flu shot in 2013 and 2014; however, in 2015 this accommodation was denied. When he refused to take the flu shot for religious reasons, he was fired. STH will also modify its accommodation policy to allow an employee to appeal the termination of an accommodation for a sincerely held religious belief and provide annual training on the policy to human resources employees and members of its flu committee for the next two years.
• A&E Tire, Inc. [4/8/19] entered into a consent decree and will pay an applicant $60,000 and send him a letter of apology after it offered him a job but did not hire him after learning that he was transgender. In completing the background check paperwork the applicant checked the female box and was called to question the response. Subsequently he was not hired. The company will clarify its policies against sex discrimination, including discrimination based on sex stereotyping and transgender status, and to train managers and employees on the law.
• Beavers’ Inc. (owner of 51 Arby’s restaurants) [4/10/19] entered into a 2-year consent decree and will pay $84,000 to three harassment victims, will develop and disseminate anti-harassment policies; and train its employees on the law against harassment. EEOC alleged that the company permitted a sexually hostile work environment based on ongoing sexually explicit comments and other harassment by an older male team leader. Allegedly the harasser described sexual acts he wanted to perform with the team workers, made inappropriate remarks about his anatomy, and deliberately pressed his pelvis against two of the female employees. Employees complained multiple times to on-site management but the harassment continued.