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U.S. Department of Justice Weekly Digest Bulletin: National Origin Discrimination Claim (Feb. 25, 2018)

Sunday, February 25th, 2018

Justice Department Settles National Origin Discrimination Claim Against New York Restaurant

WASHINGTON – The Justice Department today announced it has reached a settlement with Food Love 125 Inc., d/b/a Ichiba Ramen, a New York City restaurant, to resolve the Department’s investigation into whether the restaurant violated the Immigration and Nationality Act’s (INA) anti-discrimination provision.

A worker’s complaint initiated the Justice Department’s investigation, which revealed that Ichiba Ramen’s former chef discriminated against a job applicant when it refused to hire him as a server because he is not Korean or Japanese. The investigation also revealed that prior chefs had not placed such limitations on the restaurant’s hiring of servers. The INA’s anti-discrimination provision prohibits employers with four to 14 employees from discriminating against individuals because of their national origin.

Under the settlement agreement, Ichiba Ramen will pay a civil penalty, undergo training on the INA’s anti-discrimination provision, and post notices informing workers about their rights under the INA. The restaurant also paid $1,760 in back pay to compensate the affected applicant.

“Today’s settlement should serve as a reminder to small employers that hiring discrimination based on national origin violates the INA’s anti-discrimination provision, and the Justice Department is committed to holding employers accountable for such violations,” said Acting Assistant Attorney General John Gore of the Civil Rights Division.

The Division’s Immigrant and Employee Rights Section (IER), formerly known as the Office of Special Counsel for Immigration-Related Unfair Employment Practices, is responsible for enforcing the anti-discrimination provision of the INA. Among other things, the statute prohibits citizenship status and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation. Title VII of the Civil Rights Act of 1964, as amended, prohibits national origin discrimination by employers that employ 15 or more workers.

For more information about protections against employment discrimination under immigration laws, call IER’s worker hotline at 1-800-255-7688 (1-800-237-2515, TTY for hearing impaired); call IER’s employer hotline at 1-800-255-8155 (1-800-237-2515, TTY for hearing impaired); sign up for a free webinar; email IER@usdoj.gov; or visit IER’s English and Spanish websites.

Applicants or employees who believe they were subjected to retaliation; different documentary requirements based on their citizenship, immigration status or national origin; or discrimination based on their citizenship, immigration status, or national origin in hiring, firing, or recruitment or referral for a fee, should contact IER’s worker hotline for assistance.

U.S. Equal Employment Opportunity Commission Weekly Digest Bulletin (Feb. 25, 2018)

Sunday, February 25th, 2018

NSIDEUP TO SETTLE EEOC DISABILITY DISCRIMINATION LAWSUIT
Small Marketing Business Fired Employee Because of His COPD, Asthma and Emphysema, Federal Agency Charges

SAN DIEGO — InsideUp Inc., a San Diego-based marketing company, will pay $10,500 and provide other significant relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, a marketing consultant with chronic obstructive pulmonary disease (COPD), emphysema and asthma requested a reasonable accommodation. The consultant requested to work on the ground floor of an office building without an elevator, so he would not have to walk up and down the stairs with his condition. InsideUp not only refused his request but thereafter fired him due to his disability.

Such alleged conduct violates the Americans with Disabilities Act (ADA). The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. InsideUp, Inc., Case No.: 3:17-cv-01961-CAB-JMA) after first attempting to reach a pre-litigation settlement through its conciliation process.

As part of the four-year consent decree settling the suit, InsideUp will pay $10,500 to the discrimination victim. In addition to the monetary relief, InsideUp agreed to significant injunctive relief, including, but not limited to, training all its employees; revising its anti-discrimination and retaliation policies and procedures; centrally tracking requests for reasonable accommodations as well as complaints of discrimination and/or retaliation; regularly reporting to the EEOC; and posting a notice about the consent decree and settlement.

“We commend InsideUp for resolving this complaint early and agreeing to put in place measures to help prevent future disability discrimination in its workplace,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, which includes San Diego County in its jurisdiction. “Small businesses should regularly review their policies and procedures to ensure that they are in compliance with the ADA.”

Christopher Green, director of the EEOC’s San Diego Local Office, added, “It is important employers appreciate their obligation to engage in the interactive process with, and provide a reasonable accommodation to, their disabled employees.”

EEOC SUES ZACHRY CONSTRUCTION CORPORATION FOR DISABILITY DISCRIMINATION
Contractor Used Medical Questionnaires and Exams to Weed Out Employees With Potential Medical Issues, Federal Agency Charges

BIRMINGHAM, Ala. – Zachry Construction Corporation, a San Antonio-based construction and industrial contractor, violated federal law when it fired several employees whose post-offer medical questionnaires and subsequent medical examinations revealed they had disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit. At the time of termination, all these employees were already performing their job duties in a satisfactory manner, the EEOC said.

According to the EEOC’s lawsuit, in June 2015, Reginald White applied for a Boilermaker I position at the Chevron refinery in Pascagoula, Miss. Around the time he was hired, Zachry required White to complete a medical questionnaire. On Aug. 25, a month after White began work, the company required White to undergo a fitness-for-duty examination. After a brief examination and review of White’s medical information, the examining physician found White unable to perform his job duties, even though he had satisfactorily performed those duties for the past month. Zachry fired White the next day.

Similarly, Zachry terminated two other employees after it learned that they had disabilities, the EEOC said. On May 17, 2016, the company required Jasper Johnson to undergo a fitness-for-duty examination. During the examination, Zachry’s physician learned of a past surgery and lingering neck pain. The company refused to allow Johnson to return to work and fired him.

Further, Zachry hired Parker Isaacson as a skilled laborer on July 6, 2015. Isaacson had undergone surgery on his right shoulder and had multiple right shoulder dislocations post-surgery. On April 4, 2016, the company required Isaacson to undergo a fitness-for-duty examination. During the examination, Zachry’s physician learned of Isaacson’s past surgery and multiple shoulder dislocations. The company refused to allow Isaacson to return to work and then terminated him.

The Americans with Disabilities Act (ADA) protects employees and job applicants from discrimination because of their disabilities. If an employee requires a reasonable accommodation, an employer must engage in a good-faith interactive process with the employee to determine if he or she can perform the essential functions of the job with or without a reasonable accommodation.

The EEOC filed suit (EEOC v. Zachry Construction Corporation, Case No. 1:18-cv-00058-HSO-JCG) on February 20, 2018 in the U.S. District Court for the Southern District of Mississippi after the EEOC’s Birmingham District Office completed an investigation and first attempted to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks monetary damages, including back pay, compensatory and punitive damages, and injunctive relief.

“If an employer has a concern about employee’s ability to perform his or her job duties, it needs to conduct individualized assessments and not make decisions based on assumptions,” said EEOC District Director Delner Franklin-Thomas.

EEOC Regional Attorney Marsha Rucker added, “Treating employees with disabilities fairly is not just common sense, it’s federal law, and the EEOC is proud to enforce it.”

According to the company’s website, Zachry Construction Corporation specializes in large, technically-unique projects around the world. Zachry maintains offices in Texas, North Carolina, Colorado and California.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

U.S. Department of Justice Weekly Bulletin (Feb. 2018)

Sunday, February 18th, 2018

For more information on any of the civil rights bulletins, go to https://www.justice.gov/crt.

Attorney General Jeff Sessions issued a proclamation commemorating January as National Slavery and Human Trafficking Prevention Month.

The Justice Department announced Religious Liberty update to the United States Attorneys’ Manual (USAM) with a new section titled, “Associate Attorney General’s Approval and Notice Requirements for Issues Implicating Religious Liberty” and directs the designation of Religious Liberty Point of Contact for all U.S. Attorney’s Offices.

The U.S. Attorney’s Office for the District of New Jersey and the Justice Department’s Civil Rights Division hosted a roundtable on Sexual Harassment in Housing for community organizations. The event included local law enforcement agencies, legal aid offices, fair housing organizations, shelters and transitional housing providers.

Attorney General Sessions statement on the verdict in People of the State of California vs. Jose Ines Garcia Zarate aka Juan Francisco Lopez Sanchez.

A former Georgia Jail Sergeant at the DeKalb County Jail was sentenced to one year in prison, three years’ supervised release, and a $100 special assessment for abusing a female inmate by tasing her without any legitimate justification. The defendant’s former supervisor at the jail, was also sentenced to one year of probation conditioned upon his serving 21 days in a halfway house for attempting to obstruct the federal investigation into the defendant’s use of excessive force by making false statements to the FBI.

The Justice Department reached a settlement to resolve a lawsuit alleging discrimination on the basis of race, color and national origin by the owners and operators of 360 Midtown, a sports bar and lounge located in Houston, Texas. The settlement resolves a lawsuit filed by the Department on Sept. 28, 2016, alleging that 360 Midtown, which previously operated as Gaslamp, engaged in a pattern or practice of illegal conduct by implementing discriminatory practices to discourage or deny admission to African-American, Hispanic and Asian-American patrons.

A former Major at Louisiana State Penitentiary (LSP) in Angola, Louisiana, was found guilty in federal court for conspiring to cover up the beating of a handcuffed and shackled inmate, and for writing a false report, falsifying official records, and lying under oath about what happened. After four days of trial, a jury convicted the defendant on four charges related to the cover up. The jury heard evidence that the defendant and three other supervisory officers used excessive force against an inmate who was shackled and handcuffed. The other three officers had all previously pleaded guilty to various federal charges related to the beating and the conspiracy to cover it up.

A former Massachusetts police officer was arrested and charged in federal court in Springfield in connection with using unreasonable force during an arrest. The defendant was charged with one count of deprivation of rights under color of law and one count of falsification of a document. According to court documents, on April 3, 2017, while acting under the color of law, the defendant deprived a male arrestee of the right to be free from an unreasonable seizure, which includes the right to be free from the use of unreasonable force by a law enforcement officer.

A former Kansas Highway Patrol Trooper pleaded guilty in federal court to violating an individual’s civil rights by using excessive force. According to documents filed in connection with the plea, on June 25, 2013, the defendant was acting under color of law as a Trooper for the Kansas Highway Patrol when he used unreasonable force against an arrestee. The defendant admitted in court that he used force for the purpose of punishment and not for a legitimate law enforcement purpose. As part of the plea agreement, he has agreed to surrender his law enforcement credentials and never again accept any employment related to law enforcement.

The Justice Department filed a Statement of Interest in Young America’s Foundation and Berkeley College Republicans (BCR) v. Janet Napolitano. The plaintiffs, allege that the University of California, Berkeley, enforced a double standard when applied to free speech. BCR alleges that UC Berkeley applied a more rigorous and highly discretionary set of rules to their organization compared to other campus groups, especially with respect to “high-profile” campus speakers.

A Virginia man has been convicted of committing an anti-gay hate crime against a co-worker at the Amazon Fulfillment Center in Chester in May 2015. Evidence showed that the defendant assaulted his co-worker because of the co-worker’s perceived sexual orientation. He faces a maximum penalty of 10 years in prison when sentenced.

The Justice Department reached a settlement with Omnicare Inc. (Omnicare), a wholly owned subsidiary of CVS Health Corporation and provider of long-term care pharmacy services in Ohio, resolving the Department’s investigation into whether the company violated the Immigration and Nationality Act’s (INA) anti-discrimination provision. Under the settlement agreement, Omnicare will pay the maximum civil penalty for one instance of citizenship status discrimination, post notices informing workers about their rights under the INA’s anti-discrimination provision, train its staff and its contractors, and be subject to departmental monitoring and reporting requirements for two years.

Two former Alabama Police Department lieutenants, have been indicted by a federal grand jury for their roles in the beating of an arrestee and an attempted cover-up. The five-count indictment charges that on or about Dec. 24, 2014, one defendant physically assaulted an arrestee, while the other willfully failed to intervene to stop the assault. The assault caused the arrestee to suffer bodily injuries.

A former police officer with the Veterans Affairs Medical Center Police Department in Indianapolis, Indiana, has been indicted on federal civil rights and obstruction charges. The indictment charges that on April 18, 2017, the defendant assaulted a patient whom he was in the process of arresting outside of the Veterans Affairs Medical Center. As a result of the assault, the patient sustained bodily injury. The indictment also charges the defendant with obstructing justice by writing a false report about the arrest.

The Justice Department filed an amicus brief with the Supreme Court of Montana supporting parents who claim that the state unconstitutionally discriminated against their children when it barred them from a private school scholarship program because they attend a religious school. The case, Espinoza v. Montana Department of Revenue.

A Florida man has been sentenced to 12 months and one day in prison and three years’ supervised release for threatening to shoot members of a mosque in Miami Gardens, Florida. The defendant admitted leaving a hate-filled and profanity-laden message against Islam, the prophet Mohammed, and the Koran, during which he threatened to go to the mosque, and stated, “I’m gonna shoot all ya’ll.” He further admitted that by leaving this threatening message, he obstructed congregants who worship at the Islamic Center from freely exercising their religious beliefs.

A Milwaukee man was sentenced to 21 years in prison, reduced by three years for time served, after pleading guilty on Oct. 6, 2017, to four counts of sex trafficking by force, fraud, or coercion and one count of conspiracy to commit forced labor and sex trafficking. For over a decade, from 2001 to 2013, the defendant recruited young women and girls to dance at clubs using false promises of money and a better life. He then used a combination of physical violence, isolation, emotional manipulation, sexual assault, and threats to harm the victims’ families to exert control over the victims and compel them to engage in commercial sex acts.

The Justice Department reached an agreement with Denver, Colorado, to improve access to civic life for people with disabilities. The agreement was reached under Project Civic Access (PCA), the Department’s initiative to ensure that cities, towns, and counties throughout the country comply with the Americans with Disabilities Act (ADA).

A Texas man was sentenced to 15 years in prison for assaulting a man because of the victim’s sexual orientation. According to the plea agreement, the defendant, and two other defendants used Grindr, a social media dating platform for gay men, to arrange to meet the victim at the victim’s home. Upon entering the victim’s home, the defendants restrained the victim with tape, physically assaulted the victim, and made derogatory statements to the victim for being gay. The defendants brandished a firearm during the home invasion, and they stole the victim’s property, including his motor vehicle.

A federal court unsealed charges against a fourth defendant for participating in a labor-trafficking scheme that forced minors to work at egg farms in central Ohio. The defendant was apprehended Saturday by Border Patrol while attempting to cross the border between Mexico and the United States. Three other defendants have previously been convicted for participating in the scheme.

A Washington woman pleaded guilty in federal court in Tacoma, Washington, to one count of document servitude in furtherance of forced labor. The defendant’s husband previously pleaded guilty to a similar charge. Both defendants lured family members from Guatemala to the United States, falsely promising that they would give them a home, a job earning a lot of money, and a good life. Contrary to these promises, the defendants imposed significant debt upon them after their arrival. Sentencing is scheduled for March 23, 2018.

Two defendants pleaded guilty to alien harboring scheme involving labor exploitation at a Nebraska Motel. They pleaded guilty in federal court in Omaha, Nebraska, to one count of conspiracy and one count of alien harboring for financial gain. The defendants “violated immigration laws and exploited a vulnerable individual who lacked immigration status.”

The Justice Department filed a lawsuit alleging that female tenants in residential rental properties in Wichita, Kansas, were subjected to egregious sexual harassment and retaliation in violation of the federal Fair Housing Act. There were four named defendants. Each owns or previously owned one or more of the properties where the illegal conduct occurred.

The Justice Department reached a settlement agreement with Crop Production Services Inc. (Crop Production), an agricultural company headquartered in Loveland, Colorado. The settlement resolves a lawsuit the Justice Department filed against the company on Sept. 28, 2017, alleging that the company discriminated against U.S. citizens because of a preference for foreign visa workers, in violation of the Immigration and Nationality Act (INA). The settlement agreement requires Crop Production to pay civil penalties of $10,500.00 to the United States, undergo department-provided training on the anti-discrimination provision of the INA, and comply with departmental monitoring and reporting requirements.

The Justice Department filed a complaint in the U.S. District Court for the District of Maryland against Bridges Consulting, Inc. (Bridges), a government contractor based in Annapolis Junction, Maryland. The complaint alleges that Bridges violated the employment rights of a Lieutenant Commander, a reservist in the United States Coast Guard, under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). According to the complaint, Bridges violated the Lt. Commander’s USERRA rights under 38 U.S.C. §§ 4311, 4312 & 4313 by failing to promptly reemploy him upon his return from deployment, by terminating his employment, and by retaliating against him because he complained when funds were withdrawn from his Bridges retirement account.

A former Atlanta Police Department Sergeant of Stockbridge, Georgia, was convicted of using unreasonable force when he arrested a Walmart shopper who the officer wrongfully suspected of shoplifting a tomato. King beat the victim with his police-issue baton, breaking two bones in the victim’s leg. The jury also convicted King of writing a false incident report in an attempt to cover up his wrongdoing.

A former North Charleston, South Carolina, Police Department (NCPD) Officer was sentenced to 20 years in prison for his commission of a federal civil rights offense during his fatal shooting of a victim on April 4, 2015. This sentence resulted from the Court’s determinations that the defendant’s actions in the shooting constituted second-degree murder, and his subsequent conduct constituted obstruction of justice as defined by federal sentencing guidelines.

The Justice Department reached a settlement agreement with J.E.T. Holding Co. Inc. (JET), which operates a restaurant in Saipan. It has agreed to pay $40,000 to nine U.S. citizens pursuant to the settlement. The payments, which JET distributed, are part of a Jan. 17, 2017, settlement that resolved claims that JET discriminated against U.S. workers in favor of temporary foreign visa workers, in violation of the INA.

A former police officer with the Savanna Police Department in Pittsburg County, Oklahoma, pleaded guilty in federal court in Muskogee, Oklahoma, to one count of violating the civil rights of a female whom he sexually assaulted during a routine traffic stop. According to court documents, on Jan. 21, 2017, the defendant, while on-duty, stopped a vehicle during the early hours of the morning while it was still dark outside. After approaching the vehicle, he brought the female driver back to his marked patrol unit and directed her to sit in the front passenger seat where he caused the victim to perform a sexual act on him against her will. He admitted that he knew what he was doing was wrong and against the law, yet he did so anyway

The Justice Department filed a lawsuit alleging that the City of Springfield, Illinois, has discriminated against persons with disabilities in violation of the Fair Housing Act (FHA). The lawsuit, filed in the U.S. District Court for the Central District of Illinois, alleges that Springfield’s zoning code treats small group homes for persons with disabilities less favorably than similarly-situated housing for people without disabilities. The department’s complaint further alleges that, even if the zoning code were valid, Springfield violated the FHA by failing to grant an exception that would allow a three-person group home for individuals with disabilities to continue operating in a residential neighborhood.

A former correctional officer of Atlanta, Georgia with the rank of lieutenant at the U. S. Penitentiary in Atlanta, pleaded guilty to abusing an inmate by punching him in his face without any justification. The defendant also admitted that he intentionally obstructed a federal investigation into the matter by writing a false incident report. According to the charging and court documents, the defendant, who worked as a supervisor at the prison, strip-searched an inmate in the lieutenants’ office in front of three other correctional officers. The defendant admitted that after the inmate complained that the strip-search was taking too long, he punched the inmate in his face without justification.

A former correctional officer at the DeKalb County Jail, pleaded guilty to abusing a female inmate by tasing her without any legitimate justification. The defendant’s former supervisor at the DeKalb County Jail, previously pleaded guilty to attempting to obstruct the federal investigation into the defendant’s use of excessive force by making false statements to an FBI agent. The defendant is scheduled to be sentenced on February 8, 2018.

A Massachusetts man was charged with two counts of sex trafficking by force, fraud, or coercion, two counts of kidnapping, and one count of interstate transportation for purposes of prostitution in the U.S. District Court for the District of Maine. According to the indictment, in late 2015 and early 2016, the defendant used force, fraud, and coercion to cause two women to engage in commercial sex acts in Maine before attempting to drive them to Massachusetts against their will. If convicted, the defendant faces a minimum sentence of 15 years’ imprisonment and a maximum sentence of life, a $250,000 fine, and mandatory restitution.

Two Florida police officers convicted of using excessive force against an arrestee at an August 2014 traffic stop and obstruction of justice during a federal investigation. Evidence presented at both trials established that one defendant had kicked the arrestee and struck him while holding a gun in his hand. At trial, the government presented evidence that the report of the incident had changed significantly within a week, omitting that the defendant had kicked the arrestee. Both defendants face a maximum penalty of up to 35 years imprisonment.

The Justice Department reached a settlement agreement with Washington Potato Company, which operates the Freeze Pack vegetable processing plant located in Pasco, Washington. The agreement resolves the department’s investigation into whether Washington Potato discriminated against work-authorized immigrants when verifying their employment authorization, in violation of the INA. Under the settlement, Washington Potato will pay a civil penalty of $100,000 to the United States, train its staff, post notices informing workers about their rights under the INA’s antidiscrimination provision, and be subject to departmental monitoring and reporting requirements.

The Justice Department filed a lawsuit against the Housing Authority of the City of Bridgeport (HACB), doing business as Park City Communities. The lawsuit, filed in the U.S. District Court for the District of Connecticut, alleges that HACB discriminated against persons with disabilities in violation of Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, and the Fair Housing Act. HACB owns and manages more than 2,600 units of public housing and administers more than 2,800 vouchers under the U.S. Department of Housing and Urban Development’s (HUD’s) Section 8 Housing Choice Voucher program. The lawsuit arose from a compliance review initiated by HUD.

The Justice Department obtained an additional $5.4 million for servicemembers whose vehicles were unlawfully repossessed by Wells Fargo Bank, N.A. in violation of the Servicemembers Civil Relief Act (SCRA). The bank, which does business under the name Wells Fargo Dealer Services, has agreed to pay this money to approximately 450 servicemembers under a 2016 settlement that resolved the department’s SCRA lawsuit against the company. This additional amount brings the total compensation under the settlement to more than $10.1 million and the total number of servicemembers eligible for relief to more than 860.

The Justice Department filed a lawsuit in U.S. District Court for the Western District of Washington, alleging that Northwest Trustee Services, Inc. (Northwest) violated the SCRA. The complaint alleges that since 2010, Northwest completed foreclosures on at least 28 homes owned by servicemembers without obtaining the required court orders.

U.S. Equal Employment Opportunity Commission Weekly Digest Bulletin: FY 2018-2022 Strategic Plan and Overview of Pending Pregnancy, Disability, and Religious Discrimination Suits (Feb. 2018)

Sunday, February 18th, 2018

EEOC APPROVES STRATEGIC PLAN FOR FISCAL YEARS 2018-2022

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it has approved its Strategic Plan for fiscal years 2018-2022. The Strategic Plan serves as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace. Implementation of the new Strategic Plan will begin in February 2018.

“Through the plan announced today, the EEOC is taking a significant step toward realizing our vision of respectful and inclusive workplaces with equal opportunity for all,” said EEOC Acting Chair Victoria A. Lipnic. “I am pleased with the hard work of staff across the agency who provided assistance throughout the development of the plan, and I look forward to its successful implementation. I especially want to thank our Chief Operating Officer, Cynthia Pierre, for leading the work group in developing our plan. I also want to thank the external organizations who provided helpful comments to the agency during the public comment period. I said one year ago that the agency would be committed to increased transparency in development of our policies and procedures, and the process for the Strategic Plan contributed to that goal.”

The Commission voted unanimously to approve the FY 2018-2022 Strategic Plan. The EEOC is the leading federal law enforcement agency dedicated to preventing and remedying employment anti-discrimination laws and advancing equal opportunity for all in the workplace since 1965. The plan serves as a framework for the Commission in achieving its mission through the strategic application of the EEOC’s law enforcement authorities, preventing employment discrimination and promoting inclusive workplaces through education and outreach, and organizational excellence. These three strategic objectives have associated performance measures detailing outcomes to be achieved during the four-year period the plan is in effect. The outcomes are designed to demonstrate the Commission’s progress in carrying out its mission in a time of shrinking resources and an increased demand for its services.

The process for developing this plan has been highly inclusive and collaborative. The plan was created by working groups comprised of staff from the EEOC’s headquarters and field offices, with a broad range of internal and external expertise and understanding of the programs and activities conducted within the agency. The Commission also solicited public and stakeholder comments in the development of the plan. Every four fiscal years, Congress requires executive departments, government corporations and independent agencies to develop and post a strategic plan on their public websites. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets and related program performance information in the future.

EEOC SUES RESTAURANT MAURIZIO’S TRATTORIA ITALIANA FOR PREGNANCY DISCRIMINATION
Restaurant Discriminated Against and Fired Female Employee After Learning She Was Pregnant, Federal Agency Charges

SAN DIEGO — Maurizio’s Trattoria Italiana, LLC, a fine-dining Italian restaurant in Encinitas near San Diego, violated federal law when it discriminated and fired a female employee after learning of her pregnancy, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a pregnancy discrimination lawsuit filed today.

According to the EEOC’s lawsuit, an employee who worked at Maurizio’s Trattoria Italiana notified the owner of her pregnancy. The EEOC contends that the restaurant subsequently discriminated against her by scheduling her to work fewer hours, resulting in much less pay, refusing to return her to her server position after she gave birth, and finally firing her.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act. The EEOC filed suit in U.S. District Court for the Southern District of California (EEOC v. Maurizio Trattoria Italiana, LLC, Case No. 3:18-cv-00338-MMA-BLM) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC’s suit seeks back pay, compensatory and punitive damages for the female employee, as well as injunctive relief intended to prevent further discrimination at the business.

“Pregnancy discrimination remains an ongoing problem in our nation’s workplaces,” said Anna Park, regional attorney for the EEOC’s Los Angeles District, whose jurisdiction includes San Diego County. “Employers are encouraged to evaluate their obligations under Title VII relating to employees who are pregnant.”

Christopher Green, director of the EEOC’s San Diego Local Office, added, “Women should not have to choose between their job or having children. Employers need to be aware that the EEOC takes pregnancy discrimination seriously and will continue to protect the rights of pregnant employees.”

SIGNATURE INDUSTRIAL SERVICES SUED BY EEOC FOR DISABILITY DISCRIMINATION
Petro-Chemical Contractor Fired Three Brothers Because of Their Blood Disorder, Federal Agency Charges

HOUSTON – Signature Industrial Services, LLC (SIS) unlawfully fired three laborers – all of whom were brothers – because of a blood disorder that runs through their family, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s suit, Drew West and Anthony West had been working at the Exxon/Mobil refinery in Beaumont, Texas when SIS took over a contract to perform mechanical services at the plant. Drew West and Anthony West were hired on SIS’s payroll around December 2011. Both have hemophilia A, a blood disorder that does not impede their performing their jobs, but which requires expensive medicine for treatment should they sustain an on-the-job scrape or injury that causes bleeding.

According to the project manager who was responsible for the SIS workers at the plant, SIS’s president and vice president of operations instructed him to fire the Drew and Anthony West once they learned how the SIS’s insurance costs could spike by having the West brothers on the payroll. Because the West brothers had an excellent work history, as evidenced in part by Anthony West earning a promotion and substantial raise during his employment with SIS, the project manager refused to fire them.

A third West brother, Raymond, who also has hemophilia A, began working for SIS at the Beaumont Exxon/Mobil refinery around January 2013. After the plant manager who re-fused to fire the West brothers stopped working at the plant in April 2013, SIS upper management advised the West brothers’ immediate supervisor that if he didn’t fire the brothers, SIS would fire him. On July 3, 2013, all three West brothers were advised by their direct supervisor they were being fired, effective immediately, supposedly due to a reduction in force, although no workers other than the West brothers were laid off on that day.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination against qualified individuals with disabilities. The EEOC filed suit in U.S. District Court for the Eastern District of Texas, Beaumont Division (Civil Action No. 1:18-cv-00070) after first attempting to reach a pre-litigation settlement through its conciliation process.

The federal agency is seeking a permanent injunction prohibiting Signature Industrial Services from engaging in any future disability discrimination. The EEOC is also seeking back pay on behalf of the West brothers, and compensatory and punitive damages and other relief on their behalf, including rightful-place instatement to a suitable position at SIS.

“When workers have a disability that does not impede them from doing their jobs capably, an employer cannot discriminate against them based on fears that treating them fairly may hurt the company’s bottom line,” said EEOC Houston District Director Rayford O. Irvin.

EEOC Houston District Office Regional Attorney Rudy Sustaita added, “Enforcement of the ADA is a top priority of this agency. Workers should never be mistreated simply because they have a medical history or condition.”

MEMORIAL HEALTHCARE SUED BY EEOC FOR RELIGIOUS DISCRIMINATION
Hospital Rescinded Job Offer Because of Applicant’s Need for Religious Accommodation, Federal Agency Charges

DETROIT— The U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today that a health care provider in Owosso, Mich., violated federal law when it rescinded a job offer because of the applicant’s religion and need for a religious accommodation.

According to the EEOC’s suit, Memorial Healthcare revoked its employment offer to Yvonne Bair to work as a medical transcriptionist due to her religious objection to an influenza shot or spray. The company denied the job to Bair, who would eventually be working from home, even though she offered to wear a mask, and the company had a policy authorizing the use of masks for those who could not take a vaccine.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which protects employees against discrimination based on religion, and requires employers to provide employees with reasonable accommodations to allow them to practice their sincerely held religious beliefs. The EEOC filed suit in U.S. District Court for the Eastern District of Michigan (Case No. 2:18-cv-10523) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC is seeking an injunction to prohibit the company from engaging in this type of discrimination in the future, as well as monetary relief on the behalf of the victim.

The EEOC’s Indianapolis District Office oversees Indiana, Michigan, Kentucky and parts of Ohio.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Elements of an Inclusive Workforce Development System

Thursday, February 15th, 2018

The following excerpt is from remarks delivered by Ms. Foster at a national Equal Opportunity Conference in Washington, DC:

It is a privilege for me to be here today, and this has been such an impressive line-up of civil rights experts.

The importance of you and the equal opportunity work you perform in the field of workforce development at this pivotal time in our country’s history cannot be overstated. If we hope to have a stronger, more stable economy at the national level, it must start with you at the local level.

Underlying everything we do in the field of equal opportunity is the concept that we don’t leave segments of our population behind to dead end. We want to help folks in our communities get jobs, or get better jobs. We want to find a way for all members of our community to engage and be productive, contributing citizens.

The vast majority of us and vast majority of the citizens in our communities are not independently wealthy. So, if we aren’t working, we aren’t earning money. And, if we aren’t earning money, we aren’t able to put a roof over our heads, food on the table, or clothes on our backs. And, where does that lead? Logically, it leads to increased demand on our safety net programs—homeless shelters or public housing, food stamps, free medical care, the list goes on.

No one has ever been able to explain to me how a stronger, more stable economy is built on leaving segments of a community behind in our workforce development programs whether it is women, minorities, limited English proficient persons, persons with disabilities, folks of a certain age, Veterans, or folks of certain religious beliefs.

Getting systems in place to move all of our populations forward, and training staff on the use of these systems, is where we need to spend a little time and thought as equal opportunity professionals. Not every customer is going to move along the same track, or at the same pace. The point is to get them moving as opposed to setting them off to the side.

As you work to develop inclusive workforce development systems, keep in mind these four core elements—communication, access, integration, and individualized treatment—must be front and center in your planning. Every speaker here today has addressed one or more of these elements. And, I am going to briefly describe each of these elements, and why they are important.

Communication

Communication takes two forms. First, is the one most of us think of immediately; that is, being able to understand what a customer is saying, and ensuring the customer understands us. So, if establishing that baseline communication with our customer means using a sign language interpreter, captioning, or a language line, than that is what needs to happen.

Now, the next level of communication involves “notice.” Notice to the public of what programs we have to offer, notice about how to access our programs, and notice that we operate these programs in compliance with the nondiscrimination and equal opportunity mandates of WIOA Section 188. Providing notice includes prominently displaying that “Equal Opportunity Is the Law” notice wherever we do business, and publishing our discrimination complaint procedures and forms.

On the other end of things, notice also includes making sure employers, to the extent they use screening tools like e-Verify or criminal background checks, give notice of any disqualifying adverse information to the potential applicant and allow the applicant an opportunity to explain or dispute it.

So, an inclusive workforce development program means we are able to communicate with our customers, and we convey important notices to them about their rights and our obligations under the nondiscrimination and equal opportunity provisions of WIOA Section 188.

Access

Access is another core element of an inclusive program. Access means folks have access to apply for, or participate in, our programs or activities. And, denial of access can take a variety of shapes.

One example is holding a training course on the first floor of a building, but folks have to get up the two steps at the entrance to the building. Without a ramp, some folks with mobility disabilities, who qualify to take this course, would be denied access to participate.

Another example of denial of access is one that I came across when I visited a particular locality to conduct training. The job referral counselor at the center would not even consider women for construction-related training or apprenticeship programs in welding, carpentry, masonry, and so on. Here, women who met the essential eligibility requirements for such training were denied access to even to apply for these programs.

And, access is a rising issue as we move forward with more internet-based application and enrollment processes. We are at the very beginning of what I describe as the incoming technology tsunami. The harnessing and use of various technologies on the market will undoubtedly strengthen many aspects of our workforce development programs and activities by building in efficiencies at a greater savings of staffing and money resources.

We’ve already seen the use of technology increase exponentially in the processing of unemployment insurance claims. And, the use of technology is growing in other areas such as computerized matching of a customer’s skills to available jobs in the market.

While these advances work for the vast majority of our populations, certain segments of our community’s population will be left behind. Persons with certain disabilities, and folks who are not able to read or write English very well could be denied access to programs for which they would otherwise be qualified.

I’ve heard some folks ask, why should we build systems around the exceptions? These folks need to come into the 21st Century.

Keep in mind, there is room in this country for all of us. Not every job out there requires an IT background, or access to the Internet. Not every job requires the ability to read, write, or speak English. Landscapers, cleaners, movers, certain construction trades, and caregivers are some examples of occupations that may not require IT savvy, access to the internet, or the ability to speak or understand English.

And, you’ve got some folks who are IT-savvy and understand English but, for example, they have a disability and need some type of auxiliary aid or service to navigate the internet application process.

The key here is to figure out what safety valves can be put in place in your particular community to ensure these populations aren’t left out. And, I think this is an excellent opportunity for the kinds of civil rights experts we’ve heard from today to establish a working group that includes folks like you and other interested stakeholders to work collaboratively to come up with some “best practices,” develop low or no cost resources, and generate ideas for resource-sharing and partnerships in our communities, to get these safety valves in place.

Integration

Beyond communication and access, we have the element of integration.

Decades ago, “Separate but Equal” was considered an acceptable way of doing business—whites could go to certain schools, blacks could go to other schools. Wisdom prevailed and we learned as a society that it is not healthy to divide ourselves by the color of our skin. Each of us has value beyond these surface qualities.

Unfortunately, the “Separate but Equal” concept is still with us, but it has morphed into other areas.

I’ll give you an example.

Too often, our workforce development programs are designed to channel persons with disabilities into separate tracks out of the gate. Regardless of the disability, or what the customer would like to do, we channel the customer to a single person at the center, or to rehabilitative services.

Earlier this year, I was asked to conduct training at a particular locality and visited one of its centers to gather a better understanding of how that locality operated its workforce development programs. The center had four job referral counselors. However, any person with a disability, regardless of the disability, would be referred to the one counselor designated as the “disability job referral counselor.” And, if that counselor was in a meeting, out of the office, or otherwise unavailable, the person with a disability had to make an appointment to come back another day.

On this particular day, a customer who was deaf came in and handed the greeter a resume and a card asking for sign language interpreter services so he could meet with a job referral counselor.

The “disability job referral counselor” at the center was out on vacation, one other counselor had a customer in her office, and two counselors were available.

At first, the center manager was going to ask the gentleman to reschedule a time the following week when the disability job referral counselor returned from vacation.

But, after a little discussion, the center manager called for a sign language interpreter who would arrive in the next 30 to 40 minutes. And, the manager had one of the available counselors at the center call the relay line in the meantime to get the process started.

As an aside, I’ll tell you that the customer on this particular day was a CPA and had advanced degrees in accounting as well as executive level accounting experience for a large company. He had relocated because of his wife’s change of jobs, and wanted assistance finding a job in his new community.

Here, the center provided assistance to him on the day he came, and did not ask that he make an appointment to come back in one or two weeks when the “disability job referral counselor” returned from vacation.

So, offering integrated services means here that each counselor should be able to take each customer in order, without regard to whether the person has a disability, is limited English proficient, is a Veteran, is a woman, and so on.

Individualized treatment

Finally, in addition to communication, access, and integration, our systems need to be designed provide individualized treatment.

The purpose of our workforce development programs is to move folks from unemployment to employment, or to transition folks from certain jobs to better jobs.

If someone comes to one of your centers directly, or comes through the unemployment insurance portal, individualized treatment requires that we start with that individual’s baseline.

What does this mean? It means we take an individual as we find him or her and work from there. We ask the customer, what skills, education, interests, and talents do you bring to the table?

At the other end of the spectrum, we take a look around to see what jobs are in our community and the skills and education required for those jobs. If we find a match, we make a referral.

If we don’t find a match, we look to bridge the gap. The first step across the bridge for some customers may be the local community college to obtain a certification, diploma, or degree. For others, the first step may be attending English as a Second Language classes.

But, keep in mind that not everyone is cut out for these types of educational pursuits. We don’t have to force all of our customers into the school or college pipeline for workforce development.

We’ve got other pipelines. Apprenticeships to learn a trade, on-the-job training, and licensing programs are some examples.

Keep in mind, folks don’t come to us out of nowhere—they have histories, they have skills, they have interests. Our job is to figure out what they bring to the table in terms of skills, education, and experience, and what workforce development pipelines would be suitable given their background and interests. And, if figuring out what someone brings to the table requires the use of a language line, captioning, or sign language interpreter services, then make sure that happens.

At the end of the day, our systems should be inclusive.

Inclusive systems will afford women access to opportunities in nontraditional fields. Inclusive systems mean we won’t skip over persons with disabilities, or persons who are limited English proficient, because we don’t know what to do with them, or because it takes a little extra time to get a sign language interpreter or connect to the language line.

Inclusive systems mean we’ll encourage employers focus first and foremost on an applicant’s qualifications, push the use of screening tools like criminal background checks and e-Verify, for example, as far back in the process as possible. And, we’ll stress the importance of employers giving an applicant the opportunity to explain, challenge, or clear-up any adverse results that surface through the use of these screening tools.

In the delivery of inclusive workforce development activities and programs, the elements of communication, access, integration, and individualized treatment are present.

From unemployment insurance to on-the-job training to resume writing assistance to job referrals to referrals for an apprenticeship program to counseling and many others, the key is to ensure all members of our population know about the programs, and have access to the programs. Make sure we are serving folks in as integrated a setting as possible, not placing folks off to the side because we don’t know what to do with them. And, we give folks individualized treatment to ensure their success.

At the end of the day, if a customer meets the essential eligibility requirements for a workforce development program or activity, then the customer must be allowed to enroll, apply, and participate.

Thank you for your time, and I wish you every success in the important work you do.

Fair Housing News (Feb. 2018)

Tuesday, February 13th, 2018

Dear Colleague,

WASHINGTON – The U.S. Department of Housing and Urban Development (HUD) announced today that it has reached a Conciliation/Voluntary Compliance Agreement with the Housing Authority of the County of Contra Costa (HACCC) and the Vallejo Housing Authority (VHA), both located in California, resolving allegations that they violated the Fair Housing Act, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act when they allegedly denied a request by a resident with disabilities to extend her search time to find suitable housing that would accept her Housing Choice Voucher. Read the agreement.

The Fair Housing Act prohibits housing providers from denying or limiting housing to persons with disabilities, or discriminating in the terms or conditions of housing services, including by refusing to make reasonable accommodations in policies or practices for persons with disabilities. Section 504 of the Rehabilitation Act of 1973 prohibits discrimination on the basis of disability by any program or activity receiving federal financial assistance.

“For residents with disabilities, being allowed a longer period to find housing can be the difference between having a roof over their heads and finding themselves on the street,” said Anna María Farias, HUD Assistant Secretary for Fair Housing and Equal Opportunity. “This case reminds housing providers of the seriousness of their responsibilities under the Fair Housing Act and Section 504 and demonstrates HUD’s commitment to ensuring that housing providers follow through on these responsibilities.”

HUD became involved in the case after a woman filed a complaint alleging that the housing authorities denied her reasonable accommodation request for additional time to find a suitable housing unit where she could use her Housing Choice Voucher, causing her to lose her voucher.

Under the agreement, HACCC and VHA will pay the woman a total of $10,000. HACCC will also reinstate the woman’s Housing Choice Voucher and VHA will port her voucher into its jurisdiction. In addition, the woman will be provided more time to locate and lease housing, and VHA will revise its Extension of Voucher Term policy.

Disability is the most common basis of complaint filed with HUD and its partner agencies. Last year alone, HUD and its state and local partners investigated more than 4,500 disability-related complaints, or nearly 55 percent of all fair housing complaints.

People who believe they have experienced discrimination may file a complaint by contacting HUD’s Office of Fair Housing and Equal Opportunity at (800) 669-9777 (voice) or (800) 927-9275 (TTY). Housing discrimination complaints may also be filed by going to www.hud.gov/fairhousing, or by downloading HUD’s free housing discrimination mobile application, which can be accessed through Apple and Android devices.

U.S. Equal Employment Opportunity Commission Weekly Digest Bulletin (Feb. 2018)

Sunday, February 11th, 2018

COLEMAN COMPANY AND EEOC REACH AGREEMENT TO RESOLVE DISCRIMINATION CHARGE AND REVISE SETTLEMENT AGREEMENTS

DENVER – The U.S. Equal Employment Opportunity Commission (EEOC) and The Coleman Company, Inc. have reached a voluntary conciliation agreement to resolve allegations of disability discrim­ination raised by a former employee, the federal agency said today.

Following an investigation, the EEOC found that it was probable that Coleman violated Section 503 of Americans with Disabilities Act (ADA) and Section 704 and 706 of Title VII of the Civil Rights Act of the 1964, by conditioning employees’ receipt of severance pay on an overly broad severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC, and which precluded employees from accepting any relief obtained by the EEOC, should the agency take further action.

Without admitting liability, Coleman agreed to enter into a conciliation agreement with the EEOC. As part of that agreement, the company agreed to hire an outside equal employment opportunity consultant to review its separation agreements and make sure they comply with law. Coleman also agreed to revise past agreements and notify signatories who signed a prior version between 2013 and 2015 that they could file a charge of discrimination with the EEOC and the company will not raise the time limits on charge filing as a defense. The EEOC will monitor compliance with this agreement.

“We applaud the Coleman Company for proactively tackling this issue once it was brought to its attention,” said EEOC Phoenix Regional Attorney Mary Jo O’Neill. “Increasingly, we are seeing emp­loyers, whether intentionally or not, including overbroad language in their separation agreements that interferes with signatories’ rights to participate in EEOC processes or that impedes the EEOC’s ability to enforce federal anti-discrimination laws as it deems necessary.”

Phoenix District Director Elizabeth Cadle added, “We hope other employers learn from Coleman’s model behavior and pay closer attention to their separation agreements. No matter what the intent, whether intentionally misleading or inadvertent, employers cannot insist on agreement provisions that are void against public policy.”

Preserving access to the legal system, including addressing overbroad separation agreements, is one of the EEOC’s Strategic Enforcement Plan priorities. For more information about the EEOC’s priorities for 2017 – 2021, visit https://www.eeoc.gov/eeoc/plan/sep-2017.cfm.

Courts generally deem contract provisions that preclude employees from filing charges with the EEOC or cooperating with the EEOC during an investigation to be void as against public policy. See EEOC v. Astra USA, 94 F.3d 738, 744 (1st Cir. 1996) and EEOC v. Cosmair, Inc., L’Oreal Hair Care Div., 821 F.2d 1085, 1090 (5th Cir. 1987). Recently, the district court of Colorado, in the case EEOC v. Montrose Memorial Hospital, Civ. No. 16-cv-02277 (D. Colo., April 12, 2017), voided settlement agreement provisions that limited an employee’s right to participate in the EEOC’s lawsuit and accept a share of any financial or other relief obtained by the EEOC.

The EEOC’s Phoenix District Office has jurisdiction for Arizona, Colorado, Utah, Wyoming, and part of New Mexico (including Albuquerque).

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

U.S. Equal Employment Opportunity Commission Weekly Digest Bulletin (Feb. 2018)

Sunday, February 4th, 2018

SILVERADO TO PAY $80,000 TO SETTLE EEOC PREGNANCY DISCRIMINATION LAWSUIT

Residential Care Provider Refused to Put Pregnant Worker on Light Duty and Fired Her Instead, Federal Agency Had Charged

MILWAUKEE, Wis. – Silverado, a network of memory care, at-home care, and hospice care centers, will pay $80,000 and provide other relief to settle a pregnancy discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s suit, Silverado discriminated against Shaquena Burton, a caregiver at the Silverado Oak Village facility in Menomonee Falls, Wisc., when it fired her rather than accommodate her pregnancy-related medical restrictions, which it could have done by putting her on light duty assignment.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, which protects employees from discrimination based on pregnancy. The EEOC filed suit (EEOC v. Silverado Menomonee Falls, LLC d/b/a Silverado Oak Village and Silverado Senior Living, Inc., Case No. 2:17-cv-1147) in U.S. District Court for the Eastern District of Wisconsin in Milwaukee on August 22, 2017, after first trying to reach a pre-litigation settlement through its conciliation process.

The consent decree settling the suit, entered by U.S. District Judge J.P. Stadtmueller on January 29, prohibits future discrimination, prohibits retaliation, and provides that Silverado will pay $80,000 to Burton. Silverado must also post notices of the settlement, revise its anti-discrimination and record-keeping policies, report any requests for light duty or other job modifications periodically to the EEOC, and train its managers regarding those rights, obligations, and procedures.

“We thank Silverado for its commitment to settle this case before the sides incurred significant costs and its willingness to ensure a level playing field for its pregnant employees seeking job modifications, including light duty work, otherwise available to non-pregnant employees,” said EEOC Chicago Regional Attorney Gregory M. Gochanour. “The EEOC will continue to enforce the federal laws so that all pregnant employees have the same opportunities as non-pregnant employees to contribute to our thriving economy,” said Julianne Bowman, the EEOC’s district director for the Chicago District Office.

PLASTIPAK PACKAGING WILL PAY $90,000 TO SETTLE EEOC RETALIATION SUIT

Plastics Manufacturing Company Fired Materials Handler Because She Complained About Sexual Harassment, Federal Agency Charged

BALTIMORE – Plastipak Packaging, Inc. will pay $90,000 and furnish significant equitable relief to resolve a federal retaliatory discrimination lawsuit, the U.S. Equal Employment Opportunity Commis­sion (EEOC) announced today.

The EEOC charged that Plastipak fired a female employee, who had been placed by a temporary agency, because she complained that one of its employees had sexually harassed her. Rather than investi­gating her complaint, the EEOC said, Plastipak terminated her assignment.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment and retaliation against individuals who complain about discrimination or harassment. The EEOC filed suit (EEOC v. Plastipak Packaging Inc., Civil Action No. 1:16-cv-03278) in U.S. District Court for the District of Maryland, Baltimore Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $90,000 in monetary relief to the retaliation victim, the three-year consent decree resolving the suit enjoins Plastipak from engaging in retaliation at its Havre de Grace, Md., facility in the future. Plastipak will implement a detailed policy prohibiting sexual harassment and retaliation. Plastipak will train all managers, supervisors and employees on preventing sexual harassment and retaliation. The training will also emphasize mutual respect in the workplace and train employees to respond appropriately when they are bystanders to unacceptable behavior. The consent decree requires Plastipak to report to the EEOC on how it handles any internal complaints of unlawful sexual harassment or retaliation and to post a notice regarding the settlement.

“All employees, including temporary workers, have the right to earn a living without being subjected to sexual advances and to exercise their right to oppose unlawful harassment without being fired,” said EEOC Philadelphia Director Jamie R. Williamson.

EEOC Regional Attorney Debra M. Lawrence added, “We are pleased that Plastipak worked with us to reach an amicable settlement. This settlement, including the comprehensive injunctive provisions, policy changes and training requirements, should create a more respectful workplace and ensure that all employees are protected from unlawful harassment or retaliation.”

The EEOC’s Baltimore Field Office is one of four offices in the agency’s Philadelphia District, which has jurisdiction over Pennsylvania, Maryland, Delaware, West Virginia and parts of New Jersey and Ohio. Attorneys in the Philadelphia District Office also pros­ecute discrimination cases in Washington, D.C. and parts of Virginia.

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

“EO Is the Law” and “EEO is THE LAW”: Understanding Some of The Distinctions by Seena Foster

Thursday, February 1st, 2018

Depending on your source(s) of federal funding, there are certain required notices and posters that must be displayed prominently throughout areas where you meet, greet, and work with members of your public.  For example, if you receive funding from the U.S. Department of Housing and Urban Development for public housing, you are required to place “Fair Housing is The Law” posters throughout the areas where you interact with the public. For entities that receive funding from the U.S. Department of Health and Human Services, you are required to post the “Non-Discrimination Notice and Non-Discrimination Statement.” Recipients of funding by the U.S. Department of Education also must post a nondiscrimination notice.

These notices and posters are intended to promote compliance with federal civil rights laws by notifying members of (1) the public of their right to nondiscrimination, and (2) your staff of their obligations to conduct programs and activities in compliance with applicable civil rights laws.

Knowing what federal posters to display in the area of equal opportunity often can be confusing.  And, this is particularly true for Equal Opportunity (EO) Officers of agencies, organizations, and other entities that deliver services, aid, training, and benefits funded under Title I of the Workforce Innovation and Opportunity Act (WIOA), amending the Workforce Investment Act (WIA).  For WIOA-funded programs and activities, the “Equal Opportunity is The Law” (referred to as “EO Is the Law”) poster must be prominently displayed throughout all public areas.  Recipients of WIOA Title I-financial assistance include state and local governments, American Job Network centers, Job Corps centers, local Workforce Investment Boards, Unemployment Insurance call centers, colleges, universities, and many other providers involved in the system of delivering WIOA Title I-related aid, benefits, services, and training.

The “EO Is the Law” poster, however, is often confused with the Equal Employment Opportunity Commission’s “Equal Employment Opportunity is The Law” (referred to as the “EEO Is the Law”) poster.  Similarities in the titles of these notices often lead to confusion in understanding some of their differences.

For purposes of this paper, we will assume you serve as the EO Officer for an entity offering WIOA-funded workforce development programs and activities.  By law, the “EO Is the Law” notice must be prominently displayed throughout your public areas.  29 C.F.R. § 37.30 (WIA); 29 C.F.R. § 38.34, 38.36, and 38.39 (WIOA).

    The “Equal Opportunity Is the Law” notice

Equal Opportunity Is the Law

It is against the law for this recipient of Federal financial assistance to discriminate on the following bases:

Against any individual in the United States, on the basis of race, color, religion, sex (including pregnancy, childbirth, and related medical conditions, sex stereotyping, transgender status, and gender identity), national origin (including limited English proficiency), age, disability, political affiliation or belief, or, against any beneficiary of programs financially assisted under Title I of the Workforce Innovation and Opportunity Act, on the basis of the individual’s citizenship status, or participation in any WIOA Title I-financially assisted program or activity.

The recipient must not discriminate in any of the following areas:

Deciding who will be admitted, or have access, to any WIOA-Title I financially assisted program or activity;

Providing opportunities in, or treating any person with regard to, such a program or activity; or

Making employment decisions in the administration of, or in connection with, such a program or activity.

Recipients of federal financial assistance must take reasonable steps to ensure that communications with individuals with disabilities are as effective as communications with others. This means that, upon request and at no cost to the individual, recipients are required to provide appropriate auxiliary aids and services to qualified individuals with disabilities.

 What to Do If You Believe You Have Experienced Discrimination

 If you think that you have been subjected to discrimination under a WIOA Title I-financially assisted program or activity, you may file a complaint within 180 days from the date of the alleged violation with either:

The recipient’s Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or
The Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.

If you file your complaint with the recipient, you must wait either until the recipient issues a written Notice of Final Action, or until 90 days have passed (whichever is sooner), before filing with the Civil Rights Center (see address above).

If the recipient does not give you a written Notice of Final Action within 90 days of the day on which you filed your complaint, you do not have to wait for the recipient to issue that Notice before filing a complaint with CRC. However, you must file your CRC complaint within 30 days of the 90-day deadline (in other words, within 120 days after the day on which you filed your complaint with the recipient).

If the recipient does give you a written Notice of Final Action on your complaint, but you are dissatisfied with the decision or resolution, you may file a complaint with CRC. You must file your CRC complaint within 30 days of the date on which you received the Notice of Final Action.

√    Initial and continuing notice required

As the EO professional for a recipient of WIOA-Title I financial assistance, you must ensure that “initial and continuing notice” is provided.  29 C.F.R. § 37.29 (WIA); 29 C.F.R. § 38.34, 38.36, and 38.39 (WIOA).  What does this mean?

This means the “EO Is the Law” notice must be “prominently” posted in a variety of places at your center, agency, facility, office headquarters, and any other location open to the public.  And, it must be available in an alternative formats for persons with disabilities, and in other languages for individuals who are limited English proficient.

You must document initial and continuing notice to a beneficiary or potential beneficiary.  For this reason, you must ensure there is “a record that such notice has been given” in “the participant’s file.”

Persons who are limited English proficient (LEP) also must receive notice.  Consequently, the “EO Is the Law” notice should be available in appropriate languages.  Check with your state EO leadership, or with the U.S. Department of Labor’s Civil Rights Center, for LEP-related materials, including versions of the “EO Is the Law” notice in other languages.  The U.S. Department of Justice Web site, at www.lep.gov, also offers valuable guidance.  

Providing notice on a “continuing basis” means, in addition to prominently-placed posters, the notice must be communicated through internal memoranda and other written or electronic communications.  It must be included in your handbooks and materials.

Continuing notice extends to including taglines that the recipient is an “equal opportunity employer/program,” and “auxiliary aids and services are available upon request to persons with disabilities” in your:

●     recruitment brochures;

●    orientation materials and presentations;

●    written and oral communications to staff, clients, or the public regarding WIOA-Title I programs and activities; and

●    publications and broadcasts regarding the WIOA-Title I programs and activities.

Moreover, during each orientation session, you must include a discussion of rights under WIOA’s nondiscrimination and equal opportunity provisions at Section 188, including the right to file a complaint of discrimination with the Director of the U.S. Department of Labor’s Civil Rights Center.

    The “EEO Is the Law” notice

The “EEO Is the Law” notice was developed by the U.S. Equal Employment Opportunities Commission (EEOC).  The EEOC’s “EEO Is the Law” notice reads, in part, as follows:

Equal Employment Opportunity is THE LAW

 Private Employers, State and Local Governments, Educational Institutions, Employment Agencies and Labor Organizations

Applicants to and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations are protected under Federal law from discrimination on the following bases:

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

Title VII of the Civil Rights Act of 1964, as amended, protects applicants and employees from discrimination in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment, on the basis of race, color, religion, sex (including pregnancy), or national origin. Religious discrimination includes failing to reasonably accommodate an employee’s religious practices where the accommodation does not impose undue hardship.

DISABILITY

Title I and Title V of the Americans with Disabilities Act of 1990, as amended, protect qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship.

AGE

The Age Discrimination in Employment Act of 1967, as amended, protects applicants and employees 40 years of age or older from discrimination based on age in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment.

SEX (WAGES)

In addition to sex discrimination prohibited by Title VII of the Civil Rights Act, as amended, the Equal Pay Act of 1963, as amended, prohibits sex discrimination in the payment of wages to women and men performing substantially equal work, in jobs that require equal skill, effort, and responsibility, under similar working conditions, in the same establishment.

GENETICS

Title II of the Genetic Information Nondiscrimination Act of 2008 protects applicants and employees from discrimination based on genetic information in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. GINA also restricts employers’ acquisition of genetic information and strictly limits disclosure of genetic information. Genetic information includes information about genetic tests of applicants, employees, or their family members; the manifestation of diseases or disorders in family members (family medical history); and requests for or receipt of genetic services by applicants, employees, or their family members.

RETALIATION

All of these Federal laws prohibit covered entities from retaliating against a person who files a charge of discrimination, participates in a discrimination proceeding, or otherwise opposes an unlawful employment practice.

WHAT TO DO IF YOU BELIEVE DISCRIMINATION HAS OCCURRED

There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov.

Employers Holding Federal Contracts or Subcontracts

Applicants to and employees of companies with a Federal government contract or subcontract are protected under Federal law from discrimination on the following bases:

RACE, COLOR, RELIGION, SEX, NATIONAL ORIGIN

Executive Order 11246, as amended, prohibits job discrimination on the basis of race, color, religion, sex or national origin, and requires affirmative action to ensure equality of opportunity in all aspects of employment.

INDIVIDUALS WITH DISABILITIES

Section 503 of the Rehabilitation Act of 1973, as amended, protects qualified individuals from discrimination on the basis of disability in hiring, promotion, discharge, pay, fringe benefits, job training, classification, referral, and other aspects of employment. Disability discrimination includes not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, barring undue hardship. Section 503 also requires that Federal contractors take affirmative action to employ and advance in employment qualified individuals with disabilities at all levels of employment, including the executive level.

DISABLED, RECENTLY SEPARATED, OTHER PROTECTED, AND ARMED FORCES SERVICE MEDAL VETERANS

The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, prohibits job discrimination and requires affirmative action to employ and advance in employment disabled veterans, recently separated veterans (within three years of discharge or release from active duty), other protected veterans (veterans who served during a war or in a campaign or expedition for which a campaign badge has been authorized), and Armed Forces service medal veterans (veterans who, while on active duty, participated in a U.S. military operation for which an Armed Forces service medal was awarded).

RETALIATION

Retaliation is prohibited against a person who files a complaint of discrimination, participates in an OFCCP proceeding, or otherwise opposes discrimination under these Federal laws.

Any person who believes a contractor has violated its nondiscrimination or affirmative action obligations under the authorities above should contact immediately:

The Office of Federal Contract Compliance Programs (OFCCP), U.S. Department of Labor, 200 Constitution Avenue, N.W., Washington, D.C. 20210, 1-800-397-6251 (toll-free) or (202) 693-1337 (TTY). OFCCP may also be contacted by e-mail at OFCCP-Public@dol.gov, or by calling an OFCCP regional or district office, listed in most telephone directories under U.S. Government, Department of Labor.

√    Comparing the notices

Comparing the “EO Is the Law” notice with the “EEO is THE LAW” notice, we see both notices set forth nondiscrimination requirements, and inform us regarding where to file a discrimination complaint.  However, the “EEO is THE LAW” notice is limited to addressing nondiscrimination with regard to employment practices, whereas the “EO Is the Law” notice is much broader—it applies to employment practices of WIOA-Title I funded recipients and sub-recipients as well as the entire system of delivering WIOA-Title I funded aid, training, benefits, and services to the public.

Moreover, while some “bases” of prohibited discrimination are the same in the two notices (race, color, national origin, religion, disability, gender), there also are important differences.  For example, the WIOA-related “EO Is the Law” notice also prohibits discrimination on the bases of citizenship, WIOA participant status, and political affiliation.  And, the “EEO is THE LAW” notice prohibits discrimination in employment practices on the basis of genetics.

Additionally, although both notices prohibit discrimination on the basis of age, the “EEO is THE LAW” nondiscrimination provisions apply to persons over 40 years of age in the workplace.  But, the age-based nondiscrimination provisions of the “EO Is the Law” notice prohibit discrimination on the basis of any age in WIOA-Title I-related employment practices as well as in the delivery of WIOA-Title I funded programs and activities.

Finally, both notices provide instructions for filing discrimination complaints, but we see the complaints are filed at different locations.  The WIOA-related “EO Is the Law” notice provides that complaints may be filed within 180 days of the date of the adverse action with:

√  the recipient’s Equal Opportunity Officer (or the person whom the recipient has designated for this purpose); or

√ the Director, Civil Rights Center (CRC), U.S. Department of Labor, 200 Constitution Avenue NW, Room N-4123, Washington, DC 20210.

This is compared to the discrimination complaint process set forth in the “EEO is THE LAW” notice, which provides:

There are strict time limits for filing charges of employment discrimination. To preserve the ability of EEOC to act on your behalf and to protect your right to file a private lawsuit, should you ultimately need to, you should contact EEOC promptly when discrimination is suspected: The U.S. Equal Employment Opportunity Commission (EEOC), 1-800-669-4000 (toll-free) or 1-800-669-6820 (toll-free TTY number for individuals with hearing impairments). EEOC field office information is available at www.eeoc.gov or in most telephone directories in the U.S. Government or Federal Government section. Additional information about EEOC, including information about charge filing, is available at www.eeoc.gov.

√    Conclusion

If you operate WIOA-Title I financially assisted programs and activities, you must prominently display, and provide initial and ongoing notice of, the U.S. Department of Labor’s “Equal Opportunity Is The Law” notice at your agency, American Job Network Centers (also known as “One Stops”), Local Workforce Investment Board offices, Unemployment Insurance call centers, Job Corps Centers, operator offices, service provider locations, and the like.  You cannot rely solely on the “EEO is THE LAW” notice to meet this requirement.  And, this notice must be provided to each participant of your WIOA-Title I financially assisted programs and activities, and this must be documented in each participant’s file (usually this is accomplished by placing a copy of the notice with the participant’s signature on it in the participant’s file).

About Seena Foster

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting in Alexandria, Virginia, provides expertise and guidance in the areas of civil rights compliance and discrimination complaint investigations related to the delivery of federally-assisted workforce development programs and activities. Her customers include state and local governments, colleges and universities, private companies, private counsel, and non-profit organizations. You may contact her at seena@titleviconsulting.com, or visit her web site at www.titleviconsulting.com for additional information regarding the services and resources she offers.

By way of background, in 2003, Ms. Foster served as a Senior Policy Analyst to the U.S. Department of Labor’s Civil Rights Center (CRC). In that capacity, she led a team of equal opportunity specialists to conduct disability-based technical assistance reviews of One-Stop centers, and she assisted the CRC’s leadership in preparing for limited English proficiency-based compliance reviews. Ms. Foster also analyzed and weighed witness statements and documents to prepare numerous final determinations for signature by the CRC Director, which resolved discrimination complaints under a variety of federal civil rights laws such as Title VI of the Civil Rights Act, the Age Discrimination Act, the Rehabilitation Act, the Americans with Disabilities Act, and Section 188 of the Workforce Investment Act. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award in recognition of “exceptional efforts to ensure that individuals with disabilities have full access to employment and related services and benefits at the Nation’s One-Stop Career Centers.” And, at the request of the CRC, Ms. Foster served as a popular workshop speaker at national equal opportunity forums co-sponsored by the CRC and the National Association of State Workforce Agencies. Her presentations covered topics such as the WIA Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

With a passion for ensuring nondiscrimination and equal opportunity in the delivery of federally-assisted programs and activities, Ms. Foster remains highly active in the field through her series of on-demand webcasts for equal opportunity professionals as well as through her mediation services, training, and assistance developing policies and procedures designed to ensure compliance with applicable federal civil rights laws. Her training in the areas of compliance and complaint investigations has been described as “dynamic,” “hitting the nail on the head,” “well-organized,” and “informative.” And, her award-winning book on conducting discrimination complaint investigations is viewed as “eye-opening” and “the best on the market.”

Ms. Foster has a “Federal Workplace Mediation” certification through the Northern Virginia Mediation Service. She is a member of the Discrimination Law and Human Rights Law Committees of the International Bar Association. Ms. Foster received her undergraduate degree from Michigan State University, and she has a Juris Doctorate from The George Washington University Law School.