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U.S. Equal Employment Opportunity Commission Weekly Digest Bulletin: Pregnancy Discrimination (July 2018)

Sunday, July 8th, 2018

LA LOUISANNE RESTAURANT SETTLES EEOC PREGNANCY DISCRIMINATION LAWSUIT FOR $82,500

Los Angeles Cajun Restaurant and Nightclub Denied Pregnant Servers Work, Federal Agency Charges

LOS ANGELES — LA Louisanne, Inc., a Los Angeles restaurant and jazz night club, will pay $82,500 and furnish 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 lawsuit, LA Louisanne violated federal law when it reduced the working hours of one if its servers after learning she was pregnant, eventually removing her from the schedule entirely. The company then refused to allow her to return her to work after giving birth. The EEOC also charged that other servers for LA Louisanne experienced similar discrimination during their preg­nancies.

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 Central District of California (EEOC v. LA Louisanne, Inc., Case No. 2:17-cv-06690) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $82,500 in monetary relief for the victim and the establishment of a class fund, LA Louisanne will retain an external EEO monitor who will review and revise the company’s discrimin­ation and harassment policies as necessary. The company will also provide training for all employees regarding discrimination and harassment. The EEOC will monitor compliance with the three-year consent decree.

“Stereotypes regarding pregnant employees still persist, particularly in the food industry,” said Anna Park, regional attorney for the EEOC’s Los Angeles District. “We commend LA Louisanne for taking the necessary steps to create a more inclusive work environment for expectant employees.”

Christopher Green, director of the EEOC’s San Diego local office, which investigated the charge, added, “Pregnant employees should not lose their jobs or otherwise suffer discrimination simply because of their temporary condition. Employers should train employees on proper policies and practices to prevent bias against pregnant workers, who often remain productive during and after pregnancy.”

One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the agency to address emerging and developing issues in equal employment law, including issues in­volving the ADA and pregnancy-related limitations, among other issues.

Friday, July 6th, 2018

If you are a refugee or asylee, you have permission to live and work in the United States. Several federal laws protect your right to work regardless of where you live in the United States. The Immigrant and Employee Rights Section (IER) has a flyer for workers and their advocates discussing asylees’ and refugees’ employment rights, which is available here. This flyer is also available in 14 other languages. IER also has a resource guide for asylees and refugees and an employer flyer on asylees’ and refugees’ employment rights.

In April, IER reached a settlement with an employer that discriminated against an asylee by refusing to refer his application to a client, based on his status as an asylee.

IER enforces the anti-discrimination provision of the Immigration and Nationality Act. This law prohibits citizenship, immigration status, and national origin discrimination in hiring, firing, or recruitment or referral for a fee; unfair documentary practices; retaliation and intimidation. For more information visit www.justice.gov/ier.

EEOC Sues AMI Mechanical for Color and National Origin Discrimination (June 2018)

Tuesday, July 3rd, 2018

Contractor Assigned Hispanic Employees to Work in More Dangerous Spaces Than Non-Hispanics, Federal Agency Charges

DENVER – Thornton-based AMI Mechanical, Inc. violated federal law by color and national origin discrim­in­ation, retaliation and records destruction, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed on June 26, 2018.

According to the EEOC’s lawsuit, the plumbing and mechanical contractor, employed both Hispanic and white employees at the Yorkshire Apartments project in Thornton, Colo. AMI assigned non-white Hispanic employees to work in a confined space con­taining human waste and dangerous gas levels at a rate of nearly 4:1 compared to white non-Hispanic employees.

When one of the employees, Joseph Muniz, complained about the conditions and discrim­ination, his supervisor, Earl Jones, stated he would fire the Hispanic employees and “hire a bunch more . . . Mexicans” to replace them. AMI also stated in Muniz’s termination form that he had “caused a lot of problems” on the project, was permanently dismissed, and would not be recom­mended to other employers. AMI further destroyed, or failed to preserve, daily work reports for the Yorkshire Apartment Project that are relevant to the question of whether discrimination occurred there.

Such alleged conduct violates the Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment because of national origin and color and retaliation against employees who oppose discrimination. Title VII also requires employers to maintain records relevant to whether unlawful employment practices have been committed. The EEOC filed suit in U.S. District Court of Colorado (EEOC v. AMI Mechanical, Inc., Case No. 1:18-cv-01609-MEH) after first attempting to reach a pre-litigation settlement through its conciliation process. The agency seeks back pay, compensatory and punitive damages, along with injunctive relief to prevent and address any future discrimination.

“Treating employees differently in job assignments because of their color or national origin violates Title VII, and we will continue to enforce our federal anti-discrimination laws,” said Elizabeth Cadle, district director for the EEOC’s Phoenix District, which includes Denver in its jurisdiction

Mary Jo O’Neill, regional attorney for the EEOC’s Phoenix District, said, “Retaliating against an employee because he complained about national origin discrimination is another violation of federal law. Retaliation charges make up almost 50 percent of all of the discrimination complaints the EEOC receives, showing that it continues to be a major national problem that we will continue to combat.”

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.

EEOC Releases Report on the State of Older Workers and Age Discrimination (June 2018)

Tuesday, July 3rd, 2018

CONTACT:

202-663-4191
newsroom@eeoc.gov

FOR IMMEDIATE RELEASE

June 26, 2018

WASHINGTON – Victoria A. Lipnic, Acting Chair of the U.S. Equal Employment Opportunity Commission (EEOC), issued a report today on the State of Older Workers and Age Discrimination 50 Years After the Age Discrimination in Employment Act (ADEA). The ADEA was signed into law in December 1967 and took effect 50 years ago this month, in June 1968. The ADEA was an important part of 1960s civil rights legislation that was intended to ensure equal opportunity for older workers.

The report finds that age discrimination remains too common and too accepted as outdated assumptions about older workers and ability persist, even though today’s experienced workers are more diverse, better educated and working longer than previous generations.

“As we’ve studied the current state of age discrimination this past year in commemorating the ADEA, we’ve seen many similarities between age discrimination and harassment,” explained Acting EEOC Chair Victoria A. Lipnic. “Like harassment, everyone knows it happens every day to workers in all kinds of jobs, but few speak up. It’s an open secret.”

The report recognizes the similarities between age discrimination and other discrimination. Only about 3 percent of those who have experienced age discrimination complained to their employer or a government agency, according to recent research. Studies find that more than three-fourths of older workers surveyed report their age is an obstacle in getting a job. Even with a booming economy and low unemployment, older workers still report they have difficulties getting hired.

Lipnic’s report provides a wealth of information and resources. It includes recommendations from experts on strategies to prevent age discrimination, such as including age in diversity and inclusion programs and having age-diverse hiring panels. Research shows that age diversity can improve organi­za­tional performance and lower employee turnover. Studies also find that mixed-age work teams result in higher productivity for both older and younger workers.

“I hope the report also serves to put to rest outdated assumptions about experienced workers,” Acting Chair Lipnic commented. “As I’ve said many times, they have talent that our economy cannot afford to waste.”

Age Discrimination: What It Is and How to Avoid It (by Seena Foster)

Sunday, July 1st, 2018

Age discrimination is prohibited by federal civil rights laws. The Age Discrimination Act of 1975 requires nondiscrimination on the basis of any age in the delivery of federally-assisted services, aid, training, and benefits. And, the Age Discrimination in Employment Act of 1967 bars discrimination against folks who are 40 years and older in employment practices.

In this article, we’ll cover the requirements of these laws, and set forth some specific steps you can take to ensure compliance.

√ In federally-assisted programs and activities.

In federally-assisted programs and activities, age discrimination is prohibited regardless of the age at issue. Federally-assisted programs and activities cover a wide variety of areas including, but not limited to, the following:

● workforce development, such as job counseling, job referral, unemployment insurance, on-the-job-training, and other programs and activities offered through the American Job Center network and Job Corps Centers;
● educational programs and activities offered at schools, colleges, and universities that receive federal dollars;
● public transportation systems;
● public housing;
● healthcare programs and activities funded with federal dollars;
● and many others.

Denying services, aid, training, or benefits in federally-assisted programs and activities because someone is “too old” or “too young” runs afoul of the Age Discrimination Act. That is, if you limit services, provide lesser services, provide segregated services, or deny services based on a person’s age, then you have engaged in age-based discrimination.

The only exception is when the federal funding agency designates dollars for a program geared to a particular age group. For example, Job Corps offers enrollment for its federally-assisted educational programs and activities to persons who are 16 to 24 years old.  Here, one of the essential eligibility requirements for participation in this federal program is age-related.

Absent specific age criteria set by the federal agency, as in our Job Corps example, age-based discrimination is prohibited in government programs. For example, let’s say you are operating a project management training program, which is partially funded with grant money received from the U.S. Department of Labor. Through this program, participants obtain specialized certification allowing them to bid on a wider variety of contracts issued in your locality.

Joan, a 36-year old, was denied entry into the program. She files a discrimination complaint alleging you only selected folks under 30 years of age. This constitutes an age-based discrimination complaint under the Age Discrimination Act.

Now, when conducting an investigation of this complaint, you’ll want to learn whether Joan met the “essential eligibility requirements” for the training program as well as who was selected and who was not, the bases of these decisions, and so on.

If you operate a government-funded program or activity to deliver aid, training, services, or benefits to the public, then focus on the following measures to ensure compliance with the Age Discrimination Act:

● Know the “essential eligibility requirements” for the program. Are there any age requirements? If not, then the Age Discrimination Act mandates age cannot be used to deny access to a program, or to offer lesser, segregated, or different services.
● Make sure each and every member of your staff working with a program, including your front line folks who greet the public as they come through the door, treats each person with respect, and does not segregate, exclude, limit, or deny access to a program or activity because of an individual’s age.
● Conduct training so that staff understands the Age Discrimination Act, i.e. what it is, where it applies, and what it means. Everyone needs to be on the same page—you cannot offer lesser services, segregated services, different services, or no services because someone is “too old” or “too young.”
● Monitor the program. Check census and other demographic data for your service population to make sure you are reaching your target populations, regardless of their ages. Check program data for any disconnects between the ages of folks who come through your doors and those who are actually served. And, finally, track your discrimination complaint log to pinpoint and troubleshoot problem areas in your systems of delivering aid, training, benefits, or services to the public.

√ In the workplace.

Unlike the operations of government programs, in the workplace, we are concerned with the treatment of people who are 40 years of age and over. The Age Discrimination in Employment Act (ADEA) stemmed from Congress’s concerns over stereotyping of older workers as being less efficient or less productive than their younger counterparts. Congress found, based on these stereotypes, older workers were treated less favorably.

The EEOC reports that 23 percent of all discrimination charges it received in 2012 included alleged violations of the ADEA, and the “most startling” component of these age-based discrimination complaints was that 64 percent of the complaints asserted discriminatory discharge of the worker. As a result, in 2012, the EEOC announced a new strategic enforcement plan targeting age-based discrimination in the employment context, which was approved by the Commission. One of its goals under this new strategy is to prevent age-based discrimination and harassment through increased litigation and targeted outreach.

At this juncture, it is worthwhile to take a brief sidestep and note that a variety of studies have come out in recent years demonstrating that older persons exhibit sharper minds in some areas, and have more stable emotions than their younger counterparts. For example, older air traffic controllers were studied by University of Illinois researchers, and found to exhibit expert navigation abilities as well as expert abilities coordinating multiple aircraft at the same time to avoid collisions. So, it is important to instill a workplace culture that does not negatively stereotype older workers.

Less favorable treatment in employment practices includes non-selection, non-promotion, issuing adverse performance appraisals, a hostile work environment, forced retirement, and termination. It can also include transfer to a less favorable position or office location, exclusion from meetings, and other less favorable privileges, terms, or conditions of employment.

If it is determined that less favorable employment policies and practices adversely affect folks 40 years of age and over, then prohibited age-based discrimination is demonstrated, unless the employer demonstrates that “reasonable factors other than age” are at the core of the less favorable employment policy or practice.  Notably, in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176 (2009), the United States Supreme Court considered the complainant’s burden under the ADEA.  The plain language of the statute provides it “shall be unlawful for an employer . . . [t]o discriminate against any individual . . . because of such individual’s age.”  Citing this language, the Supreme Court held an employee must show that, even if age is not the only cause for the adverse action, age must be the controlling factor in the adverse employment action; that is, the adverse employment action would not have happened “but-for” the employee’s age.

One example of application of the “but for” standard is found in the Eleventh Circuit’s 2013 opinion in Cobb v. City of Roswell, Georgia.  The court noted, in order to meet this burden, the employee initially must demonstrate a prima facie case that s/he was:  (1) at least 40 years old; (2) subjected to an adverse employment action; (3) replaced by a younger person; and (4) qualified for the job at issue.  The court stated an employer’s expressed need for “fresh” leadership, standing alone, will not carry the day in establishing age discrimination; rather, there must be a basis in the record to demonstrate that “fresh” meant “young” or “younger.”  If a prima facie case is made, then the burden shifts to the employer to present legitimate, nondiscriminatory reasons for its conduct.  And, finally, the employee is afforded the opportunity to demonstrate that the employer’s proffered reasons are mere pretext, or are not true.  Here, the Cobb court held the employee “must meet each proffered reason head on and rebut it, and he cannot succeed by simply disputing the wisdom of the employer’s proffered reasons.”

Keep in mind, it is not illegal under the ADEA to favor an older worker over a younger worker, even if both employees are over 40 years of age. Rather, as stated earlier, the ADEA was enacted to protect older workers against discrimination in favor of younger workers.

The ADEA applies to your workplace as well as to apprenticeship programs, job notices and advertisements, and pre-employment inquiries. While there is no specific prohibition to asking the age, the date of birth, or the date of high school graduation of an applicant for employment, such pre-employment questions will be closely scrutinized in any discrimination complaint investigation to determine whether the information was obtained for a lawful purpose.

There is no upper age limit under the ADEA, which means that employers must be careful when imposing mandatory retirement policies. Specifically, if an employer seeks to impose mandatory age retirement, it must demonstrate that such a requirement constitutes a bona fide occupational requirement for the position.

And, sometimes, job requirements will have a disproportionately adverse impact on folks who are 40 years of age and over. For example, a job may require consistent lifting of 50 pounds during the workday and this, in turn, may disproportionately affect some older workers. Such job requirements are permissible so long as they relate to the essential functions of the job.

For purposes of illustration, we’ll use two court opinions to help us better understand the concept of age-based hostile work environment—when it is established and when it is not. Keep in mind, that discrimination complaints are very fact intensive. There are very few bright line rules, and these complaints are resolved on a case-by-case basis.

The two cases that we are going to look at are the 2011 New Jersey Supreme Court opinion, Saffros v. Anaya, Inc., where age discrimination was established, and the 2012 Third Circuit opinion of Vashinder v. Sec’y. Dep’t. of Veterans Affairs, where age discrimination was not established.

The plaintiffs in each of these cases alleged that derogatory age-related remarks were directed at them in the workplace. The Vashinder court found evidence of one “stray remark” about the plaintiff’s age, but concluded that this did not rise to a “severe and pervasive” level so as to create an age-based hostile work environment.

In Saffros, on the other hand, the court found evidence that company managers and supervisors continually made degrading age-related comments directed at, or about, older workers, including the plaintiff. Indeed, the court found that these comments were “severe and pervasive” enough to create a hostile work environment based on age, which constituted age-based discrimination.

So, where the Vasbinder court concluded a stray age-related remark did not rise to the level of hostile work environment, the Saffros court found a culture of the company’s leadership making derogatory age-based remarks was sufficient to create a hostile work environment in violation of the ADEA.

Next, in Vasbinder, the plaintiff, who was over 40 years of age, was demoted from Boiler Plant Operator Leader to Maintenance Worker. Although the plaintiff asserted that the demotion stemmed from the fact that he was over 40 years of age, the court found sufficient evidence presented by the employer to demonstrate that he was demoted because he was caught sleeping during his shift. Here, the court noted, “Sleeping while responsible for the boiler plant was a serious offense because of the potential consequences of an equipment malfunction.” Although the plaintiff challenged the employer’s investigation of a report that he was sleeping on duty, the court held that the employer followed its procedures, investigated the report, and took disciplinary action.

On the other hand, in Saffros, the court cited to multiple factors demonstrating age-based discrimination had occurred against employees aged 40 years and older. The court cited to one employee over 40 years of age, who had a history of exceptional work performance, but was terminated under a Forced Management Plan. The employer argued that the plan served a purpose of eliminating positions “to create cost savings.” The plaintiff requested a transfer to another geographical location with the company, but this was denied on the basis that there was “no money for moving.” It was problematic to the court, however, when the company turned around and hired a 33 year old to fill the same position as was held by the terminated plaintiff and the moving costs for the new hire were paid by the company. Based on the facts before it, the court concluded that age-based discrimination was established.

In the end, it is important to ensure that your employment practices comply with the ADEA. Some suggestions include:

● Focus on the bona fide occupational requirements and essential duties of a job, not the age of the applicant or employee.
● Avoid gathering age-related information, such as date of birth, date of graduation from high school, and the like, during the pre-employment phase of the hiring process.
● Do not include age preferences in job notices and advertisements.
● While stray age-related remarks in the workplace may not rise to the level of “severe and pervasive” conduct to create a hostile work environment, any such remarks should be discouraged. And, managers and supervisors must refrain from making such remarks, encouraging others to make them, or ignoring complaints by subordinates regarding such remarks. There is a point at which stray remarks evolve into more intense conduct that violates federal civil rights laws.
● Reductions in force and other “cost saving” measures implemented by an employer should not have a disproportionate affect on older workers. It will be particularly problematic for your organization if terminated older workers are replaced with younger ones.
● Monitor what is happening on the ground. Keep your eyes and ears open. Acts of discrimination may start small, but they can quickly build and create a drain on company resources to correct. It is best to encourage a respectful work environment, top to bottom, from the start.

About Seena Foster

Seena Foster, Principal of Title VI Consulting, assists administrators and equal opportunity professionals understand the civil rights laws that apply to their federally-assisted programs and activities. Her background includes 24 years as Senior Legal Advisor to the Labor Department’s Office of Administrative Law Judges, where she drafted decisions and orders and developed resources and aids promoting consistency and efficiency in several national adjudication programs. In 2012, Ms. Foster received the U.S. Secretary of Labor’s Exceptional Achievement Award “for outstanding leadership and legal guidance in helping the Office of Administrative Law Judges address the major changes in law” stemming from enactment of the Patient Protection and Affordable Care Act.

Ms. Foster also served on detail as a Senior Policy Analyst to the Labor Department’s Civil Rights Center (CRC) and, in 2003, she led a team of specialists to conduct disability-based technical assistance reviews, prepared materials for limited English proficiency compliance reviews, prepared determinations issued by Director Annabelle Lockhart resolving numerous discrimination complaints, and presented at the CRC/NASWA national equal opportunity forum on the Workforce Investment Act Section 188 Disability Checklist. In 2006, Ms. Foster received the Secretary of Labor’s Equal Employment Opportunity Award for her work at the CRC, and, on request by the CRC, Ms. Foster continued to serve as a workshop presenter at subsequent CRC/NASWA equal opportunity conferences conducting workshops on conducting discrimination complaint investigations and writing determinations, and addressing harassment and hostile environment complaints in educational programs and activities.

Currently, Ms. Foster offers consultation services, assists in the development of policies and procedures, and conducts onsite civil rights training for state and local governments, focusing on the delivery of federally-assisted programs and activities in the areas of workforce development and education. Her award-winning book, Civil Rights Investigations under the Workforce Investment Act and other Title VI-Related Laws: From Intake to Final Determination, and her highly popular on-demand webcasts covering compliance and discrimination complaints investigations have been applauded by equal opportunity and compliance professionals for their clarity and content. Ms. Foster has a Juris Doctorate from The George Washington University Law School, and she carries certification in federal workplace mediation from the Northern Virginia Mediation Service. Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association.