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EEOC Weekly Digest Bulletin (May 2018)

Tuesday, May 22nd, 2018

EEOC SUES STAFFING SOLUTIONS FOR MULTIPLE DISCRIMINATORY HIRING PRACTICES

Owner Frequently Used Racial Slurs and Forced Out Manager Who Opposed Hiring Discrimination, Federal Agency Charges

BUFFALO, N.Y. –Staffing Solutions of WNY Inc., a Buffalo-based staffing company that places employees with clients throughout Western New York, violated federal laws prohibiting hiring discrimination, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the complaint, EEOC contends that Staffing Solutions either refused to hire highly qualified black applicants or placed them in the lowest paying, least desirable jobs. Further, EEOC alleges that Staffing Solutions’ owner, Kathleen Faulhaber, regularly referred to black applicants as “n—-rs,” instructed her staff to comply with clients’ race and sex preferences, placed employees in positions based on race and sex, and rejected pregnant applicants.

Additionally, the complaint alleges that applicants over the age of 50, applicants with disabilities, and those whom the company deemed disabled were routinely rejected by Staffing Solutions. EEOC contends that applicants were improperly asked for their dates of birth and about injuries and medical conditions, and that Staffing Solutions rejected applicants considered too old and those who revealed health issues, such as cancer, blindness, or back injuries.

Finally, EEOC charges that an office manager for Staffing Solutions complained about the illegal hiring practices and voiced objections to Faulhaber’s repeated use of racial slurs, but was warned that she would be fired if she failed to comply. The office manager felt she had no choice but to resign.

Staffing Solutions’ alleged hiring practices violate Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act which prohibit discrimination on the basis of age, disability, race, or sex, as well as retaliation.

The EEOC filed suit in U.S. District Court for the Western District of New York (EEOC v. Staffing Solutions of WNY, Inc., Civil Action No. 1:18-cv-00562) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks back pay; compensatory, liquidated, and punitive damages; and injunctive relief. The agency’s litigation effort will be led by Trial Attorneys Daniel Seltzer, Elizabeth Fox-Solomon, and Supervisory Trial Attorney Nora Curtin.

“Staffing Solutions’ conduct hearkens back to a time over half a century ago, before the passage of federal laws that make this type of discriminatory hiring illegal,” said Jeffrey Burstein, regional attorney for EEOC’s New York District Office. “The EEOC is sending a clear message with this lawsuit: those days are over.”

Kevin Berry, the EEOC’s New York district director, added “Staffing companies are playing an increasingly large role in our economy. The EEOC will fight to ensure that they do not become an instrument of discrimination. The law is clear that honoring discriminatory client requests is illegal.”

“I’m proud to have been born and raised in Buffalo,” said Curtin. “Buffalonians, and all Americans, deserve to be hired based on their qualifications, without regard to age, disability, race or sex.”

Eliminating barriers in recruitment and hiring, and preserving access to the legal system by eliminating retaliation are national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP).

The EEOC’s New York District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Connecticut, Maine, Massachusetts, New Hampshire, New York, northern New Jersey, Rhode Island, and Vermont. The Buffalo Local Office conducted the investigation resulting in this lawsuit.

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

Anyone who may have been discriminated against by Staffing Solutions should contact the EEOC at staffingsolutionslawsuit@eeoc.gov.

COOPER MACHINE COMPANY SUED BY EEOC FOR DISABILITY DISCRIMINATION

Company Fired Employee Because of Her Disability Federal Agency Charged

ATLANTA – Cooper Machine Company, Inc., a Wadley, Ga., company that sells and manufactures equipment used in the sawmill industry, violated federal law by firing an employee because of her disability, anxiety disorder, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it recently filed.

According to the EEOC’s lawsuit, the employee, who worked for the company as a purchasing agent, was terminated by the company’s chief financial officer after informing the company that she was required to take medication because of her disability.

Such alleged conduct violates the Americans with Disabilities Act. The EEOC filed suit (Equal Employment Opportunity Commission v. Cooper Machine Company, Inc., Civil Action No. 1:18-cv-00085-JRH-BKE) in U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process. The federal agency seeks back pay, compensatory damages, and punitive damages for the employee, as well as injunctive relief designed to prevent such discrimination in the future.

“Federal law does not allow employers to terminate an employee merely because the employer believes there are ‘medical issues,’” said Bernice Williams-Kimbrough, director of the EEOC’s Atlanta District Office.

Antonette Sewell, regional attorney for the Atlanta District Office, added, “The company directly told the employee why it was terminating her and gave her a written document stating their reason. Such a termination is illegal and has been illegal since the ADA was passed.”

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.

On-Demand Civil Rights Webcasts Available: Delivering Public-Facing Programs and Activities in Compliance with Federal Law

Sunday, May 20th, 2018

Delivered by Civil Rights Expert and Author Seena Foster

In 2017, State and local government officials are applauding the webcasts, stating they are “outstanding,” “very informative,” and “extremely useful.” Each webcast is only $29.00.

Available Selection

Compliance with Title VI of the Civil Rights Act: An Overview

Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview

Discrimination Complaint Investigations under the Workforce Innovation and Opportunity Act:  Proper Process and Technique

State and local government officials responsible for the delivery of, or monitoring the delivery of, services, aid, training, or benefits to the public must comply with Federal civil rights laws. These laws also apply to service providers, on-the-job trainers, contractors, and partners that assist in delivering public-facing programs and activities. Our webcasts provide practical training for new and experienced professionals working in the area of equal opportunity.

Because the webcasts are on-demand and certificate-based, they provide a convenient and inexpensive way to acquire and document training of staff, contractors, service providers, and partners.

How to register:
To register, simply click on the “Webcast Registration” icon on the left side of this blog. Or, go to https://engage.vevent.com/rt/titleviconsulting.

Cost-effective.  Only $29.00 each. No travel costs.  No lost time from work. These webcasts are absolutely the best value for your dollar!

Content-rich.  Each webcast is packed with useful information, guidance, and helpful tips. Each participant receives a copy of the detailed PowerPoint presentation for the webcast, which may be used as a checklist going forward.

Certificate-based.  Within three to five weeks, each participant who registers and attends the webcast will receive a personalized, signed “Certificate of Completion” to document the training.  

Title: Compliance with Title VI of the Civil Rights Act: An Overview
Description:
This popular webcast provides an informative overview of how to comply with the nondiscrimination mandates of Title VI of the Civil Rights Act of 1964. Title VI applies to the administration, oversight, and delivery process of all state and local programs and activities that are federally-assisted. In this webcast, we’ll focus on the scope and meaning of Title VI of the Civil Rights Act, and we will touch on a variety of compliance-related issues, including environmental justice, serving limited English proficient populations, contracting and procurement, discrimination complaints, harassment and hostile environment, training, monitoring, and data collection. Participants will understand the meaning of race, color, and national origin-based discrimination through Ms. Foster’s use of a variety of easy-to-understand examples. And, participants will learn about surprising federal enforcement policies to include certain types of religious-based discrimination as prohibited under Title VI. A detailed PowerPoint is available for download to viewers of this webcast.

Title: Compliance with the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act: A Comprehensive Overview
Description: 
This webcast provides a wealth of information, guidance, and tips to help you ensure compliance with the nondiscrimination and equal opportunity provisions of Section 188 of the Workforce Innovation and Opportunity Act (WIOA), and related Federal civil rights laws that apply to the administration, oversight, and delivery process for WIOA Title I-financially assisted programs and activities. In this webcast, we’ll cover a broad range of compliance issues, including taglines, assurances, Equal Opportunity officers (their selection and duties, and the recipients’ obligations in support of EO officers), serving persons with disabilities, serving LEP populations, differences between program complaints and discrimination complaints, harassment and hostile environment, and data collection, including requirements for the discrimination complaint log and storage of medical information. A detailed PowerPoint, updated after promulgation of the final version of the WIOA regulations at 29 C.F.R. Part 38, is available for download to viewers of the webcast.

Title: Discrimination Complaint Investigations under the Workforce Investment Act:  Proper Process and Technique
Description:
This webcast covers the discrimination complaint investigation process from start to finish, including determining jurisdiction, developing a complaint investigation plan, framing the issue of an investigation, developing interrogatories, preparing a letter of acceptance, gathering and analyzing information, interviewing the parties and witnesses, and writing the notice of final action.  Each participant of this webcast will receive a set of templates that they may customize and use for their investigations, including a jurisdiction checklist, sample complaint investigation plans, sample notices rejecting a complaint, a sample letter of acceptance, and a sample notice of final action. Complaint investigation templates and a detailed PowerPoint are available for download to viewers of the webcast. Complaint processing templates and a detailed PowerPoint are available for download to viewers of the webcast.

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 compliance and civil rights investigations to state and local governments, colleges and universities, private companies, and non-profit organizations. To that end, she offers one-hour on-demand webcasts, full-day and half-day in-person training sessions, discrimination complaint investigation assistance, and mediation services addressing a variety of types of discrimination such as racial discrimination, sex discrimination, disability discrimination, age discrimination, and religious discrimination. Federal non-discrimination laws are complex, and they affect our workplaces as well as the delivery of our Federally-funded programs and activities. Her book, Civil Rights Investigations under the Workforce Investment Act and Other Title VI Related Laws: From Intake to Final Determination, has been described as an “eye-opening” reading experience and a “stand-alone” training resource. Ms. Foster’s resources and materials are designed to support the work of civil rights and discrimination professionals in the public and private sectors.

Her background includes 24 years as Senior Legal Advisor to the U.S. 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.

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 CRC Director Annabelle Lockhart, 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 Section 188 disability checklist, conducting discrimination complaint investigations and writing final determinations, and conducting investigations of allegations involving harassment and hostile environment.

Ms. Foster is a graduate of the George Washington University Law School, and she carries certification in federal workplace mediation from the Northern Virginia Mediation Service as well as mediation certification from the Defense Equal Opportunity Management Institute (DEOMI). Ms. Foster also is a member of the Human Rights and Discrimination Law committees of the International Bar Association. You may contact her at seena@titleviconsulting.com.

Paperback and E-Book: Conducting Civil Rights Investigations in Government Programs and Activities

Sunday, May 20th, 2018

This is the only book on the market that focuses on discrimination complaint investigations in a wide range of Federally-assisted, public-facing programs and activities! Reviews by State and local equal opportunity officials in 2017 include “I love your book,” and the book is “outstanding,” “easy to follow,” and “extremely useful.”

Paperback:
Cost: $19.99 per copy

Go to www.outskirtspress.com/civilrights; or

Email the author at seena@titleviconsulting.com, and you will receive an invoice by PayPal; or

Mail a check for $19.99 per book (plus $3.00 per book for shipping and handling in the United States) payable to Title VI Consulting at 107 S. West St., PMB 713, Alexandria, VA 22314.

Electronic book:
Cost: $9.99 per electronic copy

Available through Nook, or Kindle. For iPad and iTunes, you’ll find the book in the “Law Library.” Access the e-book through the publisher at http://www.outskirtspress.com/civilrights.

Reviewers describe the book as “the most thorough and the best product on the market,” “an eye-opening experience,” “an excellent reference book,” and “an invaluable resource for its target audience of professionals who must respond to complaints of discrimination.”

About the Book

In Civil Rights Investigations, Ms. Foster assembles a tremendous amount of information, presents it in an organized and easy-to-understand format, and delivers it to you along with practical and useful guidance. Whether you are a novice or expert, this book is a truly exceptional resource that takes you step-by-step through the investigative process. And, the teachings offered are applicable to any discrimination complaint investigation.

Starting with the basics of knowing whether you have a complaint and authority to investigate it, to navigating more in-depth concepts such as understanding the burdens of the parties, properly framing the issues of an investigation, interviewing witnesses, analyzing conflicting evidence, and writing final determinations, Civil Rights Investigations is with you each step of the way, providing insights, tips, and examples.

A wide array of discriminatory bases is explored, including race, color, national origin, gender, sexual harassment, religion, disability, political affiliation, citizenship, and age. And, the book contains sample interrogatories covering numerous adverse actions in government programs such as denial of access, denial of training, denial of services, denial of benefits, and denial of proposals or bids. Other sample interrogatories address adverse actions in the workplace, such as sexual harassment, reasonable accommodation, reasonable modification, retaliation, termination, non-selection, non-promotion, adverse performance appraisals, and damages. Finally, the book contains a jurisdiction checklist as well as templates for every stage of the investigation–from notifying the parties that you do not have jurisdiction to investigate a complaint or notifying the parties you have accepted a complaint for investigation to sample complaint investigation plans and a sample final determination on the merits of a complaint.

Civil Rights Investigations is packed with useful information, and it serves as a top-of-the-line resource for any public or private sector equal opportunity professional.

Civil Rights Investigations addresses several Federal civil rights statutes, including Titles VI and VII of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Americans With Disabilities Act of 1990 and the Americans With Disabilities Act Amendments of 2008, Title IX of the Education Amendments Act of 1972, and the Age Discrimination Act of 1975. Its guidance, however, is useful in any civil rights discrimination investigation, and in developing and implementing preventative measures.

Reviews of the Book

Get this one-of-a-kind book judged by a panel of industry experts as a Finalist in the Business Reference category of The USA “Best Books 2011” Awards, sponsored by USA Book News. The book also received a Bronze Medal in the Government/Politics category (top 5% of over 3,000 entries) for the 2012 International Readers Favorite Book Awards. And, in October 2012, Ms. Foster was announced as a “Finalist of 50 Great Writers You Should Be Reading,” presented by The Authors Show. In October 2013, Civil Rights Investigations was Amazon’s Featured Title of the Week.

Lisa Connor states: “You obviously have a passion for your subject matter–you present your findings in a very well-researched, thorough manner. … I have to say that you have put together an excellent piece”

Omoye Cooper of Albany, New York states: “I have worked in the field of Equal Opportunity for over 30 years and have attended numerous trainings on EO investigations. After attending Seena Foster’s Civil Rights Investigations workshop, I can say without a doubt that it is the most thorough and the best product on the market. Ms. Foster not only gives the technical information, but she also provides step by step guidelines and tools for effective implementation.”

“Ms. Foster’s workshops and book, “Civil Rights Investigations,” are professional resources that are highly recommended for all new and seasoned AA and EEO practitioners. Utilization of her materials will help new EEO professionals build a solid knowledge base that will make it possible to conduct defendable investigations; and for the veteran practitioners, it will take you to another level. Outstanding!”

Readers Favorite (5 out of 5 star ratings):

Brenda Ballard states: Discrimination is a very real problem in the work place but what can a person do? Seena K. Foster, author of “Civil Rights Investigations Under the Workforce Investment Act” leads the reader through the law, the process and the various scenarios of the subject. Citing law and providing examples of letters and check lists, information is outlined in concise and understandable terms. The subject matter is broken down into the simplest legal language possible considering the depth and complexity. Believable examples make sense of it all, guiding the reader step by step.

As anybody knows, legal reading can be dry and confusing. Admittedly, there were a few places I personally had to re-read but that would be attributed to my own lack of experience with the subject. I found the examples very useful and was able to utilize the bullet points and checklists to realize the meaning of it all. It was an eye-opening learning experience to read this book! I never realized how much is involved in filing such a suit, getting an investigation underway, working with both parties, and finding resolution. Businesses should consider having this book in their own library as a reference guide in their personnel department. This work could be used as a stand-alone in training sessions for employees and managements. The tremendous effort the author has put into “Civil Rights Investigations Under the Workforce Investment Act” is immediately evident. Nothing is left to question and, should there be any residual wonder, references can be looked up. Highly recommended! 5 out of 5 stars!

Lori M. states: Because I am currently taking a graduate-level Human Resources class in Employment Law, this book about civil rights investigations by Seena K. Foster interested me very much. This would make an excellent reference book for HR managers, lawyers, and anyone involved in employee or labor issues. It is very well-organized and provides just the right amount of information that you need on a number of different topics. Foster, who has a law degree, does a good job making the contents interesting, understandable, and easy to follow.

There are specific sections defining race, color, national origin, gender, religion, age, citizenship, and disability issues in depth so that any reader can understand what constitutes the definition of discrimination against each. Additionally, she takes you through the steps of how to determine whether or not you have a discrimination complaint, a glossary of terms, jurisdiction, and filing the complaint. I like how Foster included easy-to-use checklists throughout the book to graphically depict what she has already told you in the text. It is a good way to help the reader grasp the information provided and double-check the details. This book talks about statutes of limitations and time frames within which a party has to file a complaint, notifying the parties of a complaint, jurisdictional issues, and even alternative dispute resolution topics such as arbitration or mediation. This book is a great toolkit for those interested in employment law matters dealing with civil rights investigations under the workforce investment act and Title VI-related laws. 5 out of 5 stars!

Alice D. states: “Civil Rights Investigations Under the Workforce Investment Act and Other Title VI Related Laws” is a book that really needed to be written and now it has been, thank goodness! Author Seena Foster has created a book that focuses on the treatment of individual and class action complaints. From the beginning where she asks the readers to decide whether they have a complaint and whether there is jurisdiction to investigate the complaint, Foster clearly establishes that those pursuing an issue such as discrimination must have merit; in other words, they must have a covered basis such as race, gender and nationality. She is quite clear in insisting that the person charged with the complaint must receive federal funds, and the CP, the charging party, must know how to organize a complaint, how to fill it with statistics and witness information. Then she shows the reader how exactly the CP and the respondent must reply in cases involving such things as employment, hostile work environ ment, and disability. She discusses sexual harassment, especially in the school environment, and writes about the use of mediation in helping parties come to a mutually acceptable solution. Do you think your civil rights have been violated at work? This is the book for you.

“Civil Rights Investigations” is not the type of book that people will grab off bookstore shelves, but they should. Author Seena Foster discusses, clearly and concisely, how the charging party and the respondent should respond in a variety of cases. Chapter after chapter deals with how to handle potential civil rights violations in the workplace and in federally funded programs and activities that have an impact on all of us. The author states that those filing the complaint must give details like why they were not hired, etc., and those who answer the claim must show the same clarity in their response. Specific and easy to read, this book should be in readers’ hands everywhere. 5 out of 5 stars!

Laurie Gray states: “Civil Rights Investigations under the Workforce Investment Act and Other Title VI-Related Laws from Intake to Final Determination” by Seena K. Foster offers guidance to professionals handling discrimination complaints for governmental agencies and employers that receive federal funding covered by the Workforce Investment Act of 1964. The book focuses on individual and class actions as opposed to third-party complaints, identifying and devoting a chapter to each protected class: race, color, national origin, sex, religion, disability, citizenship, age, political affiliation and belief. The chapters on sexual harassment, religion, and disability are most comprehensive. Foster provides specific examples, sample notices, and clear explanations on how to assess the merit of each complaint, properly frame the issues, develop a Complaint Investigation Plan, and investigate complaints without violating confidentiality policies. She further outlines the relevant burdens of proof and reliability of direct, circumstantial and comparative evidence. Though not for the average lay person, this book is an invaluable resource for its target audience of professionals who must respond to complaints of discrimination in a timely and consistent manner or risk losing their agencies’ federal funding. Ms. Foster clearly understands complex federal laws and regulations and concisely organizes the information in a user-friendly way, highlighting important deadlines, providing detailed questions to ask complaining parties and respondents, and encouraging professionals to seek competent legal advice when necessary. An introduction, conclusion and biography outlining the author’s credentials would be helpful additions to the next edition of the book. I do hope that Ms. Foster will update this informative guide as the laws continue to evolve. 5 out of 5 stars!

Labor Department’s OFCCP Announces TRICARE Moratorium Extended to 2021 (May 2018)

Friday, May 18th, 2018

Today the U.S. Department of Labor issued a press release about the publication of a new OFCCP Directive extending the enforcement moratorium relating to the affirmative obligations of TRICARE providers for two years. This moratorium has been in effect for four years, and will now expire on May 7, 2021; it will also now apply to Veterans Affairs Health Benefits Program providers.

This extension will provide OFCCP time to receive feedback from stakeholders, relieve uncertainty, and give OFCCP an opportunity to evaluate and address legislation that may be enacted on this issue.

“By providing greater regulatory certainty to TRICARE providers and Veterans Affairs Health Benefits Program providers, the Administration can help ensure that America’s veterans and their families can access quality health care,” said OFCCP Director Ondray T. Harris.

Justice Department reaches Agreement with the City and County of Denver to Resolve Disability Discrimination (May 2018)

Wednesday, May 16th, 2018

The Department of Justice today announced that it reached an agreement with the City and County of Denver (Denver) to resolve its lawsuit alleging that the Denver Sheriff Department discriminated against an employee on the basis of his disability, insulin dependent diabetes, in violation of Title I of the Americans with Disabilities Act (ADA).

The Justice Department’s complaint alleges that Denver discriminated against a long time Deputy Sheriff by failing to engage in an interactive process with the employee to determine an appropriate accommodation, failing to reasonably accommodate his disability, and then terminating him, in violation of the ADA.

Under the agreement, Denver will revise its reasonable accommodation policies and will conduct training of Sheriff Department supervisors & command staff as well as H.R. personnel, on the ADA. In addition, Denver will pay $100,000 in compensatory damages to the employee.

To find out more about this complaint, agreement, or the ADA, call the Justice Department’s toll-free ADA Information Line at 1-800-514-0301 or 1-800-514-0383 (TDD), or access its ADA website at www.ADA.gov.

Harassment and Hostile Environment: Understanding the Basics by Seena Foster

Tuesday, May 15th, 2018

If you are the Equal Opportunity (EO) professional charged with ensuring nondiscrimination in the delivery of federally-funded programs and activities, or you serve as the Equal Employment Opportunity/Affirmative Action/Human Resources (EEO/AA/HR) professional charged with ensuring nondiscrimination in the workplace, you must have a working knowledge of “harassment” and “hostile environment.”

√ Two categories of harassment-related complaints.

Let’s start with an understanding that complaints of harassment-related discrimination fall into one of two categories: (1) quid pro quo harassment; or (2) hostile environment harassment.

Whether a complaint involves allegations of quid pro quo harassment or hostile environment, the conduct must be “unwelcome.” And, who defines whether conduct is “unwelcome”? Harassment is defined “through the eyes of the beholder”; namely, the person subjected to the harassing conduct defines whether the conduct is offensive and unwelcome.

√ Harassment is discrimination.

“Harassment” and “hostile environment” constitute forms of discrimination, regardless of whether the “harassment” or “hostile environment” occurs in federally-funded programs and activities, or in the workplace.

When we hear the word “harassment,” many of us first think of “sexual” harassment. To be sure, harassment on the basis of “sex” is a form of sex discrimination that is barred by federal law in the workplace, and in the delivery of federally-funded services, aid, training, and benefits.

That being said, it is equally important to keep in mind that harassment or hostile environment may occur on any prohibited basis of discrimination, including race, national origin, color, disability, age, and others. For example, you may see a complaint of race-based hostile environment, or a religion-based quid pro quo harassment complaint.

√ Quid pro quo harassment defined.

In the simplest of terms, quid pro quo harassment takes the form of bartering—“you give me this, and I’ll give you that.” A workplace example occurs where Jane, a supervisor, offers her assistant, Jason, a bonus in exchange for sexual favors. Jane has engaged in prohibited quid pro quo sexual harassment. Notably, Jane’s decision-making regarding whether to give Jason a bonus should be based on bona fide work-related criteria, not through bartering to get Jason to have sex with her.

Similarly, an example in the arena of federally-funded programs and activities is where Scott, the employment-referral counselor at a job bank, refuses to refer Khalid to available security guard positions unless Khalid renounces his Islamic faith. Here, Scott has engaged in quid pro quo religious-based harassment—Khalid must give up his Islamic faith in exchange for referral to the security guard positions. This discrimination is illegal because Scott is obligated to base his decision to refer Khalid to security guard positions on whether Khalid meets the essential eligibility requirements for the referral, not Khalid’s religious beliefs or practices.

√ “Hostile environment” defined.

Turning to “hostile environment,” this type of discrimination does not involve the bartering of “you give me this and I’ll give you that.” Rather, a hostile environment is created where one person, or a group of people, engages in offensive conduct that is “so severe and pervasive” that it adversely alters another person’s workplace environment, or the person’s enjoyment of, and participation in, federally-funded programs and activities.

In determining whether conduct is “severe and pervasive,” the following factors should be considered: (1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with an employee’s job performance, or with a person’s participation in, or enjoyment of, a federally-funded program or activity.

An example of “hostile environment” in the workplace is where Kristen works as a welder alongside eight co-workers, all of whom are men. Two of these co-workers are constantly telling sexist jokes, posting naked photos of women in the work area, and whistling at Kristen when she is working. Kristen is offended by the conduct, and she lets her co-workers know that it is unwelcome. When the conduct does not stop, Kristen files a complaint. Kristen’s complaint involves allegations of a “hostile sexual environment,” which adversely altered her working conditions.

In federally-funded programs and activities, an example of hostile environment occurs where a group of students at a public school posts derogatory remarks on Facebook about Josh, a student with a mobility disability. Moreover, they call him “crippled” and “stupid” in the hallways of the school, and deliberately place obstacles in front of his power chair. Josh files a disability-based hostile environment complaint. Here, the offending group of students created a “disability-based hostile environment” that, in turn, adversely altered Josh’s ability to enjoy, and participate in, the educational programs and activities offered at the school.

√ Retaliatory “hostile environment” is against the law.

Whether in the workplace, or in federally-funded programs and activities, creating a “hostile environment” against an individual in retaliation for filing an EEO complaint, or in retaliation for filing a discrimination complaint in a federally-funded program, also is prohibited. Every circuit court addressing this issue recognizes these complaints of “retaliatory hostile environment.”

If a person files a discrimination complaint, regardless of whether the complaint is ultimately successful or not, and then the person experiences “severe and pervasive” harassment from any member of your organization’s staff, your organization and the responsible staff members will be held liable. See Clegg v. Ark. Dep’t. of Corr., 496 F.3d 922 (8th Cir. 2007); Jordan v. City of Cleveland, 464 F.3d 584 (6th Cir. 2006); Jensen v. Potter, 435 F.3d 444 (3rd Cir. 2006), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); Hussain v. Nicholson, 435 F.3d 359 (D.C. Cir. 2006); Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005); Von Gunten v. Maryland, 243 F.3d 858 (4th Cir. 2001), abrogated on other grounds by Burlington N., 548 U.S. 53; Ray v. Henderson, 217 F.3d 1234 (9th Cir. 2000); Richardson v. N.Y. State Dep’t. of Corr. Serv., 180 F.3d 426 (2nd Cir. 1999), abrogated on other grounds by Burlington N., 548 U.S. 53; Gunnell v. Utah Valley State Coll., 152 F.3d 1253 (10th Cir. 1998); Knox v. Indiana, 93 F.3d 1327 (7th Cir. 1996).

For example, in Gowski v. James Peake, MD (Sec’y., Dept. of Veterans Affairs, et al), 682 F.3d 1299 (11th Cir. 2012), the circuit court noted, after two hospital physician-employees filed EEO complaints of gender-based and religious-based discrimination, they were subjected to “severe and pervasive” retaliation at work, including the spread of demeaning rumors about the physicians by management that damaged their professional reputations, denial of hospital privileges to the physicians that could adversely affect their certifications, excluding the physicians from participating in work-related functions, and other similar acts. The court found, taken as a whole, this conduct created a retaliatory hostile environment, and damages were awarded against the hospital.

√ Obligations of EO and EEO professionals.

Thus, whether you work as an EO professional in federally-funded programs and activities, or as an EEO/AA/HR professional handling workplace discrimination, you must be familiar with the policies and procedures of your agency or organization pertaining to harassment and hostile environment. If no policies or procedures are in place, you must ensure that they are developed and published. Management and employees in your workplace, as well as beneficiaries and potential beneficiaries of your federally-funded programs and activities must have notice of these policies and procedures.

If you receive a discrimination complaint based on harassment or hostile environment, you are required to take action. These complaints are fact-intensive and there may be more than one appropriate response to a particular complaint of harassment. Although only hindsight offers perfect clarity of what worked and what did not, doing nothing is never acceptable.

About the author.

Seena Foster, award-winning civil rights author and Principal of the discrimination consulting firm, Title VI Consulting, LLP 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.” In 2007, Ms. Foster was certified as a mediator by the Virginia Supreme Court, and later obtained “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.

GOODWILL AND AFFILIATE TO PAY $850,000 TO SETTLE EEOC SEXUAL HARASSMENT SUIT (May 2018)

Monday, May 14th, 2018

Night Shift Janitors Left Vulnerable to Supervisor’s Abuse, Supportive Managers Faced Retaliation, Federal Agency Charged

OAKLAND, Calif. – Goodwill Industries of the East Bay Area and its affiliate, Calidad Industries Inc., will pay $850,000 to eight former and current employees to settle a sexual harassment and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

According to the EEOC’s lawsuit, six female janitors assigned to work the night shift at the Oakland Federal Building faced routine sexual harassment by their direct supervisor. The claimants included young women with developmental disabilities who were relatively new to the workforce, and were employed by Goodwill/Calidad’s janitorial operations under a federal government contract. The EEOC also charges that two managers were unfairly criticized and disciplined in retaliation for sup-porting the women’s sexual harassment claims, and one manager was compelled to resign.

“I was only 19 years old when I worked at Calidad — it was my first job, and I enjoyed being able to earn my own money,” said former employee Crystal Edwards. “But after my boss put his arms around me, I did not feel safe at work. My complaints were ignored. I am so glad the EEOC filed this lawsuit to stop the harassment and to make sure it doesn’t happen to anyone else.”

Former employee Phyllis Sloan said, “I reported the harassment as soon as it started, but nothing changed. So I went to the EEOC, and they were able to help me. I just wanted justice, so that other disabled workers know that they don’t have to put up with harassment from their bosses.”

Former manager Lisa Short added, “Within weeks of my start date, my employees trusted me enough to describe the harassment they faced on the nightshift. I knew my job could be on the line, but I needed to make sure my workers were safe.”

Concerned when higher management failed to take effective action, Short sought help from the Federal Protective Service and ultimately assisted the women in filing discrimination complaints with the EEOC.

Title VII of the Civil Rights Act of 1964 prohibits employers from subjecting their employees to sexual harassment and specifically protects employees from retaliation for reporting or otherwise supporting claims of sexual harassment in the workplace. The EEOC filed its lawsuit (EEOC v. Goodwill Industries of the Greater East Bay, Inc. and Calidad Industries, Inc., Civil Action No. 4:16-CV-07093) after an investigation conducted by EEOC investigator Christopher Green and attempting through its conciliation process to reach a settlement out of court.

According to the consent decree signed by Judge Yvonne Gonzales Rogers, Goodwill/Calidad will pay $850,000 to the claimants. The employers will also revise their EEO policies and complaint and investigation procedures; institute supervisor accountability policies concerning discrimination issues; conduct comprehensive training of their workforce; and hire a consultant to monitor any responses to future complaints. The companies are also required to provide reports to the EEOC regarding adherence to the decree’s terms.

EEOC San Francisco Regional Attorney Roberta Steele said, “The EEOC vigorously defends people like Lisa Short, the courageous supervisor who spoke out on behalf of her employees, as well as the individuals who are harassed. Whether you are a target or a bystander, if you see harassment in the workplace, please take action now and call on the EEOC as a resource to end workplace abuse. And if you’re an employer, know that EEOC offers technical assistance programs to prevent and remedy harassment.”

EEOC San Francisco District Director William R. Tamayo added, “The #MeToo movement illustrates that sexual harassment impacts people across industries, from white collar to blue collar work, across class, race, age, gender and abilities. In this case, there were many factors that contributed to the vulnerability of these janitors – all were African-American, many were young females new to the workplace, with disabilities, working the isolated night shift. Employers must take proactive measures to stop predators who would abuse their power over vulnerable workers.”

Protecting vulnerable workers from harassment, disparate pay, and other discriminatory policies is one of the priorities identified in EEOC’s Strategic Enforcement Plan (SEP). The EEOC’s Select Task Force on the Study of Harassment in the Workplace provides practical resources for employers who want to address workplace harassment.

According to its website, Calidad Industries is a subsidiary of Goodwill Industries of the Greater East Bay and provides vocational training and employment to those with significant disabilities.

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.

The Justice Department and USCIS Formalize Partnership to Protect U.S. Workers From Discrimination and Combat Fraud (May 2018)

Sunday, May 13th, 2018

The Department of Justice and U.S. Citizenship and Immigration Services (USCIS) today announced a Memorandum of Understanding (MOU) that expands their collaboration to better detect and eliminate fraud, abuse, and discrimination by employers bringing foreign visa workers to the United States. This new effort improves the way the agencies share information, collaborate on cases, and train each other’s investigators.

The MOU will increase the ability of the agencies to share information and help identify, investigate, and prosecute employers who may be discriminating against U.S. workers and/or violating immigration laws. In 2010, USCIS and the Justice Department’s Civil Rights Division entered into an ongoing partnership to share information about E-Verify misuse and combat employment discrimination, and today’s MOU expands upon the two agencies’ existing partnership.

In 2017, the Civil Rights Division launched the Protecting U.S. Workers Initiative, which is aimed at targeting, investigating, and taking enforcement actions against companies that discriminate against U.S. workers in favor of foreign visa workers. Under this Initiative, the Civil Rights Division has opened dozens of investigations, filed one lawsuit, and reached settlement agreements with two employers. Since the Initiative’s inception, employers have agreed to pay or have distributed over $200,000 in back pay to affected U.S. workers. The Division has also increased its collaboration with other federal agencies to combat discrimination and abuse by employers using foreign visa workers.

USCIS administers the nation’s immigration system and adjudicates requests for immigration benefits, including employment-based petitions. To advance the goals of the Buy American and Hire American Executive Order and promote the economic interests of U.S. workers, USCIS is taking concrete steps to ensure the integrity of the employment-based immigration programs and improve its ability to detect and prevent fraud. Among other things, USCIS has created dedicated tip lines for reporting H-1B and H-2B visa fraud and abuse and expanded its site visit programs. USCIS has also worked with other government agencies that have a role in immigration, such as DOJ, to ensure that they efficiently share and appropriately act upon information regarding potential fraud and abuse of immigration programs. For more information, visit the USCIS Buy American and Hire American page.

“In the spirit of President Trump’s Executive Order on Buy American and Hire American, today’s partnership adds to the Civil Rights Division’s tools to stop employers from discriminating against U.S. workers by favoring foreign visa workers,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “The Division looks forward to expanding its partnerships with USCIS to hold accountable employers that discriminate against U.S. workers based on their citizenship status.”

“Protecting and maintaining the integrity of our immigration system remains a key priority for me, and underpins the exceptional work of the professionals at USCIS,” said USCIS Director L. Francis Cissna. “This agreement enhances the level of coordination among investigators who often work on the same issues at different agencies. Breaking down silos and working with our federal partners to combat employment discrimination will help ensure that U.S. workers have the advocate they need at the highest level.”

The Civil Rights Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the Immigration and Nationality Act. 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. An employer that prefers to hire temporary foreign visa workers over available, qualified U.S. workers may be discriminating in violation of this law.

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.

For more information on USCIS and its programs, please visit uscis.gov or follow us on Twitter (@uscis)), Instagram (/uscis), YouTube (/uscis), and Facebook(/uscis).

Justice Department Settles Immigration-Related Discrimination Claim Against University of California, San Diego (May 2018)

Sunday, May 13th, 2018

The Justice Department announced today that it reached a settlement agreement with the University of California, San Diego. The settlement resolves the Department’s investigation into whether the University’s Resource Management and Planning Vice Chancellor Area (RMP) discriminated against workers in violation of the Immigration and Nationality Act (INA) when verifying their continued authorization to work.

The Department’s investigation concluded that the RMP unnecessarily required certain work-authorized immigrants to re-establish their work authorization when their documents expired, based on the citizenship status of those individuals when they were hired. The antidiscrimination provision of the INA prohibits such requests for documents when based on an employee’s citizenship status or national origin.

Under the settlement, the University will pay a penalty to the United States, train its RMP human resources personnel on the requirements of the INA’s anti-discrimination provision, and be subject to departmental monitoring and reporting requirements.

“Employers must comply with anti-discrimination laws, not only when employees are first hired, but throughout their employment,” said Acting Assistant Attorney General John Gore of the Civil Rights Division. “We will work with the University to ensure that its employment eligibility reverification procedures avoid unnecessary burdens on permanently work-authorized immigrants based on citizenship status.”

The Division’s Immigrant and Employee Rights Section (IER) is responsible for enforcing the anti-discrimination provision of the INA. The statute prohibits, among other things, 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 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 at www.justice.gov/crt/webinars; email IER@usdoj.gov; or visit IER’s English and Spanish websites.

Applicants or workers who believe they were subjected to 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, should contact IER’s worker hotline for assistance.

NEW ‘DIGEST OF EEO LAW’ ISSUED BY EEOC (April 2018)

Thursday, May 10th, 2018

CONTACT:
Kimberly Smith-Brown
Christine Nazer
James Ryan
Joseph Olivares
202-663-4191
newsroom@eeoc.gov

FOR IMMEDIATE RELEASE

April 30, 2018

NEW ‘DIGEST OF EEO LAW’ ISSUED BY EEOC
Includes Key Federal Sector Decisions, Special Article on Harassment in the Workplace

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) today announced the latest edition of its federal sector Digest of Equal Employment Opportunity Law (EEO Digest), which is available on the EEOC’s website.

“The special article on harassment in this issue recommends ways to prevent workplace harassment and is an excellent resource for stakeholders,” said Carlton M. Hadden, director of the EEOC’s Office of Federal Operations (OFO).

The EEO Digest, a quarterly publication prepared by OFO, features a wide variety of recent Commission decisions and federal court cases of interest. The Digest also includes hyperlinks so that stakeholders can easily access the full decisions which have been summarized. This edition of the Digest contains summaries of noteworthy decisions issued by EEOC, including cases involving: Attorneys’ Fees, Class Complaints, Compensatory Damages, Complaint Processing, Dismissals, Findings on the Merits, Mixed Motive, Remedies, Sanctions, Settlement Agreements, Stating a Claim, Summary Judgment, and Timeliness.

The summaries are neither intended to be exhaustive or definitive as to the selected subject matter, nor are they to be given the legal weight of case law in citations. In addition to the quarterly Digest, Commission federal sector decisions are available on EEOC’s website.

The public may also receive federal sector information updates and news items via GovDelivery and Twitter. EEOC enforces federal laws prohibiting employment discrimination in the public and private sectors. Further information about EEOC is available online at www.eeoc.gov.