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EEOC Case: Gender and Disability Discrimination

A female worker with a disability was demoted for questioning why her male counterpart earned a higher hourly pay rate. Then the employer refused to provide reasonable accommodation.

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Eloisa Schlaff worked at Taprite for 15 years, moving from an assembly position to a Quality Control Inspector. Then one day she learned that at least one male counterpart made more than three dollars per hour more than she did for the same work.

She was not amused.

Schlaff asked her supervisor about the difference between her pay and the male coworkers’ pay.

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READ MORE: Can Employees Discuss Pay?

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After stating her concerns about gender-based pay discrimination to management, the company demoted her and lowered her pay!

Schlaff, who suffers from rheumatoid arthritis and carpal tunnel syndrome, suddenly found herself in an assembly position that required repetitive tasks and strenuous physical movement that exacerbated her medical condition.

Did Eloisa Schlaff give up and go home?

Nope.

She went to work in the assembly role where she experienced severe pain and swelling in her hands caused by the repetitive motion.

She informed her supervisor of her medical condition and requested to be reassigned to work she could perform as a reasonable accommodation, but the company refused her request.

After receiving Schlaff’s complaint, the U.S. Equal Employment Opportunity Commission (EEOC), filed a gender, disability and retaliation-based discrimination lawsuit against Taprite.

The EEOC claimed that Taprite’s actions were unlawful and deprived Eloisa Schlaff of equal employment opportunities based on her disabilities (arthritis and carpal tunnel syndrome), but it got messy in court.

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Lessons Learned from EEOC v. Taprite

  • Audit pay rates by job function and classification to identify and correct disparities between workers performing comparable work.
  • Avoid taking punitive action against workers after they have expressed concerns about workplace discrimination.
  • Make a good-faith effort to understand workers’ requests for reasonable accommodation, and think creatively about solutions. Collaboration and cooperation go a long way with both employees and the EEOC.
  • Train managers on EEOC requirements annually.
  • Develop internal protocols for consistently addressing complaints of discrimination and requests for reasonable accommodation.

Case Outcomes

Monetary fine: $72,500

Employer must:

  • Ensure that its employment policies conform with the law.
  • Implement training to addresses sex and disability discrimination.
  • Post EEO notices at the workplace.
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Taprite denied wrongdoing, claiming they lacked “sufficient information to form a belief as to the truth of the factual allegations”. In other words, they were calling bull on Schlaff’s claims and didn’t believe Schlaff’s disability was legitimate.

The company slung some mud around, too, claiming Schlaff’s job performance was not satisfactory. They also denied refusing Schlaff’s request for reasonable accommodation. However, even one of Eloisa’s male coworkers could recommend the quality of her work:

“Eloisa has a great eye for inspection and a vast knowledge of Quality Control Procedures. She has a strong background in Lean Manufacturing and is a pleasure to work alongside of.”

In the end, the EEOC arm-wrestled Taprite into a settlement that avoided a judge’s ruling on the company’s culpability.

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Why Do Employers Retaliate? READ MORE

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Eloisa Schlaff is a nominee for the GovDocs 2015 Workplace Hero Award for asserting her rights and resolving workplace challenges in a constructive manner. Do you know of someone who you consider to be a Workplace Hero? Nominate them here!

 

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Discussing Job Security is a Protected Activity, NLRB Finds

The NLRB found that an employer violated Section 7 of the NLRA when it fired an employee for discussing job security with a co-worker.

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A vending-machine route driver left work early one Friday without notifying management, which is a violation of company policy. That weekend, she noticed a local ‘help wanted’ ad for a vending-machine route driver. She assumed it was her company that had placed the ad and that she was going to be fired.

When she returned to work the following Monday, she and another route driver discussed the ad. She asked her co-worker if he thought the ad meant their company was going to fire someone, but the co-worker thought she was implying he was going to be fired. The second driver went to the owners of the company and expressed his concern about losing his job.

The owner assured him that he would not be fired and asked why he was worried. The other route driver mentioned his conversation about the ‘help wanted’ ad. The company eventually fired the first driver – the one who ducked out of work on Friday – for gossiping and telling other employees they were going to be fired.

The NLRB Steps In

In a 2-1 majority ruling, the NLRB found that the driver’s termination violated the National Labor Relations Act (NLRA) because discussion of job security concerns with her co-worker were “inherently concerted,” and therefore considered protected concerted activity, even though there wasn’t any evidence that they were “engaged in with the express object of inducing group action.”

Conversations among employees are generally protected when they consider group action. However, the contemplation of group action is not required when the conversation is “inherently concerted.” Since job security discussions, like wages, are a vital conditions of employment, the NLRB held that they are inherently concerted.

The company was ordered to reinstate the driver with full back pay.

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Can Employees Talk About Their Pay?

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Protected Concerted Activity and Section 7 of the NLRA

Section 7 of the NLRA protects employees who engage in concerted activity for the purpose of mutual aid or protection. Section 8 of that Act makes it unlawful for an employer to “interfere with, restrain, or coerce” an employee for engaging in such activity.

What Does This Mean For Employers?

Determining whether employee activity is protected under the NLRA ultimately depends on the specific facts of each case. However, it is clear from recent NLRB rulings that taking corrective action based on work-related conversations among employees can lead to trouble with the NLRB.

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Retaliation: Woman fired for Discrimination Complaint

Things blow up after company punished female employee for complaining about unlawful discrimination and hostile work environment.

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A male site superintendent at the Brunswick Nuclear Power Plant in South Carolina harassed a female planner who was hired to address a power outage. She notified company management, and according to her complaint, the site superintendent created a hostile work environment by being “aggressive, intimidating, sarcastic, and condescending” with her because she was a woman.

To the company’s credit, a vice president completed a relatively prompt investigation into the female worker’s complaint. To the company’s discredit, the Vice President fired her two days later.

The EEOC announced a settlement with the company on April 27, 2015. The company must pay $65,000 to the victim who was fired in retaliation for filing a complaint of workplace discrimination.

Retaliation against workers who lodge claims of workplace discrimination is illegal under Title VII of the Civil Rights Act of 1964.

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Why do Workplaces Attack? Learn more about the Psychology of Workplace Retaliation. LEARN MORE

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Case Outcomes

Monetary fine: $65,000

Employer must:

  • Provide annual training to all supervisors, managers, and employees, to prevent future retaliation.
  • Provide names of employees who complained about discrimination and who were thereafter subjected to adverse employment actions.
  • Post a notice regarding workers’ rights protected by the EEOC.
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Lessons Learned from EEOC v. Newport News Industrial Corporation

  • When a worker has lodged a discrimination claim, an employer must be very cautious about any action that might be perceived as an adverse workplace action (such as termination or demotion) – even after concluding an investigation.
  • Document, investigate, and resolve every claim of discrimination.
  • Consider hiring third-party investigators to probe discrimination claims.
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San Francisco Releases New Employment Discrimination Posting

The City of San Francisco’s Human Rights Commission released a new posting required for all employers with a business tax registration certificate from the City or that hold contracts with the City.

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The new San Francisco workplace discrimination notice informs employees and independent contractors that employers and persons engaging the services of an independent contractor are prohibited from discriminating against protected persons during recruitment, hiring, training, promotion and termination.

The posting points out that retaliation for filing complaints of discrimination is illegal and the employers must provide reasonable accommodation for persons with disabilities. Additionally, the posting reiterates that City contractors must offer equal benefits to employees with domestic partners.

Which San Francisco Workers are Protected from Employment Discrimination?

Article 33 of the San Francisco Police Code prohibits employers from taking adverse employment action against protected classes of individuals based on:

  • Race / Color / National origin / Place of birth
  • AIDS/HIV
  • Marital status
  • Ancestry
  • Sex
  • Age
  • Religion / Creed
  • Disability
  • Sexual orientation / Gender identity
  • Weight / Height

An employer commits unlawful discrimination by refusing to hire, firing, under-compensating, or making less favorable terms of employment for workers protected by the Article.

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San Francisco City Posters

The GovDocs San Francisco City Poster Package includes postings by required for employers and businesses providing contracted services to the City of San Francisco:

  • San Francisco Minimum Wage (6-Language version)
  • San Francisco Paid Sick Leave (6-Language version)
  • San Francisco No Smoking
  • San Francisco Health Care Security Ordinance (6-Language version)
  • San Francisco Family Friendly Workplace (6-Language version)
  • San Francisco Fair Chance Ordinance posting
  • San Francisco Employment Discrimination is Against the Law

Subscribers to the GovDocs blog can use coupon code BLOG20 to save 20% on the San Francisco City Poster Compliance Package.

City Postings in the U.S.

Currently more than 40 cities require postings for some or all employers, and GovDocs monitors more those and a dozen more cities in the U.S. for new postings and posting updates. City posting coverage is just another reason why North America’s largest employers trust GovDocs for ongoing posting compliance.

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Contractor Liable for Racial Harassment of Subcontractor Employees

African-American workers assaulted and repeatedly harassed at construction site win suit against primary contractor.

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Construction sites are not known for being bastions of cultural sensitivity. But they are not exempt from U.S. labor law prohibiting discrimination, retaliation, and hostile work environments.

The ‘N-word’ and Toilet Water

In EEOC v. Skanska USA Building, three African-American workers endured a hostile work environment daily. The three men operated buck hoists, which are temporary elevators that run up and down the outside of buildings under construction. White coworkers on the site called them monkeys, black motherf—ers and n—ers. Graffiti at the worksite – including within the workers’ portable toilets – included images of white people shooting black people and statements such as “n—ers have to leave”.

One white worker through liquid from the chemical toilet into the face of one of the buck-hoist operators, causing his eyes to swell. Another buck-hoist operator showed up for his regular shift using crutches for a broken leg, but a Skanska call him a “n—er” and told him to get off the jobsite.

Racial Harassment Complaints Ignored

Early on, the African-American workers reported the racial harassment on a near daily basis to the owner of the minority-owned subcontracting firm in charge of the buck hoist (C-1, Inc.). That owner directed the workers to complain directly to the primary contracting company, Skanska USA Building, Inc.

Although the buck-hoist operators were employed by the subcontractor, the primary contractor had the power to remove operators, and their daily responsibilities (including work schedules and time sheets) were directed by the primary contract – not the subcontractor. Eventually, Skanska replaced all the subcontractor’s buck-hoist operators with Skanska employees.

Primary Contractor or Subcontractor: Who’s the Boss?

The court determined that the primary contractor was liable for racial harassment and discrimination even though the victims of the harassment weren’t their direct employees. The court found that the primary contractor and the subcontractor were joint employers because they shared or co-determined matters governing essential terms and conditions of employment. As proof of this finding, the court pointed to the joint ability to:

  • Hire, fire or discipline employees.
  • Affect their compensation and benefits.
  • Direct and supervise their performance.

The Bitter End: Settlement and Outcomes

Skanska will pay $95,000 to settle the racial harassment and retaliation lawsuit with the Equal Employment Opportunity Commission (EEOC). In addition to the monetary relief, Skanska must:

  • Cease subjecting employees to racial harassment or retaliating against any employee who lodges a discrimination complaint.
  • Provide in-person training on race discrimination and retaliation.
  • Maintain records of any complaints of racial harassment.
  • Provide annual reports to the EEOC.

The bitter irony here is that construction contracts are often awarded based on contractors’ commitment to workforce diversity. In this case, the project included several minority-owned or disadvantaged businesses that helped the primary contractor win the project to begin with, but then their employees faced discrimination, retaliation, and even assault as their reward.

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Can You Be Fired for Being Too Pretty?

Of the many different claims of discrimination, can being too attractive be one of them? One such case seems to suggest the answer ‘yes.’

Amanda Holley vs. Port Authority of New York and New Jersey, et al

Amanda Holley was an Academy recruit at the Port Authority Police Department. According to a complaint filed with the U.S. District Court, Ms. Holley repeatedly suffered sexual harassment, ridicule, intimidation, and emotional distress by her instructors/supervisors during training.

The alleged offenses included instructors singling her out by directing her to perform squat thrusts in front of other recruits, calling her names such as “Barbie Doll” and “American Girl Doll,” and commenting on the size of her chest. One instructor reportedly even told her, “When you are killed in the line of duty, I’ll make sure you look pretty for your family.”

During one particularly troubling OC (pepper spray) training event, Holley was sprayed by more than four officers causing her eyes and face to swell. Instructors paraded her in front of her fellow recruits so everyone could see her face, implying she’d had a quick “Botox” injection and calling her “Angelina Jolie.” A fellow recruit told Holley afterward that it looked “as if she was being spray-painted with graffiti.” No other recruit was given this same treatment.

According to Professional Security Training Network “OC spray is so concentrated, it does not take much to shut down a person. It is designed to stick to skin, hair, and clothes.” OC spray “causes localized swelling of any moist surface, such as skin, eyes, nose, mouth, throat and lungs…causes involuntary closure of the eyes.”

Holley confided in a few fellow recruits that she wanted to formally complain about the harassment she was experiencing, but she was repeatedly threatened and intimidated and feared retaliation. Holley alleges that several of her instructors would regularly comment “snitches get stitches and end up in ditches.”

About a month before graduation, Holley was informed that she had failed her firearms evaluation and was asked to resign. Academy procedure for firearms range training requires recruits to sign their targets before they shoot at them. The targets are then graded and evaluated with the recruit. Holley maintains that she never saw any of her graded targets and instructors never evaluated them with her or instructed her about how to correct any issues. After refusing to resign, she was fired. Holley filed her complaint in December 2014.

New Jersey Law Against Discrimination (LAD)

According to The State of New Jersey the LAD “makes it unlawful to subject people to differential treatment based on race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership or civil union status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status. The LAD prohibits unlawful discrimination in employment, housing, places of public accommodation, credit and business contracts.”

Sexual Harassment is considered discrimination and is covered by the LAD. The law states that “Hostile work environment sexual harassment occurs when an employee is subjected to sexual, abusive, or offensive conduct because of his or her gender.”

The U.S. Equal Employment Opportunity Commission

The legal requirements for a hostile work environment are:

  • Actions or behavior that discriminates against a protected classification such as age, race, religion, sex, or disability.
  • The behavior must last over time, and not be limited to an off-color remark or two.
  • The hostile behavior, actions or communication must be severe and create an environment that a reasonable person would find intimidating, hostile, abusive and that disrupts work. Another form of severity occurs if the hostile work environment interferes with an employee’s career advancement.
  • The employer knows about the actions or behavior and did not sufficiently intervene.

Melissa Nelson v. James H. Knight DDS, P.C.

In a similar case, Melissa Nelson worked for James Knight as a dental assistant for over 10 years. During her last year of employment, Dr. Knight began complaining that Ms. Nelson’s clothing was too tight and ‘distracting.’ Dr. Knight sent several inappropriate text messages stating if she “saw his pants bulging,” she would know that her “clothing was too revealing” and asked how often she experienced an orgasm.

Nelson never complained about the text messages, but says she also never reciprocated the behavior. She maintains that she considered Dr. Knight a friend and father figure. Dr. Knight’s wife discovered the text messages and demanded that he fire Nelson because she was a threat to their marriage. Dr. Knight ultimately agreed and after consulting with a senior pastor of his church, fired Nelson.

Nelson sued on the basis of gender discrimination. The court ruled in favor of Dr. Knight stating “Ms. Nelson was fired not because of her gender but because she was a threat to the marriage of Dr. Knight.”