When we train managers and supervisors, we spend some time talking about the importance of preserving and protecting employees’ right to engage in the EEO complaint process.  In this case from EEOC’s 1^st quarter Digest of Equal Employment Opportunity Law, a supervisor’s comments about the complainant’s EEO activity resulted in a finding of retaliation.  EEOC reminds us that any conduct that is designed to intimidate and/or interfere with the complainant’s EEO activity or deter employees from exercising their EEO right can result in a finding of discrimination.  In other words, supervisors must be careful not to say anything that would have a chilling effect on employees accessing the EEO complaint process.

Here is a summary of the decision…

Complainant filed an EEO complaint alleging, among other things, that his supervisor made remarks about his EEO activity. On appeal, the Commission found that the supervisor’s actions constituted retaliation. Complainant engaged in protected EEO activity when he contacted an EEO counselor, and the supervisor was aware of that activity. The supervisor then contacted Complainant and made a number of comments about Complainant’s EEO activity including that an email he received regarding the matter was “weighing on [his] mind.” The supervisor acknowledged asking Complainant why he had filed when he did and stating Complainant “pulled the trigger too soon.” The supervisor also stated that the EEO process was probably “not the most enjoyable path for anyone involved.” Further, he appeared to offer Complainant an incentive for withdrawing from the EEO process, by telling him that, if rumors of changes in management occurred and he had a good evaluation in hand, he, the supervisor, would have another conversation with senior management about a position for Complainant. The Commission found that the supervisor engaged in conduct that was designed to intimidate and/or interfere with Complainant’s EEO activity, and the supervisor’s comments would be reasonably likely to deter employees from exercising their EEO rights. The Commission affirmed the Agency’s finding of no discrimination regarding the remaining allegations in the complaint. The Agency was ordered, among other things, to investigate Complainant’s claim for damages, and provide training to the supervisor. Octavio C. v. Dep’t of the Interior, EEOC Appeal No. 0120150460 (Aug. 16, 2017).

Changes in schedule are common reasonable accommodation requests. In this case, from EEOC’s 1^st quarter Digest of Equal Employment Opportunity Law, an agency forced the complainant to take an hour of leave each day, rather than permitting him to alter his schedule, which resulted in a finding of discrimination…

 Complainant requested to change to a later shift or be allowed to report one hour later as a reasonable accommodation. Following a hearing, the AJ found that the Agency accommodated Complainant by allowing him to report to work one hour later and use one hour of leave. On appeal, the Commission disagreed with the AJ’s conclusion that the Agency met its reasonable-accommodation obligation, noting that forcing an employee to take leave when another accommodation would permit an employee to continue working a full day is not an effective accommodation. In this case, there was an alternative accommodation that would have allowed Complainant to continue working a full day, specifically allowing Complainant to report for work one hour later and work a full day, and the Agency did not show that it would have incurred a significant difficulty or expense if it had allowed Complainant to do so. There was no evidence that this proposed schedule change would have been unduly disruptive to other employees. The Agency’s assertion that allowing Complainant to report to work one hour later would not be fair to the other employees did not establish undue hardship. Consequently, the Commission found that the Agency denied Complainant a reasonable accommodation when it refused to permit him to report to work at the later time. The Commission separately affirmed the AJ’s finding of no discrimination regarding Complainant’s termination during his probationary period. As a remedy for the Agency’s failure to provide a reasonable accommodation, the Commission ordered the Agency, among other things, to investigate Complainant’s claim for damages, and provide applicable training to the responsible management officials. Lloyd E. v. Dep’t of Transp., EEOC Appeal No. 0120150325 (Aug. 17, 2017).

This EEOC decision from its 1st quarter Digest of Equal Employment Opportunity Law provides an interesting example of religious discrimination and perceived mental disability overlapping to result in a finding of discrimination.

The Commission found that the Agency discriminated against Complainant based on her disability when it asked Complainant to remove a Crown of Thorns from her cubicle. The Agency did not dispute Complainant’s assertion that other employees were allowed to have religious symbols at their desks. While a supervisor stated that Complainant’s co-workers complained, the Agency did not present any statements from co-workers to corroborate this assertion. The Commission found that the Agency asked Complainant to remove the item because of the perception that Complainant was “unstable” and the Crown could be used as a weapon. Based upon the record, however, the supervisor had no more reason to believe that Complainant would become violent than any other employee. The Commission concluded that the supervisor’s decision appeared grounded in stereotypes about people with mental health conditions, and the Agency conceded that it directed Complainant to remove the Crown based upon the alleged perception by co-workers about Complainant’s condition. The Commission affirmed the Agency’s finding that it did not deny Complainant a reasonable accommodation, and found that Complainant failed to prove her claim of harassment. The Agency was ordered, among other things, to investigate Complainant’s claim for compensatory damages, take steps to ensure that all disability discrimination ceases and desists in the facility, permit Complainant to display the Crown of Thorns in her workspace, and provide training for management officials at the facility. Matilde M. v. Soc. Sec. Admin., EEOC Appeal No. 0120140147 (Jan. 17, 2017) .

This recent settlement of a class action disability discrimination lawsuit highlights the importance of employers not having a blanket policy that bars employees with medical restrictions from returning to work without an interactive dialogue to determine if they could have been returned to work with a reasonable accommodation…

PRESS RELEASE
11-20-17

American Airlines and Envoy Air to Pay $9.8 Million to Settle EEOC Disability Suit

Airlines’ Policies Discriminated Against Disabled Employees, Federal Agency Charges

PHOENIX – American Airlines and Envoy Air will pay $9.8 million in stock, which is worth over $14 million if cashed in today, and provide other significant relief to settle a nationwide class disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC’s suit said the airlines unlawfully denied reasonable accommodations to hundreds of employees.

“This matter highlights the critical role of the Americans with Disabilities Act in getting people back to work as quickly as possible,” said EEOC Acting Chair Victoria A. Lipnic. “The parties deserve credit for working diligently to bring this matter to resolution.”

According to the EEOC’s suit, American and Envoy violated federal law by requiring their employees to have no restrictions before they could return to work following a medical leave. Under this policy, if an employee had restrictions, American and Envoy refused to allow them to return to work and failed to determine if there were reasonable accommodations that would allow the employee to return to work with restrictions.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits discrimination based on disability and also requires an employer to provide reasonable accommodation to employees with disabilities unless doing so would cause significant difficulty or expense for the employer. If employees with disabilities are not able to do their current job, even with a reasonable accommodation, employers are obligated to look for a reassignment to another position for those employees.

The EEOC filed suit in U.S. District Court for the District of Arizona, Civil Action No. 17-cv-04059-SPL, after first attempting to reach a pre-litigation settlement through its conciliation process and continued negotiations prior to filing suit. The consent decree resolves the EEOC’s lawsuit and several charges of discrimination filed by individuals with the EEOC. The systemic investigation was conducted by the EEOC’s Phoenix District Office.

In addition to the $9.8 million in stock, the two-year decree includes injunctions against engaging in any future discrimination or retaliation based on disability, and requires the companies to adopt policies that ensure reasonable accommodations are provided to persons with disabilities. American and Envoy will provide mandatory periodic training on the ADA to employees. The settlement applies to all American and Envoy employees throughout the country.

EEOC Deputy General Counsel James L. Lee said, “We are pleased the parties were able to resolve this important case without resorting to prolonged and expensive litigation, and we are proud of the Commission’s long record of protecting people with disabilities from workplace discrimination.”

Elizabeth Cadle, district director for the Phoenix office, added, “This settlement demonstrates the need for employers to have good ADA policies. That means policies which consider employers’ obligations to provide reassignment without competition as a reasonable accommodation for employees with disabilities who become unable to do their current job even with accommodations.”

EEOC Regional Attorney Mary O’Neill added, “This consent decree is the result of productive and thoughtful negotiations with American. We appreciate American and Envoy working with the EEOC to reach a settlement. In addition to providing meaningful monetary relief for hundreds of former employees, the settlement contains important equitable relief, including company policy changes and training designed to provide people with disabilities equal opportunities in the workplace.”

EEOC has released its most recent Quarterly Digest which has some great information for all EEO professionals.  There is a particularly interesting article entitled, “Race Discrimination in the 21st Century Workplace” also included in the Digest.  You’ll find the Quarterly digest here:

https://www.eeoc.gov/federal/digest/vol_4_fy17.cfm#article

If so, Art of Resolution is seeking experienced (1-year minimum) certified EEO investigators interested in conducting telephonic investigations as independent contractors. For this opportunity, investigators must be located in Boston, New York, Philadelphia, Washington DC Metro Area, Atlanta, Chicago, Denton (Texas), Denver, Oakland and Seattle. Resumes should be emailed to admin@artofresolution.

It’s hard to keep up with all of the EEO and diversity-related news these days, so in case you missed it, read about it here…

In this case, an African-American woman was fired from Banana Republic for wearing her hair in box braids.  A manager told the woman that her braids were too urban and unkempt for the Banana Republic image.  He warned her that, until she changed her style, she would not be scheduled for anymore shifts.   Unlike the situation that unfolded in our earlier post, in this case, the manager was fired from Banana Republic, and they made the following statement:

 “Our team began an immediate investigation and the manager involved was promptly removed from the store,” she said in an email statement. “Today we concluded the investigation and can confirm that the manager has been terminated from the company. Banana Republic has zero tolerance for discrimination. This situation was completely unacceptable, counter to our policies, and in no way reflects our company’s beliefs and values.”

In this case, it appears Banana Republic acted promptly.  Hopefully the company is taking actions to ensure that something like this does not happen in the future by training all managerial staff on the application of their anti-discrimination policies.

With the topic of sexual harassment in the news, this case from EEOC is an important reminder of the importance of management taking immediate and appropriate action when an allegation of sexual harassment is made.  It’s clear from this case, as well as growing reports of sexual harassment in various industries, more training is needed.

-EEOC Press Release…

In Federal-sector EEO investigations, we don’t often see direct evidence of discrimination. In this private sector case, EEOC is suing a dental surgery practice for its mandatory retirement policy…