labor lawAdivision of labor law center

Employers need to be more vigilant in hiring and promotions than ever before. That’s because a new EEOC task force has increased enforcement actions against employers who lack diversity in their workforce, calling such situations “systemic discrimination.” The agency may initiate investigations, even in the absence of an employee complaint.

Similar efforts against federal contractors have been introduced by the OFCCP or Office of Federal Contract Compliance Programs.

To cite just two examples, the EEOC recently announced a $2 million settlement with Les Schwab Tire Centers in a sex discrimination case. The company was accused of not hiring qualified females for its auto care stores in Washington, Oregon, Idaho, California, Nevada, Montana and Utah since 2004.

In a separate case, Wal-Mart paid $11.7 million to settle a sex discrimination case involving applicants for warehouse jobs in the London, Kentucky distribution center. Hiring officials with the retail giant told female applicants that the positions were not suitable for women, and that most new hires (more…)

The EEOC or Equal Employment Opportunity Commission has reported an alarming rise in sexual harassment of young adults in the workplace. According to a recent report, such complaints have risen 76%. In one Maine study, 1 in 3 high school students reported unwanted sexual advances in the workplace.

Many of the incidents reported involve high school students or recent graduates working in restaurants, including fast food franchises. Others involve interns at prestigious corporations.

According to one unnamed EEOC attorney, “It’s an incredibly serious problem. Employers that choose to use high school kids to work have a responsibility to protect these young people.  We don’t want them to be fondled, we don’t want them to be raped.”

While the majority of the complaints involve females under 18, complaints of sexual harassment involving young male employees are also up.

In one of the most disturbing cases, a 16-year-old fast food worker was (more…)

Since 2006, the EEOC has focused on a new type of discrimination in the workplace – discrimination against caregivers.

Now the EEOC has released  best practices to avoid caregiver discrimination. The 10-page document outlines steps employers can take to avoid this increasing type of illegal discrimination.

Employers should note that no federal law currently makes caregivers a protected class. However, the EEOC is increasingly investigating and in some cases filing suits on complaints from caregivers.

Caregiver discrimination is an easy mistake for the employer to make. Suppose Sue has two daughters under the age of 6. One of her daughters has special needs due to a congenital disability. Sue’s employer decides not to promote her to a regional sales position that requires travel, because of her personal situation. The employer assumes that Sue will be unable to travel, or will do a poor job in the new position, because of her caregiver responsibilities. This is illegal discrimination. Sue is losing out on a promotion she would otherwise receive, simply because she is associated with a disabled person – a type of illegal discrimination prohibited under ADA, the Americans with Disabilities Act.

Sue may also be the target of illegal discrimination based on sex under Title VII of the Civil Rights Act of 1964, if a male employee in the same situation would be promoted.

Caregiver responsibilities can include (more…)

Employers implementing layoffs and staff reductions need to be especially cautious that they do not commit age discrimination.

According to a recent report, state and federal age discrimination claims were up 29% in 2008. This is almost double the increase in overall discrimination complaints, up 15%. And that number is not just complaints filed by workers – it is actual lawsuits filed by the EEOC or state agencies.

The federal ADEA or Age Discrimination in Employment Act, prohibits employers from discriminating against workers between the ages of 40 and 70 in any employment decision, including hiring, firing, promotions, salary, benefits, training, etc.

According to the EEOC, age should not be a factor in determining which employees are laid off. It is fairly common for an employer to thin, “Joe is eligible for retirement in a few years anyway, we’ll lay him off.” However, it is illegal discrimination based on age. Some employers take such actions because they think older employees will be impacted less by a layoff. Others do it to save potential pension and medical expenses. Either way, it is illegal.

According to a recent article in the AARP magazine, age discrimination claims may be even higher this year than in 2008, due to the many layoffs.

The AARP, of course, is the international association of people over the age of 50.

 “The wave is still building,” says Gerald L. Maatman, Jr. of Seyfarth Shaw,  a Chicago law firm that analyzes both state and federal discrimination suits against employers. It is expected to peak in the 3^rd quarter of 2009.

Employers should always base decisions on which employees to lay off on objective criteria that do not include age. Acceptable criteria include job performance, seniority, diverse skills or a combination of those factors. Employers should justify that decision in writing, and keep careful written records of the basis for the decision.

It is also illegal for an employer to discriminate against one older worker in favor of another older worker. A recent trend has been for employers to lay off workers in their 50s, in favor of workers in their 40s, based partly on age. Although both workers are covered by the ADEA, this is still age discrimination.

Employees on light duty or with physical restrictions must be permitted to work overtime on the same basis as other employees. In a recent settlement between United Airlines and the EEOC, the agency questioned an employer limiting overtime for employees who are on medical restrictions or limited to light duty.

Many employers would think that when a worker is under physical limitations, or has a disability, it would be obvious that the employee should not work overtime. However, the EEOC disagrees.

Under the ADA, or Americans with Disabilities Act, employees on light duty are entitled to work overtime if they are physically able to do so, the EEOC ruled.

In the case against United Airlines, employees on light duty were not permitted to work overtime, even when there was plenty of overtime work and it was being offered to employees who were not on light duty. The court ruled that this was a form of discrimination based on the employee’s physical disability under ADA.

United Airlines, based in Chicago, is one of the largest U.S. air carriers with nearly 3,000 flights per day to more than 200 domestic and international destinations from hubs in Los Angeles, San Francisco, Denver, Chicago and Washington, D.C.

The United Airlines case involved Samuel Chetcuti, a “storekeeper” working for the airline in San Francisco. The EEOC argued that the airline’s policy of not offering overtime to workers who were on light duty had a disparate effect on the income of disabled workers, because they were more likely to be on light duty.

For example, Chetcuti had epilepsy, which prevented him from operating heavy machinery and working at heights. However, it did not restrict the number of hours that he could work. But because Chetcuti was on light duty for his regular work schedule, he was barred from working lucrative overtime offered to others in the same job. The EEOC ruled that this was illegal employment discrimination based on disability.  

EEOC San Francisco Regional Attorney William R. Tamayo said, (more…)