$2 Million Dollar Consent Decree Against Tire Chain - What Lessons Learned for Employers?
Earlier this week, a federal judge approved a $2 million consent decree, finally settling an Equal Employment Opportunity Commission (EEOC) suit alleging that the Les Schwab Tire Center violated Title VII by discriminating against women in its 420 stores in California, Idaho, Montana, Nevada, Oregon, Utah, and Washington. Click here to download a copy of the EEOC v. Les Schwab Consent Decree.
The consent decree comes out of a lawsuit filed by the EEOC alleging that Les Schwab had a pattern and practice of hiring men for sales and service positions (such as tire changers and brake and alignment techs), while hiring women for less-desirable administrative positions. The EEOC also alleged that promotions to store management positions were only made from the male-dominated ranks of the sales and service employees. The $2 million will be shared by an estimated 200 women who filed applications for sales and service positions and were turned down by the tire chain. Les Schwab also agreed to make its best efforts to hire women into service and sales positions in proportion to their availability in the qualified applicant pool, affirm its commitment to equal employment opportunity, achieve a diverse workforce, review its recruiting and hiring procedures, and train its employees on equal employment opportunity issues.
The Les Schwab case illustrates a difficult reality that many employers face: certain industries are, for various non-discriminatory reasons, dominated by employees of one sex. While that is not necessarily proof of sex discrimination, the EEOC (and plaintiff's lawyers) absolutely look at such industries very, very carefully for signs of discrimination. Employers in such industries can take steps to ensure that they don't become the next target of an EEOC lawsuit, including:
- Review application statistics to ensure that women and men are hired in proportions roughly equal to the number of qualified female and male applicants
- Review promotion statistics to ensure that women and men are promoted in proportions roughly equal to the number of qualified female and male employees
- If employees appear to be segregated by sex into different jobs, investigate why this is and ensure that it is not for discriminatory reasons
- Ensure that your EEO policies are up to date, appropriately posted, and understood by all employees
- Provide EEO training to managers who make hiring decisions
- Partner with trade schools and colleges to actively recruit members of the underrepresented sex
- Review job descriptions to ensure that any physical requirements are job-related and necessary
New Salt Lake City Ordinances Prohibit Housing and Employment Discrimination Based on Sexual Orientation
Yesterday the Salt Lake City Council unanimously passed ordinances prohibiting discrimination on the basis of sexual orientation and gender identity. Click here to download a copy of the City Council's Staff Report on the ordinances, along with full text of the new laws. Highlights of the employment discrimination ordinance include:
- Forbids employment discrimination based on a person's sexual orientation or gender identity in Salt Lake City.
- "Sexual orientation" is defined as "a person’s actual or perceived
orientation as heterosexual, homosexual, or bisexual." - "Gender identity" is defined as "a person’s actual or perceived gender identity, appearance, mannerisms, or other characteristics of an individual with or without regard to the person’s sex at birth."
- "Sexual orientation" is defined as "a person’s actual or perceived
- Creates a complaint and investigation process. The complaint could be resolved through mediation or a fine of up to $1,000.
- Does not create a "private right of action" to sue over alleged discrimination.
- Exempts religious organizations, the State of Utah, and businesses with fewer than 15 employees.
- "Does not create any special rights or privileges," because "every person has a sexual orientation and a gender identity."
- Requires annual reports by the city's Human Rights Commission on the effectiveness of the ordinances.
- Takes effect on April 2, 2010.
In case you were wondering, the ordinances passed with the full support of the LDS Church. "The church supports these ordinances," LDS spokesman Michael Otterson told the City Council, "because they are fair and reasonable and do not do violence to the institution of marriage." For more coverage of the SLC ordinances, read this article from the Salt Lake Tribune, or this article from the Deseret News.
SLC employers should review the new laws and review existing policies and procedures to ensure compliance. Many states, counties and cities across the country have adopted similar ordinances. To check the state of the law in your location, check out this handy list of state and local sexual orientation and gender identity laws from the Human Rights Campaign.
Use Workshare Program to Cut Costs and Keep Workers
Are you looking for ways to hang on to staff, yet reduce costs? Those goals are not necessarily mutually exclusive if you choose to participate in your state's workshare program. A workshare program allows your employees to collect some unemployment benefits but continue working part time. Here's an article from the Center for Law and Social Policy that gives additional detail.
Seventeen states have such programs: Arizona, Arkansas, California, Connecticut, Florida, Iowa, Kansas, Maryland, Massachusetts, Minnesota, Missouri, New York, Oregon, Rhode Island, Texas, Vermont and Washington. For a sample of a workshare law, see Section 1279.5 of California's unemployment insurance code.
Each state’s program is a little different, but they have common attributes. We’ll use Oregon’s program as an example.
Continue Reading...Utah: Employee Commuting May Be Within "Course and Scope" of Employment
Last week the Utah Supreme Court ruled that an employee's commute may in some cases be within the course and scope of his or her employment, such that an employer may be held liable for the employee's negligence during the commute.
In Newman v. White Water Whirlpool, the defendant employed Bradley Sundquist as an installer of marble countertops and tile. In his job, Sundquist would drive White Water's materials and equipment to jobsites in his own truck and trailer. One morning, on his way to White Water's offices, Sundquist's truck collided with a car driven by plaintiff Newman, injuring him severely. Newman sued both Sundquist and White Water, alleging that Sundquist was acting in the course and scope of his employment at the time of the accident, thus making White Water jointly liable for his injuries. The trial court dismissed the lawsuit on the basis that Sundquist was merely commuting, and therefore not acting in the course and scope of his employment.
The Utah Supreme Court disagreed, holding that a jury could find that Sundquist was acting in the course and scope of his employment at the time of the accident. Why? Because Sundquist's job required him to drive his truck carrying the employer's equipment and materials, and then returning unused materials to White Water, reasonable minds could conclude that he was not merely commuting but was in fact returning materials to his employer. If so, that would mean Sundquist was working at the time of the accident and White Water is liable for his negligence.
Utah employers should pay close attention to this ruling. Employees who merely commute to and from work without performing any duties during the commute are not acting in the course and scope of their employment and employers will not be liable for any accidents that they might cause. Employers may, however, be liable for the negligent acts of employees who are driving as part of their job duties. If you have an employee whose "commute" includes occasional job duties (such as ferrying equipment and supplies, talking on a cell phone, reviewing documents, etc.), you should realize that their negligence might be imputed on your company and take any appropriate steps to ensure that they are driving as safely as possible.
