$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
Despite Assertions to Contrary, Employment Laws Do Exist
On my way in to work this morning, I was listening to NPR’s Morning Edition, and caught an interview with Lewis Maltby, president of the National Workrights Institute. The interview was ostensibly to promote Mr. Maltby’s new book, “ Can They Do That?” in which he discusses employment termination cases that were deemed legal, but seem, in his opinion, to be disproportionately severe or unjust.
What Mr. Maltby appeared to decry (without using the proper terminology) is the American presumption of “at will” employment—the notion that an employer may terminate an at will employee’s employment for any reason or no reason, so long as it’s not otherwise illegal. A couple of Mr. Maltby’s examples demonstrate that concept well. For example, he mentioned instances where it was permissible for an employer to terminate an employee based on the political bumper sticker on the employee’s car, and for a school to terminate an overweight teacher’s employment because the teacher did not project the correct image. As there are no laws that specifically protect individuals from discrimination based on political affiliation or weight, these terminations were in fact permissible. (I would caution, of course, that terminating an overweight employee does carry risk to the extent the employee might be considered to have a disability under state or federal law.)
Continue Reading...9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases
The Ninth Circuit Court of Appeals recently limited the remedies available to employees who sue for retaliation under the Americans with Disabilities Act (ADA), ruling that the statute does not provide for punitive damages, compensatory damages or a jury trial in ADA retaliation cases. Click here to read the decision in Alvarado v. Cajun Operating Co.
Mr. Alvarado worked as a cook in defendant’s restaurant. He complained after his supervisor made allegedly discriminatory remarks related to his age and disability, and shortly afterward he received several disciplinary write-ups for poor performance. After Mr. Alvarado was ultimately terminated, he sued his former employer for, among other things, retaliation under the ADA. Prior to trial, the federal district court granted defendant’s motion in limine, barring plaintiff from seeking punitive and compensatory damages, and a jury trial, on his ADA retaliation claim on the grounds that the statute provided only equitable relief for such claims.
The Ninth Circuit affirmed the district court’s ruling by holding that the plain, unambiguous language of the ADA remedy provisions specifically enumerate only those sections of the act for which compensatory and punitive damages (and a jury trial) are available, and that the ADA anti-retaliation provision is not included in that list. Somewhat surprisingly considering the laws at issue have been on the books since 1991, the Ninth Circuit appears to be only the third Circuit Court of Appeals to have been presented with the issue, after the Seventh and Fourth Circuits (which reached similar conclusions). The court also noted that several district courts in other circuits had reached the opposite conclusion (perhaps most surprising of all), by ignoring the text of the remedy provision and instead emphasizing the overall structure of the ADA and the “expansive” intent of the 1991 amendments.
For now, the law in the Ninth Circuit on this question is clear: while still entitled to compensatory or punitive damages in disability discrimination or failure to accommodate claims under the ADA, employees may not receive those damages for ADA retaliation claims.
Continue Reading...Supreme Court Lets Stand Ruling Allowing EEOC to Issue Subpoenas After Right-To-Sue
Yesterday the U.S. Supreme Court declined to review a Ninth Circuit Court of Appeals decision that allows the Equal Employment Opportunity Commission (EEOC) to continue investigating allegations of employment discrimination, and even to issue subpoenas to employers, after issuing a right-to-sue letter to the employee who filed the initial complaint. Click here to read the Ninth Circuit decision in Federal Express Corp. v. EEOC.
In order to file a lawsuit under Title VII of the Civil Rights Act of 1964, an employee must first file a complaint of discrimination with either the EEOC or an analogous state agency, a process known as "exhausting administrative remedies." Only after the EEOC issues a "right-to-sue letter" may the employee then file a lawsuit. It is not uncommon for an employee to file a complaint with the EEOC and withdraw it almost immediately, obtain the right-to-use letter and file a lawsuit, all before the EEOC has had a chance to investigate. In Federal Express, the employee did just that in order to join a pending class action lawsuit. The employer expected the EEOC to drop its investigation, but instead EEOC continued to investigate and issued a subpoena to the employer.
The Ninth Circuit enforced the subpoena, writing: "By continuing to investigate a charge of systemic discrimination even after the charging party has filed suit, the EEOC is pursuing its obligation to serve the public interest." The Ninth Circuit's decision is in line with a decision from the Third Circuit, but contrary to decisions from the Fifth, Seventh and Tenth Circuits. The Supreme Court will often take a case like Federal Express to resolve such splits between the circuit courts, but declined to do so in this case. As a result, the EEOC's investigatory powers will continue to vary depending on where a complaint is made.
Given the Supreme Court's ruling in Federal Express, employers can no longer safely assume that the EEOC will drop its investigation once it issues a right-to-sue letter. The EEOC may choose to continue investigating charges of discrimination, especially in cases involving allegations of systemic or widespread violations of anti-discrimination law. Employers (at least those in the Ninth and Third Circuits) should be prepared to comply with EEOC investigations even after the right-to-sue letter has issued.
Supreme Court to Decide Title VII Statute of Limitations Question
The U.S. Supreme Court agreed yesterday to hear a challenge to a Seventh Circuit Court of Appeals decision in a case with similar factual overtones to the Ricci case decided earlier this year. Like Ricci, this case involves a firefighter qualification test that had a disparate impact on black applicants; unlike Ricci, at issue here is the statute of limitations on a Title VII claim.
In this case, Lewis v. City of Chicago, the plaintiffs are a group of approximately 6,000 black firefighter applicants who filed charges of race discrimination with the EEOC more than 300 days after the initial announcement of their test results, but within 300 days of the hiring of the new firefighter class from which they allege they were denied consideration. The trial court held that the hiring of each new firefighter was a new violation of Title VII, so the EEOC charges were timely filed. On appeal, the Seventh Circuit reversed, holding that the “discrimination was complete when the tests were scored...and the applicants learned the results.” At issue for the Supreme Court is whether the limitations period for a Title VII claim begins to run when an employer announces the results of a test that could violate Title VII’s disparate impact provision, or if the right to sue begins only once the employer has acted on that policy.
At face value, it seems that the trial court probably got this one right and the Supreme Court should reverse the Seventh Circuit. How can an employee know what the actual disparate impact will be until the employer’s hiring decisions are actually made? If, for example, the employer’s business needs ultimately dictate that it need hire nobody, there has been no harm done regardless of the results of the test. An actual harm needs to occur before the right to sue accrues. Notwithstanding that analysis, and given the current makeup of the court, however, it is unclear which way the Court will go on this one. The World of Work will let you know when a decision is reached and how that decision may impact your workplace.
2009 Mid-Term Federal Legislative Update
We expected many changes in federal labor and employment law in 2009 - for the first time in years, Democrats control the White House and both houses of Congress and have the political ability to make significant reforms. However, not much has happened in 2009: we have only significant labor and employment bill signed into law. To be fair, President Obama and the Congress have had other things to worry about: a war or two, a lousy economy, health care and selecting a new White House dog to name a few.
But, the 2009-2010 legislative session is still not over, and Congress may yet pass some of the many labor and employment-related bills still pending. Employers may want to take note, as some of these may become law before the end of the session in 2010. Click on "continue reading" for a complete list.
Continue Reading...Employer Did Not Violate Title VII By Firing Employee For Wearing a Nose Ring
A Federal court in Florida has ruled that a Subway restaurant did not violate Title VII by firing an employee because she wore a nose ring, rejecting a claim by the Equal Employment Opportunity Commission (EEOC) for injunctive relief and punitive damages. Click here to read the court's decision in EEOC v. Papin Enters. Inc.
Subway has a policy prohibiting employees from wearing facial jewelry, but this particular employee refused to remove her nose ring on the grounds that wearing it was part of her Nuwaubian religion. In April this year, a jury found that Subway did not have to accommodate the employee's nose ring, as she did not have a sincerely held religious belief requiring her to wear it. Last week, the court declined the EEOC's request for injunctive relief and punitive damages (notwithstanding the jury verdict) as there was no basis for such relief absent any discrimination.
The Papin case demonstrates an important legal principle: although employers are required to reasonably accommodate employees' religious practices (which may include allowing employees to deviate from a dress code), employers are only required to accommodate sincerely held religious beliefs. (So much for my idea of converting to Pastafarianism so I could claim a religious right to wear jeans on Friday). For more information on what constitutes a "religion" for Title VII purposes, check out these Frequently Asked Questions on Religious Discrimination from the EEOC.
