Employment discrimination: California court limits ‘me too’ evidence

Employment discrimination: California court limits ‘me too’ evidence.

Advertisements

Mitsuwa Marketplace Violated Law by Paying Hispanic Workers Less Than Others for Identical Jobs, Federal Agency Charged

EEOC PRESS RELEASE 4-17-13

 

Edgewater Japanese Market to Pay $250,000 to Hispanic Employees Paid less Due to National Origin

NEWARK, N.J. — Mitsuwa Corporation, which does business as Mitsuwa Marketplace, a large Japanese market in Edgewater, N.J., will pay $250,000 to settle a national origin discrimination lawsuit by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s suit, since 2005, Mitsuwa has routinely paid Hispanic employees less than non-Hispanics doing the same work because of their national origin. The case stemmed from a discrimination charge from an individual employee who complained of being underpaid because he was Hispanic. An investigation by the EEOC revealed that a class of Hispanic employees was discriminated against in this way over several years.

Discrimination in compensation based on employees’ national origin violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the District of New Jersey in Newark (Civil Action No. 09-CV-04733 [ES][CLW]) after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the consent decree settling the suit, signed by federal Judge Esther Salas, Mitsuwa will also give pay increases to current Hispanic employees amounting to a combined total of approximately $30,000 per year for three years.

Mitsuwa is enjoined from discriminating against Hispanic employees. The consent decree provides for a monitor who will periodically review Mitsuwa’s compensation practices and discrimination complaints, and will report to EEOC. Mitsuwa has also revised its anti-discrimination policies and will train its managers and employees on Title VII, including the prohibition against compensation discrimination based on national origin.

“Employers everywhere should know that Title VII insures that they cannot pay employees less based on their national origin, just as they cannot discriminate in compensation based on sex or race,” said EEOC District Director Kevin Berry.

“The EEOC stands ready to assist employees who are being undercompensated compared to similarly situated co-workers simply because of their national origin,” added New York Regional Attorney Elizabeth Grossman.

Eliminating discriminatory policies affecting vulnerable workers who may be unaware of their rights under equal employment laws, or who may be reluctant or unable to exercise their rights, is a national priority identified in EEOC’s Strategic Enforcement Plan. These policies can include disparate pay.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the Commission is available at its web site at www.eeoc.gov.

EEOC – African American Workgroup Report

Executive Summary From EEOC Report

In January 2010, Carlton Hadden, Director of the Equal Employment Opportunity Commission’s (EEOC) Office of Federal Operations (OFO), commissioned a work group to identify the obstacles that remain in the federal workplace that hinder equal employment opportunities for African Americans.

This workgroup was created in furtherance of the EEOC’s overall mission to eradicate discrimination in both the federal sector and private sector workplace. EEOC’s OFO ensures equality of opportunity within the federal sector by implementing its regulatory and adjudicatory authority and through use of its oversight function.

In advancement of the mission of the Commission and OFO’s oversight responsibilities, between 2010 and 2012, the African American workgroup engaged in a series of discussions with EEO officials, various affinity groups, and subject matter experts. The workgroup decided that it would be most efficient to hold these discussions in conjunction with a similar workgroup commissioned to identify obstacles for Women in the federal workplace.

In summation, the workgroup began the dialogue about obstacles facing African Americans by engaging in a roundtable discussion with federal EEO Directors, who are responsible for the implementation of a continuing affirmative employment program to promote equal employment opportunity and to identify and eliminate discriminatory practices and policies. Next, the workgroup engaged in roundtable dialogue with federal Special Emphasis Program Managers, who are tasked with assisting agencies in ensuring equal opportunity for specific protected classes that are underrepresented. Subsequently, the workgroup held roundtable discussions with various affinity groups, including Blacks in Government (BIG); Federally Employed Women (FEW); and the African American Federal Executives Association (AAFEA).

Additionally, the workgroup dialogued with non-federal interest and advocacy groups, including the Equal Justice Society, the Women’s Bar Association of the District of Columbia, Workplace Flexibility 2010, and the Equal Rights Center. Finally, we received input from academic expert Dr. Paula Caplan, who is the Voices of Diversity Project Director for the W.E.B. Dubois Institute at Harvard University and an author, noted research psychologist, and professor. We assured our dialogue partners that their contributions to this discussion would only be generally reported and not specifically attributed to any particular dialogue partner.

Our dialogue partners identified many obstacles to achieving equality for African Americans in the federal workforce, and provided recommendations for overcoming those obstacles. For the most part, the impediments identified below were independently and repeatedly identified by our dialogue partners as the most formidable obstacles to equal employment opportunities for African Americans in the federal sector. We note that while we are not issuing a traditional report with findings and conclusions of the EEOC, we are issuing this report to memorialize the obstacles and recommendations identified by our dialogue partners.

Read the full report at  African American Workgroup Report.

EEOC Issues Guidance on Domestic Violence Discrimination via EEOC.gov

ImageQuestions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking

Title VII of the Civil Rights Act of 1964 (Title VII) prohibits discrimination based on race, color, sex, religion, or national origin, and the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability.[1] Because these federal EEO laws do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such,[2] potential employment discrimination and retaliation against these individuals may be overlooked. The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking. However, whether discrimination has actually occurred in a particular instance must be determined through an investigation of the facts alleged. Information on how to file an employment discrimination claim may be found at the end of this document.

Q: What are some examples of employment decisions that may violate Title VII and involve applicants or employees who experience domestic or dating violence, sexual assault, or stalking?

A: Title VII prohibits disparate treatment based on sex, which may include treatment based on sex-based stereotypes. For example:

  • An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential “drama battered women bring to the workplace.”
  • A hiring manager, believing that only women can be true victims of domestic violence because men should be able to protect themselves, does not select a male applicant when he learns that the applicant obtained a restraining order against a male domestic partner.
  • An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a “real crime,” whereas domestic violence is “just a marital problem” and “women think everything is domestic violence.”

Title VII prohibits sexual or sex-based harassment. Harassment may violate Title VII if it is sufficiently frequent or severe to create a hostile work environment, or if it results in a “tangible employment action,” such as refusal to hire or promote, firing, or demotion.[3] For example:

  • An employee’s co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women’s bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal e-mails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking.[4] She notifies management but no further action is taken.
  • A seasonal farmworker’s supervisor learns that she has recently been subject to domestic abuse, and is now living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she refuses he terminates her.

Title VII prohibits retaliation for protected activity. Protected activity can include actions such as filing a charge of discrimination, complaining to one’s employer about job discrimination, requesting accommodation under the EEO laws, participating in an EEO investigation, or otherwise opposing discrimination. For example:

  • An employee files a complaint with her employer’s human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.

Q: What are some examples of employment decisions that may violate the Americans with Disabilities Act and involve applicants or employees who experience domestic or dating violence, sexual assault or stalking?

A: The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking.[5] For example:

  • An employer searches an applicant’s name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.
  • An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.

The ADA may require employers to provide reasonable accommodation requested for an actual disability or a “record of” a disability.[6] An actual disability is a physical or mental impairment that substantially limits one or more major life activities (which include major bodily functions). A “record of” a disability is a past history of a substantially limiting impairment. An impairment does not need to result in a high degree of functional limitation in order to be “substantially limiting.”[7] A reasonable accommodation is a change in the workplace or in the way things are usually done that an individual needs because of a disability and may include time off for treatment, modified work schedules, and reassignment to a vacant position. For example:

  • An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it “applies leave and attendance policies the same way to all employees.”
  • In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its “no transfer” policy.

The ADA prohibits disclosure of confidential medical information.[8]

  • An employee who is being treated for post-traumatic stress disorder (PTSD) resulting from incest requests reasonable accommodation. Her supervisor then tells the employee’s co-workers about her medical condition.

The ADA prohibits retaliation or interference with an employee’s exercise of his or her rights under the statute.[9]

  • In the prior example, the employee tells the supervisor she intends to complain to human resources about his unlawful disclosure of confidential medical information. The supervisor warns that if she complains, he will deny her the pay raise she is due to receive later that year.

Q: What is the legal process for filing claims of discrimination?

A: The process is different depending on the type of employer:

Private Sector Employers and State and Local Government Employers

A private sector or state or local government applicant or employee who believes that his or her Title VII or ADA employment rights have been violated and wants to make a claim against an employer must file a “charge of discrimination” with the EEOC. For a detailed description of the EEOC charge process, including instructions for filing a charge, refer to the EEOC website atwww.eeoc.gov/employees/howtofile.cfm or call 1-800-669-40001-800-669-6820 (TTY).

Federal Government Employers

A federal government applicant or employee who believes that his or her employment rights have been violated under Title VII or the ADA and wants to make a claim against a federal agency must file an “EEO complaint” with that agency. For more information concerning enforcement procedures for federal applicants and employees, visit the EEOC website atwww.eeoc.gov/federal/fed_employees/index.cfm.


[1] Title VII and the ADA apply to employers (including employment agencies and unions) with 15 or more employees, and to federal, state, and local governments. An employer may have additional obligations under other federal statutes, such as the Family and Medical Leave Act, or under state or local anti-discrimination laws that contain broader protections than the federal EEO laws. For example, some state and local non-discrimination laws apply to smaller employers, and some states have laws expressly prohibiting discrimination against victims of domestic violence, and requiring employers to provide a certain amount of unpaid leave for related circumstances, including seeking medical care or legal assistance and attending court.

[2] The U.S. Department of Justice defines these terms as follows:

Domestic violence: “…a pattern of abusive behavior in any relationship that is used by one partner to gain or maintain power and control over another intimate partner. Domestic violence can be physical, sexual, emotional, economic, or psychological actions or threats of actions that influence another person. This includes any behaviors that intimidate, manipulate, humiliate, isolate, frighten, terrorize, coerce, threaten, blame, hurt, injure, or wound someone.”

Dating violence: “Violence committed by a person who is or has been in a social relationship of a romantic or intimate nature with the victim.”

Sexual assault: “Sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient.”

Stalking: “Stalking is a pattern of repeated and unwanted attention, harassment, contact, or any other course of conduct directed at a specific person that would cause a reasonable person to feel fear.” Stalking can include: Repeated, unwanted, intrusive, and frightening communications from the perpetrator by phone, mail, and/or email[;] [r]epeatedly leaving or sending victim unwanted items, presents, or flowers[;] [f]ollowing or laying in wait for the victim at places such as home, school, work, or recreation place[;] [m]aking direct or indirect threats to harm the victim, the victim’s children, relatives, friends, or pets[;] [d]amaging or threatening to damage the victim’s property[;] [h]arassing victim through the internet[;] [p]osting information or spreading rumors about the victim on the internet, in a public place, or by word of mouth[;] [or] [o]btaining personal information about the victim by accessing public records, using internet search services, hiring private investigators, going through the victim’s garbage, following the victim, contacting victim’s friends, family work, or neighbors, etc.”

For more information, see www.ovw.usdoj.gov/domviolence.htm.

[3] An employer is always responsible for harassment by a supervisor that culminated in a tangible employment action, such as discipline or termination. If the supervisor’s harassment did not lead to a tangible employment action, the employer is liable unless it proves that: (1) it exercised reasonable care to prevent and correct promptly any harassment; and (2) the employee unreasonably failed to complain to management or to avoid harm otherwise. An employer is liable for harassment by a co-worker or by a third party over whom the employer has control if the employer knew or should have known of the conduct, unless it can show that it took prompt and appropriate corrective action upon learning of the harassment. For more information, see Questions and Answers for Small Employers on Employer Liability for Harassment by Supervisors,www.eeoc.gov/policy/docs/harassment-facts.htmlPolicy Guidance on Current Issues of Sexual Harassment,www.eeoc.gov/policy/docs/currentissues.html.

[4] These facts are based on a Title VII sexual harassment case in which EEOC filed an amicus brief. Crowley v. LL Bean, Inc., No. 01-2732 (1st Cir. June 2, 2002) (brief available at www.eeoc.gov/eeoc/litigation/briefs/crowle.txt).

[5] The ADA prohibits discrimination based on an actual, history of, or perceived disability, including disparate treatment or harassment. Under the ADA as amended effective January 1, 2009, applicants and employees are protected if an employer treats them differently or harasses them based on an actual or perceived impairment that is not transitory and minor. Such individuals need not have an impairment that substantially limits a major life activity, or that is perceived to do so, in order to be protected from disparate treatment or harassment under the ADA.

[6] Qualified individuals with an impairment that substantially limits a major life activity or a record thereof may be entitled to requested reasonable accommodation absent undue hardship on the employer. For more information, see Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA,www.eeoc.gov/policy/docs/accommodation.htmlSmall Employers and Reasonable Accommodation,www.eeoc.gov/facts/accommodation.html.

[7] Under the ADA, as amended, the term “substantially limits” is to be construed broadly in favor of expansive coverage. For more information, see Questions and Answers for Small Businesses: The Final Rule Implementing the ADA Amendments Act of 2008www.eeoc.gov/laws/regulations/adaaa_qa_small_business.cfm.

[8] Enforcement Guidance: Disability-Related Inquiries & Medical Examinations of Employees Under the ADA (7/27/00),www.eeoc.gov/policy/docs/guidance-inquiries.html.

EEOC Seeks Input on FY 2012-16 Strategic Plan

EEOC PRESS RELEASE
1-18-12

 

EEOC Seeks Input on FY 2012-2016 Strategic Plan

The U.S. Equal Employment Opportunity Commission (EEOC) has released for public comment a draft of its Strategic Plan for Fiscal Years 2012 – 2016. The draft plan can be found at http://www.eeoc.gov/eeoc/plan/strategic_plan_12to16_DRAFT.cfm. Comments must be submitted by 5:00 pm ET on February 1, 2012 at strategic.plan@eeoc.gov or by mail to Office of the Chair, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington, DC 20507. This draft plan has not been approved by the Commission and is still under review.

The Strategic Plan serves as a framework for the Commission in achieving its mission by focusing on strategic law enforcement, education, and outreach, and efficiently serving the public. The EEOC has served as the nation’s lead enforcer of employment antidiscrimination laws and chief promoter of equal employment opportunity (EEO) since 1965. Every four fiscal years, Congress requires Executive departments, government corporations, and independent agencies to develop and post a strategic plan on their public website. These plans direct the agency’s work and lay the foundation for the development of more detailed annual plans, budgets, and related program performance information in the future. The EEOC is currently operating under the Strategic Plan for Fiscal Years 2007 – 2012, as modified in July 2008. 

The process for developing this plan has been highly inclusive and collaborative. The plan was created by work groups comprised of staff from the EEOC’s headquarters and field offices, with a broad range of internal and external expertise and understanding of the programs and activities conducted within the agency. We are now continuing this inclusive effort by soliciting comments from our public partners, including advocacy groups and individuals. Your input is vital to our efforts to ensure accountability to our nation’s workers, employers, and taxpayers in general.

For general inquiries about the plan, please email strategic.plan@eeoc.gov or call (202) 663-4070/(TTY: 202-663-4494). For press inquiries, please contact the Office of Communications and Legislative Affairs at (202) 663-4191 or newsroom@eeoc.gov. If you are private citizen seeking EEOC information, please call (202) 663-4900 or e-mail info@eeoc.gov. Further information about the EEOC is available on its web site at www.eeoc.gov.

EEOC Press Release: Pepsi to Pay $3.13 Million for Hiring Discrimination

EEOC PRESS RELEASE
1-11-12

 

Pepsi to Pay $3.13 Million and Made Major Policy Changes to Resolve EEOC Finding of Nationwide Hiring Discrimination Against African Americans

Company’s Former Use of Criminal Background Checks Discriminated Based On Race, Agency Found

MINNEAPOLIS – Pepsi Beverages (Pepsi), formerly known as Pepsi Bottling Group, has agreed to pay $3.13 million and provide job offers and training to resolve a charge of race discrimination filed in the Minneapolis Area Office of the U.S. Equal Employment Opportunity Commission (EEOC).  The monetary settlement will primarily be divided among black applicants for positions at Pepsi, with a portion of the sum being allocated for the administration of the claims process. Based on the investigation, the EEOC found reasonable cause to believe that the criminal background check policy formerly used by Pepsi discriminated against African Americans in violation of Title VII of the Civil Rights Act of 1964.  

The EEOC’s investigation revealed that more than 300 African Americans were adversely affected when Pepsi applied a criminal background check policy that disproportionately excluded black applicants from permanent employment.  Under Pepsi’s former policy, job applicants who had been arrested pending prosecution were not hired for a permanent job even if they had never been convicted of any offense.

Pepsi’s former policy also denied employment to applicants from employment who had been arrested or convicted of certain minor offenses. The use of arrest and conviction records to deny employment can be illegal under Title VII of the Civil Rights Act of 1964, when it is not relevant for the job, because it can limit the employment opportunities of applicants or workers based on their race or ethnicity.

“The EEOC has long standing guidance and policy statements on the use of arrest and conviction records in employment,” said EEOC Chair Jacqueline A. Berrien.  “I commend Pepsi’s willingness to re-examine its policy and modify it to ensure that unwarranted roadblocks to employment are removed.”
 
During the course of the EEOC’s investigation, Pepsi adopted a new criminal background check policy.  In addition to the monetary relief, Pepsi will offer employment opportunities to victims of the former criminal background check policy who still want jobs at Pepsi and are qualified for the jobs for which they apply.  The company will supply the EEOC with regular reports on its hiring practices under its new criminal background check policy.  Pepsi will conduct Title VII training for its hiring personnel and all of its managers.

“When employers contemplate instituting a background check policy, the EEOC recommends that they take into consideration the nature and gravity of the offense, the time that has passed since the conviction and/or completion of the sentence, and the nature of the job sought in order to be sure that the exclusion is important for the particular position.  Such exclusions can create an adverse impact based on race in violation of Title VII,” said Julie Schmid, Acting Director of the EEOC’s Minneapolis Area Office. “We hope that employers with unnecessarily broad criminal background check policies take note of this agreement and reassess their policies to ensure compliance with Title VII.”

“We obtained significant financial relief for a large number of victims of discrimination, got them job opportunities that they were previously denied, and eradicated an unlawful barrier for future applicants,” said EEOC Chicago District Director John Rowe. “We are pleased that Pepsi chose to work with us to reach this conciliation agreement and that through our joint efforts, we have been able to bring about real change at Pepsi without resorting to litigation.”

The EEOC enforces federal laws against employment discrimination.  The EEOC issued its first written policy guidance regarding the use of arrest and conviction records in employment in the 1980s.  The Commission also considered this issue in 2008 and held a meeting on the use of arrest and conviction records in employment last summer.  The EEOC is a member of the federal interagency Reentry Council, a Cabinet-level interagency group convened to examine all aspects of reentry of individuals with criminal records.

The Minneapolis Area Office is part of the EEOC’s Chicago District.  The Chicago District   is responsible for investigating charges of discrimination in Minnesota, Illinois, Wisconsin, Iowa and North and South Dakota.  Further information is available at http://www.eeoc.gov.

Outback Steakhouse Sued by EEOC for Disability Discrimination via EEOC.gov

EEOC PRESS RELEASE
9-7-11

 

Company Fired Employee Because of Disability And/or Because He Needed a Reasonable Accommodation

PHOENIX — A Phoenix, Ariz., Outback Steakhouse restaurant violated federal law by firing an employee on the basis of his disability and/or because he needed a reasonable accommodation, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today.

According to the EEOC’s suit against OSI Restaurant Partners, LLC d/b/a Outback Steakhouse and OS Restaurant Services, Inc., server John Woods, who suffers from traumatic brain injury, worked as a server from November, 2009 until approximately January, 2010, when he was fired. The EEOC charged that Outback terminated Woods’ employment because of his disability and/or because he needed a reasonable accommodation.

Such alleged conduct violates Title I of the Americans with Disabilities Act (ADA) as amended by the ADA Amendments Act of 2008 (ADAAA), which prohibits private employers from discriminating against qualified individuals with disabilities in hiring, firing, advancement, compensation, and other terms, conditions, and privileges of employment. The EEOC filed suit (EEOC v. OSI Restaurant Partners, LLC d/b/a Outback Steakhouse and OS Restaurant Services, Inc., Civil Action No. 2:11-cv-01754-NVW) in U.S. District Court for the District of Arizona after first attempting to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks back pay, compensatory and punitive damages for Woods, as well as appropriate injunctive relief to prevent any further discriminatory practices.

“Recent amendments to the ADA make clear that the protections for persons with disabilities should be broadly applied,” said Mary Jo O’Neill, regional attorney for the EEOC’s Phoenix District Office. “The ADA, as amended, was intended to ensure that workers with disabilities have equal employment opportunities. Terminating an employee because he is disabled or because he needed a reasonable accommodation is unlawful.”

EEOC District Director Rayford O. Irvin added, “We will vigorously pursue our mission of fighting employment discrimination on all fronts. The EEOC continues to fight for the rights of people discriminated against because they are disabled.”

The EEOC is responsible for enforcing federal laws prohibiting employment discrimination. The EEOC’s Phoenix District Office has jurisdiction for Arizona, Colorado, Utah, Wyoming, and part of New Mexico (including Albuquerque). Further information about the EEOC is available on its web site at www.eeoc.gov.