Chipotle Mexican Grill Sued by EEOC For Sexual Harassment, Retaliation

Female GM Propositioned and Groped Young Male Employee, Federal Agency Charges

SAN JOSE, Calif. – Fast-food chain Chipotle Mexican Grill violated federal law by allowing a restaurant manager to sexually harass her subordinate and retaliating against him after he reported the misconduct, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s investigation, a 22-year-old male shift manager at a Chipotle San Jose store was forced to endure intrusive verbal and physical harassment by his female general manager. In addition to frequently discussing her own sex life and posting a daily “sex scoreboard” in the main office concerning all the staff’s sex lives, the general manager told the young shift manager that she wanted to suck his genitals, watch him have sex with his girlfriend, and engage in a “threesome.” She also frequently slapped, groped and grabbed his privates, the EEOC charged.

Even after he reported her behavior to upper management, the general manager continued to harass him, says the EEOC, and she retaliated against him by instructing employees not to speak to him. Also, he was locked in a walk-in freezer, and his motorcycle was picked up and moved to a different area in the parking lot. Left with no other alternatives, the male employee ultimately quit, the EEOC said.

Sexual harassment and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. After first attempting to reach a pre-litigation settlement through its conciliation process, the EEOC filed its lawsuit (EEOC v. Chipotle Mexican Grill, Case No. 5:17-CV-05382) in U.S. District Court for the Northern District of California. The EEOC seeks monetary damages for the shift manager and injunctive relief to remedy and prevent sexual harassment and retaliation from recurring at Chipotle.

“This young man’s first real job experience was shaped by a supervisor who abused her authority and created a sexually charged workplace culture,” said EEOC San Francisco Senior Trial Attorney Peter F. Laura. “Federal law requires employers to protect their workers from harassment and sexual abuse, especially in the hands of a manager.”

EEOC San Jose Local Office Director Rosa Salazar added, “Employers must take immediate and effective steps to investigate harassment, no matter whether filed by a male or female employee.” She noted that 16.6% of sexual harassment charges filed with the agency were brought by male workers in FY 2016.

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Facts About Retaliation

The EEO laws prohibit punishing job applicants or employees for asserting their rights to be free from employment discrimination including harassment.  Asserting these EEO rights is called “protected activity,” and it can take many forms.  For example, it is unlawful to retaliate against applicants or employees for:

  • filing or being a witness in an EEO charge, complaint, investigation, or lawsuit
  • communicating with a supervisor or manager about employment discrimination, including harassment
  • answering questions during an employer investigation of alleged harassment
  • refusing to follow orders that would result in discrimination
  • resisting sexual advances, or intervening to protect others
  • requesting accommodation of a disability or for a religious practice
  • asking managers or co-workers about salary information to uncover potentially discriminatory wages.

Participating in a complaint process is protected from retaliation under all circumstances. Other acts to oppose discrimination are protected as long as the employee was acting on a reasonable belief that something in the workplace may violate EEO laws, even if he or she did not use legal terminology to describe it.

Engaging in EEO activity, however, does not shield an employee from all discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences.  However, an employer is not allowed to do anything in response to EEO activity that would discourage someone from resisting or complaining about future discrimination.

For example, depending on the facts, it could be retaliation if an employer acts because of the employee’s EEO activity to:

  • reprimand the employee or give a performance evaluation that is lower than it should be;
  • transfer the employee to a less desirable position;
  • engage in verbal or physical abuse;
  • threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
  • increase scrutiny;
  • spread false rumors, treat a family member negatively (for example, cancel a contract with the person’s spouse); or
  • make the person’s work more difficult (for example, punishing an employee for an EEO complaint by purposefully changing his work schedule to conflict with family responsibilities).

For more information, Questions and Answers: Enforcement Guidance on Retaliation and Related Issues, https://www.eeoc.gov/laws/guidance/retaliation-qa.cfm.

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Desco Industries Will Pay $45,000 to Settle EEOC Retaliation Lawsuit

Manufacturer Terminated Employee for Complaining About Race Discrimination, Federal Agency Charged

CHARLOTTE, N.C. – Desco Industries, Inc., a California corporation doing business in Sanford, N.C., will pay $45,000 to settle a workplace retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The EEOC charged that Desco Industries violated federal law when it discharged Daniel Worthy in retaliation for complaining about race discrimination.

According to the EEOC’s complaint, Daniel Worthy worked for Desco in 2015 through a third-party staffing agency. Around February 2015, Worthy discussed his interest in a forklift position with Desco’s warehouse foreman. Based on their discussion, Worthy expected he was in line for the next open forklift position. When Worthy, who is black, later saw a non-black employee operating a fork­lift, he believed Desco had passed him over for the position because of his race. Worthy com­plained to the staffing agency recruiter who notified Desco of Worthy’s race discrimination complaint. Within days of learning about Worthy’s complaint, Desco fired Worthy in retaliation for complaining about discrimination.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from terminating someone who reports race discrimination or other employment practices which he or she reasonably believes violate Title VII. The EEOC filed suit in U.S. District Court for the Middle District of North Carolina (Equal Employment Opportunity Commission v. Desco Industries, Inc., Civil Action No 1:16-CV-00858) after first attempting to reach a pre-litigation settlement through the agency’s conciliation process.

In addition to providing monetary relief to Worthy, a two-year consent decree requires Desco to develop and implement an anti-retaliation policy and to conduct annual training for supervisors and managers on Title VII’s prohibition against retaliation. Desco Industries must also post an employee notice about the lawsuit and provide periodic reports to the EEOC.

“Federal law protects those who come forward to report suspected employment discrimin­a­tion,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “The EEOC stands ready to enforce those protections.”

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ABL Management to Pay $35,000 to Settle Retaliation Lawsuit with EEOC

Company Fired Panama City Employee After He Reported Male Supervisor Sexually Harassed Him, Federal Agency Charged

BIRMINGHAM, Ala. – ABL Management, Inc., a Baton Rouge, La.-based food management company, will pay $35,000 and furnish other relief to settle a retaliatory discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

According to the EEOC’s lawsuit, ABL assigned employee Duane Gatson to serve as a kitchen supervisor at the Bay County Jail Facility in Panama City, Fla. While working in an isolated food storage area, Gaston was approached and groped by a male kitchen manager, the EEOC said. Thereafter, Gatson reported the offending conduct to his immediate supervisor. Following his report, he was advised that the company would conduct an investigation regarding his charges. However, within several weeks of making his report of sexual harassment, ABL fired Gaston as retaliation for complaining, the EEOC said.

Such alleged misconduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from retaliating against an employee who has participated in an investigation under Title VII, including an employer’s internal investigation. The EEOC filed suit (Equal Employment Opportunity Commission v. ABL Management, Inc., 5:16-cv-00187-RH-GRJ) on June 30, 2016 in U.S. District Court for the Northern District of Florida in Panama City after first attempting to reach a pre-litigation settle­ment through its conciliation process.

In addition to the $35,000 payment, the three-year consent decree resolving the suit requires ABL to take specific actions designed to prevent future discrimination, including implementing policies and practices designed to prevent discrimination based on sex and retaliation, providing anti-discrimination training to employees, and posting anti-discrimination notices in its workplace. The decree also requires ABL to appoint a qualified consultant who will help implement policies, provide direction for potential investigations, and train ABL employees and managers about retaliation.

“When an employer fires an employee for complaining about sexual harassment, it sends the signal that it’s not safe to resist discrim­ination,” EEOC Birmingham District Director Delner Franklin-Thomas said. “Employers should be aware that the law protects employees who report this kind of misconduct and that the EEOC will enforce laws that protect workers’ rights.”

EEOC Regional Attorney Marsha Rucker added, “The EEOC is committed to vigorous enforce­ment of Title VII of the Civil Rights Act, which prohibits retaliation against employees who report discrimination.”

According to company information, Baton Rouge, La.-based ABL is a national food management company that contracts with businesses to provide finished meals, as well as commissary and laundry programs, to correctional, commercial, healthcare and educational facilities.

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Rite Way to Settle EEOC Retaliation Suit

Federal Agency Wins $70,000 for Worker Who Was Fired for Helping With Sexual Harassment Investigation

GULFPORT, Miss. – Rite Way Service, Inc., a former Alabama corporation that provided janitorial cleaning services to commercial facilities in Mississippi and elsewhere in the Southeast, has agreed to pay $70,000 to a former employee to settle a federal lawsuit for unlawful retaliation, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.

According to the suit, Rite Way violated federal law by firing an employee in retaliation for participating in an internal investigation concerning a sexual harassment complaint made by a coworker, the EEOC charged in a lawsuit. Rite Way employed Mekeva Tennort to perform janitorial duties at Biloxi Junior High School. In August 2011, Tennort gave a statement to supervisors investigating a sexual harassment complaint by another employee. The Commission alleged that, soon afterward, Rite Way gave Tennort several written warnings about untrue supposed performance issues, and then fired her based on these unfounded accusations.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits employers from retaliating against an employee for opposing unlawful sexual harassment, including participating in an employer’s internal sexual harassment investigation. The EEOC filed suit (Equal Employment Opportunity Commission v. Rite Way Service, Inc., Case No. 3:13-cv-00407-CWR-FKB) on June 27, 2013 in U.S. District Court for the Southern District of Mississippi after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the monetary payment to Tennort, the three-year consent decree settling the suit requires Rite Way to distribute its anti-discrimination policy to specific former Rite Way employees. Further, if during the term of the consent decree, Rite Way resumes doing business, it must develop and implement policies to prevent future discrimination and retaliation, train its managers, supervisors, and all employees on unlawful discrimination, and provide reports of its compliance to the EEOC.

“Preserving access to the legal system remains a national priority for the EEOC,” said Delner Franklin-Thomas, director of the EEOC’s Birmingham District Office. “This settlement demonstrates the Commission’s ongoing commitment to protect employees who participate in workplace investigations from illegal retaliation.”

EEOC Birmingham District Regional Attorney Marsha Rucker added, “This lawsuit and resulting settlement achieves the EEOC’s objectives of providing specific relief to the victim and educating employers that Title VII not only protects those who file a charge of discrimination, but also for those who speak up during the course of a workplace investigation.”

In FY 2016, the EEOC received 42,018 retaliation charges, which reflects 45.9% of all charges received.

According to company information, Rite Way now operates as a separate division of Diversified Maintenance Systems, LLC in the Southeast. Headquartered in Birmingham, Ala., Rite Way has over 40 years of experience in providing janitorial services to customer in manufacturing, industrial, office buildings, banking, education, government, healthcare and utilities.

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Amir Kohan

Amir Kohan specializes in decentralizing the role of leadership in organizations so as to enhance the ability of employees to work productively toward common goals, and the managerial and institutional changes needed to build more sustainable enterprises—those businesses that foster social and natural as well as economic well-being. Amir’s work articulates a cornerstone position of human values in the workplace: namely, that vision, purpose, reflectiveness, and systems thinking are essential if organizations are to realize their potential. He has worked with leaders in business, education, civil society, healthcare, nonprofit, organized labor, and government.

Amir is an alumnus of Harvard Kennedy School of Government and studied employment law at Temple University, Beasley School of Law.

 

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EEOC Issues Publication on the Rights of Job Applicants and Employees with Mental Health Conditions

User-Friendly Document Explains Workplace Protections Under the Americans with Disabilities Act

WASHINGTON – The U.S. Equal Employment Opportunity Commission (EEOC) today issued a resource document that explains workplace rights for individuals with mental health conditions under the Americans With Disabilities Act of 1990 (ADA).

Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights explains that job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their conditions. They may also have a right to reasonable accommodations at work. Reasonable accommodations are work adjustments that can help individuals to perform their jobs and remain employed. The resource document also answers questions about how to get an accommodation, describes some types of accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.

EEOC charge data shows that charges of discrimination based on mental health conditions are on the rise. During fiscal year 2016, preliminary data shows that EEOC resolved almost 5,000 charges of discrimination based on mental health conditions, obtaining approximately $20 million for individuals with mental health conditions who were unlawfully denied employment and reasonable accommodations.

“Many people with common mental health conditions have important protections under the ADA,” said EEOC Chair Jenny R. Yang. “Employers, job applicants, and employees should know that mental health conditions are no different than physical health conditions under the law. In our recent outreach to veterans who have returned home with service-connected disabilities, we have seen the need to raise awareness about these issues. This resource document aims to clarify the protections that the ADA affords employees.”

The resource document is part of an ongoing series of publications providing individuals with medical conditions or work restrictions with user-friendly explanations of their rights, and with information that they can give to a health care provider to explain how to provide appropriate medical documentation, if required. Earlier this year EEOC published resource documents addressing the employment rights of individuals with HIV infection and individuals who are pregnant. The new publication’s companion document, The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work, can be found here.

EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov.

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What is Human Resources?

By S. A. Kohan

Human resources (“HR”) should be the most powerful part of an organization. So why, in reality, is its impact more often felt in a negative way?

Because human resources, unfortunately, often operates as a cloak-and-dagger society or a health-and-happiness sideshow. Those are extremes, of course, but if there is anything I have learned over the past sixteen years of working as an HR Manager and consultant for a variety of business groups, it is that HR rarely functions as it should. That’s an outrage, made only more frustrating by the fact that most leaders aren’t scrambling to fix it.

I believe, HR should be every company’s “killer app.” What could possibly be more important than who gets hired, developed, promoted, or moved out the door? Business is a game, and as with all games, the team that puts the best people on the field and gets them playing together wins. It’s that simple.

Executives need to fill HR with a special kind of hybrid: people who are part pastor (hearing all sins and complaints without recrimination) and part parent (loving and nurturing, but giving it to you straight when you’re off track).

Ideal HR professionals are Pastor-Parent type who have come up through the HR department, but more often than not, have run something during their careers, such as a factory or an office. They get the business—its inner workings, history, tensions, and the hidden hierarchies that exist in people’s minds. They are known to be relentlessly candid, even when the message is hard, and they hold confidences tight. With my insight and integrity, pastor-parents earn the trust of the organization.

The Pastor-Parent HR professionals don’t just sit around making people feel warm and fuzzy. They improve the company by overseeing a rigorous appraisal-and-evaluation system that lets every person know where he or she stands, and they monitor that system with the same intensity as a Sarbanes-Oxley compliance officer.

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Condo Association Sued for Sexual Harassment National Origin Discrimination and Retaliation

Management Company Also Sued; Vulnerable Workers Subjected to Abuse, Including Attempted Rape, and Retaliation for Complaining, EEOC Charged

DENVER – Vail Run Resort Community Association, Inc., a condominium complex in Vail, Colo., and its management company, Global Hospitality Resorts, Inc., violated federal law by allowing a housekeeping manager to sexually harass Mexican female employees, including attempted rape, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

EEOC further alleged the defendants retaliated against men and women who complained about the harassment to management, including Global Hospitality’s controller, Alan McLean, or owner, William Fleischer.

According to EEOC’s suit, Omar Quezada, the housekeeping manager, repeatedly spoke about sex, propositioned female employees, showed them graphic pictures on his phone, and groped and physically assaulted his victims, including attempted rape. Quezada targeted Mexican immigrants who were particularly vulnerable, threatening them with job loss and deportation if they refused his advances, complained about him, or went to the police.

When workers nevertheless complained to management, they were met with anger and indifference. EEOC said the companies never undertook an internal investigation after the complaints, made no effort to reduce Quezada’s supervisorial powers, and did not discipline Quezada. Two victims were finally forced to go to the police for help, and both of these women were later fired. In 2013, an Eagle County jury found Quezada was guilty of unlawful sexual contact and felony extortion, and Quezada pled guilty to additional similar charges after the jury verdict.

All this alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, including sexual harassment, discrimination based on national origin, and retaliation. EEOC filed its lawsuit (EEOC v. Vail Run Resort Community Association, Inc. and Global Hospitality Resorts, Inc. Case No. 1:15-cv-01592 (D. Colorado)) after first attempting to resolve the matter through its pre-litigation conciliation process. The suit seeks monetary damages including emotional distress and punitive damages. EEOC also seeks injunctive relief prohibiting any future discrimination by the employers and mandating corrective action.

The investigations of the charges of discrimination that led to the lawsuit were conducted by the Colorado Civil Rights Division (CCRD). Rufina A. Hernandez, Director of the CCRD, stated, “We are pleased that the critical investigative work that the Colorado Civil Rights Division conducted produced such important results for the State of Colorado and the nation. The partnership between EEOC and CCRD not only provides protection to all workers – regardless of national origin – but ensures that systemic issues of sexual harassment of immigrant workers will be aggressively enforced.”

“Immigrant workers are particularly vulnerable,” said EEOC Regional Attorney Mary Jo O’Neill. “They have less information about their rights and about how to enforce them, and are often times linguistically and socially marginalized. Employers need to take preventative measures against discrimination, particularly when their workforce is highly susceptible to exploitation.”

EEOC Denver Field Office Director John Lowrie added, “Companies must take sexual harassment complaints seriously, no matter who makes the complaint, and must be vigilant against retaliation.”

Eliminating discriminatory policies affecting vulnerable workers is one of six national priorities identified in the EEOC’s Strategic Enforcement Plan.

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Amir Kohan

Amir Kohan, Editor

Amir Kohan specializes in decentralizing the role of leadership in organizations so as to enhance the ability of employees to work productively toward common goals, and the managerial and institutional changes needed to build more sustainable enterprises—those businesses that foster social and natural as well as economic well-being. Amir’s work articulates a cornerstone position of human values in the workplace: namely, that vision, purpose, reflectiveness, and systems thinking are essential if organizations are to realize their potential. He has worked with leaders in business, education, civil society, healthcare, nonprofit, organized labor, and government.

Amir is an alumnus of Harvard Kennedy School of Government.

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