Archive for the 'Retaliation' Category

Facts About Retaliation

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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.

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

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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.”

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

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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.

Rite Way to Settle EEOC Retaliation Suit

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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.

Condo Association Sued for Sexual Harassment National Origin Discrimination and Retaliation

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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.

Social Media Is Part of Today’s Workplace but its Use May Raise Employment Discrimination Concerns

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Experts Tell EEOC That Use of Social Media by Employers, Applicants and Employees May Implicate the Laws EEOC Enforces

WASHINGTON-The use of social media has become pervasive in today’s workplace and, as a result, is having an impact on the enforcement of federal laws, a panel of experts told the U.S. Equal Employment Opportunity Commission (EEOC) at a meeting held today at EEOC Headquarters in Washington. The meeting was convened to gather information about the growing use of social media and how it impacts the laws the EEOC enforces.

“The increasing use of social media in the 21st century workplace presents new opportunities as well as questions and concerns,” said EEOC Chair Jacqueline A. Berrien. “This meeting has helped the EEOC understand how social media is being used in the employment context and what impact it may have on the laws we enforce and on our mission to stop and remedy discriminatory practices in the workplace.”

Jonathan Segal, speaking on behalf of the Society for Human Resource Management (SHRM), explained that employers use different types of social media for several different reasons: employee engagement and knowledge-sharing, such as having a corporate Facebook page or blog to keep employees in far-flung offices aware of new programs or policies; marketing to clients, potential customers and crisis management; and for recruitment and hiring of new employees. In fact, SHRM surveyed its members over several years and found that 77 percent of companies surveyed reported in 2013 that they used social networking sites to recruit candidates, up from 34 percent in 2008.

The use of sites such as LinkedIn and Facebook can provide a valuable tool for identifying good candidates by searching for specific qualifications, panelists told the Commission. But the improper use of information obtained from such sites may be discriminatory since most individuals’ race, gender, general age and possibly ethnicity can be discerned from information on these sites.

Renee Jackson of Nixon Peabody LLP, who counsels corporations, said that social media should be one of many tools used in recruitment, in order to cast a wide net for potential candidates. To the extent that employers conduct a social media background check, it is better to have either a third party or a designated person within the company who does not make hiring decisions do the check, and only use publicly available information, not requesting passwords for social media accounts. In fact, as several panelists noted, there already exist four states with laws prohibiting employers from requesting passwords and user names from applicants/employees, a number of other states have such laws pending, and there are several proposals before Congress to do the same on a federal level.

The hiring process is not the only time that social media becomes relevant in the employment context. Lynne Bernabei, of Bernabei & Wachtel PLLC, who litigates on the plaintiffs’ side, explained how use of personal social media accounts could figure into situations of workplace harassment. Even if employees post harassing or derogatory information about coworkers away from the workplace, for example, an employer may be liable for a hostile work environment if it was aware of the postings, or if the harassing employee was using employer-owned devices or accounts. “The issue is further complicated as more employers use a ‘Bring Your Own Device’ policy, in which they require or expect employees to use personal laptops, smartphones, or other technology while on the job,” Bernabei observed.

The other major area addressed by witnesses was the increased use of social media as a source of discovery in employment discrimination litigation, even where housed on third-party sites. Rita Kittle, a Senior Trial Attorney in EEOC’s Denver Field Office, warned, however, that the increased effort to access private social media communications may have a chilling effect on persons seeking to exercise their rights under federal anti-discrimination laws.

The EEOC has addressed some of the issues surrounding the use of social media, Acting Associate Legal Counsel Carol Miaskoff testified. In one reported decision arising from the federal sector, EEOC’s Office of Federal Operations found that a claim of racial harassment due to a co-worker’s Facebook postings could go forward. Additionally, in response to a letter from Senators Charles Schumer and Richard Blumenthal, the EEOC reiterated its long-standing position that personal information-such as that gleaned from social media postings-may not be used to make employment decisions on prohibited bases, such as race, gender, national origin, color, religion, age, disability or genetic information. Quoting from a 2010 informal discussion letter from the EEOC, Miaskoff noted that “the EEO laws do not expressly permit or prohibit use of specified technologies. . . . The key question . . . is how the selection tools are used.”

Commissioner Victoria Lipnic, who helped organize the meeting, said: “As policymakers and regulators, it is our challenge, and I believe our responsibility, to do all that we can to ensure that our interpretation and administration of the laws within our charge are as current and fully-informed as possible.”

The Commission will hold open the Social Media Commission meeting record for 15 days, and invites audience members, as well as other members of the public, to submit written comments on any issues or matters discussed at the meeting. Public comments may be mailed to Commission Meeting, EEOC Executive Officer, 131 M Street, N.E., Washington, D.C. 20507, or emailed to:  Commissionmeetingcomments at eeoc.gov.

The public comments submitted will be made available to members of the Commission and to Commission staff working on the matters discussed at the meeting. In addition, comments may be publicly disclosed on the EEOC’s public website, in response to Freedom of Information Act requests, or in the Commission’s library. By providing public comments in response to this solicitation, commenters are consenting to their use and consideration by the Commission and to their public dissemination. Accordingly, commenters should not include any information in submitted comments that they would not want made public, e.g., home address, telephone number, etc. Also note that when comments are submitted by e-mail, the sender’s e-mail address automatically appears on the message.