Civil Rights and Discrimination Laws

Below is a list of federal laws that guarantee civil rights and prohibit discrimination in a number of settings, including links to the full texts of those laws. (Note: Many states have civil rights laws of their own which mirror those at the federal level, so your state may have its own laws that are very similar to those identified below. In addition, municipalities like cities and counties can enact ordinances and laws related to civil rights.)

  • Air Carrier Access Act of 1986
    Prohibits discrimination against individuals with disabilities in the provision of (including access to) air transportation.
  • Americans with Disabilities Act (ADA)
    Protects persons with disabilities from discrimination in many aspects of life, including employment, education, and access to public accommodations.
  • Architectural Barriers Act of 1968
    Requires that buildings and facilities designed, constructed, altered, or leased with certain federal funds after September 1969 must be accessible to and useable by handicapped persons.
  • The Equal Credit Opportunity Act
    Prohibits creditors from discriminating against credit applicants on the basis of race, color, religion, national origin, sex, marital status, age, or because an applicant receives income from a public assistance program.
  • Equal Pay Act of 1963
    Requires that employers pay all employees equally for equal work, regardless of whether the employees are male or female.
  • Fair Housing Act
    Prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, religion, sex, familial status, and disability.
  • Family and Medical Leave Act
    Gives employees the right to take time off from work in order to care for a newborn (or recently adopted) child, or to look after an ill family member.
  • Individuals with Disabilities Education Act
    Ensuring that the rights of students with disabilities are protected, and that all children with disabilities have available to them a free appropriate public education.
  • National Voter Registration Act
    Establishes procedures to increase the number of eligible citizens who register to vote in elections for national office.
  • Pregnancy Discrimination Act
    Prohibits employment discrimination against female workers who are (or intend to become) pregnant — including discrimination in hiring, failure to promote, and wrongful termination.
  • Rehabilitation Act of 1973
    Protects disabled individuals from discrimination by employers and organizations that receive federal financial assistance.
  • Religious Land Use and Institutionalized Persons Act
    Protect individuals, houses of worship, and other religious institutions from discrimination in zoning and landmarking laws; also protects the religious exercise of inmates and other persons confined to certain institutions.
  • Title IX of the Education Amendments of 1972
    Prohibits sex discrimination in education programs that receive federal funds, to increase educational and athletic opportunities for females in schools and colleges nationwide.
  • U.S. Code Title 42, Chapter 21 — Civil Rights
    Title 42, Chapter 21 of the U.S. Code prohibits discrimination against persons based on age, disability, gender, race, national origin, and religion (among other things) in a number of settings — including education, employment, access to businesses and buildings, federal services, and more. Chapter 21 is where a number of federal acts related to civil rights have been codified — including the Civil Rights Act of 1866, Civil Rights Act of 1964, and the Civil Rights of Institutionalized Persons Act.
  • The U.S. Constitution | Articles | Amendments
    The U.S. Constitution, ratified in 1789, outlines the role and operation of government in the United States. Includes links to all articles and amendments, with annotations.
  • Voting Rights Act of 1965
    Prohibits the denial or restriction of the right to vote, and forbids discriminatory voting practices nationwide.

What Third-Party Retaliation Means for Your Business

The U.S. Supreme Court recently expanded retaliation law in Thompson v. North American Stainless, LP by holding that an employee may sue for “third-party retaliation” under Title VII of the Civil Rights Act of 1964. Third-party retaliation occurs when an employer takes an “adverse employment action” (e.g., discharge or demotion) against someone other than the person who engaged in statutorily “protected activity” (e.g., filed a discrimination charge or lawsuit). Even before this decision, “retaliation” was the most prevalent charge at the Equal Employment Opportunity Commission (EEOC), representing 36.3% of total filings in 2010. Race discrimination charges ranked second at 35.9%, while sex discrimination charges were third at 29.1%.

Title VII prohibits employers from retaliating against an employee because he or she has “opposed” unlawful discrimination or “has made a charge, testified, assisted or participated in any manner in an investigation, proceeding or litigation under this chapter.” These are known as the “opposition” and “participation” clauses of Title VII. Filing a charge of discrimination is plainly “protected activity” under this definition. In Crawford v. Metropolitan Government of Nashville and Davidson County, TN, decided in 2009, the Supreme Court held that the “opposition” clause protects an employee who reports or opposes discrimination when answering an employer’s questions during an internal investigation. The Supreme Court has not yet addressed whether an employee’s mere participation in an internal investigation constitutes “protected activity” under the “participation” clause of Title VII when the employee has no knowledge of discrimination and the investigation is purely internal (i.e., unrelated to a discrimination charge or lawsuit).

For employers, the Supreme Court’s Thompson decision has ramifications for you in circumstances you may not have foreseen. For example, if one of your female employees files a sex discrimination charge with the EEOC and you fire her brother six weeks later, that could give rise to a third-party retaliation claim. Assume the brother had been verbally counseled for repeated performance issues. However, at the time his sister filed her EEOC charge, you had not given her brother a formal disciplinary write-up. Can the fired brother assert a third-party retaliation claim against your company for firing him in order to retaliate against his co-worker/sister for her EEOC charge? Based on the Thompson decision, the answer is yes. It remains to be seen whether the decision extends to an employee who answers questions as part of an internal investigation of alleged discrimination, or a co-worker who is in a relationship with that employee.

Thompson: Analyzing the Supreme Court’s Third-Party Retaliation Decision

In Thompson, North American Stainless, LP (NAS) fired Miriam Relalado’s fiancé and co-worker, Eric Thompson, three weeks after she filed a sex discrimination charge with the EEOC. Thompson filed his own charge and a subsequent lawsuit asserting that NAS fired him to retaliate against Relalado for her charge.

The United States District Court for the Eastern District of Kentucky granted NAS summary judgment on the grounds that Title VII does not permit third-party retaliation claims. It held that Thompson did not engage in any statutorily “protected activity” to support a retaliation claim such as filing a charge prior to his discharge. The Sixth Circuit Court of Appeals initially reversed but later affirmed the district court’s ruling.

The Supreme Court reversed and held that if the facts Thompson alleged are true, his firing constituted unlawful retaliation. The justices remanded the case to the district court for trial, explaining that Title VII’s anti-retaliation provision must be construed to cover a broad range of employer actions that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Applying this test, the Supreme Court deduced, a “reasonable worker obviously might be dissuaded from engaging in ‘protected activity’ if she knew that her fiancé would be fired.” The Supreme Court held that Thompson fell within the “zone of interests” protected by Title VII because (1) he was an NAS employee, (2) Title VII’s purpose is to protect employees from employers’ unlawful acts and (3) NAS’s alleged conduct was not accidental but unlawful retaliation intended to punish Thompson’s fiancée.

Applying the Decision to Future Claims: What Does “Zone of Interests” Mean?

The Supreme Court rejected NAS’s concern that it would be at risk for a retaliation claim from any employee who has a relationship with employees engaging in “protected activity.” It explained that an individual’s interests cannot be “so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” However, the Supreme Court declined to “identify a fixed class of relationships” for which third-party retaliation is unlawful. Does third-party retaliation apply only to family and couples who are engaged to be married? Does it apply to those who are merely dating? To friends in the workplace? To work acquaintances?

What we do know from the Thompson decision is that the “zone of interests” extends beyond an employee who engages in protected activity to her fiancé. Given that, the protected zone most likely extends to immediate family members. It is unlikely that courts will extend the “zone of interests” to mere work acquaintances. However, as the Supreme Court explained, retaliation claims are highly fact-dependent. Exactly who falls within the protected “zone of interests” will be determined by subsequent cases over the next few years. Given that, it behooves employers to consult with their labor and employment counsel to ascertain whether termination decisions now expose them to future third-party retaliation claims and whether those claims are readily defensible.

Online College To Pay $260,000 To Settle EEOC Lawsuit Charging Sex Harassment By Supervisors Online College To Pay $260,000 To Settle EEOC Lawsuit Charging Sex Harassment By Supervisors

Anthem College Online Tolerated a Hostile Workplace, Federal Agency Charged

PHOENIX – High-Tech Institute, Inc., doing business as Anthem College Online, will pay $260,000 as part of a settlement of a sexual harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. In its suit in U.S. District Court for the District of Arizona (Civil Action No.CV-09-2041-ROS), the EEOC charged that Anthem College subjected female employees to repeated sexual harassment by supervisors.

According to the EEOC, six female admissions representatives working at the Phoenix, Ariz., location were frequently sexually harassed by three supervisors. The EEOC’s allegations included that the supervisors engaged in unwanted sexual touching and comments, writing sexually suggestive e-mails and soliciting sex from employees during unwelcome visits to the employees’ homes in the early morning hours. Some of this abusive behavior was witnessed by other Anthem College employees, the EEOC said.

The EEOC maintained that Anthem College knew or should have known about and tolerated this sexually hostile work environment caused by its supervisors. The agency said the company’s former human resource manager wrote that Anthem College employees were fearful to come forward because an alleged harasser was seen drinking and socializing with upper management and that there was blatant disrespect to employees and rampant poor management.

According to the EEOC, the company unreasonably delayed removing a class member from under the supervision of an alleged harasser who, the company’s own former human resources manager testified, was a “psychopath.” The EEOC argued that despite Anthem College’s knowledge about the harassment, the company failed to take reasonable steps to investigate and remedy the harassment.

“Employees who have an official or strong duty to communicate to management are considered part of management,” said EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District Office, which originated the legal action. “Here, there was a breakdown in reporting by persons whose job descriptions required them to report any issues affecting the normal operation of the admissions department, including sexual harassment. They failed to do so, with serious consequences.”

Sexual harassment violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the settlement requiring Anthem College to pay $260,000 to the former employees, Anthem College also must investigate any further complaints of sexual harassment, provide training for managers and supervisors on conducting sexual harassment investigations and post a notice that harassment of Anthem College’s employees will not be tolerated.

EEOC Phoenix District Director Rayford O. Irvin added, “We insist that companies fulfill their obligation to protect employees from sexual harassment and provide the necessary training to ensure this protection.”

Emergency Transport Company Sued by EEOC For Pregnancy Discrimination

CHARLOTTE, N.C. – A North Carolina ambulance service violated federal law by discriminating against several female employees because they were pregnant, the Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s complaint, SDTM Investments, Inc., doing business as Tarheel Medical Transport, subjected Samantha Holder and other pregnant employees to different terms and conditions of employment from its non-pregnant employees. The complaint alleges that upon learning that an employee was pregnant, Tarheel required the employee to take a leave of absence or be discharged. The EEOC contends that around March 2009, the company refused to let Holder work in her job as an emergency medical technician and discharged her because she was pregnant.

Several months after Tarheel discharged Holder, EEOC alleges that the company also forced office manager and emergency medical technician Christina Berdan to take medical leave from her job. Tarheel informed Berdan that she could not return to work until after the birth of her child in spite of the fact that Berdan was physically fit, had no medical restrictions and could fully perform the duties of her job. As a result of this practice, Holder, Berdan and other pregnant employees were either terminated or forced to take a leave of absence despite the fact that they were fully capable of performing their job duties.

Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, prohibits employers from discriminating against pregnant employees. The EEOC seeks back pay, compensatory damages and punitive damages for Holder and the other affected employees, as well as injunctive relief. The EEOC filed suit in U.S. District Court for the Eastern District of North Carolina (Equal Employment Opportunity Commission v. SDTM Investments, Inc. d/b/a Tarheel Medical Transport, Civil Action No. 4:11-CV-00080) after first attempting to reach a pre-litigation settlement through its conciliation process.

“Working women who chose to have children cannot be penalized or treated differently from other employees simply because they are pregnant,” said Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office. “Employers must remember that paternalistic attitudes toward pregnant employees can result in unequal treatment at work, which violates federal law.”

SDTM Investments, Inc. doing business as Tarheel Medical Transport, operates an ambulance service in Beaufort, Wilson and Craven counties in North Carolina, transporting non-emergency patients from their care facilities or homes to medical appointments. It employs approximately 40 people.

Hyundai Ideal Electric Company to Pay $188,000 to Settle EEOC Sex Bias and Retaliation Suit

Female Drafter Paid Less Than Male, Then Fired for Complaining, Federal Agency Charged

CLEVELAND — Hyundai Ideal Electric Company (HIEC), located in Mansfield, Ohio, will pay $188,000 to settle a sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

In its lawsuit, the EEOC charged that Tabatha Wagner, an experienced female drafter, was hired for a job preparing drawings and sketches for batteries and engines, but at a lower salary than that of a similarly situated male who was hired only months later. Upon learning of the disparity in wages, Ms. Wagner complained to HIEC’s then human resources manager, and was subsequently fired as retaliation, the EEOC said.

Wage discrimination and retaliation for complaining about it violate the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964. The EEOC filed suit, No. 1:10-cv-1882, in U.S. District Court for the Northern District of Ohio, Eastern Division, after first attempting to reach a pre-litigation settlement.

In addition to the monetary relief, the two-year consent decree settling the suit provides for training for all human resources personnel and employees at its Mansfield, Ohio, facility and posting an anti-discrimination notice to all employees. The training will focus on complying with federal anti-discrimination laws, including but not limited to Title VII and the EPA, and preventing discrimination in pay and terms and conditions of employment as well as retaliation.

“The EEOC will not tolerate discriminatory pay practices,” said Debra Lawrence, regional attorney for the EEOC’s Philadelphia District. “To help build public awareness of this continuing problem, EEOC offices are holding Fair Pay Day events throughout the country.”

According to its web site (www.hyundaiideal.com), Hyundai Ideal Electric Co. is the market leader in medium power generators for gas, steam and hydro turbines, and diesel engines. The Mansfield facility is the company’s home office.

Suburban Chicago Hilton to Pay $195,000 to Resolve EEOC National Origin Harassment Suit

Agency Says Exec Chef Subjected Hispanic Kitchen Employees to Slurs and Insults

CHICAGO – The Equal Employment Opportunity Commission (EEOC) announced today that a federal judge has entered a $195,000 consent decree to resolve a national origin harassment lawsuit brought by the agency against the Hilton Lisle/Naperville Hotel in Lisle, Ill.

In its lawsuit, EEOC charged that the Hilton Lisle/Naperville violated federal law by subjecting Hispanic employees in the hotel kitchen to offensive comments. Specifically, the EEOC charged that the hotel’s executive chef regularly referred to Hispanic employees as “s–cs” and “wetbacks.”

National origin discrimination violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit, captioned EEOC v. Fireside West, LLC d/b/a Hilton Lisle/Naperville, No. 09 cv-5979, on Sept. 28, 2009 in U.S. District Court for the Northern District of Illinois in Chicago, after first attempting to reach a pre-litigation settlement through its conciliation process.

The three-year consent decree resolving the suit, approved by District Judge Edmund Chang yesterday, May 5, 2011, provides that $195,000 in monetary relief, which includes attorney’s fees, be distributed among two employees who filed charges of discrimination with EEOC and another additional employee.

The decree also requires the Hilton Lisle/Naperville to report any further complaints of retaliation or national origin harassment to the EEOC. The decree requires remedial training for all employees at the hotel, and mandates that the executive chef, who was alleged to have engaged in the harassment of Hispanic kitchen employees, receive personal anti-discrimination training. The decree includes an injunction prohibiting further discrimination on the basis of national origin and barring retaliation for reporting or complaining about discrimination.

“Federal law clearly requires employers to take prompt remedial action when they learn of harassment,” said John Hendrickson, regional attorney for the EEOC in Chicago. “In this case, the EEOC was prepared to show that not only did multiple employees report the harassment, but also that the executive chef himself acknowledged doing it. That’s not acceptable, and it’s not legal.”

EEOC trial attorney Aaron DeCamp added, “Over the next three years, EEOC will keep a close eye on how the Hilton Lisle/Naperville implements the consent decree to make certain these issues do not recur.”

In addition to Hendrickson and DeCamp, the case was litigated by Supervisory Trial Attorney Greg Gochanour and Trial Attorney Laurie Elkin. The EEOC Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

Comprehensive Summary of the Final Regulations to the ADA Amendments Act

On March 25, 2011, the U.S. Equal Employment Opportunity Commission (EEOC) published final regulations implementing the ADA Amendments Act of 2008 (ADAAA), a statute that now greatly expands the number of employees and applicants who will be considered “disabled.”  The final regulations fundamentally change the manner in which an employer must treat and manage employees with medical conditions in the workplace, since it now will be much easier for individuals to establish that they are disabled.  This Comprehensive Summary provides an overview of some of the key provisions in the final ADAAA regulations to help employers better understand the key changes in the law and adopt strategies to minimize liability.

Background

As originally enacted, the Americans with Disabilities Act (ADA) defines an individual with a disability as a person who has a physical or mental impairment that “substantially limits” one or more “major life activities.”  Individuals may also be covered under the ADA if they have a “record of” a disability or are “regarded as” disabled.  Since the ADA took effect, the Supreme Court and lower federal courts have construed the definition of disability in a relatively narrow fashion.  On September 25, 2008, President Bush signed the ADAAA into law.  Although the ADAAA retains the same definition of “disability” under the original Act, it makes sweeping changes to the manner in which these terms are to be construed.

In short, the ADAAA and its final regulations now shift the focus of virtually every situation that implicates the ADA.  Before the amendments, the interpretation of the ADA largely focused on whether an individual was substantially limited in a major life activity and, therefore, disabled under the ADA.  Under the ADAAA’s broader construction, the focus is not directed toward the actual definition of disability, but rather on discrimination and reasonable accommodation.  Given the ADA’s new statutory framework and new regulations that stretch the statute even further, employers should be prepared now more than ever before to respond to accommodation requests, make accommodations where necessary, and take precautions to avoid discriminatory decisions involving employees and applicants with medical conditions.

A copy of the final regulations can be found here.  The EEOC also has issued a guidance sheet and a fact sheet to aid employers in understanding the final regulations.

The final regulations address key issues, which are covered in this executive summary.

  • Will certain impairments always be considered “disabilities”?
  • What constitutes a “major life activity?”
  • What does it mean to be “substantially limited” in a major life activity?
  • To what extent are temporary or episodic impairments considered disabilities?
  • How do “mitigating measures” affect the analysis of whether an individual is disabled?
  • What does it mean for an employee to be “regarded as” disabled?

Broad Construction of the Definition of “Disability”

Taking its lead from the ADAAA, the final regulations provide that the definition of “disability” should be “broadly” construed “to the maximum extent permitted by the terms of the ADA.”  (The message from Congress and the EEOC to employers could not be any clearer: Stop focusing on whether an individual is disabled and focus instead on reasonable accommodation.)  Although the final regulations track the definition of “disability,” a term which remained intact, the regulations clarify that there is a shift in focus to whether employers have complied with their obligations and whether discrimination occurred, as opposed to whether an individual meets the definition of a “disability.”

Certain impairments “virtually always” covered

Further illustrating the point, in spite of the ADAAA’s (and the final regulations’) rejection of the notion of a “per se” disability, the final regulations take the extraordinary step of listing certain impairments that “will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity.”  The EEOC suggests that these assessments should be “particularly simple and straightforward” (tellingly, the title of the subsection is “Predictable Assessments”).  These impairments include:

This list includes many conditions that often were not substantially limiting impairments under the pre-ADAAA.  Nevertheless, the list tends to undermine the EEOC’s long-held position that an “individualized assessment” should be conducted to determine whether an impairment is indeed a disability.

Notably, the final regulations removed a section from the proposed regulations that listed certain impairments that “may be disabling for some individuals but not for others,” such as asthma, back/leg impairment, carpal tunnel syndrome, high blood pressure, psychiatric impairment (less severe than major depression) and learning disability.  In light of the expansive sweep of the final regulations, however, plaintiffs with impairments like these, as well as others, likely will not face a difficult task in convincing a court that they are disabled.

Less Demanding Standard for “Substantially Limits”?

To be disabled, one must have an impairment that “substantially limits” a major life activity.  Under the pre-ADAAA, employers often questioned the extent to which an impairment must “substantially limit” before an individual is considered disabled.  Unfortunately for employers, the EEOC declined to quantify the term “substantially limits” in the final ADAAA regulations, explaining that “a new definition would…lead to greater focus and intensity of attention on the threshold issue of coverage than intended by Congress.”  As such, the final regulations offer employers little concrete guidance in identifying the threshold at which an impairment qualifies as “substantially limiting,” aside from the presumption that it must be a lower threshold than previously adopted by the U.S. Supreme Court in its decisions leading up to passage of the ADAAA.

Instead, the regulations provide “nine rules of construction” to be applied in determining whether an impairment “substantially limits” a major life activity.  Most of the rules come directly from the language of the ADAAA, but several have been added by the EEOC:

  1. “The term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.  ‘Substantially limits’ is not meant to be a demanding standard.”
  2. The determination of whether an impairment is “substantially limiting” should be made by comparing the ability of an individual to the general population.  The impairment does not need to “prevent, or significantly or severely restrict” the performance of a major life activity in order to be substantially limiting.
  3. In all ADA cases, the focus should be on whether the employer has complied with its statutory obligations, since the “threshold issue” of substantially limits should not require extensive analysis.
  4. “The determination requires an ‘individualized assessment,’ but the assessment should be done by requiring “a degree of functional limitation that is lower than the standard for ‘substantially limits’ applied prior to the ADAAA.”
  5. Comparing an individual’s performance of a major life activity to the general population should not generally require scientific, medical or statistical analysis.
  6. The determination should be made without regard to the “ameliorative effects of mitigating measures” other than ordinary contact lenses and eyeglasses.
  7. “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”
  8. An impairment need not limit more than one major life activity.
  9. The effects of an impairment lasting or expecting to last fewer than six months can be “substantially limiting.”

The Effect of Condition, Manner and Duration

Commenting further on the “substantially limits” prong, the final regulations explain that, to determine whether an individual is “substantially limited” in a major life activity, it may be useful to consider the condition under or the manner in which an individual performs a major life activity; the duration of time it takes the individual to the activity as compared to most people in the general population; and the difficulty, effort, pain or amount of time required to perform the activity.

For example, under the new regulations, it does not matter whether an individual with a learning disability can read and write like the majority of people in the general population.  The regulations focus instead on how difficult it was for the individual to reach the level of literacy, (i.e., how long it took and the conditions which the individual had to overcome).  As a result, an individual may be substantially limited in a major life activity even if he or she can perform the activity at the same level as the general population, if it took more time, effort or work to become proficient compared to most people in the general population.

The Interpretation of “Major Life Activities” is Expanded Further

To be disabled under the law, one must have a physical or mental impairment that “substantially limits” one or more “major life activities”.  When determining whether an individual is substantially limited in a major life activity, according to the final regulations and EEOC’s interpretive guidance provide, the process should “not demand extensive analysis” and “usually will not require scientific, medical or statistical analysis.”

Notably, the final regulations expand an already “non-exhaustive” list of what may be deemed major life activities to include eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and communicating.  The final regulations also include additional examples of major life activities, such as sitting, reaching and interacting with others.  When determining other examples of major life activities, the final regulations expressly reject the pre-ADAAA interpretation that the activity must be of “central importance to daily life,” a rule which expressly rejects the Supreme Court’s ruling in Toyota Motor Manufacturing v. Williams.  In effect, an activity no longer is required to be of “central importance.”

In a significant departure from the past, the ADAAA and final regulations expand the definition of “major life activities” to include the “operation of major bodily functions,” such as the immune system and normal cell growth, and neurological, bowel, bladder, circulatory and reproductive functions.  The final regulations list several additional functions, such as cardiovascular, lymphatic and musculoskeletal, and specify that the operation of a major bodily function includes the operation of an individual organ within the body (such as the liver or heart).  The appendix to the final regulations provides several examples of impairments that affect major bodily functions, e.g., cancer affects normal cell growth; diabetes affects functions of the pancreas and endocrine system; and rheumatoid arthritis affects musculoskeletal functions.

Work as a “major life activity”

The regulations also breathe new life into the “major life activity” of working.  Under the pre- ADAAA, a plaintiff’s claim that he or she was substantially limited in the major life activity of work almost always was dismissed by the court, largely because the employee was unable to show that the impairment substantially limited the employee’s ability to perform a “broad range” of jobs.  The final regulations maintain this requirement but lower the employee’s burden, claiming that this previous standard was “overly strict.”  Under the new regulations, if an individual’s job requires heavy lifting but the employee cannot lift heavy items and cannot perform the job or other jobs that require heavy lifting, then the employee is substantially limited in performing the class of jobs that require heavy lifting.  Is this shift in the rule all for naught?  As the final regulations point out, an impairment that substantially limits working will in most situations also substantially limit another major life activity.

Other Significant Regulatory Changes

Nearly All “Mitigating Measures” Are No Longer Considered

Under prior Supreme Court and federal appellate court precedent, employers were allowed to consider “mitigating measures” in determining whether an individual’s impairment substantially limits a major life activity under the ADA.  For example, if an individual used a hearing aid or cochlear implant due to a hearing impairment, it typically was not considered a disability because the individual was not substantially limited in the major life activity of hearing.  Because of the mitigating measure (i.e., the hearing aid), they could hear perfectly well.  Under the new regulations, however, employers are no longer allowed to consider such measures.  As a result, employers will be required to analyze each individual’s impairment in its unmitigated state.  Thus, the individual with a hearing aid would likely be substantially limited in hearing because we are obligated now to consider them without the use of a hearing aid.

The final regulations do provide one important exception: employers are permitted to consider the ameliorative effects of using ordinary eyeglasses or contact lenses.  The term “ordinary eyeglasses or contact lenses” is defined as lenses that are intended to fully correct visual acuity or to eliminate refractive error.  For example, an individual with severe myopia whose visual acuity is fully corrected is not substantially limited in seeing because the ameliorative effect of the lenses must be considered.  Similarly, eyeglasses or contact lenses that are the wrong or outdated prescription may nevertheless be “ordinary” if there is evidence that a proper prescription would fully correct visual acuity or eliminate refractive error.

What is also important to note is that both the ameliorative and non-ameliorative effects of mitigating measures, as well as the individual’s use or non-use of such measures (e.g., taking or refusing to take medication, even though prescribed by a physician) can be considered when determining whether the employee is a “qualified” individual with a disability or whether the employee poses a direct threat to safety; however, it will not affect whether the individual meets the definition of being disabled.

Temporary and Episodic Impairments May Constitute disabilities

Under the final regulations, short-term impairments and chronic impairments with short-term symptoms may be considered disabilities.  In the past, many courts declined to extend ADA coverage to individuals whose impairments were substantially limiting for only a short or limited period of time.  The new regulations reject this reasoning and prescribe that the duration of an impairment or symptom should not be dispositive in determining whether an individual is disabled.

Temporary and Short-Term Impairments

Clearly, one of the most significant changes to the final regulations is the EEOC’s decision to reject the long-held view that temporary impairments are not substantially limiting.  The EEOC previously took the position that the duration or expected duration of an impairment should be considered in determining whether the impairment is disabling.  That no longer appears to be the case.  The final regulations ambiguously state that “an impairment lasting or expected to last fewer than six months can be substantially limiting.” (Emphasis added).  When this language was first proposed, many commenters expressed that the new language would create confusion as to how long an employer’s impairment must last or be expected to last in order to impose ADA obligations on the employer.  (Further complicating matters, the regulations state that an employee who is regarded as having a “transitory and minor” impairment that is expected to heal shortly is not considered disabled.  Thus, it is conceivable that individual with a temporary impairment, such as a broken hand, may be disabled because the impairment substantially limits a major life activity, but may not be “regarded as” disabled for purposes of the Act.)

In response to these concerns, the EEOC opined that specifying a durational minimum for a disability would impose a more stringent standard than what Congress required.  In fact, the final regulations go even further than the proposed regulations on this point.  In the proposed rules, the EEOC identified a category of temporary non-chronic impairments that usually would not be considered a disability—for example, the common cold, seasonal influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone expected to heal completely, appendicitis and seasonal allergies.  The EEOC deleted this category in the final regulations, explaining that the provision caused confusion and was too limiting.

The EEOC’s position on the issue of temporary impairments is debatable.  It is not clear that Congress intended to extend ADA coverage to short-lived impairments.  Moreover, it is still likely that certain impairments of short duration which are expected to heal quickly, such as a common cold or a sprained ankle, will not be considered disabilities.  However, the regulations make clear that employers must consider all impairments, even short term ones, on a case-by-case basis.

Episodic Impairments

Under the ADAAA and the final regulations, an episodic impairment or impairment in remission is a disability if the impairment would substantially limit a major life activity when active.  This means that an individual with a serious chronic condition such as epilepsy or cancer could be considered disabled under the Act even if that person rarely or never experiences symptoms that would impact their employment.  The regulations provide specific examples of impairments that may be episodic in nature, including epilepsy, cancer, multiple sclerosis, hypertension, diabetes, asthma, major depressive disorder, bipolar disorder and schizophrenia.

The Act’s express inclusion of episodic impairments presents some practical challenges for employers.  Many episodic impairments are unpredictable in their effects on the individual.  For example, an employee diagnosed with asthma may not experience an attack for several months.  However, the fact that an asthma attack could limit a major life activity may require the employer to provide a reasonable accommodation.  The same is true for progressive impairments, such as Parkinson’s or Alzheimer’s Disease.  Many Parkinson’s and Alzheimer’s patients do not experience any symptoms in the early stages of the disease.  Nevertheless, the fact that an individual could at some point in the future experience symptoms that would substantially limit a major life activity likely would render the person disabled even before the condition worsens and (practically speaking) substantially limits a major life activity.

“Regarded As” Individuals Need Only Prove Perception of an “Impairment”

Under the original ADA as interpreted by the courts, an individual was “regarded as” disabled only when the employer perceived the individual to have an impairment that “substantially limited” him or her in a major life activity.  Under the final regulations, the same individual seeking to bring a “regarded as” claim need not prove that the employer believed the individual to have an impairment that substantially limits a major life activity, but merely that the employer perceived the employee as having an “impairment,” and based an employment decision on that perception.

Under the ADAAA, an individual subjected to a prohibited action (e.g., failure to hire, denial of promotion, termination or harassment) because of an actual or perceived impairment will meet the “regarded as” definition of disability whether or not the impairment “substantially limits” a major life activity unless the impairment is both transitory and minor.  The ADAAA further clarifies that a person who is “regarded as” disabled is not entitled to a reasonable accommodation unless the person also fits within one of the other two prongs of the definition of “disability.”

Notably, the final regulations specify that the “regarded as” prong should be the primary means of establishing coverage in ADA cases that do not involve reasonable accommodation, and that consideration of coverage under the first and second prongs will generally not be necessary except in situations where an individual needs a reasonable accommodation.

The final regulations further clarify that establishing that an individual is “regarded as having such an impairment” does not, by itself, establish liability.  Thus, even where an individual proves that an employer made a decision on the basis of an actual or perceived impairment, the employee must still show that he was “qualified” for the position in question in order to establish an ADA violation (i.e., he can perform the essential job functions of the position with or without a reasonable accommodation).   The employer may also utilize any otherwise available statutory defenses.  For example, an employer may still defend a decision to refuse to hire an applicant on the grounds that the individual would pose a “direct threat” to health and safety due to the nature of his impairment.

The proposed regulations originally identified several concrete examples of “transitory and minor” impairments that would not be sufficient to meet the “regarded as” prong of the statute, such as a broken bone that is expected to heal normally or a sprained wrist that was expected to heal in three weeks.  Unfortunately, these concrete examples were omitted from in the final regulations, leaving employers without clear guidance as to what constitutes a “transitory and minor” impairment.  Instead the appendix to the final regulations stress only that the inquiry as to whether an impairment is “transitory and minor” is an objective standard and provides these examples:

For example, an employer who terminates an employee whom it believes has bipolar disorder cannot take advantage of this exception by asserting that it believed the employee’s impairment was transitory and minor, since bipolar disorder is not objectively transitory and minor.  At the same time, an employer that terminated an employee with an objectively ‘‘transitory and minor’’ hand wound, mistakenly believing it to be symptomatic of HIV infection, will nevertheless have ‘‘regarded’’ the employee as an individual with a disability, since the covered entity took a prohibited employment action based on a perceived impairment (HIV infection) that is not ‘‘transitory and minor.’’

Notably, the final regulations give no example of an impairment that EEOC would find to be “transitory and minor” under this standard.

What about an employee’s symptoms?

In a nod to employers, the final regulations do not include a provision contained in the proposed regulations providing that actions taken because of an impairment’s symptoms (or because of the use of mitigating measures) constitute actions taken because of an impairment under the “regarded as” prong.  Employer commentary pointed out that this proposed standard could create liability for an employer when, for example, disciplining an employee for violating a workplace rule, even where the violation resulted from a symptom of an underlying impairment of which the employer was unaware.  This would have resulted in a clear departure from the EEOC’s existing policy guidance and court decisions, which recognize, among other things, that an employer may discipline an employee for job related misconduct resulting from a disability if the rule or expectation at issue is job related and consistent with business necessity.  EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice No.  915.002 Mar. 25, 1997 http://www.eeoc.gov/policy/docs/psych.html.  The preamble to the Final Regulations states that this prior Guidance remains in effect, at least for now.

How Do Employers Respond to the New Regulations?

One might ask whether any employee is considered disabled under these new regulations.  Clearly, the ADAAA and its final regulations change how employers respond to and manage employees with medical conditions and who request accommodations in the workplace.  At a minimum, we suggest employers take the following approach to the “new” ADA.

  • The range of impairments that may substantially limit a major life activity has widened considerably.  Although not every impairment will constitute a disability, the analysis of whether an impairment “substantially limits” a major life activity will not be the focus of a court’s inquiry.  In light of this change in emphasis, employers should not focus on whether an employee is actually “disabled;” rather, they should focus on insuring that they are in compliance with the statute.  Therefore, as an initial matter, employers should review and revise workplace reasonable accommodation policies to ensure employees are aware of the policies and to make clear the lines of communication as to accommodations in the workplace.  Similarly, employers should maintain processes for identifying, evaluating, documenting and providing reasonable accommodations as required.
  • Employers should be proactive about engaging in an interactive process with employees who have an impairment.  In doing so, they should identify which among their personnel will be responsible for addressing issues of accommodation, and actually engage in an interactive process when an individual makes a request for assistance in the workplace.  An employer’s best tactic in defending an ADA lawsuit is to demonstrate that it made good faith efforts to accommodate an employee, rather than questioning or challenging the employee’s medical condition.  Thus, the interactive process above must become the norm.
  • Review all job descriptions to ensure they specifically and accurately describe the essential functions of the job.  Notably, under the new definition of a “regarded as” disability, any decision that relies in whole or in part on any perceived or actual physical impairment will be subject to scrutiny under the ADAAA.  It is now more important than ever to insure that any physical or mental job requirements are truly necessary.Employers should insure that all anti-harassment policies explicitly prohibit harassment based on disability, or perceived or actual physical or mental impairments.  Potential liability for disability-related harassment claims has increased because offensive statements that relate in any way to a mental or physical impairment may give rise to liability, regardless of whether the alleged victim actually suffered from an impairment or was otherwise disabled.  For example, an employee who calls a co-worker “psycho” or “retarded” could potentially create an actionable hostile work environment under the ADA even if the co-worker has no mental health history and has an above-average IQ.
  • Properly and contemporaneously document employment decisions involving an employee who is an individual with a disability or has a record of a disability.
  • Analyze pre- and post-employment testing and screening (including language contained in employment applications) to ensure they are job-related and consistent with business necessity.
  • Train supervisors and managers as to the broad coverage of the ADAAA and their responsibilities under the new Act.  At a minimum, the focus of training should include: 1) how they identify requests for workplace modifications; and 2) who they partner with in Human Resources as to the “interactive process” regarding modifications.

EEOC Sues Owner Of 42 McDonald’s Restaurants For Sexual Harassment And Retaliation

Multiple Women, Including Teens, Were Abused at Reedsburg Restaurant; Some Were Fired for Complaining, Federal Agency Charges

MILWAUKEE — The McDonald’s restaurant in Reedsburg, Wis. , owned and operated by Missoula Mac, Inc., violated federal civil rights laws by permitting male employees to create a hostile work environment of sexual harassment against female employees, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed this morning in federal district court in Madison, Wis.

The EEOC filed suit on behalf of a class of women it said were subjected to sexual comments, sexual propositions, or physical touching by co-workers. The suit also alleges that some of the women were fired in retaliation for complaining about the sexually hostile work environment and that the harassment was so intolerable that at least one woman was forced to quit her job to avoid it.

John Rowe, director of EEOC’s Chicago District, which includes Wisconsin, noted that the agency’s administrative investigation, which preceded the lawsuit, revealed that male employees at the Reedsburg McDonald’s made sexual comments about the bodies of female co-workers, propositioned them, and touched them inappropriately. Further, Rowe said, several of the victims were teenaged high school students.

“One of the distressing things is how young some of the victims appear to have been,” said Rowe. “Another is that some of the employees who complained about what was going on were allegedly either fired or ignored. It’s cause for considerable concern, especially at a business which employs so many young and vulnerable women.”

The EEOC’s lawsuit stems from discrimination charges filed by three former employees of the McDonald’s restaurant located at 1500 Main Street in Reedsburg. In total, Missoula Mac owns and operates 42 McDonald’s restaurants in Wisconsin.

The EEOC sued after first trying to reach a voluntary settlement out of court through its conciliation process. The agency seeks lost wages and compensatory and punitive damages for the women who were harassed, retaliated against, or both, and injunctive relief to end the discriminatory practices. The suit, captioned EEOC v. Missoula Mac, Inc., d/b/a McDonald’s Restaurant (Civil Action No. 3:11-cv-00267), was filed in U.S. District Court for the Western District of Wisconsin in Madison. The case will be litigated primarily by attorneys in the EEOC’s Milwaukee Area Office.

John Hendrickson, EEOC regional attorney for the Chicago District said, “McDonald’s is one of the most well-known brands in America and the world, and its image is one of complete reliability, good taste and wholesomeness. What we found was allegedly going on at the McDonald’s in Reedsburg was something completely different and illegal. This litigation is going to put the Reedsburg McDonald’s under a well-deserved microscope, and, if the allegations are borne out, assure that appropriate relief is provided to the victims and that the harassment is brought to a halt.”

The EEOC’s Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Iowa, Minnesota, North Dakota, South Dakota, and Wisconsin with Area Offices in Milwaukee and Minneapolis.

Walmart to Pay $440,000 to Settle EEOC Suit for Harassment of Latinos

Mexican-American Subjected Other Hispanic Employees to Ethnic Slurs at Fresno Sam’s Club, Federal Agency Charged

FRESNO, Calif. – Sam’s Club, the wholesale chain store owned and operated by Walmart, will pay $440,000 and furnish other relief to settle a national origin harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC contends that at least nine employees of Mexican descent at the Sam’s Club in Fresno, along with one who was married to a Mexican, endured ethnic slurs and derogatory remarks by a fellow co-worker who is Mexican-American. Since late 2005, the victims were barraged with near-daily insults about Mexicans such as “f—-n’ wetbacks,” and references to Mexicans only being good for cleaning the harasser’s home, according to the EEOC. The harasser even threatened to report three of the victims to immigration authorities despite their legal status. The victims and harasser – all female – worked in the demonstration department, serving food samples to customers.

The victims complained about the hostile work environment to management as early as April 2006 to no avail. Instead, the complaints only intensified the harassment and led to intimidation, said the EEOC. Another employee also began deriding a victim for her inability to speak English. It was not until after an official EEOC charge of discrimination was filed in October 2006 that Sam’s Club finally discharged the harasser in December 2006.

In May 2009, the EEOC filed its lawsuit in U.S. District Court, Eastern District of California (EEOC v. Walmart Stores, Inc. dba Sam’s Club, et al., Case No. 09-CV-00804), claiming that the harassment, and Walmart’s failure to appropriately address it, were in direct violation of Title VII of the Civil Rights Act of 1964. Aside from the monetary relief, the parties entered into a three-year consent decree which requires Walmart to comply with the following at its Sam’s Club locations in Fresno and/or Bakersfield, Calif.:

  • review and make available its policies against and complaint procedures for national origin discrimination, harassment and retaliation;
  • provide training to non-management employees in the Fresno location regarding anti-discrimination laws, including national origin discrimination and harassment;
  • provide separate training to management employees in the Fresno and Bakersfield locations which will including training on how to receive, investigate, or report to designated officials complaints of national origin discrimination, harassment and retaliation;
  • set up a record-keeping procedure for the Fresno location that provides for the centralized tracking system for such complaints;
  • report the handling of such complaints and compliance with the decree to the EEOC; and
  • provide neutral references for the victims upon inquiry.

“We commend Walmart for taking the issues of national origin harassment seriously and implementing preventative measures,” said Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office, which includes Fresno in its jurisdiction. “A work environment that is free of harassment ensures a more productive and vibrant workplace for all.”

Melissa Barrios, director of the EEOC’s Fresno Local Office, added, “National origin discrimination remains a serious problem in this region, and it is important to remember that harassment can manifest even within the same ethnic group. Employers failing to take immediate action send a message that such behavior is tolerated, giving license for others to do the same.”

According to company information, Walmart Stores, Inc. is an Arkansas-based international retailer, operating more than 8,300 stores worldwide, including Sam’s Club warehouses.

Workers with Intellectual Disabilities Abused by Texas-Based Company for Years, EEOC Charges

Men Subjected to Verbal and Physical Harassment, Housed in Substandard Facilities, and Denied Lawful Wages at Iowa Plant, Federal Agency Alleges

DALLAS – Hill Country Farms, doing business as Henry’s Turkey Service (“Henry’s Turkey”) subjected a group of 31 men with intellectual disabilities to severe abuse and discrimination for more than 20 years, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed today in Davenport, Iowa. The company is based in Goldthwaite, Texas, but the work and abuse occurred in West Liberty and Atalissa, Iowa.

According to the lawsuit, No. 3:11-cv-0004  CRW-TJS  , filed in U.S. District Court for the Southern District of Iowa, Henry’s Turkey exploited these workers, whose jobs involved eviscerating turkeys, because their intellectual disabilities made them particularly vulnerable and unaware of the extent to which their legal rights were being denied. The affected men lived in Muscatine County, Iowa, where they worked for 20 years as part of a contract between Henry’s Turkey and West Liberty Foods, an Iowa turkey processing plant.

“This case is a stark reminder of how important it is for the EEOC to ensure that the Americans with Disabilities Act is fully enforced,” said EEOC Chair Jacqueline A. Berrien.  “Workers with intellectual disabilities should never be subjected to the demeaning and discriminatory treatment alleged in this case.”

Specifically, the complaint alleges that that the owners and staffers of Henry’s Turkey denied the workers lawful wages, paying them only $65 a month for full-time work; subjected them to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.

Verbal abuses included frequently referring to the workers as “retarded”, “dumb ass” and “stupid”.  Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.  The Henry’s Turkey supervisors, also the workers’ purported caretakers, were often dismissive of complaints of injuries or pain.

Such alleged conduct violates the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Amendments Act (ADAAA), which prohibit discrimination on the basis of disability, including intellectual disabilities, in terms and conditions of employment and wages; and bars disability-based harassment.  The EEOC filed suit after first attempting to resolve the matter through conciliation.

“This case illustrates the importance of continued vigorous enforcement of the law in this area.  The victims in this case were subject to a hostile work environment and discriminatory treatment because of their disability,” said P. David Lopez, EEOC General Counsel.  “The EEOC stands ready to litigate such cases, wherever in our nation such employment discrimination might take place, to make victims whole and to bring workplaces into compliance with the ADA.”

The EEOC will seek to recover lost wages for two years prior to the time that the Henry’s Turkey operations were brought to a halt in 2009.  The EEOC seeks amounts consistent with minimum wages and based on pay levels commensurate with the work performed by non-disabled workers occupying the same job positions.  The agency will also seek the award  of compensatory and punitive damages resulting from adverse employment actions and abusive treatment.  During its investigation, the EEOC worked closely with Disability Rights Iowa, an organization that works to advance and protect the rights of people with disabilities and its Executive Director, Sylvia Piper.

“The isolation and exploitation these men suffered for many years, while the fruits of their labor were cruelly consumed by their employer, cannot be explained away by good intentions, nor can the violations of the ADA be excused as antiquated social policy,” said Robert A. Canino, Regional Attorney of the EEOC’s Dallas District Office, which investigated the case and is bringing the lawsuit.  “Our society has come a long way in learning how persons with intellectual disabilities should be fully integrated into the mainstream workplace, without having to compromise their human dignity. The ADA provided us with a law enforcement tool to ensure fair treatment for persons with physical and mental disabilities. We are asking the court to apply this law to the fullest extent possible.”

The lawsuit follows an EEOC Commission meeting held March 15, 2011, that explored the issue of discrimination on the basis of mental disabilities.  On March 24, the EEOC issued its final regulations interpreting the ADAAA, which simplified the determination of who has a “disability” and made it easier for people to establish that they are protected by ADA.

In addition to the EEOC’s ADA claim of disability-based wage discrimination, the U.S. Department of Labor is pursuing a separate minimum wage and overtime suit against Henry’s Turkey under the Fair Labor Standards Act, which is set for trial later this year.  Additionally, a Final Agency Decision issued on March 8, 2011, by the Iowa Department of Workforce Development, Division  of Labor, found  Henry’s Turkey and its principals responsible for substantial fines for violations of Iowa’s wage and hour laws.

Minnesota Department of Human Services Must Pay More Than $467,000 For Age Bias

MINNEAPOLIS – A federal judge has entered a consent decree requiring the Minnesota Department of Human Services (DHS) to pay $467,165 to resolve an age discrimination case filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The consent decree entered by District Court Judge David S. Doty requires DHS to pay $467,165 to 29 claimants who were denied employer contributions for retiree health and dental insurance because they were older than age 55 at the time that they retired. DHS also must to offer to pay future premium costs for persons who would still be entitled to receive them but for the unlawful early retirement provision.

In its lawsuit against DHS, the EEOC contended that the incentive plans contained in collective bargaining agreements for certain DHS employees violated the Age Discrimination in Employment Act (ADEA) because the incentive plan denied the employer contributions for premiums to persons over a certain age. (EEOC v. Minnesota Department of Human Services, No. 11-cv-00678 DSD/JJG in U.S. District Court for the District of Minnesota). In an earlier lawsuit involving the same incentive plans, U.S. District Court Judge Paul A. Magnuson held that the early retirement incentives are “facially discriminatory, and, as such, violate the ADEA.”

“The EEOC litigated and won on the issue of the illegality of this incentive plan,” said the EEOC’s regional attorney in Chicago, John Hendrickson. “We will continue to be on the lookout for similar plans, which essentially end up punishing people who want to work after a certain age.”

The EEOC’s Chicago District Office is responsible for processing discrimination charges, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with Area Offices in Milwaukee and Minneapolis.

EEOC Sues HD Dimension Corp. To Enforce Conciliation Agreement

Tech Company Failed to Comply With Terms Settling Race and Age Bias Charge, Federal Agency Says

NEWARK, N.J. – A Newark, N.J., information technology training and service company violated a settlement agreement stemming from an age and race discrimination charge when it failed to complete payments that were a condition of the agreement, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit announced today.

According to the EEOC, HD Dimension Corp. entered into a conciliation agreement to resolve a discrimination charge and agreed to pay $32,500 to an applicant who, the EEOC found, had been discriminated against because of her age and race. The agreement also required various injunctive provisions including training for HD Dimension employees and management and training for third-party companies who did recruitment for HD Dimension. From October 2009 through February 2010, the company made monthly payments toward satisfying the conciliation agreement, but stopped after paying only $17,500 of the agreed-upon $32,500. HD Dimension never complied with any of the injunctive relief.

The EEOC filed suit in U.S. District Court for the District of New Jersey to enforce the agreement after HD Dimension failed to make any payments for 12 months. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

The conduct alleged in the original discrimination charge violates Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex (including sexual harassment or pregnancy) or national origin and protects employees who complain about such offenses from retaliation. The alleged conduct also violates the Age Discrimination in Employment Act (ADEA), which prohibits discrimination in the workplace based on age.

“When the EEOC enters into conciliation agreements with companies, the process does not end there,” said Charles F. Coleman, Jr., a trial attorney in the EEOC’s New York office. “We continue to monitor these agreements to ensure that they are carried out and, in this case, it was not, so we had to take forthright action.”

Judy Keenan, the EEOC’s acting regional attorney in the New York office, said, “The EEOC will absolutely enforce the conciliation agreements it reaches, even if that means filing a lawsuit. The objective of this suit is to obtain full relief under the conciliation agreement and place others on notice that the EEOC will not tolerate this behavior.”

International Profit Associates to Pay $8 Million for Sexual Harassment of Eighty-Two Women

First Checks Being Mailed Under Decree Ending One of Longest-Running Sexual Harassment Cases in EEOC History

CHICAGO – The U.S. Equal Employment Opportunity Commission (EEOC) has announced that checks are now being distributed pursuant to an $8 million consent decree entered by federal district judge Joan Gottschall in what is believed to be one of the longest-running sexual harassment cases in EEOC history. Defendant International Profit Associates (IPA), the employer responsible for the sexual harassment of its female employees, is a telemarketer of small business consulting packages, located in Buffalo Grove, Illinois.

The decree provides for payment and distribution of the full $8 million in installments over three years. IPA made initial payments totaling $2.5 million into a professionally administered settlement fund on March 7, 2011, and checks are now being mailed to 82 women who were the victims of the harassment. The decree also provides for wide-ranging injunctive relief against IPA. The company’s compliance with the decree will be overseen by two court-appointed monitors.

“”All employees are entitled to a workplace that is free of sexual harassment,” said EEOC General Counsel P. David Lopez. “Unfortunately, there is a continuing need for law enforcement in this area, and this consent decree makes an important contribution to our mission to eradicate sexual harassment with its strong injunctive relief provisions and the relief provided to the individual women.”

The case (EEOC v. International Profit Associates, N.D. Ill. No. 01-CV-4427), was filed in federal court in Chicago on June 12, 2001 under Title VII of the Civil Rights Act of 1964. The amount of the payments being made today varies with the severity of the harassment suffered by each of the victims, with the highest payments being $70,000 and the average payment being in the range of $30,000. When the final installment payments are made and distributed, the average of all payments per victim will be approximately $100,000 per person.

According to the EEOC, IPA had a pattern or practice of sexually harassing its female employees, and the court made a formal finding to that effect, upon IPA’s concession, on June 14, 2010, prior to trial. The EEOC had alleged that the harassment involved a systemic pattern of sexual assaults and propositions, inappropriate touching, and crude sexual comments. EEOC had also contended that the highest ranking officers of IPA not only fostered a pattern and practice of sexual harassment but personally engaged in the harassment themselves.

There were extended delays in the more than nine year course of the litigation, as IPA filed numerous motions which the EEOC described as frivolous. These included a series of unsuccessful motions for sanctions by which IPA asked the court to punish EEOC in connection with the agency’s pursuit of the case. Trial of the case began on July 6, 2010. On the first day, in the middle of jury selection, IPA advised the EEOC and the court that it was willing to meet EEOC’s demands.

The balance remaining due on the $8 million decree is being personally guaranteed by the principal founder, owner, and chief executive of IPA He has, in addition, secured his personal guaranty by signing mortgages on certain of his personal real estate interests.

John Hendrickson, EEOC regional attorney in Chicago, said, “We are convinced that the $8 million consent decree in this case—yielding more dollars per person that either our Mitsubishi or Dial sexual harassment cases—is an excellent result, but we cannot find anything positive to say about the fact that an employer strung out a piece of civil rights litigation in the federal courts for almost 10 years.”

“But whatever the employer’s strategy,” Hendrickson continued, “the EEOC never waivered. We were determined to pursue a just result which provided appropriate relief for the victims of IPA’s discrimination and served the public interest no matter how long it took. We were not going to go away. IPA’s obstruction and delay never really figured in our expectations in the case, and that will continue to be true, just as it is in all of our cases.”

Diane Smason, the EEOC supervisory trial attorney responsible for the case, said “The claims in this case were based on allegations of absolutely egregious sexual harassment. We wanted the relief provided for in the consent decree to be appropriate in that context. We also wanted the relief to reflect the fact that the court itself made a specific finding that IPA had engaged in a pattern or practice of discrimination. The decree and the fact that that sizeable checks are going out to the victims of IPA’s discrimination are signal achievements. It’s going to be a better day for all the women covered by the decree.”

The consent decree includes injunctions against sexual harassment and retaliation, and measures designed to promote the eradication of harassment and accountability on the part of managers. It requires that IPA pay for two monitors who will review its policies and practices with respect to sexual harassment, assess its compliance with the training, prevention, and other measures being imposed, accept complaints of sexual harassment from employees, and report to the EEOC and the court. IPA must also report regularly to the EEOC on its handling of sexual harassment complaints. In the event IPA fails to measure up to the legal standards memorialized in the decree EEOC is authorized to return to court to seek additional court enforcement.

In addition to Hendrickson and Smason, the case was litigated by Chicago trial attorneys Jeanne Szromba and Ann Henry, with trial attorney Aaron de Camp joining the team prior to the scheduled trial.