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Posts Tagged ‘EEOC’

As #MeToo Movement Takes Off, EEOC Sexual Harassment Claims Jump

Posted on: October 11th, 2018

By: Barry Brownstein

Since October 2017, when the Harvey Weinstein scandal broke and the #MeToo movement took off, the U.S. Equal Employment Opportunity Commission has filed 50 percent more sexual harassment lawsuits than it did the previous year and has seen a spike in the number of sexual harassment claims it has received. The EEOC filed 66 harassment lawsuits in fiscal 2018 of which 41 contained allegations of sexual harassment.  In addition, the EEOC recovered about $70 million for sexual harassment victims in fiscal 2018, compared with approximately $47 million it recovered in fiscal 2017.

According to the agency’s data, besides its own stepped up enforcement efforts, workers have also increasingly turned to the EEOC over the past year to report allegations of sexual harassment.  The number of charges filed by individuals alleging they were victims of workplace sexual harassment increased by 12 percent in fiscal 2018 from the prior year. The EEOC fielded 6,696 sexual harassment charges in fiscal 2017. A 12 percent increase of that figure indicates the agency fielded about 7,500 sexual harassment charges in the most recent fiscal year. That increase is the first time this decade the number of sexual harassment charges received by the EEOC has gone up from one fiscal year to the next.

Acting EEOC Chair Victoria Lipnic has ardently communicated the message that the EEOC has continued to lead the way to achieve the goal of reducing the level of harassment and promoting harassment-free workplaces. Consistent with that theme, the EEOC has also issued a report highlighting the various measures it took over the past 12 months to fight all forms of workplace harassment.  Such efforts include more than 1,000 outreach events, the development of “respectful workplaces” training seminars, and the creation of an internal “harassment prevention action team” to coordinate the agency’s anti-harassment efforts.

With sexual harassment claims soaring, employers should review their current training program, update it so it is consistent with the EEOC’s “respectful workplaces” training, and ensure all employees are provided with such training.

If you have any questions or would like more information, please contact Barry Brownstein at bbrown[email protected].

Is Your Attendance Policy Too Rigid?

Posted on: September 6th, 2018

By: Christopher Curci

Employers need to be mindful of both the Family Medical Leave Act (“FMLA”) and Americans with Disabilities Act (“ADA”) when considering how to enforce their attendance policies.  When an employee requests time off from work to attend to a medical condition, most employers will consider the request as one for medical leave under the FMLA.  However, what happens if the employee has exhausted his or her FMLA leave or is not eligible for FMLA leave.  Many employers will simply conclude that the employee is not eligible for FMLA leave without considering whether the ADA requires the leave as a reasonable accommodation.  This common mistake often results in a violation of the ADA.

For example, in August 2018 the EEOC filed a lawsuit against Stanley Black & Decker for terminating an employee who took leave for medical treatments related to her cancer.  To qualify for FMLA leave, the employee must have been employed with the company for at least one year and worked at least 1,250 hours during the prior year.  In the Stanley Black & Decker lawsuit, the employee requesting leave had been employed for less than one year.  When she asked Human Resources what her options were to receive her medical treatments, she was correctly told that she was not eligible for FMLA leave.  However, Human Resources did not consider whether the requested leave was a reasonable accommodation under the ADA.

What happened?  The employee exceeded her allowed vacation days to undergo her cancer treatments and Stanley Black & Decker terminated her employment for excessive absenteeism in violation of its attendance policy.  Then what happened?  The EEOC filed a lawsuit against Stanley Black & Decker for violating the ADA.

Per the EEOC, Stanley Black & Decker’s attendance policy “does not provide exceptions for people who need leave as an accommodation to their disability.”  EEOC Regional Attorney Debra M. Lawrence said, “Employers can run afoul of the ADA if they have a rigid attendance policy that penalizes employees taking leave as a reasonable accommodation for their disabilities.”

Inflexible leave policies that discriminate against individuals with disabilities is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan.  The take away: when an employee requests leave due to a medical condition, employers must consider both the FMLA’s leave requirements and the ADA’s reasonable accommodation requirements.

Christopher Curci practices Labor & Employment law in Pennsylvania and New Jersey and is a member of  Freeman Mathis & Gary’s Labor and Employment Law National Practice Section.  He represents employers in litigation and advises clients on all aspects of employment law.  He can be reached at [email protected].

 

EEOC Settlement With Florida Hotel Is A Reminder To Be Careful In Implementing A Mass Termination Program

Posted on: August 1st, 2018

By: Jeremy Rogers

Recently, the EEOC announced a settlement in a lawsuit brought against SLS Hotel in South Beach.  The lawsuit, filed in 2017, followed an investigation into charges made by multiple Haitian former employees who had been terminated in April 2014. They worked as dishwashers in three separate restaurants located in the SLS Hotel.  They alleged that they had been wrongfully terminated in violation of Title VII of the Civil Rights Act on the basis of race, color, and/or national origin. All told, there were 23 dishwashers fired on the same day in 2014, all but 2 of which were Haitian.  On the date of termination, each terminated employee was called into a meeting with the HR department and fired.  When fired, they allege, they were told that they must sign a separation and final release in order to receive their final paychecks.  Prior to termination, they claim that they had been subjected to considerable forms of harassment including verbal abuse (they assert they were called “slaves”), being reprimanded for speaking Creole among themselves while Latinos were allowed to speak Spanish, and being assigned more difficult tasks than non-Haitian employees.

What makes this case interesting is that SLS had re-staffed these positions using a third-party staffing company. The new staff supplied by the staffing company were primarily light-skinned Latinos. The new staff also included at least one employee who had been terminated by SLS, but that individual was also Latino.  Articles about this case from when it was filed show that the EEOC took the position that SLS was attempting to hide their discrimination behind the use of the staffing company. SLS, for their part, asserted that they had made the decision to change to the use of a staffing company 2 years before the mass termination. Despite this, the district director emphasized once again, when the EEOC announced the settlement, that the EEOC will not allow companies to hide behind business relationships to engage in discriminatory practices.  This was, according to the EEOC, just such a case.

So how egregious did the EEOC believe this case to be?  They accepted settlement on behalf of 17 workers for the sum of $2.5 million, which works out to just over $147,000.00 per employee if split equally.

If you have any questions or would like more information, please contact Jeremy Rogers at [email protected].

You’ve Got Mail! – EEOC Charge Filing Process Is Now Available Online Across the Country

Posted on: November 17th, 2017

By: William E. Collins, Jr.

For many people, “You’ve Got Mail” evokes fun memories of Tom Hanks and Meg Ryan bickering and then falling in love over the internet in the popular 1998 romantic comedy.  Now, however, this phrase may evoke far less pleasant emotions (at least for employers) as the EEOC announced earlier this month that its online Public Portal is available nationwide for employees to file charges.

The EEOC has been working on the roll-out of the Public Portal for years and, after piloting the Portal in the EEOC’s Charlotte, Chicago, New Orleans, Phoenix, and Seattle offices earlier this year, the EEOC has now launched the Public Portal nationwide.  The EEOC anticipates that the Public Portal will streamline the charge process and open up the intake and charge systems to more employees.

Not only can an employee provide and update personal information through the Public Portal, an employee can proceed with the normal intake process.  While the portal will not let employees immediately submit charges, the portal allows an employee to ask the EEOC representatives questions, provide them with information, and upload supporting documentation. At that point, an employee may digitally sign and file a charge online that is prepared with the help of an EEOC representative.

Because the EEOC plans to provide access to charging parties that have charges currently pending and the Public Portal allows instant communication with these charging parties, there is hope that the Public Portal will provide a more efficient and streamlined resolution for the 84,254 charges filed in the Agency’s 2017 fiscal year.  Because, however, the Public Portal provides an additional mechanism that is a faster, more immediate path toward filing a charge, commentators anticipate that employers could see an increase in the number of charges filed with the Agency.

While the exact impact of the EEOC’s Public Portal remains to be seen, employers should take this opportunity to:

  • Review and develop their internal reporting and complaint policies and procedures;
  • Ensure managers and supervisors have received appropriate training; and
  • Ensure key leadership and human resources representatives know what to do if they receive notice of a charge.

If you have any questions or would like more information, please contact Will Collins at [email protected].

Pa. Supreme Court To Reconsider If Settlement Can Trigger Malpractice Suit

Posted on: November 9th, 2017

By: Barry S. Brownstein

The Pennsylvania Supreme Court has agreed to reexamine the extent to which a settlement agreement can serve as the basis for a legal malpractice case. The case stems from Eileen McGuire’s efforts to sue a hospital after she was fired in July 2011 in what she claims was retaliation for her refusal to engage in multiple illegal or unethical acts. McGuire also claimed she was illegally targeted for termination on the basis of her age. The case concluded with a $7,000 settlement.

McGuire then proceeded to file a malpractice suit accusing her former attorneys for failing to include a claim for age discrimination and for failing to exhaust administrative remedies before the EEOC, claiming that such failures left her in a weakened position that forced her to accept a deficient settlement.

The case was dismissed on preliminary objections based on the Supreme Court’s 1991 decision in Muhammad v. Strassburger, McKenna, Messer, Shilobod & Gutnick, in which the justices declared they would “not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed.” The decision, however, did leave open the door for claims in which a plaintiff can prove that he or she was fraudulently induced to settle.

The Superior Court upheld the dismissal of McGuire’s case, rejecting arguments from McGuire that the negligence of her former attorneys had not been in negotiating the settlement but, rather, in failing to properly pursue her case against the hospital.

The continued viability of the Muhammad case that bars legal malpractice suits following the settlement of a lawsuit absent a showing of fraud on the part of the attorney will be analyzed by the Pennsylvania Supreme Court.

If you have any questions or would like more information, please contact Barry S. Brownstein at [email protected].