The EEOC’s press release about 2011 results can be found here and their 2011 Performance and Accountability Report can be found here.  Fox News has a story here. 

The agency notes that “In FY 2011, the EEOC secured more than $364.6 million in monetary benefits through its private sector administrative enforcement activities, the highest level of monetary relief ever obtained by the Commission through the administrative process. This is $45 million more than was recovered in FY 2010. Overall, the agency secured both monetary and non-monetary benefits for more than 19,570 people through administrative enforcement activities – mediation, settlements, conciliations and withdrawals with benefits.”

The agency has also continued its focus on eliminating “systemic discrimination” through aggressive enforcement in that area.  The report highlights the following significant resolutions of cases of alleged “systemic discrimination”:

EEOC v. Verizon Maryland, Inc., et al. – In this nationwide ADA suit, the EEOC alleged that Verizon unlawfully denied reasonable accommodations to hundreds of employees with disabilities, and disciplined or fired them pursuant to inflexible attendance policies that did not provide accommodation for disability-related absences. A three-year consent decree provided a $20 million fund to compensate approximately 800 victims, and represents the largest disability discrimination settlement in a single lawsuit in EEOC history. The decree also requires the company to revise its attendance plans and ADA policy to include reasonable accommodations for persons with disabilities.

EEOC v. Roadway Express, Inc. – In this series of cases filed in Illinois against a trucking firm, the EEOC alleged that the firm gave black employees at several Chicago-area facilities inferior work assignments and subjected them to harsher discipline and harassment based on their race, including multiple incidents of hangman’s nooses and racist graffiti and cartoons. A consent decree provides $10 million to 259 victims and requires the development of new anti-harassment policies and specific recordkeeping and complaint reporting procedures. The decree also requires the firm to retain consultants to examine the company’s discipline and work assignment procedures and recommend changes to prevent racial disparities.

EEOC v. International Profit Association– In a widespread sexual harassment case, the EEOC alleged that a telemarketing firm in Illinois systemically subjected female employees to sexual assaults and propositions, inappropriate touching, and crude sexual comments. The court agreed with the EEOC that the firm’s conduct constituted a pattern or practice of discrimination, meaning that the harassment was so pervasive that it was the firm’s standard operating procedure. A consent decree provides $8 million to 82 victims.

EEOC v. Scrub Inc.– In a major hiring discrimination case, the EEOC alleged that a janitorial services company at Chicago’s O’Hare Airport refused to hire black applicants based on their race. A consent decree provides $3 million to 539 victims, mandates the hiring of certain claimants who still want jobs, and requires the firm to use its best efforts to reach certain hiring goals.

EEOC v. 3M Company– In this nationwide age discrimination lawsuit, the EEOC charged that 3M unlawfully laid off hundreds of employees over the age of 45 during a series of reductions in force. The EEOC also asserted that older employees were denied leadership training and laid off to make way for younger leaders. A three-year consent decree provides $3 million to approximately 290 former employees. In addition, 3M will implement a review process for termination decisions and training on how to prevent age bias. The company will also post openings for positions it had not advertised previously, to enable older employees to apply.

EEOC v. AKAL Security– In a nationwide pregnancy discrimination case filed in Kansas, the EEOC alleged that a security services firm engaged in a pattern or practice of forcing its pregnant employees, working as contract security guards on U.S. Army bases, to take leave and then discharging them because of pregnancy. A consent decree provides $1.6 million to 26 female security guards.

EEOC v. Denny’s Inc.– In this nationwide ADA suit filed in Maryland, the Commission challenged the restaurant’s maintenance of a maximum medical leave policy that automatically denied additional medical leave beyond a pre-determined limit. A consent decree provides $1.3 million to 34 victims and provides substantial programmatic relief, including changes to the medical leave policy, a corporate-level oversight and auditing process for leave decisions, and reporting to the EEOC.

Cheryl Perich was employed by Hosanna-Tabor Evangelical Lutheran Church and School in 1999 as a lay teacher. Later, she completed her colloquy and was designated by the church as a commissioned minister. Perich taught taught math, language arts, social studies, science, gym, art, and music.  She also taught religion four days a week, led the students at the school in prayer and devotions, and led the school-wide chapel services.

Perich was diagnosed with narcolepsy in 2004.  After being on disability leave for several months, Perich reported that she still was not able to return to work. The congregation then voted to release Perich from her calling as a minister, utilizing a “peaceful release” – the congregation would pay a portion of her health insurance premiums in exchange for her resignation. Perich refused to resign and threatened legal action. The school board later terminated her on the grounds of insubordination and disruptive behavior as well has based on her damaged working relationship with the school.

The EEOC brought suit against Hosanna-Tabor on behalf of Perich, alleging that Perich’s employment was terminated in retaliation for her threatening to file a suit under the Americans with Disabilities Act.  Hosanna-Tabor moved for summary judgment, invoking the “ministerial exception” – arguing that the suit was barred by the First Amendment because the claims involved the relationship between a religious institution and one of its ministers. The church claimed that Perich had violated its religious principle to resolve disputes internally by. The district court agreed with Hosanna-Tabor that Perich’s termination was covered by the ministerial exception. On appeal, the Sixth Circuit found that Perich did not qualify as a minister under the exception because she had the same duties as a lay teacher.

The Supreme Court first reviewed the history of the First Amendment and the roots of the ministerial exception. The Court concluded that there is a ministerial exception and that requiring a church or religious institution to retain an unwanted minister causes government intrusion into the internal governance of the church.  This deprives the church of control over selecting who will represent its beliefs, interfering with the Free Exercise Clause of the Constitution.

Second, the Court considered the scope of the ministerial exception. The Court found that Perich did fall under the exception and cited numerous reasons. Hosanna-Tabor held Perich out as a minister, including issuing her a “diploma of vocation” with the title of “Minister of Religion Commissioned.”  The congregation also reviewed Perich’s “skills of ministry” as part of her employee review. She also received religious training as a minister and had to complete coursework and testing in her religious education. The Court also found that Perich held herself out as a minister – she claimed a special housing allowance on her taxes available to those in ministry. Perich’s job duties also reflected a religious role, including teaching religion, taking part in the chapel service at the church, leading students in devotional instruction.

The Court therefore concluded that religious groups have an interest in choosing their ministers – “When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us.  The church must be free to choose those who will guide it on its way.”

For the full opinion, click here.

The Agreement will streamline the processing and investigation of employment discrimination charges and provide a framework to solve workplace disputes through Alternative Dispute Resolution instead of through an EEOC investigation or through civil litigation.  Under the Agreement, the EEOC will refer discrimination charges against Cracker Barrel directly to mediation. 

 To read the EEOC’s press release on its Agreement with Cracker Barrel, click here. 

St. Catherine’s is a tax-exempt, religious organization that operates a nursing-care facility in Emmitsburg, Maryland.  The plaintiff was employed from 1994 to 2007 as a geriatric nursing assistant.  The plaintiff alleged that she is a member of the Church of the Brethren which requires “modest garb” including long dresses and the covering of her hair.  During the course of her employment, the Assistant Director of Nursing Services informed the plaintiff that that her attire was inappropriate for the Catholic facility and that it made the residents and their family members feel uncomfortable.  The plaintiff rejected this notion and informed her superior that her dress was a function of her religious beliefs, and she would not change it.  Subsequently, the plaintiff’s employment was terminated.

The plaintiff filed a lawsuit under Title VII for religious harassment and retaliatory and discriminatory discharge.  St. Catherine’s immediately filed a motion for summary judgment, contending that a “religious organization” is exempt from Title VII’s religious discrimination provisions.  The district court agreed with the plaintiff, and denied the motion.  St. Catherine’s petitioned the Court of Appeals for an interlocutory appeal, which was allowed.  On appeal, the Fourth Circuit reversed and remanded, siding with St. Catherine.

The Fourth Circuit analyzed the plain language of Title VII.  Although Title VII requires religious organizations to bar discrimination based on race, gender, or national origin, the language clearly provides an exemption “with respect to the employment of individuals of a particular religion or to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.”  42 U.S.C. § 2000e-1(a).

The district court concluded that the reading of “employment” in the law refers exclusively to hiring and firing decisions, but the Fourth Circuit found this to be an overly narrow reading of the law.  The use of the word “employment” elsewhere in Title VII bolstered the conclusion that Congress used the term “employment” to encompass more than just hiring and firing – that is why Congress chose to include “failure or refusal to hire or to discharge any individual” within Title VII instead of simply utilizing the word “employment.”

In conclusion, the Fourth Circuit determined that the plaintiff’s harassment and retaliation claims both arose under her state of being employed by a religious organization.  They were therefore precluded by the religious organization exemption in the statute.  Finally, the court determined that the outcome of the case conformed with the purpose and intention of Congress to “enable religious organizations to create and maintain communities composed solely of individuals faithful to their doctrinal practices.”

A complete copy of the opinion can be found here.

According to Judy Greenwald at BusinessInsurance.com, the unemployment discrimination provision begins with Section 371, which is the Fair Employment Opportunity Act of 2011.  The Act’s purpose is to prohibit employers from disqualifying individuals from positions based on their unemployed status.  Although employers may still consider an individual’s employment history and the reasons for their unemployment, businesses would be prohibited from publishing or advertising for a job that disqualifies unemployed individuals.  The Act states that employers could be fined up to $1,000 for each day’s violation in addition to attorneys’ fees and costs. 

The Equal Employment Opportunity Commission recently held a public hearing to examine employers’ treatment of the unemployed.  The Commission is concerned that many employers use current unemployed status as a hiring criteria, and this may disproportionately affect certain racial and ethnic minorities, along with individuals with disabilities. 

To view the White House Fact Sheet on the American Jobs Act click here.

To access the EEOC press release concerning its hearing on the treatment of unemployed job applicants click here. 

The Canadian National Post reports:

The Federal Court of Canada on Wednesday ordered Air Canada to pay $12,000 to Ottawa French-language rights crusader Michel Thibodeau in part because when he asked an English-speaking flight attendant for 7Up in May 12 of 2009, he got Sprite.

“The applicants’ language rights are clearly very important to them and the violation of their rights caused them a moral prejudice, pain and suffering and loss of enjoyment of their vacation,” Justice Marie-Josee Bedard wrote in her judgment.

“It is also my opinion that awarding damages in this case will serve the purpose of emphasizing the importance of the rights at issue and will have a deterrent effect.”

Air Canada was also ordered to apologize to Mr. Thibodeau and his wife Lynda.

They lost me when they awarded damages for “loss of enjoyment of their vacation.”

Title II of GINA prohibits employers from acquiring genetic information about their employees and their families.  This can typically occur when the employer is engaging in the interactive process with respect to a reasonable accommodation or when evaluating an employee’s request for FMLA leave.  The final rule provides the following language to include in any request for health-related information from an employee to prevent disclosure of genetic information:

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.  ‘Genetic information’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services. 

29 CFR § 1635.8(b)(1)(i)(B). 

An employer who includes this language in writing (or verbally if the employer does not normally make these requests in writing) accompanying a request for health-related information will not be in violation of GINA if the request results in acquisition of genetic information.  Such an acquisition will be deemed “inadvertent” under one of the exceptions to GINA’s prohibition against the acquisition of genetic information.  Even if the employer fails to provide the warning, a request that results in acquisition of genetic information may still be considered “inadvertent” if the employer can establish that its request was “not likely to result in a covered entity obtaining genetic information.” 

Plaintiff, a Trinidadian man, was hired and later promoted to Associate Controller of the Contracts and Grants Department at FIU.   In this position, plaintiff was responsible for overseeing compliance with federal accounting regulations for federal grants awarded to FIU faculty.  In 2003, FIU was fined $11.5 million for violations of federal accounting regulations that were discovered in an audit of research grants awarded to FIU faculty members.  As a consequence of the federal audit and resulting fine, FIU reorganized its research grant structure, eliminated plaintiff’s department and position, and created a new department.  Upon learning that his position was being eliminated, plaintiff complained of race discrimination to his supervisor and FIU’s Assistant Vice President of Human Resources.   Plaintiff applied for a position with the newly-formed department and, after an interview, the search committee did not recommend plaintiff for the new position.  Plaintiff’s supervisor and FIU’s Assistant Vice President of Human Resources did not participate in plaintiff’s interview and had no involvement in any decision regarding hiring plaintiff for the new position.  Plaintiff located other employment outside of FIU and resigned before his termination date.  The new position remained vacant for 19 months. Plaintiff filed suit against FIU, alleging racial discrimination for eliminating his position and retaliation for complaining about racial discrimination by not being recommended for the new position.  At trial, a jury returned a verdict in plaintiff’s favor, awarding him $72,241 in lost wages and $2.5 million in compensatory damages. 

The Florida Court of Appeal held that plaintiff was unable to establish a prima facie case of race discrimination under the Florida Civil Rights Act of 1992 (FCRA) pursuant to the framework set forth in McDonnell Douglas Corp v. Green.  The Court of Appeal held that plaintiff failed to present evidence that similarly situated employees outside of his protected class were treated more favorably.  Plaintiff argued that another employee, while her official title was different, her job responsibilities were equivalent to the new position and she was treated more favorably than plaintiff.  The Court of Appeal rejected this argument and stated that evidence of FIU hiring an employee outside of plaintiff’s protected class for the same position approximately 19 months after plaintiff applied for the position does not, without more, create an inference of discriminatory intent.  Similarly, the Court of Appeal held that plaintiff failed to establish a prima facie case of retaliation under the FCRA as he was unable to demonstrate any evidence that the search committee knew of his complaint of discrimination, and therefore, had cause to retaliate.       

To read the entire Court of Appeal decision, click here. 

The Court specifically held that “[i]f a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA.”  Although the case arose under USERRA and not one of the other civil rights laws such as Title VII, some commentators hope that the courts will apply the “cats paw” theory in those cases as well.  Other blogs with commentary can be found here, here, here and here.

UPDATE:  Additional post-hearing commentary here and here.

Marlow was hired by the School Board in 1987 as the Director of Community Relations.  For approximately 20 years, she reported directly to the Superintendent and served successfully in this position.  In 2004, the School Board hired Tim Bullis as Marlow’s Assistant Director of Community Relations. 

Two years later, the Superintendent implemented a strategic plan to develop the School System’s “21st Century skills,” which primarily focused on integrating modern technologies.  The Superintendent then decided in 2007 that Marlow would report to his subordinate, and therefore, she would no longer attend the Superintendent’s “Direct Report Meetings.”  In 2008, the Superintendent transferred Marlow to the position of Director of Business and Government Relations (“DBGR”).  Marlow opposed the transfer.  Bullis replaced Marlow and was promoted to the Director of Community Relations.

In 2009, the Superintendent informed Marlow that due to budget constraints, the entire Business and Government Relations Department would be eliminated, including her position as DBGR.  During the meeting, Marlow contested the decision and stated that she had seniority over her former younger subordinate, Bullis.  In response, the Superintendent stated that he wanted “21st Century communications skill, and [Bullis] is better at that.”  Marlow then retired instead of accepting a demotion to lower-paying position. 

After Marlow’s retirement, the Superintendent presented a “21st Century Learning” PowerPoint presentation to his staff that appeared to correlate age to status as a “digital native,” or as a “digital immigrant,” one who was born before a particular technology was invented.

At summary judgment, the School Board argued that finances were the sole reasons for the decision to eliminate Marlow’s DBGR position.  The School Board also presented evidence to demonstrate that comments about “21st Century skills” were reference to a well-established skill set, which was a legitimate, non-discriminatory reason for the decision to transfer Marlow to the DBGR position.

The court held that the “21st Century skills” comments may have been gratuitous, but it also could be interpreted by a jury as circumstantial evidence of age bias, especially as the Superintendent’s PowerPoint presentation suggested that “21st Century skills” correlates with age.  Accordingly, the court denied summary judgment to the School Board based on this evidence of “potential age bias.”

For a copy of the court’s full opinion on the School District’s motion for summary judgment, click here.

In EEOC v. Mount Vernon Holdings, LLC, the EEOC filed suit on behalf of a group of former employees of a Best Western hotel who had not been re-hired when the hotel changed ownership.  Under the previous owner, the hotel had been in very poor condition and on the verge of losing its Best Western membership.  Pursuant to the terms of the Purchase and Sale agreement, all employees were to be terminated prior to the closing, with the new owner retaining discretion to re-hire any of the former employees.  The new owner hired twenty individuals for the hotel staff, including ten former employees of the hotel.  Of the twenty individuals hired, eleven were of Hispanic national origin, and of the ten re-hired employees, six were Hispanic. 

The EEOC’s discrimination suit alleged that the hotel had a “preference” for hiring Hispanic individuals for housekeeping positions based on the fact that seven of the eight housekeepers were Hispanic.  The court disagreed, stating that the same manager who hired the Hispanic housekeepers had also hired non-Hispanic individuals at the same time.  The court also found that there was no direct or circumstantial evidence of discrimination, and that the EEOC had failed to meet its burden of advancing sufficient evidence from which a reasonable jury could conclude that national origin was a motivating factor for the employment decision. 

With respect to direct evidence of discrimination, the court found that deposition testimony contradicted the EEOC’s assertion that the hiring manager had made comments related to Hispanic employees being “good workers.”  The court also found that the EEOC had failed to establish a prima facie case of discrimination.  As to the third element, the court stated that the former employees were not qualified for the position based on evidence of ongoing performance issues.  Even if a prima facie case could be established, the court found that the defendant had demonstrated legitimate, non-discriminatory reasons for not re-hiring certain employees.  The individuals who were selected for re-hiring were those that had shown the requisite attitude and willingness to perform their jobs in a manner that would allow the hotel to meet the Best Western standard.  The court noted that after about five months of hiring the new staff, the hotel began earning “Excellence in Housekeeping” awards.  The court also found that the EEOC had failed to advance any evidence that the defendant’s reasons were pretext for discrimination.

Cassandra Smith began working for Hooters in 2008, and claims she weighed 145 pounds at the time she was hired.  After two years of successful performance reviews and a promotion to Shift Leader, Smith alleges that during her May 2010 evaluation she was placed on “weight probation,” because her extra small uniform no longer fit properly.   (According to Smith, the three available sizes for Hooters uniforms are small, extra-small, and extra extra-small).  Smith claims that management offered her a free gym membership, and told her she would need to lose weight within 30 days or face termination, even though she now weighs 132.5 pounds.   Rather than face the indignity of a 30-day weight probation, Smith quit her job and brought suit for violation of Michigan’s Elliott-Larsen Civil Rights Act, which prohibits discrimination based upon a variety of factors including weight.  In response, Hooters denied that it has a weight requirement, and said it instead maintains image standards for fitness and appearance, similar to those imposed by the Dallas Cowboy cheerleaders and the Radio City Music Hall Rockettes.

Michigan’s law is the only one in the U.S. that prohibits weight discrimination.  A handful of U.S. cities, including Washington, D.C. and San Francisco, also prohibit discrimination based upon appearance.

WSJ Law Blog has a story here.