Arapahoe Motors Inc., doing business as Ralph Schomp Automotive (Ralph Schomp), has agreed to pay $1.5 million and furnish other relief to settle a sex and age discrimination lawsuit filed by the United States Equal Employment Opportunity Commission (EEOC), the federal agency announced. Ralph Schomp, based in Littleton, is one of the highest volume BMW, Honda, and Mini dealers in Colorado.
According to the EEOC’s lawsuit (EEOC v. Arapahoe Motors, Inc., d/b/a Ralph Schomp Automotive, 09-cv-02961 REB-MJW), five women were subjected to sex discrimination and a sexually hostile work environment while employed by the car dealership. The unlawful conduct allegedly included offensive verbal comments and physical touching, demotion, refusal to transfer, salary reduction and failure to promote.
The EEOC also alleged that five older male employees were terminated because of their ages and replaced with younger, less experienced workers. Additionally, a manager in his twenties allegedly made age-related comments prior to the terminations and younger employees with lower sales numbers were retained.
“Sexual harassment and sex discrimination against women in traditionally male-dominated industries, such as the auto industry, are still unfortunate realities,” said EEOC Acting Chairman Stuart Ishimaru. “Likewise, older workers continue to experience age discrimination, despite their experience, productivity and qualifications. Employers should remember that the EEOC is here to find and fight this kind of unlawful mistreatment.”
In addition to the monetary settlement to be distributed among the 10 former employees, Ralph Schomp has agreed to enter into a two-year consent decree requiring it to post its anti-discrimination policy, provide training about anti-discrimination laws to its employees and managers, and make periodic reports to the EEOC. (workersxzcompxzkit)
EEOC Regional Attorney Mary Jo O’Neill of the Phoenix District, which includes Colorado, added, “We commend Ralph Schomp for addressing this case head-on, for being willing to work with our Denver Field Office to resolve it, and for its commitment to better educate its work force. We believe this consent decree will help foster a discrimination-free workplace going forward.”
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims Click Here http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
A lawsuit involving Windsor, Ont., hospital and the family of a nurse slain at work by her ex-boyfriend has been settled, according to The Canadian Press. The details of the financial settlement of the $13.5-million suit are being kept confidential, according to the lawyer for the slain woman's family.
The nurse was stabbed to death while on duty at Windsor's Hotel-Dieu Grace Hospital by her ex-boyfriend, an anesthesiologist, who also worked at the hospital. He committed suicide by injecting himself with a fatal dose of anesthetic.
A coroner's inquest into the nurse's death recommended the Labour Ministry consider abuse and harassment as factors warranting investigation when the safety of an employee is at issue. The coroner's jury also called for a review of the Public Hospitals Act to examine the hospital-physician relationship to ensure safety and quality care in hospitals.
Details of the crime were heard at the coroner's inquest claiming the pair had a romantic relationship, ending in 2005. Around that time, the "boyfriend" made a first suicide attempt. Although the hospital claimed the man was monitored after his return to work from the suicide attempt, several of the nurse's colleagues said they felt threatened by his strange behavior. Her mother further testified her daughter was constantly harassed after the couple's breakup. (workersxzcompxzkit)
This death and another occurring in 1996, also involving workplace harassment, prompted the Ontario government to pass legislation in 2009 it said would better protect workers. The bill forces employers to prepare policies on workplace violence and harassment, and requires them to take "reasonable precautions" to protect employees from domestic violence occurring in the workplace.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Podcast/Webcast: How To Prevent Fraudulent Workers' Compensation Claims http://www.workerscompkit.com/gallagher/podcast/Fraudulent_Workers_Compensation_Claims/index.php
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers' comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
The U.S. Equal Employment Opportunity Commission (EEOC) announced that Judge E. Richard Webber of the U.S. District Court for the Eastern District of Missouri has granted final approval for distribution of a $4,500,000 monetary award to 90 claimants identified during the litigation as part of an EEOC litigation settlement with Allstate Insurance Company under the Age Discrimination in Employment Act (ADEA).
In its lawsuit against the Illinois-based insurance giant, filed in October 2004, the EEOC alleged that a class of older workers at Allstate was adversely impacted based on age during a company-wide reorganization. Specifically, the EEOC charged that in the year 2000 Allstate adopted a hiring moratorium for a period of one year, or while severance benefits were being received, that applied to all its employee-sales agents who were part of its Preparing For The Future Reorganization Program. The program was part of Allstate’s reorganization from employee agents to what the company considered independent contractors.
The EEOC alleged Allstate’s policy, implemented from 2000 to 2002, had a disproportionate impact on employees over the age of 40 because more than 90% of the agents subjected to the hiring moratorium were 40 years of age or older. Allstate denied its hiring moratorium violated the ADEA. In 2005, the U.S. Supreme Court held in Smith v. City of Jackson that a facially neutral policy (such as Allstate’s hiring moratorium) which disproportionately affects those age 40 and over will violate the ADEA unless the policy is based on a reasonable factor other than age. This case was one of the first to apply the holding in City of Jackson, although no decision was made whether or not Allstate’s policy violated the ADEA.
”We at the EEOC are now bringing more and more lawsuits like this one to challenge company-wide policies or practices which discriminate against a large number of workers,” said EEOC Acting Chairman Stuart Ishimaru. “Make no mistake: As this settlement shows, we will insist on significant compensation and meaningful injunctive relief to resolve these cases.”
As provided in the Stipulated Order resolving the EEOC litigation (Civil Action No. 4:04CV01359 ERW), Allstate will pay former older employees who sought employment — or would have sought employment with the company in the absence of its policy — a total of $4.5 million to be divided among the class via a settlement fund. The order also provides for discrimination prevention training, posting of notices, reporting and monitoring, and other relief designed to educate Allstate managers in order to prevent future ADEA violations. (workersxzcompxzkit)
EEOC Regional Attorney Barbara Seely of the agency’s St. Louis District Office, handling the litigation, said, “Regardless of age, these sales agents would have made good employees in other positions for Allstate had it not been for the company’s no-rehire policy, which we believe had an adverse impact on older workers. City of Jackson makes clear that even though an employer may not intentionally discriminate because of an employee’s age, it can still violate the ADEA if it has a policy that has a disproportionate impact on employees age 40 and over.”
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-553-6604.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workers’ comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
The Americans with Disabilities Act (ADA) requires covered employers to provide reasonable accommodations to disabled employees. Despite this requirement, many employers maintain leave policies that are inflexible as to either the length of leave or the ability to request a different work assignment or other accommodation upon return from leave. Over the last few months, the U.S. Equal Employment Opportunity Commission (EEOC) has made headlines for its increased scrutiny of inflexible leave policies. One case in particular illustrates the perils for employers that fail to heed the requirements of the ADA in fashioning leave policies.
Equal Employment Opportunity Commission v. Sears, Roebuck & Co.
On September 29, 2009, the Eastern District of Illinois approved a $6.2 million consent decree, the largest ADA lawsuit settlement in the history of the EEOC. The EEOC initiated the class action due to Sears’ policy of terminating employees out on workers’ compensation leave upon the expiration of the organization’s one-year maximum leave period. According to the EEOC, Sears not only refused to consider reasonable accommodations in the form of extended leave, but also refused to allow employees to return to work in a different capacity. The EEOC claimed to discover over a hundred former employees who wanted to return to work with an accommodation but who were terminated by Sears.
In addition to the record-setting monetary relief, the decree enjoins Sears from any future disability discrimination, as well as retaliation for opposing any unlawful disability discrimination. The consent decree extends for a three year period following the entry of the order, and the district court retains jurisdiction over the parties in the event that either party claims that the decree is violated. The decree provides for significant oversight over Sears’ compliance with both the order and the ADA more generally, including the following:
Notice. The decree provides that Sears must post a one-page notice of the decree on the employee bulletin board in every Sears location. The notice must be posted within 21 calendar days of the entry of the judgment and Sears is required to provide certification of compliance to the EEOC. The notice must remain posted for 3 years from the date of entry of the decree.
Recordkeeping. Sears must now maintain records of all attempts to accommodate employees on workers’ compensation leave within 45 days from the expiration of the maximum leave allowed under Sears’ leave of absence policy. Sears is required to make these records available to the EEOC within 10 days after demand.
Reporting. Sears is also required to submit semiannual reports to the EEOC, beginning 6 months after the entry of the consent decree and extending through 3 years after the decree is entered. The report must document: every individual on workers’ compensation leave within 45 days from the expiration of the maximum leave allowed; healthcare information relating to those employees’ most recent status; a list of all open positions at the Sears location from the time each employee’s leave began through the end of the leave period; and the last known contact information for each employee. Sears must be available upon the EEOC’s request to meet with the EEOC to discuss the report.
Training. All employees of the Centralized Leave Management Team-a team also created by the decree-must be trained by EEOC-approved individuals. The training must include the duty to accommodate under the ADA, the intersection of the ADA and workers’ compensation laws, and Sears’ specific procedures for providing accommodations to employees on leave of absence due to a workers’ compensation injury. The first training must take place within 90 days of the entry of the decree, and the duty to train continues through the following 3 years. Sears must notify the EEOC within 5 days after each training session to certify that the training occurred and that the required personnel attended. Sears must also provide the EEOC with the date, location, and duration of the training, and a copy of an attendance list.
Policies. The decree requires Sears to revise its policies within 28 days of the date of entry of the consent decree. The policies must provide for notification of employees within 45 days of the expiration of the leave period. The notice must inform the employee of the right to request a reasonable accommodation and specifically list reasonable accommodations, such as modified duty, part-time work, reassignment, additional leave, assistive devices, and relocation to other Sears locations. In addition, Sears must establish a centralized leave management team responsible for ensuring ADA compliance of the workers’ compensation leave policy. The termination of employees out on workers’ compensation leave must be approved by the team.
Notice to employees out on leave. Finally, Sears must revise the documents it provides to employees out on workers’ compensation leave within 28 calendar days of entry of the decree. Sears must send such employees a letter 45 days prior to expiration of their leave informing the employees of their ability to request a reasonable accommodation and specifically listing the reasonable accommodations discussed above. In addition, Sears must revise its health care provider certification to be sent at the same time to request the provider to list major life activities in which the employee is limited and identify any recommended accommodations, including reassignment. Finally, for employees who fail to respond, Sears must send a second letter 10 days before the expiration of leave . The letter must restate employees’ right to request reasonable accommodations and warn that failure to respond may result in termination.
Lessons for Employers
The sheer magnitude of the monetary, injunctive, and other relief provided in the Sears consent decree illustrates the risks faced by employers who maintain inflexible leave policies. But aside from terminating an injured worker whose leave has expired without considering possible reasonable accommodations, what options are available to employers? The parameters of the consent decree offers a few principles to ensure that employers’ leave policies and practices are in line with the ADA:
1. Covered employers should never have a black and white policy on the maximum length leave available to employees. Employers must at least be willing to consider a longer period if necessary to reasonably accommodate the employee’s disability, and employees on leave should be notified of this right.
2. Disabled employees must be considered for open positions that they are qualified for on the same basis as other employees. Any program that restricts certain light-duty jobs to a certain class of individuals, for instance, is likely to run afoul of the ADA. (workersxzcompxzkit)
3. Finally, covered employers should consider providing notice to employees on leave about their ability to apply for reasonable accommodations throughout the leave process. By offering examples of reasonable accommodations, employers increase the likelihood that courts will view the notice process as sufficient.
Given the current economic and political climate, the EEOC’s aggressive enforcement of the ADA is not likely to diminish any time soon. Employers who do not ensure the compliance of their leave policies may face similarly burdensome monetary awards and EEOC oversight of their leave policies and decisions.
Authors: Carl Lehmann and Bryan Seiler http://www.gpmlaw.com
Carl Lehmann is a member of Gray Plant Mooty’s Employment Law practice group and is co-chair of the firm’s Higher Education practice team. Carl’s practice includes advising employers in personnel-related matters, including terminations, discrimination and harassment issues, defamation claims, employment and independent contractor agreements, noncompete and confidentiality agreements, wage-hour compliance, voluntary and mandatory affirmative action policies, and insurance issues. Carl’s practice also includes assisting higher education institutions with various legal compliance issues including student disciplinary proceedings, accreditation, tenure and promotion, faculty manuals, Title IV and Title IX compliance, student privacy, and campus security matters. He can be contacted at Carl.Lehmann@GPMLaw.com http://www.gpmlaw.com
Bryan Seiler is an associate at Gray Plant Mooty and practices in the areas of employment and labor law and litigation. He served as a summer associate with the firm in 2008. While in law school, Bryan was actively involved in myriad organizations at the University of Minnesota including the Christian Legal Society, Minnesota Justice Foundation, and the Public Interest Law Students Association. He also gained experience as a summer law clerk for a plaintiff’s employment law firm in 2007 and for the Southern Minnesota Regional Legal Services’ Housing Equality Law Project in 2006. Prior to going to law school, Bryan worked in the District Office of then-U.S. Senator Barack Obama as a constituent services intern. Bryan is originally from Dallas, Texas and is an avid Dallas-area sports fan. He can be contacted at bryan.seiler@gpmlaw.com http://www.gpmlaw.com
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Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker about workers’ comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
EEOC Reports Settlement in Discrimination Lawsuit Against Correctional Facility
The U.S. Equal Employment Opportunity Commission (EEOC) reports the settlement of a pattern or practice discrimination lawsuit against two employers both doing business as a correctional facility in Colorado.
The suit was for $1.3 million and significant remedial relief on behalf of 21 female former workers who were allegedly subjected to a sex-based hostile work environment and retaliation at the all-male, privately run medium security prison.
In its lawsuit (EEOC v. Dominion Correctional Services, LLC and Corrections Corporation Of America, Civ. No. 1:06-cv-01956-KVH), filed in U.S. District Court for the District of Colorado, the EEOC charged that female employees at the prison were subjected to unwelcome sexual harassment that included male managers forcing them to perform sex acts in order to keep their jobs. Two chiefs of security, who reported directly to the warden and to whom all security personnel at the prison reported, were allowed to resign after numerous complaints of sexual harassment and rape, according to the EEOC. In the settlement, the defendants did not admit liability.
“We at the EEOC see an unfortunately high number of sexual harassment cases, but what allegedly happened here was shocking,” said EEOC Acting Chairman Stuart Ishimaru. “No working woman should ever have to endure harassment and requests for sexual favors by managers in order to earn a paycheck – or suffer retaliation for complaining about the illegal harassment.”
Among the allegations in the court record are the following: A female officer made a complaint of sexual harassment against a male co-worker, and was then placed in an isolated location, where she was sexually assaulted by the man about whom she had complained. The Chief of Security forced a female corrections officer to have intercourse with him, which she did in order to keep her job. After that Chief of Security resigned, his replacement was the subject of numerous written complaints of sexual harassment, including complaints that he regularly commented on female employee’s bodies, and touched female officers inappropriately.
Other male managers allegedly expected their female subordinates to provide sexual favors, the EEOC says in the suit. The alleged actions reportedly led at least one employee to resign.
In addition to these allegations, the female employees testified that the male employees openly viewed pornography in the workplace on a regular basis, made demeaning sexual comments about the female employees, and regularly told sexual jokes. (workersxzcompxzkit)
The lawsuit further alleges that female employees who complained about the sexually hostile workplace were retaliated against. The retaliation included ostracizing the women after their complaints were publicized, scrutinizing their work, accusing them of misconduct, and assigning them to the worst and most dangerous work assignments at the prison.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
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©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
Town Hall Meetings To Discuss Hiring Disabled Workers
In an effort to advance opportunities for workers with disabilities, the U.S. Equal Employment Opportunity Commission (EEOC) will hold town hall meetings throughout the nation and offer workshops on new federal regulations and hiring procedures. There are 54 million people living with disabilities.
“The EEOC is pleased to join the administration in pressing to enfranchise individuals with disabilities to participate to the fullest extent possible in the American workplace,” said Acting EEOC Chairman Stuart Ishimaru. Acting EEOC Vice Chair Christine Griffin added, “For too long, Americans with disabilities have been pushed to the rear of the hiring line. The EEOC’s town hall meetings and workshops, in concert with other measures, should position workers with disabilities for a fair chance at a federal job.”
The EEOC and DOJ’s Civil Rights Division will hold four town hall meetings throughout the nation to share information and gather comments about proposed regulations in the recently enacted Americans with Disabilities Amendments Act.
Each town hall meeting will consist of two sessions, one for disability advocates and one for the employer community, offering opportunities for both the business and disability communities to comment in person. The meetings will take place by November 20, 2009 in Philadelphia, Chicago, San Francisco and New Orleans. (workersxzcompxzkit)
In addition, as part of a federal government-wide job fair for people with disabilities during early spring 2010, the EEOC and other agencies will provide workshops throughout the day on a variety of topics involving reasonable accommodations for Federal workers and applicants. At the job fair, people with disabilities should be able to register, submit materials and perhaps get hired on the spot.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workman’s comp issues.
©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
How Would You Decide:
Here’s what Tom Robinson, J.D., writer for Lexis Nexis Workers Comp Law Center reports.
Vermont High Court: Supervisors May Be Personally Liable for Discriminatory Actions Directed Against Worker Who Exercises Rights Under Workers’ Compensation Act
Here’s What Happened
Payne sued her former employer, US Airways, her supervisor, and several co-workers for, among other things, sexual harassment and discrimination under the Vermont Fair Employment Practices Act (VFEPA) and discrimination for filing a workers’ compensation claim under the state’s Workers’ Compensation Act (WCA). Among her allegations, Payne contended that following a work-related injury, her supervisor failed to investigate the claim, required her to take sick leave for work days missed, interfered with her medical treatment, inappropriately criticized her, took supervisory duties away from her, and eventually participated in the decision to fire her. After US Airways filed for bankruptcy, she settled with her former employer in order that she could proceed with her claims against the individual defendants. She subsequently dropped her former co-workers as defendants, leaving her former supervisor as the sole remaining defendant. The trial court granted the supervisor’s motion for summary judgment, holding that neither the VFEPA nor the WCA provided a right of action against a co-employee or supervisor in his or her individual capacity. Payne appealed.
Here’s How the Court Ruled In Payne v. US Airways, Inc., 2009 VT 90, 2009 Vt. LEXIS 114 (Sept. 25, 2009), the Supreme Court of Vermont reversed agreed, holding that under both the VFEPA and the WCA, Payne enjoyed a personal cause of action against her supervisor. Noting that the VFEPA defined “employer” so as to include “any agent,” the court indicated supervisors could be personally liable under that act’s provisions. Under the WCA, the court observed that “[n]o person shall discharge or discriminate against an employee … because such employee asserted a claim for benefits” [21 V.S.A. § 710(b)]. The court added that in as much as the WCA did not define “person,” the court was obliged to interpret the term consistently with the rules set out in Title 1, Ch. 3 (V.S.A. § 101), which defined “person” as including “any natural person.” The legislature’s decision to use the term “person,” rather than “employer” marked a clear departure from its approach to employer-only liability in the rest of the WCA. The court said that “[r]ather than ignore this distinction and assume the Legislature meant what it did not say, we will interpret the statute according to its plain meaning.” Furthermore, said the court, the legislative choice to expose co-employees to discrimination liability was consistent with preventing workplace cultures that discourage employees from obtaining compensation to which they were entitled. Finally, the court acknowledged that the supervisor cited case law from Texas, Illinois, and Kansas in support of construing Vermont’s WCA to exclude employees from personal liability for violating the antidiscrimination policies, but the court found the cases to be “inapposite or unpersuasive.” (workersxzcompxzkit)
See generally Larson’s Workers’ Compensation Law, § 104.07.
Tom Robinson, J.D. is the primary upkeep writer for Larson’s Workers’ Compensation Law (LexisNexis) and Larson’s Workers’ Compensation, Desk Edition (LexisNexis). He is a contributing writer for California Compensation Cases (LexisNexis) and Benefits Review Board – Longshore Reporter(LexisNexis), and is a contributing author to New York Workers’ Compensation Handbook(LexisNexis). Robinson is an authority in the area of workers’ compensation and we are happy to have him as a Guest Contributor to Workers’ Comp Kit Blog. Tom can be reached at: compwriter@gmail.com.
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A NEW Article: Return to Work in Unionized Companies
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workman’s comp issues.
$6.2 Million in Disability Lawsuit Settled or the EEOC Gets Their "Man" As noted many times in this blog, it more than just the monetary penalties (usually large) but the hidden costs of losing a discrimination lawsuit. See the italicized areas pointing to what the employer did not do and what actions they are now FORCED to take, plus pay the money. A record-setting consent decree resolving a class lawsuit against a major retailer under the Americans With Disabilities Act (ADA) for $6.2 million and significant remedial relief is announced by the U.S. Equal Employment Opportunity Commission (EEOC). The consent decree represents the largest ADA settlement in a single lawsuit in EEOC history. The EEOC's suit alleged the retailer maintained an inflexible workers' compensation leave exhaustion policy and terminated employees instead of providing them with reasonable accommodations for their disabilities, as ADA violation. "The facts of this case showed that, nearly twenty years after the enactment of the ADA, the rights of individuals with disabilities are still in jeopardy," said Commission Acting Chairman Stuart Ishimaru. "At the same time, this record settlement sends the strongest possible message that the EEOC will use its enforcement authority boldly to protect those rights and advance equal employment opportunities for individuals with disabilities." EEOC Chicago District Director John Rowe, who supervised the agency's administrative investigation preceding the lawsuit, said the case arose from a charge of discrimination filed with the EEOC by a former service technician of the employer. According to Rowe, the individual was injured on the job, took workers' comp leave, and, although remaining disabled by the injuries, repeatedly attempted to return to work. The retailer, Rowe said, "Could never see its way clear to provide the individual with a reasonable accommodation which would have put him back to work and, instead, fired him when his leave expired." It was revealed in pre-trial discovery that hundreds of other employees on workers' comp leave were also reportedly terminated by the retailer without seriously considering reasonable accommodations to return them to work while they were on leave, or seriously considering whether a brief extension of their leave would make their return possible. The era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over investigators said. Just as it is a truism that never having to come to work is manifestly not a reasonable accommodation, it is also true that inflexible leave policies which ignore reasonable accommodations making it possible to get employees back on the job cannot survive under federal law. Today's consent decree is a bright line marker of that reality. In addition to providing monetary relief, the three-year consent decree includes an injunction against violation of the ADA and retaliation. It requires the retailer will amend its workers' comp leave policy, provide written reports to the EEOC detailing its workers' compensation practices' compliance with the ADA, train its employees regarding the ADA, and post a notice of the decree at all Retailer locations. (workersxzcompxzkit) According to Greg Gochanour, EEOC supervisory trial attorney in Chicago, "This is not merely a garden variety so-called 'cost of litigation' settlement. We discovered well over a hundred former employees who wanted to return to work with an accommodation, but were terminated by the retailer – and some of them found it out when their discount cards were rejected while shopping the employer's store. We believe the retailer's decision to accept this decree makes good sense."
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
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Not only must employers not discrimate against protected class employees, be it gender, sexual, national origin, race, creed, hostile work environment, etc., employers are also forbidden to retaliate if a worker files a workers' comp claim. That means, the employee may not be demoted, punished in any way or fired . So, exactly WHAT should an employer do — OBEY THE LAW. ,A major farm growers' cooperative with processing plants in three states violated federal law by subjecting a class of female employees to pervasive harassment based on gender, and national origin and subjecting the women to a sexually hostile work environment by male coworkers. In retaliation for complaining about it the employer fired one employee, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit. The perpetrators allegedly engaged in unrelenting sexual harassment, including: making sexual advances to female employees; asking them to expose their breasts; asking them on dates; and making vulgar sexual comments. The male coworkers also engaged in threatening behavior, such as using the forklift to chase women or blocking them with their bodies or a broom while they walked down the hall. The EEOC also charges the women were subjected to unlawful harassment because of their Mexican national origin. Employees allegedly yelled and cursed at the class members, threw things at them and pushed them. The EEOC said even when the class members repeatedly complained about the sexual and national origin harassment to supervisors and managers, the employer failed to take prompt and effective action to stop the harassment. Instead, the agency said, the harassment intensified or continued. In addition, the employer retaliated against employees opposing the harassment by disciplining three of them for conduct that other employees routinely engaged in and were not disciplined for, and terminating one Mexican female employee. "This is another tragic example of an employer failing to stop cruel, humiliating, and illegal victimization of vulnerable employees," said EEOC Acting Chairman Stuart Ishimaru. "Worse yet, here the employer even punished the victims for speaking out against their mistreatment. The EEOC is focused on protecting the rights of farm workers and migrant workers to be free from employment discrimination and retaliation. That is why we're filing this lawsuit." The EEOC filed suit (Civil Action No. 09-cv-1811) in U.S. District Court for the Middle District of Pennsylvania after first attempting to reach a voluntary settlement. The EEOC seeks injunctive relief to end the discriminatory practices, plus back pay and compensatory and punitive damages to compensate the victims for their monetary losses and emotional pain and suffering. (workersxzcompxzkit) "Unfortunately, farm worker women are often especially vulnerable to unlawful sexual harassment," said District Director Marie Tomasso of the EEOC's Philadelphia District Office, which oversees Pennsylvania, Delaware, West Virginia, Maryland, and parts of New Jersey and Ohio. "The EEOC is committed to addressing the pervasive problem of sexual harassment of farm worker women and other low-income workers."
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers' Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
We are accepting short articles* (300-800 words) on WC cost containment. Contact us at: Info@ReduceYourWorkersComp.com. *Non-compensable.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker or agent about workman’s comp issues. ©2009 Amaxx Risk Solutions, Inc. All rights reserved under International Copyright Law. If you would like permission to reprint this material, contact Info@ReduceYourWorkersComp.com
It’s ALL About the $$$$$$$$$$$!
Would common sense make you think if an employer ended up paying $62,000 for discrimination against its employees, it would never discriminate again? Well, not so. . .
Arizona Employer Repeats Discriminatory Acts
Even though a Phoenix credit card processing company lost a prior national origin discrimination case brought by EEOC in 2008 for $62,000 the same employer will now pay $415,000 and furnish significant remedial relief to settle a race harassment lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) announced, saying such alleged conduct violates Title VII of the Civil Rights Act of 1964.
The EEOC lawsuit, filed after pre-litigation efforts failed, charges two company supervisors with creating and perpetuating a racially hostile work environment against black employees. The racially hostile workplace allegedly included severe verbal abuse consisting of numerous racial slurs and epithets. The EEOC’s suit was filed on behalf of three African American discrimination victims and a class of nine similarly aggrieved employees.
”For those who may assume racism in the workplace no longer exists, this case and many others like it nationwide tell a far different story,” said EEOC Acting Chairman Stuart Ishimaru. “Unfortunately, race discrimination and harassment are anything but past history in too many contemporary workplaces – more than four decades after passage of Title VII of the landmark Civil Rights Act.” (workersxzcompxzkit)
In addition to the monetary relief, the consent decree provides for extensive remedial relief, including a written apology to the victims on company letterhead; anti-discrimination training; written anti-discrimination policies; discipline of discriminatory conduct and the posting of notices.
VERMONT: Worker Demoted Following Workplace Injury
A Vermont Transportation Agency employee who claimed he was discriminated against and demoted after injuring himself on the job was awarded nearly $500,000 following a jury trial according to WCAX.
The employee suffered a serious workplace injury while collecting garbage, so severely damaging his knee he required an artificial knee replacement. Subsequent to his injury he filed a workers’ compensation claim.
Reportedly, he was demoted to maintenance worker, suffered further aggravation to the knee and filed another work comp claim. (workersxzcompxzkit)
The injured man, an employee for thirty plus years, said he was retaliated against for filing WC claims and the jury agree, ruling Vermont must compensate him $493,000. The worker is currently employed by the state of Vermont as a garage foreman.
Author Robert Elliott, executive vice president, Amaxx Risks Solutions, Inc. has worked successfully for 20 years with many industries to reduce Workers’ Compensation costs, including airlines, health care, manufacturing, printing/publishing, pharmaceuticals, retail, hospitality and manufacturing. He can be contacted at: Robert_Elliott@ReduceYourWorkersComp.com or 860-786-8286.
We are accepting short articles* (300-800 words) on WC cost containment. Contact us at: Info@ReduceYourWorkersComp.com. *Non-compensable.
Do not use this information without independent verification. All state laws vary. You should consult with your insurance broker and agent about workers’ comp issues.
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