Tag Archives: eeoc

Court rejects employer’s argument that wellness programs are insulated from ADA

A federal court has ruled in favor of the U.S. Equal Employment Opportunity Commission in a disability discrimination case over Orion Energy Systems wellness program.

The Wisconsin-based court rejected the employer’s argument that the insurance safe harbor provision in the U.S. Americans with Disabilities Act immunizes wellness plans from ADA scrutiny.

In the Orion lawsuit, EEOC v. Orion Energy Systems Inc., the EEOC argued that Orion required Wendy Schobert to submit to medical testing as part of a wellness program or pay 100 percent of the premium for the employer-provided health insurance.

The EEOC contended that this violated the ADA’s prohibition against involuntary medical exams.

Orion contended that its wellness plan was covered by the ADA’s so-called “insurance safe harbor” and thereby was excused from ADA compliance except if it operated as a subterfuge.

Orion also argued that the plan was lawful under the ADA because it was voluntary.

The district court rejected Orion’s safe harbor argument and held that the plan was subject to ADA review.

The court concluded that the EEOC’s recently issued regulations on the ADA’s safe harbor provision were within the commission’s authority.

The court further held that the safe harbor provision did not apply even without regard to the new regulations.

However, the court found that the wellness plan was lawful under the ADA because it concluded that the employee’s decision whether to participate was voluntary under that statute.

The court also held that there were issues of fact regarding whether Schobert was fired because of her opposition to the wellness plan and indicated the case would be set for trial.

Since the defendant’s motion for summary judgment was denied, the next step in the process should be the scheduling of a trial on the retaliation claim.

“Although we disagree with the court’s holding that participation in the wellness plan here was voluntary, we are pleased with the court’s solid reasoning that the safe harbor concept does not apply here,” said John Hendrickson, the regional attorney for EEOC’s Chicago District Office. “It establishes that there is no easy out for employers from ADA scrutiny — they must make sure that their plans comply with that law.”

EEOC: Landmark sex discrimination lawsuit settled

A landmark lawsuit alleging sex discrimination based on sexual orientation has been settled for more than $200,000, the U.S. Equal Employment Opportunity Commission announced this week.

The EEOC said in a statement that Pallet Companies, doing business as IFCO Systems, will pay just over $182,000 to Yolanda Boone, who alleged she was fired after complaining that her supervisor made comments regarding her sexual orientation and appearance.

The supervisor made comments including, “I want to turn you back into a woman” and “You would look good in a dress.”

The EEOC said in its lawsuit filed earlier this year in Baltimore that Boone’s supervisor made comments including “I want to turn you back into a woman” and “You would look good in a dress.”

The EEOC says IFCO Systems, which supplies and recycles wood pallets, will also donate $20,000 to a foundation set up by the Human Rights Campaign, an LGBT advocacy group. The EEOC says IFCO Systems, which has its North America headquarters in Tampa, Florida, has agreed to hire someone to develop a training program on lesbian, gay, bisexual and transgender workplace issues.

In a court document explaining the settlement, IFCO Systems denies that it discriminated against Boone but agrees to the settlement terms. In a statement released through a lawyer, the company noted it did not admit to any discrimination, harassment or retaliation. The statement says that the company’s core values and corporate code of conduct have “long recognized the value of preventing sexual orientation discrimination and the benefit of ensuring diversity in the workplace.”

EEOC General Counsel David Lopez said in a statement that the settlement was the first resolution of a lawsuit challenging discrimination based on sexual orientation under Title VII of the Civil Rights Act of 1964.

The EEOC’s lawsuit says IFCO Systems hired Boone as a forklift operator in 2013 and fired her in 2014.

EEOC issues fact sheet on bathroom access

The U.S. Equal Employment Opportunity Commission on May 2 issued a fact sheet on bathroom access rights as guaranteed under Title VII of the Civil Rights Act of 1964.

The fact sheet comes as lawmakers in a number of states and some municipalities advance measures intended to bar transgender people from using the bathrooms appropriate to their gender identity.

Here’s the fact sheet from the EEOC:

  • “Transgender” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female.  Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male.  A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.
  • In addition to other federal laws, the U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation). Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.
  • In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:
    • denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
    • an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
    • an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

  • Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.
  • In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

  • Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi:  “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment.  Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

  • Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs.  Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.

  • Further information from other federal government agencies includes: A Guide to Restroom Access for Transgender Workers, issued by the U.S. Department of Labor’s  Occupational Safety and Health Administration (OSHA), https://www.osha.gov/Publications/OSHA3795.pdf, and Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/, issued by the U.S. Office of Personnel Management.

  • If you believe you have been discriminated against, you may take action to protect your rights under Title VII by filing a complaint:

    • Private sector and state/local government employees may file a charge of discrimination by contacting the EEOC at 1-800-669-4000 or go to https://www.eeoc.gov/employees/howtofile.cfm.
    • Federal government employees may initiate the complaint process by contacting an EEO counselor at your agency; more information is available at https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm

Teen sues Taco John’s for forcing him to wear a nametag labeled ‘gaytard’

A gay South Dakota teenager has filed a complaint against Taco John’s International restaurant after his manager there forced him to wear a nametag labeled “gaytard.”

The incident occurred while 16-year-old Tyler Brandt was working for Taco John’s store during a June 23 night shift in Yankton, South Dakota. Although Brandt tried to hide offensive nametag from customers, the manager kept loudly referring to him by the slur, humiliating him in front of customers and coworkers, Brandt says in a video posted at http://tacojohnscalledmeagaytard.com/.

As a result, Brandt says he felt that he had no choice but to quit his job.

The ACLU has agreed to represent him in a complaint filed against Taco John’s with the Equal Employment Opportunity Commission.

Brandt has also started an online petition demanding an apology from Taco John’s as well as a promise to take a stance against bullying and discrimination. You can sign the pledge here.

EEOC sues Florida eye clinic for sex discrimination against transgender worker

Authorities say the Lakeland Eye Clinic in Lakeland, Florida, discriminated based on sex in violation of federal law by firing an employee because she is transgender, because she was transitioning and because she did not conform to the employer’s gender-based expectations, preferences or stereotypes.

The charges are made in a lawsuit filed on Sept. 25 by the U.S. Equal Employment Opportunity Commission. The complaint is one of the first two lawsuits ever filed by the agency alleging sex discrimination against transgender individuals. The other case, EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. also was filed on Sept. 25.  

According to the EEOC’s lawsuit against Lakeland Eye Clinic, the defendant’s employee had performed her duties satisfactorily throughout her employment. However, after she came out as a transgender individual and began to present as a woman, Lakeland fired her.

Such conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination, including that based on gender stereotyping. The EEOC filed suit against Lakeland Eye Clinic in U.S. District Court for the Middle District of Florida in Tampa after first trying to reach a pre-litigation settlement through its conciliation process.

The suit seeks both monetary and injunctive relief.

The lawsuit is part of the EEOC’s ongoing efforts to implement its Strategic Enforcement Plan. The commission adopted the plan in December 2012. The plan includes “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions, as they may apply” as a top commission enforcement priority.

Robert E. Weisberg, regional attorney for the Miami District Office, pointed out that in 2011, the National Center for Transgender Equality and the National Gay and Lesbian Task Force completed a study that found, in Florida, 81 percent of transgender individuals responding to the survey experienced harassment or mistreatment on the job and 56 percent experienced an adverse job action. 

Weisberg said, “With workplace discrimination against transgender individuals reported at these levels, EEOC stands ready to enforce the rights of transgender employees secured by Title VII.”

The second suit was filed against Detroit-based R.G. & G.R. Harris Funeral Homes, Inc. for discharging a funeral director because she informed them that, as part of her gender transition from male to female, she intended to return to work presenting con­sistent with her gender identity as a woman.

The EEOC charged in its suit that Harris violated Title VII by firing the funeral director because of her transgender status, because of her gender transition, and based on gender-based stereotypes.

Court restores verdict in case involving harassed ironworker

The U.S. Fifth Circuit Court of Appeals has restored a jury’s verdict that a construction company illegally subjected an ironworker to severe and pervasive harassment based on gender stereotypes.

The ruling came in regards to a U.S. Equal Employment Opportunity complaint filed against Boh Bros. construction company on behalf of ironworker Kerry Woods.

The EEOC’s complaint said BB superintendent Chuck Wolfe verbally harassed Woods, exposed himself to the employee and made taunting gestures of a sexual nature.

The harassment, according to the complaint, took place during work on the I-10 Twin Span project over Lake Pontchartrain between Slidell and New Orleans in Louisiana.

At the trial, the EEOC presented evidence that Wolfe harassed Woods because he thought he was feminine and did not conform to the supervisor’s gender stereotypes of a typical “rough ironworker.”

A jury ruled in favor of Woods and the EEOC, but a three-judge panel of the circuit court of appeals reversed the verdict, finding that Woods was not harassed because of sex.

The EEOC asked for a review by the full appeals court, which vacated the panel’s decision and reinstated the jury’s verdict.

“We are gratified that the Fifth Circuit recognized ‘the good common sense of the American people,’ as the court put it, and reinstated the jury verdict,” said EEOC general counsel David Lopez in a news release. “We agree with the Fifth Circuit that ‘few institutions are as venerable as that of trial by jury.’”

The majority on the court held, in a first for the circuit, that harassment is “because of sex” if it is based on lack of conformity with gender stereotypes.

The Fifth Circuit also held that the issue is whether the harasser considered the victim to deviate from gender stereotypes, and not whether the victim fails in fact to conform to those stereotypes.

So, the court ruled, what mattered was how Wolfe saw Woods.

“This is a very significant outcome to employees who work in Louisiana, Mississippi and Texas, which is the region covered by the Fifth Circuit,” said Jim Sacher, EEOC’s regional attorney for the Houston District, which oversaw the case. “It makes unquestionably clear to all employers that if they harass an employee because of gender stereotypes, they are breaking the law.”

The case now goes back to the district court level, where damage amounts must be set. 

The construction company is based in New Orleans and employs more than 1,500 people. After Hurricane Katrina struck the area in 2005, the company worked on many publicly funded rebuilding and expansion projects, according to the EEOC. 

EEOC: Title VII protects transgender workers

Activists are heralding as landmark an Equal Employment Opportunity Commission ruling that Title VII, the federal sex discrimination law, protects employees who are discriminated against because they are transgender.

The decision was signed on April 20.

The EEOC, in a case filed by the Transgender Law Center, concluded that “intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on … sex’ and such discrimination … violates Title VII.”

The EEOC is the federal agency that interprets and enforces federal employment discrimination law, and this decision marks the first time it has offered clear guidance on this issue.

The ruling came as a result of a discrimination complaint filed by TLC on behalf of Mia Macy, a transgender woman who was denied a job as a ballistics technician at the Walnut Creek, Calif., laboratory of the federal Bureau of Alcohol, Tobacco, Firearms and Explosives.

TLC said that Macy, a military veteran and former police detective, initially applied for the position as male and was told that she virtually was guaranteed the job.

The TLC argued that that Macy was exceptionally qualified for the position, having a military and law enforcement background and being one of the few people in the country who had already been trained on ATF’s ballistics computer system.

After disclosing her gender transition mid-way through the hiring process, Macy was told that funding for the position had been suddenly cut. She later learned that someone else had been hired for the job.

Macy, responding to the EEOC ruling, said, “As a veteran and a police officer, I’ve worked my whole career to uphold the values of fairness and equality. Although the discrimination I experienced was painful both personally and financially, and led to the loss of my family’s home to foreclosure, I’m proud to be a part of this groundbreaking decision confirming that our nation’s employment discrimination laws protect all Americans, including transgender people.”

TLC said the decision follows a trend by federal courts in recent years holding that transgender people are protected by Title VII’s prohibition against sex discrimination. But the EEOC finding has even broader implications than a court decision because the EEOC is the agency charged with interpreting and enforcing federal discrimination laws throughout the nation.

TLC legal director Ilona Turner said, “It’s incredibly significant that the commission has finally put its stamp of approval on the common-sense understanding that discrimination against transgender people is a form of sex discrimination. That’s true whether it’s understood as discrimination because of the person’s gender identity, or because they have changed their sex, or because they don’t conform to other people’s stereotypes of how men and women ought to be.”  

Noreen Farrell of Equal Rights Advocates celebrated the ruling: “Today’s decision helps our discrimination laws fulfill their purpose of ensuring that no one loses a job based on sex. Women have fought for decades to be judged in the workplace by our abilities, not by our sex, gender identity or gender stereotypes. We are thrilled that the EEOC has confirmed that Title VII protects transgender people from job discrimination, thanks to the work of Transgender Law Center.”

At the Human Rights Campaign in Washington, D.C., president Joe Solmonese said, “This ruling is a major step forward in protecting the LGBT community from workplace discrimination. We know that transgender people are among the most vulnerable members of our community and suffer widespread discrimination, including in employment.  We applaud the EEOC for its historic ruling, congratulate Transgender Law Center on this victory and thank Mia Macy for her courage and perseverance.”

Download a PDF of the current issue of Wisconsin Gazette and join our Facebook community.

EEOC sues Ky. company over harassment in Wis. store

A federal agency is accusing a Kentucky company of permitting a sexually hostile work environment in one of its Wisconsin pharmacies.

The U.S. Equal Employment Opportunity Commission said it has filed a federal lawsuit naming Covington, Ky.-based Omnicare Inc., which does business as Pinnacle Pharmacy.

The suit says a pharmacy manager at a La Crosse, Wis., store sexually harassed female employees through unwanted touching and demeaning comments.

The EEOC says several women complained but pharmacy management didn’t help them.

An Omnicare spokeswoman says the company doesn’t tolerate sexual harassment in the workplace. She says the company took prompt action when it learned of the allegations.

from WiG and AP reports