Phoenix District EEOC Office Legal Update Mary Jo O Neill, Regional Attorney, November 15 2011
AGENDA: Recent United States Supreme Court Decisions. Court Victories by EEOC Phoenix District Office. Court Settlements by EEOC Phoenix District Office. Future Trends.
USSC Decisions: Staub v. Proctor Hospital, No. 09-400 (3/21/2011) (S. Ct.) (Cat s Paw theory - USERRA agency principles for liability when biased subordinate contributes to decision to terminate reserve officer). Facts: Supervisor made anti-military comments; reserve officer was terminated. Question: Can there be subordinate liability for discrimination? Holding: Employer can be liable under certain circumstances for the discriminatory animus of a supervisor who did not make ultimate decision.
USSC Decisions: Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (S. Ct.) (3/22/11) (meaning of filed a complaint under FLSA). Facts: Employee fired in retaliation for complaining about location of time clocks. Question: What is the meaning of filed a complaint under FLSA for protection against retaliation? Holding: Oral or written complaints are filed. Therefore, retaliation protection applies.
USSC Decisions: Wal-Mart v. Dukes, No. 10-277 (S.Ct.) (June 20, 2011) FACTS: Class of women was certified under Rule 23, Fed.R.Civ.P, in San Francisco; 9 th Circuit affirmed. Question: Could the class of 1.5 million female employees pursue a class action under Rule 23(b)(2)? HELD: By 5/4, Court said No. Note: EEOC does not have to comply with Rule 23.
USSC Decisions: Thompson v. North American Stainless, L.P., decided 8-0 on January 24, 2011 Facts: Miriam Regalado filed an EEOC charge against NAS; three weeks later NAS fired her fiancée, Eric Thompson Question: Does the finance have a retaliation claim? Held: Yes. A person aggrieved includes those in the zone of interest.
Recent EEOC Court Victories: EEOC v Go Daddy EEOC won jury trial on retaliation claim on behalf of Muslim Moroccan man; we won case again on appeal in 9 th Circuit in retaliation case. Charging Party just got paid $287,000 (included $45,000 in interest).
Recent EEOC Court Victories: EEOC v Peabody Coal -won in 9 th Circuit. Back for joinder and discovery on tribal preference issue and injunctive relief. Petition for cert denied by the U.S. Supreme Court.
Recent EEOC Court Victories: EEOC v Cannon & Wendt EEOC won contempt hearing on payment of CP for $100, 000 without additional I-9 and selection of trainer. EEOC v Autozone EEOC won jury trial on sexual harassment for $65,000. Autozone appealed to Ninth Circuit. We won again on appeal in 9 th Circuit.
Recent EEOC Court Victories: EEOC v. Subway -EEOC won summary judgment on liability in pregnancy termination/ failure to hire case with direct evidence. Trial will be soon on damages in Phoenix federal district court.
Recent EEOC Court Victories: EEOC v Federal Express -9 th Circuit held that we can obtain nation-wide information in a subpoena enforcement. EEOC v Patterson -Colorado District Court held that we can obtain nation-wide information in a subpoena enforcement.
Since October 1, 2009 to present Resolutions in Courts by the EEOC Phoenix District Office Legal Unit: over $39,000,000 in real money plus jobs, injunctions, notice posting, training, references, file expungements, discipline, policy changes, new policies, apologies..
Recent Phoenix District EEOC RESOLUTIONS IN COURT: All Consent Decrees are in the public eye, with press releases, with training, policy changes, injunctions, notice postings, reporting, monitoring, monetary relief and other appropriate relief... NO CONFIDENTIALITY!!!!!!!!
Our Goals in Litigation: Get victims of discrimination maximum relief to make them whole, as if the discrimination had not occurred. Institute whatever changes to ensure that the discrimination never reoccurs ( injunction, training, discipline, job offers, policy changes, discipline of ADO s, ).
CASES RESOLVED: Outback (Colo.)-gender/ failure to promotenationwide systemic case; very strong Consent Decree, start Human Resources department, start job postings, start application processes, hire external monitor. $19, 000, 000 ($19 million) for class of female victims. LESSONS: 1) review EEO-1 data; 2) check to see if promotion numbers make sense compared to employee data; 3) check to see if subjective decision making about promotions; 4) have job postings; 5)have applications; 6) have HR department.
Albertsons (Colo.)-systemic race and national origin harassment and retaliation case (class-165); $8,900,000 and strong Consent Decree. LESSON: Don t let racial or national origin harassment happen or be tolerated. Stop it with serious discipline of offenders. Don t let retaliation occur.
Corrections Corporation of America/ Dominion (Colo.)-systemic severe, egregious sexual harassment/ retaliation case (class of 22)- $1,300,000 and strong Consent Decree. Lesson: Punish sexual harassment and retaliation immediately if it occurs.
The Connection (N.M.)-sexual harassment (class); $187,000 and strong Consent Decree. LESSON: Don t let sexual harassment go unpunished. Conoco Phillips 66 (N.M.)-sex/ pregnancy/ involuntary leave and discharge (class of 2) $40,500 and strong Consent Decree. LESSON: Train on pregnancy discrimination and don t do it.
Old Castle (Colo.)- gender/ female harassment/ retaliation (class-3); $498,000 and strong Consent Decree. LESSON: Don t allow gender stereotyping. Don t allow retaliation against witnesses or complainants.
Ralph Schomp (Colo.)-sexual harassment/ age discharge; $1,505,000 and strong Consent Decree. LESSON: New managers and supervisors require training. Don t let age based stereotyping to occur or be acted upon. Stop sexual harassment!
RESOLUTIONS IN COURT Bellco (Colo.)-ADEA discharge-$57,250. and training. LESSON: Look to see if older worker is being treated more harshly. ADECCO (Utah)-retaliation against witness in a sexual harassment case; $62,500 and a strong Consent Decree. LESSON: Don t let retaliation occur to witnesses. Stock Building (N.M.) female/termination; $30,000 and strong Consent Decree. LESSON: Challenge gender stereotyping.
Tim Dahle Nissan of Sandy (UT.)-sexual harassment/ retaliation (class-5)- $455,000 and strong Consent Decree including apologies. Cheesecake Factory (Az.)-same sex sexual harassment/ discharge (class)- $345,000 and strong Consent Decree. LESSONS: Don t tolerate same sex sexual harassment as horseplay. Punish it and stop it. Don t allow retaliation.
Bell Road Auto Mall (Az.)-sexual and race harassment/ discharge/ retaliation (class-5)- $500,000 and strong Consent Decree including apologies. LESSONS: Have zero tolerance for race, national origin and sex harassment. STOP IT. Take decisive action.
Kalil (Az.)-ADA (diabetes)/discharge- $33,000 and strong Consent Decree, including policy change. (use of DOT medical standard for non-dot drivers). Lesson: Don t use medical/ physical criteria as obstacles to employment unless really required.
Realty Management (Az.)- ADA (psychiatric)/ failure to accommodate (leave)/ discharge- $30,000 and strong Consent Decree. Lesson: Refusal to grant leaves is an ADA problem unless undue hardship.
Cannon & Wendt (Az.)-national origin harassment (Mexican)/ retaliation; $100,000 and strong Consent Decree (apology). Lesson: Stop racist harassment against Latinos.
Flemings (Az.)-same sex sexual harassment (class) and retaliation; $ 248,750 and strong Consent Decree. LESSON: Take same sex sexual harassment seriously; it s not horseplay. Boeing (Az.)-gender and sexual harassment/ retaliation (class-3); $380,000 and strong Consent Decree. Lesson: Stop gender harassment; punish the harassers.
Loves Travel (Az.)-sexual harassment (class-2) and retaliation; $ 70,000 and strong Consent Decree. LESSON: Punish sexual harassers. Red Rock Jeep (Az.)-ADEA/ discharge of 75 year old; $35,000 and strong Consent Decree. LESSON: Don t allow stereotyping about older workers.
Creative Networks (Az.)-retaliation for filing charge and being listed (class-2); $110,000 and strong Consent Decree. LESSON: Don t retaliate against employees for filing charges. Ranch Market (N.M.)-ADA (learning disabilities) failure to hire and failure to accommodate -$30,000 and strong Consent Decree. LESSON: Don t let myths, fears and stereotypes about disabilities to affect decision making.
Temple Inland (Az.)-ADEA/ layoff; $250,000 and strong Consent Decree. LESSON: Be careful about age discrimination in layoffs. Oaktree (Az.)-religious harassment/ failure to accommodate religion (class)-$75,000 and strong Consent Decree. Lesson: Supervisors cannot impose their religion upon their employees.
Brown Palace (Colo.)- $146,000 and Decree for failure to promote single mom. LESSON: Don t assume a Mother or single Mother cannot do a job which requires long hours and/or traveling. Avoid gender based stereotyping. PBC (Colo.)- pregnancy/ discharge; $20,000 and strong Consent Decree. LESSON: Be wary of pregnancy bias.
Siouxland (S.D.)- pregnancy/ discharge/ failure to hire (class); $118,000 and strong Consent Decree after winning jury trial and a successful appeal to 8 th Circut on Judge s refusal to give punitive damages instruction. Mountain Towers Healthcare (Wy.)- Pregnancy/ discharge; $10,000, neutral letter of reference, and strong Consent Decree. LESSONS: Train on pregnancy discrimination and don t allow it to happen. Debunk myths, fears and stereotypes about pregnant employees.
Sonic Drive In (N.M.)- sexual harassment by a manager, class of 79 included teenagers and parolees; Obtained $2,000,000 and strong Consent Decree. Lesson: 1) Stop sexual harassment. 2) Fire sexual harassers. 3) When employer has knowledge of sexual harassment, they have to act, investigate and STOP it.
Discount Cabinets (Colo.)- Failure to make reasonable accommodation for deaf employee, retaliation; $60,000 and strong Consent Decree. LESSON: Provide reasonable accommodations unless real undue hardship.
Greystar Properties (Az.)- Retaliation by unfavorable references; $3,250 and strong Consent Decree. Alamos Verdes Restaurante (Colo.)- Sexual harassment by two of the owners, Class of 12); $100,000 and strong Consent Decree. LESSON: Stop sexual harassment!
Spartan Plumbing (Az.)- Racial harassment (Black/African American) and retaliation; $10,000, apology, and strong Consent Decree. LESSON: Stop race harassment.
Anthem College Online (Az.)- Sexual harassment, class 6 women; $260,000, apology, and strong Consent Decree. Acclaim Charter School (Az.)- Sexual harassment, constructive discharge; $41,125, positive letter of reference, and strong Consent Decree. LESSONS: 1) discipline sexual harasser, and 2) stop it.
Genesco dba Journeys (N.M.)- Sexual harassment, retaliation for complaining about the harassment; $21,025.41 for three women, neutral letters of reference, and strong Consent Decree. Fisher Sand and Gravel (N.M.)-sexual harassment by a supervisory official; $150,000 and strong Consent Decree. LESSONS: Train all employees and supervisors on sexual harassment.
Arizona Delivery Logistics-(Az.)-class sexual harassment case settled for strong Consent Decree and $175,000; company can never rehire the ADO. LESSON: When company has knowledge of sexual harassment, take appropriate discipline against harasser, including termination. El Palacio-(Az.)-pregnancy refusal to hire case settled for $20,000 and Consent Decree.
RESOLUTIONS IN COURT: Maverik Country Stores-(Wyg.)-HIV termination case settled for strong Consent Decree and $115,000. LESSON: Employers need to deal with myths fears and stereotypes about HIV. TIC-(Colo.)-ADA case settled for $135,000 and changes in policies and training. LESSON: Don t have 100% return to work policies.
RESOLUTIONS IN COURT: Roberts Trucking-(N.M.)-class sexual harassment/ retaliation case settled for strong Consent Decree and $300,000. LESSON: Employers need to deal with sexual harassment and not retaliate. CPES-(AZ.)-ADA case refusal to hire hearing impaired applicants settled for $33,500+, a strong Consent Decree and changes in policies and training. LESSON: Don t have blanket exclusion policies.
RESOLUTIONS IN COURT: Terminix-(UT.)-class sexual harassment/ retaliation case settled for strong Consent Decree and $140,000. LESSON: Employers need to deal with sexual harassment and not retaliate.
Future Trends: More Systemic/ Policy cases Credit Check Issues Arrest/ Conviction Issues Immigrant Related Issues GINA Issues ADAAA Issues Employers refusing to hire the unemployed Leaves of Absences casessee Verizon ($20 million and Consent Decree), Sears, and Supervalu cases..
QUESTIONS???? THANK YOU!!!!!