What happened

The Equal Employment Opportunity Commission (EEOC) went after Sears, Roebuck & Co., when the company terminated 235 former workers immediately following their return to work after being out on workers’ compensation leave.

Sears violated the ADA when it refused to provide reasonable accommodations to employees who were returning from workers’ comp leave, the EEOC said.

Result: Sears agreed to settle for $6.2 million, and each employee in the suit will receive around $26,300. That’s the largest total settlement in the history of the EEOC.

In addition, Sears improved its workers’ compensation leave process and posted notices regarding the decree, according to EEOC officials.

Do you think this settlement is fair? Let us know in the Comments Box below.

When the Equal Employment Opportunity Commission recently sued a company for harassment, the case came to a strange and extraordinary ending.

The case involved an Iowa-based trucking company, CRST Van Expedited, Inc. A female driver with the company filed a complaint about the company’s permitting of sexual harassment by male drivers. The EEOC picked up the complaint and filed a suit against CRST in federal district court.

This time, the EEOC picked the wrong judge.

U.S. District Judge Linda Reade rejected the EEOC’s claims, threw out the charges and accused the EEOC lawyers of taking a “sue first, ask questions later” approach.

Further, the judge decided, the EEOC must pay the employer $4.5 million to cover legal fees and other costs associated with the case because the agency “acted unreasonably” and failed to conduct a “proper investigation.”

Cite: EEOC v. CRST Van Expedited, Inc.

The document is called “Understanding Waivers of Discrimination Claims in Employee Severance Agreements.” Essentially the document covers waiver of discrimination claim when an employee knowingly and voluntarily consents to the waiver.

In recent court decisions, the deciding factor was only partly about the legal language of the severance agreement. Courts paid special attention to the “knowingly and voluntarily” clause in the law when considering whether an agreement was legally valid.

What they looked at and what the EEOC warns about:

• Has the severance agreement been written in a clear manner for the employee to understand the agreement based on his or her education and business experience?
• Has the employer somehow coerced the employee into signing the agreement?
• Has the employee been given adequate time to consider the agreement?
• Has the employee consulted with an attorney or been encouraged or discouraged by the employer from doing so?
• Has the employee been given the opportunity to negotiate the terms of the agreement?

On top of those warning, the EEOC cautions employers from trying to recoup severance pay from employees who file complaints. According to the agency, an employee does not have to return severance pay if the employee takes the money and then files:

• a charge of discrimination with the EEOC, or
• a claim in court under he Age Discrimination in Employment Act.

B & H Foto and Electronics Corp. paid its Hispanic employees less than their non-Hispanic co-workers, according to a lawsuit filed on behalf of 149 Hispanic warehouse workers.

The company was also accused of failing to provide health benefits to Hispanic workers and promote them because of their national origin.

Result: The company was forced to settle and pay out $4.3 million in wages and benefits to the 149 employees.

As part of the settlement, B & H agreed to:

• equalize Hispanic employees’ wages with other workers’ pay
• maintain a written non-discrimination policy
• conduct supervisor training
• post bilingual wage-and-hour and benefits notices, and
• submit to Equal Employment Opportunity Commission (EEOC) audits for the next five years.

Outback Steakhouse was sued by the EEOC after female employees claimed they were kept out of managerial positions because of their gender.

After failing to have the case tossed, Outback settled for $19 million. In addition, the settlement requires the company to create an online application system for employees interested in management positions.

The EEOC said the point of the online system is to spread the word about open positions to all employees and set up a more objective selection process. Smaller companies won’t need an online system, but when managers choose candidates for promotions, they should make sure all qualified employees have an equal opportunity to apply.

Cite: EEOC v. Outback Steakhouse of Florida, Inc.

The Wichita Falls (TX) Times Record News reports that a local company, Crowell Contract and Design, Inc., came to an out-of-court agreement with the U.S. Equal Opportunity Commission after the agency filed a complaint against company president Timmy Christopher for pulling down the pants of a female worker while other workers looked on.

The employer agreed to pay the employee $21,000 and take “corrective action” to ensure there are no repeat incidents — which sounds as if it wouldn’t be all that complicated, since all it requires is that the president refrain from pulling down employees’ pants.

Among the allegations filed in EEOC documents: President Christopher occasionally would stroll behind worker Deanna Collins and tug at her pants, until one day when he finally decided to pull them down. Collins resigned and filed a complaint with the EEOC.

All together now: What was he thinking?

The EEOC program designed to combat discriminatory practices tied to background checks is called E-RACE (Eradicating Racism And Colorism from Employment). It started when the agency noted, in the last few years, a steep climb in complaints from applicants who said they were unfairly excluded from competing for a job because of information that showed up on a background check.

What sort of information? On the face of it, nothing extraordinary — a criminal record or a poor credit rating. The problem came when applicants were able to show that the criteria used had a negative impact on hiring opportunities for black and Hispanic males, who statistically have higher arrest rates and lower credit scores than white males.

Here are two background-check practices that have caused the biggest headaches — with the EEOC and in court — for employers:

• Blanket policies against hiring anyone with a criminal record or poor credit score. The sticking point for such policies is that, without knowing it, an employer could routinely give preference to whites. What to do: Check to see if your practices exclude most blacks and Hispanics, whole opening the door to white applicants. If you see a pattern, the EEOC may see one, too.
• Failing to show the correlation between background checks and the job itself. The EEOC and the courts generally recognize that some background material may have some bearing on the applicant’s suitability for the job. In the most obvious instance, for example, you wouldn’t be expected to hire a convicted embezzler to handle cash. There are other situations that apply — contact with customers, driving company vehicles, dealing with minors, etc. You’re on safer ground if you can show those correlations between background checks and suitability.

A truck driver applied for a job with a transportation company. During the interview, the hiring manager noticed the applicant had a prosthetic leg. Believing he couldn’t drive a truck safely, the managers didn’t offer him the job.

But despite his impairment, the applicant had a commercial driver’s license from the Department of Transportation, as well as several years of experience as a truck driver.

He sued, claiming disability discrimination.

The company tried to fight the claim but was unsuccessful and ended up settling for $56,500.

The lesson for managers: Don’t make assumptions about disabled applicants. You’re allowed to find out if someone can safely do the job — you don’t need to resort to discrimination.

Cite: EEOC v. KLLM Transport, Inc.

Ever since the ADA Amendments Act got passed in January, employers and HR managers have been asking, “So, what does all this mean?” The Equal Employment Opportunity Commission has finally gotten around to giving some answers.

Last week, the EEOC laid out an explanation of employer responsibilities for following the act (knows as “ADAAA”).

• First, in a key passage, the agency summarized the intent of the act:

“The definition of disability … shall be construed broadly, to the maximum extent permitted by the terms of the ADA. The focus of an ADA case should be on whether discrimination occurred, not on whether an individual meets the definition of ‘disability.’”

Meaning: Besides broadening the circumstances under which a worker is considered disabled, the act also broadens the circumstances under which a worker can sue for disability discrimination. In other words, if a worker can show that an employer discriminated because of perceived disability — even if the worker wasn’t disabled — the worker has a case against the employer.

• The agency also put into focus some of the broader circumstances that make up a disability:

“An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.”

Here’s how that differs from earlier rules: Previously, an inability to do the physical requirements of a job wasn’t enough to qualify a worker as disabled. The individual also had to show some limitation in performing “major life activities,” such as walking, eating, etc. The EEOC’s interpretation of the new rules turns all that around to a point that a limitation in doing the specific tasks of a job could be enough to categorize someone as disabled.

The EEOC provides an example:

“Someone with a 20-pound lifting restriction that is not of short-term duration is substantially limited in lifting, and need not also show that he is unable to perform activities of daily living that require lifting in order to be considered substantially limited in lifting.”

Meaning: A long-term limitation on doing a work function is a disability.

• Short-term limits on major life activities now also fall under the definition:

“An impairment may substantially limit a major life activity even if it lasts, or is expected to last, for fewer than six months.”

Meaning: What was considered a “temporary condition” can now be considered a “disability.”

Any good news?
It’s not all bad. The regulations maintain the existing requirement that a worker must be a “qualified individual with a disability.” That means the individual “satisfies the requisite skill, experience, education and other job-related requirements … and who, with or without reasonable accommodation, can perform the essential functions of such position.”

So you still can require applicants and employees to meet essential job requirements, which, for most jobs, include regular and predictable attendance and conformance to the basic standards of performance and behavior.

And even in the case of the employee with a 20-pound lifting restriction, yes, that person may be disabled, but you still can disqualify the person because lifting is an essential part of the job and no reasonable accommodation is available.

As for the temporary part (”fewer than six months”) of the regs,  the EEOC recognizes that not all temporary conditions are disabilities:

“Temporary, non-chronic impairments of short duration . . . such as the common cold, seasonal or common influenza, a sprained joint, minor or non-chronic gastrointestinal disorders, or a broken bone that is expected to heal completely” generally are not disabilities.

In a recent opinion letter, the EEOC tried to clear up some confusion over the wording of help wanted ads.

The question: Does including a phrase such as “women and minorities encouraged to apply” break the law?

The answer: No, according to the EEOC.

Encouraging certain groups to apply doesn’t mean you’re biased against or in favor of any type of person.

However, the letter points out that some companies make the mistake of using similar — but discriminatory — phrasing. For example: “We are seeking women … ”

“Seeking” implies a preference for that group. Therefore, a court would likely consider it to be illegal bias.

Read the entire Opinion Letter here.