On the Legal Front: So Whats New At www.eeoc.gov?
Art Gutman
Florida Institute of Technology
Its mid July, a slow time for tracking developments on the legal front.
There are always media reports to read (e.g., Reuters reports that the Supreme
Court may tackle opposing affirmative action rulings on law school vs.
undergraduate admissions at the University of Michigan).1
Still, forecasting what the Supreme Court is likely to review is not easy. So
instead, at times like this, I try to catch up with one my favorite Web siteswww.eeoc.gov. This site has lots of
information on laws and regulations, yearly statistics, and other good stuff.
The link I like the most is on press releases, particularly those relating to
settlements, court rulings on EEOC- sponsored cases, and freshly minted EEOC
litigation. To illustrate the value of this site, lets sample some of the
EEOC press releases from January through July 2001.
1Dont get me wrongthere is a critical issue here; whether diversity, per se, can serve as a compelling state interest under the
14th Amendment. But there is plenty of time to tackle this one.
Racial and Sexual Harassment
Clearly, the EEOC has a been on a campaign against hostile racial harassment,
reporting that such claims have more than doubled over the past decade (from
2,849 in 1991 to 6,116 in 2000). More specifically, the EEOC reports the
following:
- Two settlements totaling $1.9 million on behalf of an undisclosed number
of current and former employees at The Larson Automotive Group, which
operates several car dealerships in the metropolitan Tacoma, Washington area
(January 21).
- A $200,000 settlement on behalf of four employees at the Butner, North
Carolina plant of Georgia Pacific (April 3).
- Initiation of a lawsuit on behalf of four employees at Dana Corporation
(Syracuse, Indiana) and five at Bennis Company (Terra Haute, Indiana) (May
22).
- A $1.2 million settlement on behalf of nine employees at a St. Louis,
Missouri nursing home (July 2).
- Initiation of a lawsuit on behalf of 11 employees of Emery Worldwide
Airlines at its priority mailing processing center in Kearny, New Jersey
(July 3).
These cases feature racial slurs, jokes, cartoons, graffiti and/or drawings
of hangmans nooses. In the St. Louis case, the director of the nursing home
required white employees to wear smiling faces and black employees to wear
frowning faces on their uniforms, a practice reminiscent of how Jews were
treated in Nazi Germany. Another common feature in these cases is for employers
to discharge employees (white and black in the St. Louis case) who object to the
hostility.
Sexual harassment claims have also more than doubled over the past decade
(from 7,906 in 1991 to 21,613 in 2000). Two of the press releases involve
Mitsubishi and TWA Airlines. On May 23, the EEOC announced its satisfaction with
the final report of the Mitsubishi Consent Decree Monitors. The Mitsubishi
settlement (on June 23, 1998) was the largest ever for a sexual harassment claim
($34 million). Then, on May 24, there was a 2.6 million dollar settlement with
TWA on behalf of an undisclosed number of female ground employees in relation to
a hostile work environment since January, 1988 that culminated in severe and
repeated harassment and retaliation for complaining about discrimination. The
harassment in this case included unsolicited touching, sexual propositions,
exposure of genitals, lewd comments, and other abusive or offensive
language. In addition to these releases, on April 10, the EEOC announced a
$485,000 settlement with a chicken processing plant in Alabama on behalf of
seven black women for, among other things, both sexual and racial
harassment.
Interestingly, the racial harassment cases contain no serious disagreements
regarding reasonable Black versus reasonable White perceptions,
whereas in several hostile environment sexual harassment cases, disagreement
exists with respect to reasonable victim versus reasonable person
perceptions (compare Rabidue v. Osceola, 1986 to Ellison v. Brady,
1991). There was no such confusion in the TWA case; clearly exposure of genitals
should offend either the reasonable victim or person. However, in other cases,
the criteria for defining hostile sexual harassment have not been so clear.
For example, in Rabidue v. Osceola, the plaintiff (Rabidue) endured a
pattern of vulgarity by a male employee (Henry) and an atmosphere permeated with
obscene posters and other evidence of sexual stereotyping. Nevertheless, two of
three 6th Circuit judges,2 using the
reasonable person standard, ruled that:
Henrys
obscenities, although annoying, were not so startling as to have affected
seriously the psyches of the plaintiff or other female workers.The sexually
oriented poster displays had a negligible effect on Rabidues work
environment when considered in the context of a society that condones and
publicly features and commercially exploits open displays of written and
pictorial erotica at the newsstands, on prime-time television, at the cinema,
and in other public places.
2 The dissenting judge in this case asserted that hostility is what the reasonable woman would find offensive, not society, which at one point also condoned slavery.
Why is it so clear that racial obscenities constitute racial harassment, and
yet, the gender-based obscenities hurled at Rabidue require a debate on the
perceptions of victims versus persons? Also, why is it that so early in the game
(in Rogers v. EEOC, 1971), the 5th
Circuit identified and outlawed hostile racial harassment, and yet, after five
Supreme Court rulings on hostile sexual harassment,3 the standard is
still fuzzy? For example, in Onacle v. Sundowner (1998), Justice Scalia
ruled that harassment should be judged from the perspective of a reasonable
person in the plaintiffs position considering all of the circumstances.4
Is that clear?
3 Meritor v. Vinson (1986), Harris v. Forklift (1993),
Onacle v. Sundowner (1998), Burlington Industries v. Ellerth (1998) and
Faragher v. Boca Raton (1998).
4 It should be noted, however, that the EEOC advocates the reasonable person standard originally espoused in
Ellison v. Brady (1991).
The Americans with Disabilities Act
The EEOC reports that since 1992, it has obtained approximately 325 million
dollars on behalf of approximately 20,000 ADA plaintiffs. The recent press
releases on ADA-related issues include
- Initiation of a lawsuit against Northwest Airlines regarding its zero
acceptability policy in relation to individuals with diabetes and
epilepsy (April 25).
- Three press releases related to prior and ongoing litigation against
Wal-Mart (May 10, June 14, and June 21).
- Two press releases in relation to genetic testing by Burlington Northern
Santa Fe Railroad (BNSF) (February 9 and April 19).
In the Northwest case, the EEOC is challenging a blanket exclusion of
individuals with diabetes or epilepsy on behalf of three plaintiffs who applied
for jobs as baggage handlers and/or airplane cleaners. The EEOC contends that
Northwest refused to consider on an individual basis (a) if these applicants
posed a direct threat to workplace safety and (b) if there were potential
reasonable accommodations. Prior rulings in related cases are mixed. For
example, in Turco v. Hoechst (1996), diabetes was deemed to be a direct
threat to workplace safety in a job involving heavy equipment and intense heat.
But in Sarsycki v. UPS (1994) a company rule excluding diabetic truck
drivers was defeated based on the plaintiffs showing that he could be
reasonably accommodated by having food available while driving the truck.
In the 1990s, the EEOC filed 15 lawsuits against Wal-Mart. Among these, two
were settled, three resulted in jury trial losses (by Wal-Mart), and 10 are
still pending. On May 10, the EEOC sued Wal-Mart for contempt for failing to
abide by a settlement agreement in case #15; on June 14, the district court
agreed and ordered a $750,000 fine. The June 21 release is for case #16 on
behalf of a plaintiff who was severely restricted with respect to standing for
long periods of time. The plaintiff, who applied to be a people greeter,
requested periodic rest breaks. According to the EEOC, Wal-Mart refused to
engage in flexible interaction to determine if this request was a
reasonable accommodation. Interestingly, there are several prior cases in which
employers had what appeared to be winning hands, but lost for failing to
flexibly interact.5
5 See for example Bultmeyer v. Ft. Wayne
Schools, 1996; Feliberty v. Kemper, 1996 ; Whitebeck v. Vital Signs (1997);
Ralph v. Lucent Technologies (1998); Criado v. IBM (1998); Dalton v. Subaru-Izuzu (1998); and
Hendricks-Robinson v. Excel Corp. (1998)
The Northwest and Wal-Mart releases involve ADA issues that have a relatively
rich case law history. In comparison, the BNSF case is likely to open new
vistas. On February 9, the EEOC filed for a preliminary injunction against
BNSFs policy of using secret genetic blood tests to assess Chromosome 17
deletion, a presumed predictor of carpal tunnel syndrome. In the April 19
release, the EEOC announced a partial settlement in which BNSF will (a) no
longer require employees to submit blood samples for genetic testing; (b) not
analyze any blood previously obtained; (c) not evaluate, analyze or consider
previous tests conducted; and (d) not retaliate against those who opposed the
testing or participated in the EEOC proceedings. The EEOC has also requested the
statutory limit for compensatory and punitive damages ($300,000) for each of 20
to 30 affected employees. The EEOC contends that such blood tests are
unlikely to be relevant to the employees present ability to perform his or
her job, and consequently, satisfy the regarded as prong of the
definition of being disabled.6
6 There are three prongs to the definition of being disabled under the ADA: (1) a current physical or mental impairment that substantially limits a major activity; (2) a history of such a disability; and (3) being regarding as being disabled.
The only analogous case in the literature is E. E. Black v. Marshall
(1980), a claim filed under Section 503 of the Rehabilitation Act of 1973. Black
was excluded from apprentice carpentry after a medical exam revealed a
congenital back disorder. Black did not satisfy prong 1 because he had no
current impairment, and did not satisfy prong 2 because he had a history of only
two minor workplace episodes. However, the Hawaii District Court ruled that
Black is protected under prong 3 because his exclusion was based on the belief
that he would someday be disabled (and, at that time, be eligible for workers
compensation benefits).
An ironic twist to this case involves the prong 1 status of carpal tunnel
syndrome itself. In McKay v. Toyota (1997), the 6th Circuit
ruled that carpal tunnel syndrome does not qualify as a disability when the
severely restricted major life activity is working. More recently (Williams
v. Toyota, 2000), the 6th ruled that carpal tunnel does satisfy
prong 1 because of substantial interference with the life activity of performing
manual tasks. However, for reasons noted in this column in the July 2001
issue of TIP, the Supreme Court will likely strike down this ruling in
the 20012002 term.
The Age Discrimination in Employment Act
The EEOC reports that in 2000 there were 16,008 ADEA claims and, that during
the year, EEOC enforcement and litigation resulted in awards totaling 56 million
dollars. More recent victories include the following two cases:
- A jury trial victory against University of Wisconsin Press awarding
$430,427 in back pay, front pay and liquidated damages to be shared by four
plaintiffs aged 46 through 54 (May 10).
- A summary judgment victory against Bul HN Information Systems for
violating Title II of the Older Worker Benefits Protection Act of 1990 (or
OWBPA) (June 12).
The Wisconsin case is relatively straight forward; four older employees were
discharged and replaced by four much younger employees, the rational being that
the older employees lacked newer computer technology skills. The EEOC
successfully argued that the older workers were ready, willing and able to
receive training for these newer skills and were illegally denied the
opportunity.
The Bul HN case is particularly relevant in view of the current economic
climate in which large companies are laying off thousands of employees. During a
large-scale reduction in force (or RIF), Bul HN forced older employees to waive
their ADEA rights in exchange for severance pay, a clear violation of Title II
of the OWBPA. This case is reminiscent of the 1980s in which some companies
forced older workers to choose between severance pay and retirement benefits
(see EEOC v. Westinghouse, 1983 and EEOC v. Bordens, 1984), a
policy outlawed in Title I of the OWBPA.7 Title II of the OWBPA
outlines eight provisions for legally obtaining voluntary waivers. Critically,
lower courts (e.g., Burch v. Fluor, 1994 and Griffen v. Kraft,
1995), as well as the Supreme Court (Oubre v. Entergy, 1998), have
enforced these provisions quite literally.
7 Title I of the OWBPA was written to clarify the definition of bona fide benefit plans (BFBP) in light of a controversial Supreme Court ruling in Public Employees of Ohio v. Betts (1989).
Heightened scrutiny by the EEOC of large-scale RIFs is not new. For example,
in 1994, the EEOC mediated a $300,000 settlement for 32 older Piedmont Airline
pilots who were let go after Piedmont was acquired by US Air. Then, in three
1996 settlements, the EEOC extracted 13 million dollars in backpay and the
promise of 450 jobs for older employees laid off by Lockheed Martin (the former
Martin Marietta), about 18 million dollars from Monsanto on behalf of 43 older
laid-off workers, and 2.5 million dollars from General Dynamics on behalf of 110
employees who were first reassigned to corporate headquarters and then laid off.
Of particular interest given the current economic climate is the 8th provision
for voluntary waivers in Title II of the OWBPA. This provision requires that
employees who are offered early retirement packages must be given information on
(a) who else is eligible, (b) the time limit for making a decision, (c) job
titles of all employees who volunteer to retire, and (d) similarly situated
employees (in both the same job classification and in the same organizational
unit) who are not eligible or selected for the program. The enhanced early
retirement package is not only legal, but virtually endorsed in the OWBPA.
However, in at least one media report relating to a RIF, an employee who
accepted an early retirement package and who was otherwise satisfied, turned
around and sued because, as a result of provision 8, he learned that a
disproportionate number of the layoffs involved workers over age 50. Perhaps
companies need to rethink whether it is necessary to obtain the voluntary
waiver, given legally obtained (i.e., without coercion) volunteers for enhanced
early retirement packages.
Speak English Only Rules
Finally, on April 20, the EEOC announced a 2.44 million dollar settlement
against the University of the Incarnate Word on behalf of 18 Hispanic
housekeepers who were required to speak only English, not only on the job, but
also during breaks and lunchtime. There were also indications of harassment.
This case is important because of the history of the English-only issue. In Garcia
v. Gloor (1980), a case decided shortly before the 1980 update of EEOC
Guidelines, the 5th Circuit rejected a challenge to an English-only
policy. Subsequently, in the 1980 update to the Guidelines (see section 1606.7),
the EEOC maintained an opposing position, arguing that English-only policies
create an atmosphere of inferiority when applied at all times and require
justification in accordance with job relatedness. Then, in 1983 (EEO Decision
83-7), the EEOC opined that English-only policies are job related when justified
by safety concerns. More recently, in Garcia v. Spun Steak (1993), the 9th
Circuit, in a divided ruling, overturned the EEOC Guidelines on this
issue, and the Supreme Court refused to review the case. The EEOC, in turn,
disagreed with the 9th Circuit ruling, stating that:
The 9th Circuits decision is the only appellate level ruling
involving English-only requirements in 14 years since [the] EEOC promulgated
national origin guidelines, creating speculation that the Court denied review
in Garcia to allow other circuit courts to weigh in on the English-only
issue.
In short, the EEOC believes that the Spun Steak ruling reflects the law in
only one circuit, and its settlement in the Incarnate Word case expresses the
EEOCs resolve to continue to fight on this issue.
Conclusion
The present discussion does not exhaust all of the press releases for the
interval in question (January through July 2001). Also, the interval in question
is only 7 months. Therefore, make sure to bookmark www.eeoc.gov
and visit it routinely.
References
Bultmeyer v. Fort Wayne Schools (CA7 1996) 100 F.3d1281.
Burch v. Fluor (D.Mo 1994) 65 EPD 43,227.
Burlington Industries v. Ellerth (1998) 118 S.Ct. 2257.
Criado v. IBM (CA11 1998) 145 F.3d 437.
Dalton v. Subaru-Isuzu Automotive, Inc. (CA7 1998) 141 F.3d 667.
E. E. Black v. Marshall (D. Hawaii, 1980) 497 F.Supp 1088.
EEOC v. Bordens Inc. (CA9 1984) 724 F.2d 1390.
EEOC v. Westinghouse Electric Corp. (CA3 1983) 725 F.2d 211.
Ellison v. Brady (CA9 1991) 924 F.2d 872.
Faragher v. City of Boca Raton (1998) 139 LED 2d 867 (No. 97-282).
Feliberty v. Kemper (CA7 1996) 98 F.3d 274.
Garcia v. Gloor (CA5 1980) 618 F.2d 264.
Garcia v. Spun Steak (CA9 1993) 998 F.2d 1480.
Griffin v. Kraft Foods (CA11 1995) 62 F.3d 368.
Harrris v. Forklift (1993) 114 S.Ct. 367.
Hendricks-Robinson v. Excel Corp. (CA7 1998) 154 F.3d 685.
McKay v. Toyota (CA6 1997) 110 F.3d 369.
Meritor v. Vinson (1986) 477 US 57.
Onacle v. Sundowner (1998) 523 US 75.
Oubre v. Entergy Operations (1998) 118 S.Ct. 838.
Public Employees Retirement System of Ohio v. Betts (1989) 492 US 158.
Rabidue v. Osceola (CA6 1986) 805 F.2d 611.
Ralph v. Lucent Technologies (CA1 1998) 135 F.3d 166.
Rogers v. EEOC (CA5 1971) 454 F.2d 518.
Sarsycki v. UPS (W.D.Ok 1994) 862 F.Supp 336.
Turco v. Hoechst (CA5 1996) 101 F.3d 1090.
Whitebeck v. Vital Signs (CA DC 1997) 116F.3d 588.
Williams v. Toyota (CA 6 2000) 223 F.3d 840.
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