EEOC’s Year-End Surge Shows Focus On Disability Cases

Law360, New York (October 20, 2017, 8:22 PM EDT) — The U.S. Equal Employment Opportunity Commission recently closed out its fiscal year with a bang, filing a wave of lawsuits against companies like Lowe’s and Whole Foods that placed a strong emphasis on disability discrimination, and settling existing cases against convenience store giant Allsup’s and others that involved hot-button issues. Here, Law360 rounds up key EEOC developments you may have missed over the past month.

In a report issued shortly after the end of the fiscal year on Sept. 30, Seyfarth Shaw LLP said that the EEOC filed at least 88 lawsuits in September. That was about triple the number of cases filed in September 2016, according to the report, which also found that the discrimination watchdog filed more cases from July through September this year than it filed in all fiscal 2016.

“When one first looks, it’s somewhat counterintuitive,” since there had been an assumption that the agency under the Trump administration might pursue fewer cases, said Gerald Maatman, a Seyfarth partner and co-author of the report. “The number of lawsuits went up from the year before. That’s a manifestation about how things work [with] litigation decisions being made in the field.”

But with the recent nominations of two potential new Republican commissioners, Maatman said the “numbers this year are not what they will be next year” as influence from the agency’s top decision makers begins to trickle down to field offices.

Strong Focus on Disability

While more than half of the EEOC’s 184 merit filings in fiscal 2017 involved alleged violations of Title VII, the agency filed 77 cases under the Americans with Disabilities Act, according to Seyfarth’s report.

Among those is a Sept. 28 suit the EEOC filed against Whole Foods Market Group Inc. alleging that it refused to accommodate and ultimately fired cashier Diane Butler, who had a kidney disease and underwent a transplant, from a store in Raleigh, North Carolina.

Whole Foods fired Butler after rejecting her request for time off because she missed work twice from being hospitalized and needing to visit the doctor, the suit says.

On the same day, the agency similarly alleged that Volvo Group North America LLC violated the ADA when it refused to hire Michael Files, a recovering drug addict, for a manufacturing job in Hagerstown, Maryland, even though his drug tests had come up clean for years.

The company pulled a conditional job offer it had made to Files after he informed a company nurse during a physical exam that he was taking medically prescribed suboxone, according to the suit, which says the nurse had told Files that Volvo viewed suboxone as a narcotic worse than heroin.

The EEOC didn’t stop there: It sued hotel franchise operator B.F. Saul Co. on Sept. 28 for firing an area sales manager just a week before she was scheduled to undergo breast cancer surgery, allegedly because it would take too long for her to get better, and two weeks earlier sued the Wynn Las Vegas hotel and casino for denying a manager’s request for time off to treat her ovarian cancer.

The agency also took aim at two of the country’s largest retailers for ADA violations, suing Lowe’s Cos. Inc. on Sept. 22 for allegedly demoting a department manager at its store in Cleburne, Texas, because a spinal cord injury prevented him from operating power equipment that requires the use of two hands, and accusing Home Depot Inc. on Sept. 28 of not accommodating a cashier in Peru, Illinois, who suffered from chronic conditions that can cause digestive problems.

The cases are EEOC v. Wynn Las Vegas, case number 2:17-cv-02405, in the U.S. District Court for the District of Nevada; EEOC v. Home Depot USA Inc., case number 1:17-cv-06990, in the U.S. District Court for the Northern District of Illinois; EEOC v. Lowe’s Cos. Inc., case number 3:17-cv-02589, in the U.S. District Court for the Northern District of Texas; EEOC v. B.F. Saul Co. et al., case number 8:17-cv-02879, in the U.S. District Court for the District of Maryland; EEOC v. Volvo Group North America LLC, case number 1:17-cv-02889, in the U.S. District Court for the District of Maryland; and EEOC v. Whole Foods Market Group Inc., case number 5:17-cv-00494, in the U.S. District Court for the Eastern District of North Carolina.

Continued Priority for LGBT, Gender, Race Issues

While the EEOC seemingly places a strong import on disability cases ahead of the close of fiscal 2017, cases involving other protected categories were also part of the mix.

In late September, the EEOC accused A&E Tire Inc., a Colorado chain of auto service shops, of violating Title VII when it pulled a job offer it had made to Egan Woodward, a man who applied for a services manager position in Denver, once the company found out he was transgender.

Woodward’s gender identity came to light because of the application and background screening paperwork A&E Tire asked him to fill out, which asked for his sex and for any other names he used in the past. Woodward was assigned female and given a female-identified name at birth, and he revealed that information to A&E Tire, according to the EEOC.

In its most recent Strategic Enforcement Plan, the EEOC said that ensuring anti-discrimination protection for LGBT people would remain one of its priorities through 2021.

The EEOC also kept up its pursuit of cases that involve gender- and race-based bias, accusing fast food giant Whataburger Restaurants LLC of forcing Vanessa Burrous, a white restaurant manager, to quit because she refused to go along with a directive from superiors to only hire white applicants, and accusing R Wings R Wild LLC, a Buffalo Wild Wings franchise operator, of not hiring male bartenders at locations in Arkansas and Oklahoma because it preferred having women behind the bar.

The cases are EEOC v. R Wings R Wild LLC, case number 4:17-cv-624, in the U.S. District Court for the Eastern District of Arkansas; EEOC v. Whataburger Restaurants LLC, case number 4:17-cv-00428, in the U.S. District Court for the Northern District of Florida; and EEOC v. A&E Tire Inc., case number 1:17-cv-02362, in the U.S. District Court for the District of Colorado.

Key Settlements

In addition to the new merit cases it had lodged in recent weeks, the EEOC has announced numerous settlements in existing cases.

Among the noteworthy resolutions was a case involving Allsup’s Convenience Stores Inc., which owns more than 300 convenience stores across New Mexico and Texas.

The company agreed to pay $950,000 to end a lawsuit in which the EEOC said pregnant employees were discriminated against by being given less favorable tasks and shifts and had to endure various negative comments like “you’re too pregnant to continue working here,” “you’re a liability” and even “had I known of your pregnancy, you would not have been hired.”

Besides the monetary figure, Allsup’s also agreed to offer re-employment to 28 women and enact various policies designed to prevent pregnancy discrimination from occurring. A federal judge approved the deal on Sept. 25.

Along the same lines, the employment discrimination watchdog also settled a pregnancy discrimination lawsuit on Oct. 16 against California orchid grower Dash Dream Plant for $110,000. The company had instructed female employees to not get pregnant or they would be fired, and didn’t rehire women who tried to return to work after childbirth, according to the agency.

Elsewhere, on the harassment front, the EEOC reached a $100,000 settlement with Clougherty Packing LLC, a Los Angeles-based meat processing company, over claims that supervisors subjected female workers to sexual harassment. Clougherty also agreed to revise various practices to ensure they are in compliance with Title VII, among other things. The deal was approved by the court on Oct. 12, about two weeks after the EEOC filed suit.

The agency won court approval on Oct. 16 for two settlements: a $135,000 deal with Ashburn, Virginia-based security services firm MVM Inc., to close the book on a suit that claimed it forced a Muslim security guard to shave the beard he kept long for religious reasons to keep his job after he complained about racial harassment, and a $125,000 deal with building material manufacturer Centurion Products LLC to end a suit alleging floor supervisors and other male employees routinely used explicit sexual innuendos and insults and engaged in unwelcome sexual touching of male employees.

The settlements in harassment cases highlight another of the EEOC’s key points of focus in recent years.

EEOC acting Chair Victoria Lipnic and Commissioner Chai Feldblum last year released a comprehensive report that outlined steps for preventing harassment in the workplace. In a preamble to that report, Lipnic and Feldblum said they were struck both by “how many cases of sexual harassment EEOC continues to deal with every year” since they each joined the EEOC, as well as the number of harassment complaints the agency deals with involving every other category protected under equal employment opportunity laws.

The cases are EEOC v. Allsup’s Convenience Stores Inc., case number 1:15-cv-00863, in the U.S. District Court for the District of New Mexico; EEOC v. MVM Inc., case number 1:17-cv-02025, in the U.S. District Court for the District of Maryland; EEOC v. Clougherty Packing LLC, case number 2:17-cv-07221, in the U.S. District Court for the Central District of California; and EEOC v. Centurion Products, case number 3:16-cv-02616, in the U.S. District Court for the Middle District of Tennessee.

–Written by Vin Gurrieri; Editing by Brian Baresch and Aaron Pelc.

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