What Employers Should Know About Retaliation

Based on Title VII of the Civil Rights Act, the Equal Employment Opportunity Commission (EEOC)  explains that it is illegal for employers to fire, demote, or otherwise “retaliate” against employees or applicants because they filed a discrimination charge, complained to their employer about job discrimination or participated in an employment discrimination proceeding, such as a lawsuit or investigation. Discrimination law prohibits retaliation in the form of denying hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits and any other term or condition of employment.

A few years ago during the conciliation process, KONE Inc. reached a settlement with the EEOC using mediation. The settlement was for an employee who had filed a complaint of discrimination with the EEOC against the company. A stipulation in the mediation agreement was that KONE would recode the employee’s personnel file, making her eligible for future rehiring. However, KONE failed to do so and listed the employee as ineligible for rehire in the personnel system, which resulted in failure to rehire her on several occasions.

The EEOC sued on behalf of the employee and the court found that KONE had breached the mediation agreement, was in violation of Title VII of the Civil Rights Act and required KONE to pay $85,000 in monetary relief.

The court also required KONE to provide workplace training on discrimination and retaliation, keep records of discrimination complaints and provide the EEOC with annual reports.

Understanding discrimination law and what courts consider retaliation is vital for a business owner. Companies must ensure that anti-discrimination policies are in place and that management is following them.

Stephen Hans & Associates has decades of employment litigation experience and works with business owners to help them comply with laws and protect their rights. To avoid costly legal expenses, seek legal help at the first sign of discrimination issues. If you already face a complaint, our firm can help.

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Take Quick Actions When Signs of Discrimination Emerge in Your Business

All too often, business owners are not aware of their managers or supervisors engaging in discriminatory practices toward workers. When workers complain about racial or nationality slurs being made in the workplace, this is a red flag for owners to seek legal counsel and handle such complaints before situations escalate.

Recently the Equal Employment Opportunity Commission brought a case in Nevada against a hospitality industry company named Pioneer Hotel. The EEOC alleged that since 2006, hotel workers, who were a class of Latino and/or brown-skinned workers, bore the brunt of extremely offensive and derogatory comments based on their nationality and skin color. The workers subjected to this discrimination were mainly security officers and housekeeping staff. Supervisors and co-workers made these slurs against them and also instructed them not to speak Spanish during their break times. Despite the fact that workers submitted numerous complaints, the hotel failed to stop and correct the discriminatory behavior.

Such treatment was in violation of Title VII of the Civil Rights Act of 1964. The EEOC filed a lawsuit and Pioneer entered into a four-year consent decree to settle the dispute. Terms of the settlement included paying $150,000 to the class members and obtaining an equal employment opportunity consultant to ensure implementation of effective training, policies and procedures to prevent further discrimination, harassment and retaliation. Complaints must be reported immediately to the human resources department, and the company must devise a centralized system to track complaints and post the consent decree at the hotel.

When business owners work closely with employment litigation attorneys, they receive vital legal help to avoid incidents such as the above.

Business owners who see signs of discrimination in their company should consult with our attorneys at Stephen Hans & Associates as soon as possible. If you already face employment disputes we can help protect your rights and settle out of court or litigate on your behalf.

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CVS Hit with Class Action Discrimination Lawsuit

Recently a discrimination lawsuit against CVS Pharmacy became high profile in the news.

The New York Time reported that CVS’s former employees complained that managers required them to profile black and Hispanic shoppers for shoplifting. When they complained about this practice to their supervisors, they were fired.

Consequently, the former employees have filed a class-action lawsuit against CVS, which is a large drugstore chain on the East Coast, surpassed in size only by Walgreens. They filed their lawsuit in the Federal District Court in Manhattan. CVS also fired store investigators who complained about racial discriminating targeting of shoppers, and in fact, all plaintiffs in the class action are either black or Hispanic. The former employees alleged that after complaining about the racial discrimination, their supervisors subjected them to heightened “scrutiny, micromanagement and fabricated performance criticism.”

A year ago, Macy’s and Barneys New York faced racial discrimination allegations for similar issues and settled complaints with NY State Attorney General, Eric T. Schneiderman. Macy’s and Barneys New York paid $650,000 and $525,000 respectively and agreed to implement racial discrimination reform measures.

Clearly, stores must deal with shoplifting issues because theft threatens their viability and reduces profit margins. However, retail business owners must also be vigilant about not allowing discriminatory practices to enter into dealing with the problem. A CVS spokes person informed the news media that CVS has strong anti-discrimination policies, which it rigorously enforces.

For decades, Stephen Hans & Associates has helped business owners put best practices and anti-discrimination policies in place along with protecting their rights through litigation and negotiated settlements.

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U.S. Supreme Court Rules in Abercrombie & Fitch Discrimination Case

In March, we blogged about a religious discrimination case that was scheduled for hearing at the U.S. Supreme Court level. The Supreme Court rendered its decision on June 1, with the judges almost in unanimous agreement — eight to one.

Abercrombie & Fitch refused to hire Samantha Elauf because she wore a headscarf during her job interview, which the company said was in violation of its dress code, which called for a “classic East Coast collegiate style.” They argued she had not stated her headscarf was based on her religious practice.

The New York Times quoted Justice Antonin Scalia as saying that reaching a decision was very easy. This proved to be true because the only dissenting justice was Justice Clarence Thomas.

The Supreme Court remanded the case to the lower court for trial. The court based its reasoning on the fact that the company certainly had to suspect the applicant’s reasons for wearing a headscarf were due to religious practice. Justice Scalia stated that based on Title VII of the Civil Rights Act of 1964, Ms. Elauf did not have to specifically ask for religious accommodation. The Act entitled her to freedom from religious discrimination, and clearly, the company decided not to hire her based on her religious practices. Justice Scalia said, “Title VII forbids adverse employment decisions made with a forbidden motive, whether this motive derives from actual knowledge, a well-founded suspicion or merely a hunch.”

Employers should take note and apply this fact to their hiring practices.
If you own a business and have discrimination or other employment issues, Stephen Hans & Associates can assist you. We bring decades of experience to the table whether litigating or resolving cases through negotiated settlement.

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Food Industry Labeling: The Nuances of Meeting FDA Standards

At the end of November, 2014, the Food and Drug Administration (FDA) began requiring restaurants and vending machine companies to label foods for nutritional value. At first glance, this requirement may not seem like a significant legal issue, but in light of a recent investigation, perhaps there is more than meets the eye.

In March, 2015, the FDA issued a warning letter to a New York company called Kind, LLC

The company manufactures healthy snacks, and the FDA warned that the company’s labeling failed to meet FDA labeling requirements for its products: Kind Fruit & Nut Almond & Apricot, Kind Fruit & Nut Almond & Coconut, Kind Plus Peanut Butter Dark Chocolate + Protein, and Kind Plus Dark Chocolate Cherry Cashew + Antioxidants.
The labeling on these snacks violated the Federal, Food, Drug, and Cosmetic Act. Some of the words used in advertising the product included “healthy and tasty,” “convenient and wholesome,” “good source of fiber,” “no trans fats” and “very low sodium.” The FDA maintains strict percentage standards for certain nutrients to be called “no trans fats” or “antioxidant rich” and “very low sodium.”

The following was an example of how product labeling was inconsistent with FDA standards. To meet a claim of “healthy,” foods must conform to the standards set forth in 21 Code of Federal Regulations (CFR) 101.65(d)(2) . “Low saturated fat” is a fat content of one gram or less and with no more than 15 percent of the calories in the food derived from saturated fat. The Kind, LLC products had 3.5 grams of saturated fat, not one gram or less.

This was just one of a number of violations and the warning letter gave Kind, LLC 15 days to respond and explain the actions being taken to correct each of the violations listed.

In the sea of regulations and laws that businesses must comply with today, it is vital to have an employment law attorney to consult with and receive help from with legal issues, whether involving regulatory agencies or employees. The best defense is always preventative in nature.

Stay on top of your business by consulting with an experienced employment defense lawyer. Stephen Hans & Associates has successfully defended and provided legal guidance to employers for more than 20 years.

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EEOC’s Strategic Plan and Lawsuits Based on Widespread Discrimination

When the Equal Employment Opportunity Commission (EEOC) determines that a claim merits litigation based on widespread discrimination, it is not required to name specific individuals as victims of discrimination to bring a lawsuit.

This was the ruling in a recent lawsuit filed by the EEOC entitled the EEOC v. Rosebud Restaurants, Inc. et al. The EEOC alleged that Rosebud Restaurants violated Title VII of the Civil Rights Act by refusing to hire African-Americans because of their race. The EEOC first attempted a pre-litigation settlement through its conciliation process; however, Rosebud Restaurants filed a motion to dismiss the case, arguing that the EEOC failed to identify the victims of the alleged hiring discrimination. The U.S. District Court denied Rosebud Restaurant’s motion, stating that allegations of intentional discrimination were sufficient to state a claim for Title VII relief without identification of specific job applicants.

Bringing litigation against widespread discrimination is one of the priorities listed in the EEOC’s Strategic Enforcement Plan (SEP)  SEP is a plan developed to combat systemic discrimination in hiring based on race. SEP uses strategies that include investigation and litigation to accomplish the following:

  • Eliminating barriers in recruitment and hiring
  • Protecting immigrant, migrant and other vulnerable workers
  • Addressing emerging and developing issues
  • Enforcing equal pay laws
  • Preserving access to the legal system
  • Preventing workplace harassment through systemic enforcement and targeted outreach

It is wise for small and mid-sized business owners to consult with an employment litigation attorney when devising company policies and practices. A lawyer can help you stay in compliance with state and federal anti-discrimination laws and regulations. Stephen Hans & Associates  has represented clients for more than 20 years in issues involving employment disputes, including discrimination allegations.

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EEOC Files Its First of Two Transgender Discrimination Lawsuits

New York employers should take note that the Equal Employment Opportunity Commission (EEOC) filed and settled its first transgender discrimination lawsuit. In April 2015, the EEOC brought the suit against Lakeland Eye Clinic in Florida but avoided trial by negotiating a pre-litigation settlement for $150,000 during its conciliation process.

The issue being litigated involved discrimination based on sex, alleging that the company fired its Director of Hearing Services after the employee began to present as a women, transitioning from male to female. The employee had performed at her job satisfactorily throughout her tenure as director, and the lawsuit alleged that she was fired because she became transgender and the company claimed this change did not conform with the employer’s gender-based stereotypes. However, Title VII of the Civil Rights Act protects employees against sex discrimination. The EEOC commended Lakeland Eye Clinic for settling the dispute and agreeing to provide its managers and employees with training that educated them against transgender discrimination.

At the federal level, this is a landmark case that sets a precedent for other transgender anti-discrimination cases brought before the EEOC.

At a state level, New York has had laws in place since 2002, under The Sexual Orientation Non-Discrimination Act (SONDA)

, which prohibit discrimination in employment based on actual or perceived sexual orientation, and this also extends to transgender issues.

If you are a business owner and have questions or disputes involving sexual orientation discrimination, Stephen Hans & Associates can help. Our firm provides representation to companies involved in anti-discrimination litigation and brings decades of experience to every case we handle.

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