Key Issues Targeted by EEOC in Recent Lawsuits Filed Against Employers

Periodically reviewing the most recent cases filed by the EEOC (Equal Employment Opportunity Commission) against various companies can help remind your office of the federal employment rights that must be regularly extended to all job applicants and current employees.

Far too often, employers fail to protect workers against hostile work environments and many different forms of harassment and discrimination.  Employees being sexually or racially harassed can never do their best work. This also holds true for people mistreated due to physical disabilities, religious beliefs – or their national origin. These types of illegal activities are constantly monitored by the EEOC so that equal employment rights can be guaranteed to everyone trying to get hired or hold down a job.

What follows is a brief review of some recent cases filed by the EEOC against companies they believe have violated federal employment laws. While some of these actions have been resolved, others are still awaiting a final ruling.

New EEOC cases reveal the broad spectrum of employment rights regularly enforced

  • A Dallas pregnancy discrimination case was decided against the employer. A receptionist working for Smiley Dental Walnut spoke to human resources to inform them that she was pregnant. After being ordered to tell her supervisor this news, the young woman complied. During the conversation with her supervisor – who noted that she did not wish to keep training the young woman since she might leave relatively soon — the pregnant employee was fired.

The U.S. District Court for the Northern District of Texas, Dallas Division, ruled against the employer. Attempts to settle prior to litigation failed. Injunctive relief (sought to make sure the company never repeated this same type of illegal behavior in the future) was sought and awarded – along with back pay and other damages. The company was ordered to pay $20,000 to the wronged employee;

  • Walmart was ordered to pay $5.2 million for intentional discrimination against a disabled employee. The mistreated worker had dutifully worked around his developmental disability, deafness, and visual difficulties for 16 years. However, a new store manager came in and demanded that new medical paperwork be submitted to document all the employee’s disabilities. The disabled employee was then suspended temporarily from his job.     

However, once the requested paperwork was produced, Walmart cut off further communications with the disabled man — basically resulting in his termination. The EEOC prevailed in this case in which $5 million of the award was for punitive damages;

  • Two female nurses filed an EEOC complaint about unequal pay. The women had job experience equal to that of a male nurse – yet the women were paid less. All three nurses complained about this issue. The EEOC won the case on behalf of the female nurses, noting the importance of closing the pay gap that often works against women in this country;
  • A case was filed involving discrimination based on national origin and religion. Three Pennsylvania employees from Puerto Rico were working for a caster and wheel company when they were subjected to workplace harassment based on their national origin and their religious (Pentecostal) beliefs. Oddly enough, it was the plant manager who was making the derogatory remarks when the harassed employees decided to report his illegal and upsetting behavior. The three employees were then subjected to retaliation (in the form of lesser work assignments) for complaining about the way they were being treated.

The EEOC stated in its pleadings that company managers should always act respectfully as role models—and never be the ones who harass their own employees;                                          

  • A sexual harassment lawsuit was filed on behalf of two female employees. The EEOC alleged in its lawsuit that the defendant hospitality companies created an abusive and hostile working environment for two of its female employees. The women complained about sexually rude comments and behavior directed toward them by their manager.

When the employees complained to their supervisors and others, nothing was done to improve their situation. In this case, a request was made for both compensatory and punitive damages – along with back pay for the two women. This suit is still pending;

  • A disability discrimination case was filed based on the way a hearing impaired job applicant was treated. When a problem arose during the hiring process related to the applicant’s hearing disability, the employer failed to accommodate her reasonable request to simply be interviewed in person and not over the phone. The company never responded to the job applicant’s email proposing this simple alternative.

Instead, four other applicants (who didn’t require any type of accommodation) were then interviewed and one of them was chosen for the job opening. The EEOC lawsuit requests lost wages, punitive and compensatory damages – and injunctive relief to prevent the employer from repeating this type of discrimination against other job applicants (or employees) who have disabilities in the future;

  • A racial slurs and harassment case. A man hired as a deckhand by a New Orleans transportation company was subjected to offensive racial epithets and conduct. When the man asked for help in stopping this behavior, the situation did not improve. Soon thereafter, a rope tied in the form of a noose was dropped near this harassed man on the deck where he was working.

The EEOC described these wrongful acts as “deeply offensive.” The government is seeking injunctive relief against the transportation company – along with compensatory and punitive damages — and any other relief the court decides is necessary.

Each of these new cases and decisions document how common intentional acts of workplace discrimination still are in this country. All employers should consider requiring annual training for every employee in hopes of seriously discouraging all forms of workplace discrimination and harassment.

Should you need help interpreting any of the federal (state or local) laws that are designed to protect employee rights, please contact one of our Murray Lobb attorneys. We’ll be glad to help you analyze any problems that you may have — or help you draft any new workplace contracts or employee handbook sections related to this (or any other employment law) topic.

Properly Handling Background Record Checks of Potential Employees

All companies must proceed cautiously while trying to create safe, productive and pleasant work environments. The best approach is to develop standard procedures for running background checks and investigations for all applicants who will be handling similar tasks — without regard to any discriminatory traits or characteristics.

First and foremost, you must obtain each job applicant’s written permission to run checks on their job and educational records, criminal background history and financial credit status. Should any of the information you obtain make you no longer wish to consider a specific job applicant, you must inform that person about each report’s negative findings – since all potential employees have the right to refute and correct such data.

Always be sure to also treat all applicants with equal respect and remind them that you’re simply trying to learn all you can about your top applicants. And be sure to state in writing that providing false information can cause individuals to be immediately dropped from further consideration – or be fired in the future when such misinformation is discovered.

Here’s additional information about the types of errors that can appear in background checks, how you might allow job candidates to respond to negative findings — and tips on exercising special caution when sensitive data appears on either sex offender registries or terror watch lists.

Types of negative information & errors that may be uncovered during background checks

Hopefully, most of your searches will just reveal that your applicants have provided their correct names, full address histories, all job information for recent years, accurate Social Security numbers and other basic data. However, chances are that at least some of your potential employees will need to explain about one or more of the following findings.

  • Past arrests or conviction records. Always pay close attention to the types of behavior or crimes involved, when the events occurred and how (if true) that history might affect your work environment. If you still wish to hire a person with some type of negative arrest or conviction, remember that you have a legal duty to create a safe work environment for all your employees. Also, bear in mind that future claims of negligent hiring could prove very costly to your company.
  • Fraudulent or grossly misleading information about the applicant’s academic background or work history. As noted above, make sure that all your application forms clearly indicate that providing false information on such forms (or on a resume) can be immediate grounds for dismissing an applicant from further consideration. Should you believe that any applicant may have simply made a typographical or innocent error on the forms, always allow the person to provide corrected information. Just be sure to respond to the discovery of such false information in the same manner for every applicant;
  • Misleading or inaccurate driving record information. If you’re hiring someone to deliver packages or goods for you – or drive others around on your company’s behalf, you better make sure they have an excellent driving record.
  • A very poor credit score, a bankruptcy or other signs of major financial problems. Always be sensitive and careful when asking applicants to explain this type of information;
  • The person’s name turns up on a sex offender registry or a terrorist watch list. Given the number of people who are burdened with very common names, always reveal what you’ve learned to the individual in a calm manner, preferably with at least one other human resources staff member present. If you still want to hire a person whose name was on one of these lists, always first speak with your Houston employment law attorney.

Your lawyer can tell you how you should go about carefully determining a person’s correct identity and if it’s too risky to hire someone. It may even be necessary to contact the Department of Homeland Security if the person is listed on a terrorist watch list. (Do keep in mind that even the government knows that it can be very time-consuming to remove a name wrongfully added to a terrorist watch list);

It’s crucial to maintain a standard of fairness that applies to all applicants

Be sure your company’s hiring policies provide specific time limits on when applicants must provide you with corrected information after background checks turn up negative or disturbing information. Always apply that same standard to all applicants. If someone needs more time, you should only allow a one-time extension that applies equally to others.

How long must you keep all job application forms and background check information?

The EEOC (Equal Opportunity Commission), the Department of Labor and the FTC (Federal Trade Commission) each provide slightly different guidelines on how long certain records should be kept. Overall, it’s a good idea to keep a copy of all application materials and background information for about two years. Of course, if any job applicant or employee files a lawsuit against your company, that person’s records should be kept until all legal proceedings and appeals have come to an end.

Make sure all employee records are stored in a restricted area where only one or two senior human resource officials have access to them. Once it’s time to destroy the records, it’s wise to carefully shred, burn or pulverize the data so that the material can no longer be read.

Of course, some employers keep all resumes and job application forms in case they later have problems with an employee — or come across information that indicates that the background check failed to disclose fraudulent claims were contained in those documents. Some firms just scan all such data into secure databases.

Since credit background checks are governed by the Fair Credit Reporting Act (FCRA), be sure you understand the terms of that legislation and how it impacts your specific workplace. Also, always keep in mind that the State of Texas also has laws and regulations that can impact how your company handles background checks and employee records. It’s always wise to periodically touch base with your lawyer to find out if any of these laws have recently changed.

Please feel free to contact one of our Murray Lobb attorneys so we can provide you with the legal guidance you may need while hiring employees or simply running your business. We can also provide you with any contracts you may need — or review the contents of your current employee handbook.