Professional Service Agreement

Week in Review

February 02, 2015

Week in Review 1/30/2015

Detroit automotive wheel chain settles sexual harassment, retaliation suit

A Detroit-based automotive wheel and accessory store chain, will pay $20,000 and provide equitable relief to put an end to a sexual harassment and retaliation lawsuit brought by the EEOC on behalf of a female employee who the agency said was harassed by a male coworker. The company violated Title VII when it subjected the employee to a sexually hostile work environment at the hands of a male coworker, the EEOC said in a January 26 release. The agency's complaint also claimed that the employee reported the sexual harassment and was thereafter fired in retaliation for complaining.

DOJ upholds transgender protections, while Saks backs off dismissal request

On the heels of a brief by the EEOC earlier this month, the Department of Justice filed a statement of interest in response to a Saks motion to dismiss a complaint filed by a former transgender employee. Much like the EEOC the DOJ took issue with Saks' contention that Title VII's bar against sex discrimination does not protect transgender individuals. "Both the text of the statute and case law interpreting it undercut that argument," the DOJ said. "Accordingly, both federal agencies charged with enforcing Title VII-the United States Department of Justice and the United States Equal Employment Opportunity Commission ("EEOC")-have determined that Title VII's prohibition of discrimination "because" includes discrimination because of transgender status." The former employee filed the complaint citing a litany of incidents she asserted amounted to sex discrimination in violation of Title VII. She also complained of retaliation that culminated in her discharge from Saks 10 days after filing a discrimination charge with the EEOC.

EEOC resolves disability discrimination suits

On January 27, the EEOC announced the settlements in separate lawsuits challenging disability discrimination in violation of the ADA by employers, one a large national retailer, and the other a local house-cleaning service.
Kmart Corporation – The leading national retailer Kmart Corporation has agreed to pay $102,048 and provide significant equitable relief to resolve the EEOC's disability discrimination suit on behalf of an applicant who was offered a job but could not produce urine for a pre-employment drug screen. After Kmart offered the applicant a job in one of its Maryland stores, the applicant advised the hiring manager that he could not provide a urine sample for the company's mandatory pre-employment drug screening due to his kidney disease and dialysis. The applicant requested a reasonable accommodation such as a blood test, hair test, or other test that did not require a urine sample. However, Kmart refused to provide that alternative test and denied the applicant employment because of his disability, all in violation of the ADA, the EEOC asserted.
In addition to the monetary relief the retailer must also revise its drug testing policies and forms to specify the availability of reasonable accommodation for applicants or employees in the company's drug testing processes; provide training on the EEO laws enforced by the EEOC and on Kmart's ADA policy and the provision of reasonable accommodation, including as it relates to the company's drug testing processes; and post a notice regarding the resolution of this lawsuit. This case demonstrates that the consequences of failing to comply with the ADA can be far more expensive than the actual cost of providing a reasonable accommodation.
The Cleaning Authority of Plainfield — will pay $15,000 to a former employee as part of a three-year consent decree resolving a suit brought by the EEOC on behalf of an employee with an abnormal gait. The Illinois based house cleaning service violated the ADA when one of the company's officers harassed an employee who walks with an abnormal gait due a stroke, according to the EEOC's complaint. The officer allegedly referred to the employee as "a cripple," mockingly imitated the way she walks, and told her that she was being a "hysterical basket case" when she objected. The officer also reportedly asked the employee, "Are you crippled?"
District Judge Charles Norgle entered a decree resolving the suit on January 23. Aside from the monetary relief for the employee, the decree requires the company to provide training to its managers and other employees about the ADA, and imposes record-keeping and reporting requirements for the duration of the decree, among other measures.
"When directed at an individual with a physical disability, 'cripple' is a profoundly offensive and degrading epithet," observed EEOC Regional Attorney John Hendrickson. "Courts and the EEOC have long recognized that the use of unambiguously discriminatory epithets by a manager to a subordinate can quickly create an abusive working environment."

Alabama — Top jurist says state same-sex marriage ban stands despite federal ruling

Just one week after the highest court in the land granted certiorari on the question of whether states may ban same-sex marriage and refuse to recognize those lawfully performed elsewhere, a district court in Alabama invalidated that state's man-woman marriage laws, giving rise to a vow by the state's top jurist to nonetheless continue recognizing the ban.

Adoption denied
The plaintiffs in Searcy v. Strange are a same-sex couple lawfully married in California. One spouse sought to adopt the other's child under Alabama's adoption law, which allows an individual to adopt her spouse's child. A county probate court denied the petition for adoption, citing the Alabama Sanctity of Marriage Amendment and the Alabama Marriage Protection Act, which limits marriage to man-women unions, invalidate same-sex marriages, and expressly decline to recognize same-sex marriages performed elsewhere.

An Alabama state appeals court affirmed the adoption denial and the plaintiffs turned to a federal district court for relief, asserting the unconstitutionality of Alabama's same-sex marriage ban. On Friday, January 23, the federal court ruled that Alabama's man-woman marriage laws were unconstitutional because they violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Just four days after the federal court rendered its ruling, Alabama Supreme Court Chief Justice Roy S. Moore declared that despite the federal ruling, he will continue to recognize the state's same-sex marriage ban in a letter to Governor Robert Bentley. In support of his position, the state jurist cites, among other things, the Bible at Mark 10:6-9, presumably for the limitation of marriage to man-woman unions. According to Moore, "Nothing in the United States Constitution grants to the federal government the authority to desecrate the institution of marriage." Moore went further by asking the governor "to continue to uphold and support the Alabama Constitution with respect to marriage, and be advised that I stand with you to stop judicial tyranny and any unlawful opinions issued without constitutional authority."