Older Workers: Ruby Tuesday is Hiring!

Yesterday don’t matter when it’s gone?

It does to the U.S. Equal Opportunity Commission (EEOC).

The restaurant chain, Ruby Tuesday, Inc., named after the classic Rolling Stone song, has agreed to pay $575,000 to settle a  class age discrimination lawsuit filed in federal court in Pennsylvania by the EEOC in 2009 against six of the chain’s restaurants. (EEOC v. Ruby Tuesday, Inc., Civil Action No. 09-1330).

Perhaps more significantly,  the consent decree signed by Ruby Tuesday contains an unusually detailed and comprehensive multi-year plan that requires Ruby Tuesday to recruit and hire older workers.

The EEOC lawsuit charged that Ruby Tuesday violated the Age Discrimination in Employment Act of 1967 (ADEA) by discriminating against job applicants who were 40 years of age or older at six of the chain’s restaurants located in West Mifflin, Greensburg, Altoona, Du Bois, and Indiana, Pa., and in Beachwood, Ohio.

Ruby Tuesday also allegedly failed to preserve employment records, including employment applications, as required by the ADEA and EEOC regulations.

The equitable relief outlined in the three-and-one-half year consent decree requires Ruby Tuesday to:

  • Implement numerical goals for hiring and recruitment of job applicants age 40 and older at the affected locations;
  • Review its job advertisements to make certain they do not violate the ADEA;
  • Conduct audits, including random reviews of hiring decisions, to ensure non-discrimination and compliance with the  consent decree;
  • Evaluate the job performance of people with hiring authority for the six stores named in the consent decree and set their compensation (including bonuses), in part, based on their degree of success in helping Ruby Tuesday ensure that its recruitment and hiring practices provide equal employment opportunities for people who are 40 or older;
  • Designate a decree compliance monitor for oversight of compliance with the requirements of the ADEA and the terms of the consent decree;
  • Provide extensive training on the requirements of the ADEA and the consent decree to the decree compliance monitor, human resources personnel and hiring authorities of the six stores named in the consent decree; and
  • Report to the EEOC and keep records about its hiring practices and compliance with the consent decree.

Philadelphia Regional Attorney Debra M. Lawrence said “the extensive training and equitable measures are designed to improve recruitment and hiring of older workers and protect all applicants from age discrimination.”

According to its website, www.rubytuesday.com, Ruby Tuesday, Inc. has nearly 800 company-owned and franchised restaurants and more than 40,000 corporate and franchise team members.

“Lose your dreams
And you will lose your mind.
Ain’t life unkind?
Goodbye, Ruby Tuesday”

EEOC to Examine National Origin Discrimination

EEOCAn aspect of discrimination law that is gaining increasing attention is, not surprisingly, national origin discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC)will meet on Nov. 13 in Washington, DC, to examine issues and hear testimony related to the problem of national origin discrimination.

The backdrop of the EEOC’s meeting is impending immigration reform and the rise in the percentage of foreign-born workers in the U.S. workforce.

The Bureau of Labor Statistics (BLS) reported in May that there are 25 million foreign-born persons in the U.S. labor force, making up 16.1 percent of the total workforce. Hispanics accounted for 48.3 percent of the foreign-born labor force in 2012 and Asians accounted for 23.7 percent. The BLS reports that  the proportion of the foreign-born labor force made up of 25 – 54 year olds (75.6 percent) is now higher than for the native-born labor force (63.4 percent).

Under Title VII of the Civil Rights Act of 1964  and EEOC rules “national origin” discrimination includes the denial of equal employment opportunity because of an individual’s place of origin, their ancestor’s place of origin,  or because of the physical, cultural or linguistic characteristics of a national origin group.

Counsel for employers, in written testimony submitted to the EEOC, describe the enormous challenges faced by employers in tackling discrimination issues involving foreign-born workers.

Douglas J. Farmer, of Ogletree, Deakins, Nash, Smoak & Stewart, writes that  many foreign-born workers have little or no understanding of basic legal prohibitions on discrimination or harassment, have never seen an anti-harassment policy, and have never participated in anti-harassment training.  In one workplace, he states, an employer was confronted with a workforce in which workers spoke 60 different languages and dialects.

“Several of our employer clients have expressed concern that employer cost and lack of technical expertise present significant obstacles to the translation and effective implementation of policies and training programs,” Farmer writes.

He urged the EEOC to make anti-discrimination and harassment policies and educational programs available in multiple languages  to help employers convey these concepts to foreign-born employees in a cost-effective manner.

Rebecca  Smith, Deputy Director of the National Employment Law Project (NELP), urges the EEOC to address  “second-generation discrimination” practices that involve cultural attributes (language, accent) as well as stereotypes associated with a particular national origin or ethnic group. She said this form of discrimination can be seen in discriminatory recruitment practices and occupational segregation by ethnicity or national origin   For example, a restaurant may employ an Hispanic worker as a dishwasher but not as a server because of his or her accent.

Smith also said some unscrupulous American employers are using labor recruiters from the source country that are notorious for discrimination to handle the hiring of foreign-born workers, while arguing that they are not responsible for labor violations committed by their recruiters. In this way, Smith writes, the employer can shift labor costs and liabilities to the smaller entity, which is often an undercapitalized firm that cannot satisfy potential judgments against it

Smith also writes that harassment and threats of deportation are “almost standard operating procedure” in some guestworker-dominated work sites

NELP estimates that eight million undocumented workers form 5.2 percent of the U.S. labor force.

Perhaps it is a sign of the times but no union representative is slated to testify before the EEOC at the hearing.

Pregnancy Discrimination Act: 35 Years Later

No Accommodation Requirement

Thirty five years ago this week, President Jimmy Carter signed into law the Pregnancy Discrimination Act of 1978 (PDA).

The PDA,  an amendment of Title VII of the Civil Rights Act, has proven to be a weak tool to combat  a major societal problem;  It  requires employers to treat pregnant women like others in the workplace but  it does not require employers to make even minimal accommEEOCodation for pregnancy-related conditions  (such as difficulties standing for long period, lifting restrictions, insufficient bathroom breaks, etc.).

Efforts last year to address the PDA’s shortcomings died in the U.S. Congress but the U.S. Equal Opportunity Employment Commission (EEOC) in its 2013-2016 strategic plan  identified combating pregnancy discrimination as a top priority. The EEOC, which is responsible for enforcing the PDA, characterizes the problem as an “emerging and developing” issue. Specifically, the EEOC said it would address the problem of “accommodating pregnancy-related limitations” under the Americans with Disabilities Act Amendments Act and the PDA.

The EEOC and Fair Employment Practice Agencies around the country reported 5,797 complaints of pregnancy discrimination in 2011.

True to its word, the EEOC has filed a spate of lawsuits this year to combat pregnancy discrimination. Most, if not all,  of these lawsuits involve individual defendants and somewhat minor settlements but the EEOC’s effort raises awareness of the problem and, hopefully, puts employers on notice that they are being watched.

 Lawsuits Filed

Here is a sampling of the lawsuits filed this year by the EEOC involving the PDA:

  •  EEOC v. Reed Pierce’s Sportsman’ Grille:  A woman who was four months pregnant with her first child was fired because, her supervisor allegedly said, “The baby is taking its toll on you.”  The EEOC  filed suit in the U.S. District Court for the Southern District of Mississippi.  After the defendant lost two motions to dismiss the case, it settled for $20,000.
  • EEOC v. Ramin, Inc.:   Ramin Inc., the owner of a Comfort Inn & Suites, allegedly fired a  housekeeper after she reported her pregnancy because of supposed concerns about potential harm that her job could cause the baby.  The EEOC filed suit in U.S. District Court for the Eastern District of Michigan. The defendant agreed to pay $2,500 in back pay and $25,000 in compensatory and punitive damages.
  • EEOC v. Engineering Documentation Systems, Inc.:  A management official allegedly made derogatory remarks about a pregnant worker and  refused her request to move her office closer to the restroom to accommodate her nausea.  While she was out on leave, the company changed her job description and then terminated her.  The EEOC filed suit in the U.S. District Court for the District of Nevada. The defendant agreed to pay $70,000 to settle the case.
  • EEOC v. James E. Brown & Associates, PLLC:  A  Washington based law firm offered Zorayda J. Moreira-Smith a position as an associate attorney in January 2011.  The firm allegedly rescinded its job offer  the same day after when Moreira-Smith told them she was six months pregnant and asked the firm about its maternity leave policies.  The EEOC filed suit in the U.S. District Court for the District of Columbia. The defendant agreed to pay an $18,000 settlement,  to implement a non-discrimination policy and  to provide training to the firm’s personnel.
  • EEOC v. Platinum P.T.S. Inc. D/B/A/ Platinum Production Testing Services:  A clerk  requested time off for medical treatment relating to her miscarriage.  After she missed five days of work,  the defendant fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Texas. The defendant agreed to pay $100,000 to settle the pregnancy discrimination suit.

U.S. Sen. Robert Casey, Jr., of Pennsylvania proposed the Pregnant Workers Fairness Act (PWFA) in 2012 to guarantee pregnant women the right to reasonable accommodation when the short-term physical effects of pregnancy conflict with the demands of a particular job, as long as the accommodation does not impose an undue hardship on the employer. The bill died in committee.

EEOC Defends Criminal Background Checks

They’re Permitted Unless …

The EEOC has been slammed in recent weeks for filing discrimination lawsuits against employers who used criminal background checks to assess job applicants that resulted in the disproportionate exclusion of minority group members.

A feEEOCderal judge ridiculed the EEOC in August for a seeming double standard, noting the EEOC itself uses criminal background checks with respect to hiring employees at the EEOC.

Jacqueline A. Berrien, chairperson of the EEOC, recently responded to a July 24,2013 letter from nine state Attorney Generals asking the EEOC to reconsider its April 25, 2012 Enforcement Guidance, Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

She said the Guidance merely clarifies and updates a longstanding EEOC policy and does not prohibit employers from using criminal background checks in hiring.

She said an employer can be held liable for discrimination if it “uniformly administers a criminal background check that disproportionately excludes people of a particular race, national origin, or other protected characteristic, and is not ‘job related for the position(s) in question and consistent with business necessity’ within the meaning of Title VII. However, she said employers can avoid liability by using the EEOC’s recommended two-step process when evaluating criminal history checks of applicants. The EEOC recommends that employers:

1. Use a ‘targeted’ screen of criminal records that considers such factors as the nature of the crime, the time elapsed and the nature of the job.

2. Use a follow-up individualized assessment of employees who are screened out to ensure the employer is “not mistakenly screening out qualified applicants or employees based on incorrect, incomplete, or irrelevant information.” The second step also gives individuals a chance to correct errors in their records.

Berrien said the EEOC’s proposed individualized assessment process does not add significant additional costs for employers.

She said an employer does not have to conduct an individualized assessment “if it can demonstrate that its targeted screen is always job related and consistent with business necessity.”  She called the individualized assessment “a safeguard that can help an employer to avoid liability when it cannot demonstrate that using only its targeted screen would always be job related and consistent with business necessity.”

In August, Judge Roger Titus of the U.S. District Court for the District of Maryland dismissed a lawsuit brought by the EEOC in 2009 against Freeman, Inc., a service provider for corporate events, which alleged Freeman unlawfully relied upon credit and criminal background checks that caused a disparate impact against African-American, Hispanic, and male job applicants. See EEOC v. Freeman, No. 09-CV-2573 (2013).

Titus notes the EEOC conducts criminal background investigations as a condition of employment for all positions and conducts credit background checks on approximately 90 percent of its positions. He acknowledged that credit and criminal background checks adversely affect some groups more than others but maintained that these checks are essential.

Berrien did not address the issue of background checks conducted by the EEOC on its job applicants.

Earlier, Berrien said recent EEOC lawsuits against BMW and Dollar General did not challenge the employers’ decisions to conduct criminal background checks but instead challenged screening processes that have a disproportionate impact on African-Americans that the commission believes are not job related and consistent with business necessity.

The Bureau of Justice Statistics has estimated that approximately 9 percent of all men will serve time in state or federal prisons, including 28 percent of black males, 16 percent of Hispanic males, and 4 percent of white males.

The Attorney Generals who complained about the EEOC policy are from West Virginia, Colorado, Alabama, Georgia, Kansas, Nebraska, Montana, South Carolina and Utah.