OFCCP and EEOC Press Forward on Key Public Policy Issues

SHRM participated in two key agency activities in the past week: submitting comments to the Office of Federal Contract Compliance Programs (OFCCP) on their proposal to update 40-year old sex discrimination guidelines and testifying before the Equal Employment Opportunity Commission (EEOC) on the importance of diversity and inclusion in the modern workplace.

On April 14, SHRM submitted comments to the Office of Federal Contract Compliance Programs’ (OFCCP) proposal to revise its sex discrimination guidelines under Executive Order 11246. SHRM supports updating the guidelines, which are more than 40 years old, to reflect statutory amendments to Title VII and binding judicial interpretations of the law. Unfortunately, the proposal exceeds this objective by including unsupported theories of discrimination and categorically labeling some conduct as per se unlawful without any legal basis or authority.

In addition to pointing out that OFCCP does not have the authority to promulgate interpretive regulations that have the full force and effect of law, as they attempt to do with this proposal, the comment also makes several recommendations to the agency:

·   In light of the March 25 Supreme Court ruling in Young v. United Parcel Service, OFCCP should refrain from incorporating EEOC’s recently-released pregnancy guidance which was invalidated by the Court in Young;

 

·    Revise the NPRM to make clear that the examples used represent conduct that might be discriminatory under certain circumstances, rather than presenting them as per se unlawful;

·     Clarify that not all sex-referent job titles, such as “foreman,” constitute discrimination;

·     Remove the section on discriminatory compensation because compensation discrimination is already identified as a prohibited activity. As currently written, the NPRM implies that Executive Order 11246 and Title VII mandate across-the-board pay equity even when legitimate, nondiscriminatory reasons justify pay differentials;

·    Issue separate guidance on gender identity and sexual orientation, which were included in Executive Order 11246 as separate bases for discrimination, rather than including them as a subset of sex discrimination.

At an April 15 meeting titled “EEOC at 50: Confronting Racial and Ethnic Discrimination in the 21st Century Workplace” held at Miami Dade College, SHRM member Iliana Castillo-Frick (who serves as Vice-Provost of HR at the college and is pictured above at left with EEOC chair Jenny Yang), testified on SHRM’s behalf. The meeting marked the first public meeting held by the Commission outside of Washington, D.C. in more than a decade. The meeting focused on identifying the obstacles that remain to combating racial and ethnic discrimination 50 years after the passage of Title VII of the Civil Rights Act. SHRM’s testimony focused on how modern concepts of diversity have evolved beyond affirmative action and how diversity and inclusion programs help organizations build a skill-based workforce.

- See more at: http://www.shrm.org/advocacy/governmentaffairsnews/hrissuesupdatee-newsletter/pages/042015_2.aspx?

Source: SHRM Government Issues Monthly Newsletter

 

This information is intended to be educational and should not be considered legal advice on any specific matter.

DOL settles second discrimination charge against Lincoln Electric Co.

Agreement includes job offers, $1M for 5,557 African American applicants

Lincoln Electric Co. has agreed to settle allegations of hiring discrimination on the basis of race following an investigation by the U.S. Department of Labor's Office of Federal Contract Compliance Programs. An investigation by OFCCP compliance officers found that the federal contractor violated Executive Order 11246 by using a hiring process that resulted in systemic discrimination against African American applicants. As a result, 5,557 qualified African Americans were rejected for entry-level factory and production positions at the company's Cleveland facility.

Under the terms of the conciliation agreement, Lincoln Electric will pay $1 million in back wages and interest to the 5,557 affected job seekers and will offer entry-level positions to 48 class members as positions become available. Additionally, the company will revise its selection policies and procedures, including making changes to its online application test, to ensure equal employment opportunity for all job applicants going forward.

"Vigilance is paramount in enforcing civil rights," said OFCCP Director Patricia A. Shiu. "When we find violations of the law, corrective measures must be taken and lasting reform implemented so that further discrimination is not perpetuated against more workers. We will remain vigilant as we work with Lincoln Electric to ensure that unfair barriers in the company's hiring process are fixed once and for all."

During a scheduled compliance review, OFCCP determined that Lincoln Electric's paper and online application systems created multiple barriers for African Americans to advance in the selection process. In addition, Lincoln Electric's applications and post-application tests were not properly supported by a validation study that satisfies the requirements of the Uniform Guidelines on Employee Selection Procedures.
 
Since 2005, Lincoln Electric has held more than $2 million in federal contracts to manufacture welding, cutting and joining products for the federal government. The company was cited for the same violation more than a decade ago when an OFCCP review found that the contractor had discriminated in hiring against minorities and women who applied for entry-level factory jobs. Those charges were settled by a 2003 conciliation agreement that provided $1 million in back pay and interest to the affected workers in that case.

Source: DOL

This information is intended to be educational and should not be considered legal advice on any specific matter.

DOL settles charges of racial discrimination with NYC fed contractor Parsons Brinckerhoff

Agreement includes $188,043 for 247 job applicants

The U.S. Department of Labor's Office of Federal Contract Compliance Programs today announced that federal contractor Parsons Brinckerhoff agreed to settle allegations of hiring discrimination on the basis of race and ethnicity involving 247 job applicants who were rejected for assistant engineer positions at the company's New York City headquarters. The affected class comprises 152 Asian American, 51 Hispanic, 29 African American, 3 Native American and 12 mixed race applicants.

 

"Parsons Brinckerhoff has a long, rich history of managing federal projects that have a significant impact on the lives of those who live and work in the communities where they are located," said OFCCP Director Patricia A. Shiu. "That makes it especially important for this company to meet its legal obligations to provide workers with a fair shot at employment and live up to company President and CEO George J. Pierson's stated commitment to build a 'firm that values diversity in our workforce and welcomes new talent and experienced professionals with the same enthusiasm.'"

 

During a scheduled compliance review, OFCCP investigators determined that Parsons Brinckerhoff violated Executive Order 11246 between 2010 and 2012 by using a hiring process that resulted in systemic discrimination. The agency found that Parsons Brinckerhoff did not follow its own written hiring policies and failed to use a consistent selection process for screening, interviewing and selecting assistant engineers. As a result, zero minorities were hired as assistant engineers during the review period.

 

Parsons Brinckerhoff is a global consulting firm responsible for designing, building, operating and maintaining important landmarks, such as the African Burial Ground National Monument in Manhattan. During the past three years, the company has received more than $2.1 million in taxpayer-funded contracts from the U.S. Department of the Army, Federal Highway Administration, National Park Service, Smithsonian Institution and Public Buildings Service.

 

Under the terms of the conciliation agreement signed by both parties, the contractor will pay $188,043 in back wages and interest to the affected job seekers and will offer assistant engineer positions and retroactive seniority to at least four class members as positions become available. Additionally, the company will revise its selection policies and procedures to ensure equal employment opportunities for all future applicants.

 

In addition to Executive Order 11246, OFCCP enforces Section 503 of the Rehabilitation Act of 1973 and the Vietnam Era Veterans' Readjustment Assistance Act of 1974. These three laws require that those who do business with the federal government, both contractors and subcontractors, must follow the fair and reasonable standard that they not discriminate in employment on the basis of sex, race, color, religion, national origin, disability or status as a protected veteran. For more information, visit http://dol.gov/ofccp/.

 

Source: DOL

 

This information is intended to be educational and should not be considered legal advice on any specific matter.

Sparks Restaurant to Pay $56,000 and Provide Injunctive Relief

Menomonie, Wis., Restaurant Retaliated Against Employee for Complaints About Racially Offensive Drawings, Judge Ruled Following Jury's Findings

 

A federal district court has ruled that Sparx Restaurant of Menomonie, Wis., must pay back pay and interest to a former employee who was fired in retaliation for complaining about a racist display in the workplace, the Equal Employment Opportunity Commission (EEOC) announced. Added to damages already awarded by the jury in the case, the EEOC will have recovered an aggregate of more than $56,000 for the former employee. The court also enjoined Sparx from engaging in similar conduct and required training of Sparx's owner, Chris Brekken, and other managers.

In its lawsuit, the EEOC had charged that Sparx fired Dion Miller because he complained about an offensive display in the restaurant, which included a dollar bill with a noose around George Washington's neck, and drawings of a man on horseback and a hooded figure with "KKK" written on his hood. Miller, who was a cook in the restaurant, was fired three weeks after he complained about the figure.

Following the EEOC initiating this action, Sparx Restaurant (which was incorporated as Northern Star Hospitality) closed, and subsequently, a Denny's franchise, which was incorporated as North Broadway Holdings, began operating in the same space. The EEOC amended its suit to allege that the action was against Northern Star Hospitality, North Broadway Holdings, Inc., and Northern Star Properties, LLC (which owned the property in which the restaurants operated), which were a single employer for purposes of liability and relief in this case. After an evidentiary hearing, the district court ruled for the EEOC on this issue.

A jury found in September 2013 that the defendants fired Miller in retaliation for his complaint, and that his firing had been done with malice or reckless disregard of his federally protected rights. The jury awarded Miller $15,000 in damages for emotional distress.

In an order dated Jan. 27, 2014, Judge Barbara B. Crabb rejected the defendants' motion to set aside the verdict, and awarded back pay and interest of more than $41,000. Under the court's order, the back pay and interest will be increased by 15 percent to account for increased tax liability to Miller by receiving his wage loss in a lump sum. The court also entered a three-year injunction, enjoining the defendants from: discharging employees in retaliation for complaints about racially offensive postings in their workplace; failing to adopt policies that explicitly prohibit actions made unlawful under Title VII; failing to adopt an investigative process with regard to discrimination claims; and failing to provide annual training regarding Title VII to Chris Brekken, who owns all interests in the three corporate defendants, and other managers.

"Anti-discrimination efforts would come to a standstill if employees weren't allowed to freely complain about racist and discriminatory conduct. Blatantly racist drawings in the workplace are patently offensive and give employees good cause to complain," said John Hendrickson, regional attorney for the EEOC's Chicago district. "Employers who punish employees who do complain are following a self-destructive scenario and ought not to be surprised when the EEOC shows up."

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

U-Haul to Pay $750,000 to Settle EEOC Racial Harassment & Retaliation Suit

Moving Supply Chain Subjected Black Employees to Racial Slurs and Fired Employees for Complaining, Federal Agency Charged

 

MEMPHIS - U-Haul has agreed to pay $750,000 to eight African-American current and former employees and to provide other relief to settle a race and retaliation discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced.

According to the EEOC's suit against U-Haul International Inc., and U-Haul Company of Tennessee, black employees were subjected to racial slurs and other racially offensive comments by their white supervisor, Shop Manager Patrick Chapman, at U-Haul's Lamar Avenue facility in Memphis. The EEOC's complaint charged that Shop Manager Chapman regularly referred to black employees with the "N" word and other derogatory slurs. The suit further alleged that the company engaged in retaliation by firing one employee when complaints of racial harassment were made to Chapman and Marketing Company President Carol George.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (Civil Action No. 2:11-cv-02844) in U.S. District Court for the Western District of Tennessee, Western Division, after first attempting to reach a pre-litigation settlement through its conciliation process.

Besides the $750,000 in monetary relief, the two-year consent decree resolving the case enjoins U-Haul from discriminating against its employees because of their race and from retaliating against workers who assert their rights under Title VII in the future. The decree requires U-Haul Company of Tennessee to maintain an anti-discrimination policy prohibiting race discrimination, racial harassment, and retaliation, and to provide mandatory training to all employees regarding the policy. Under the decree, current Marketing Company President Carol George will receive additional training on race discrimination and on obligations to report race discrimination, racial harassment, and retaliation. Finally, the company will provide written reports to the EEOC regarding any race discrimination or racial harassment complaints by employees.

"We are pleased that we were able to settle this suit," said EEOC General Counsel David Lopez. "This is the EEOC's latest case in our ongoing efforts to eradicate racial harassment from the workplace. Employers must take prompt and effective action when complaints are made, and must remember that retaliation against a complaining employee is illegal."

Regional Attorney Faye A. Williams of the EEOC's Memphis District, which includes Tennessee, Arkansas, and 17 counties in Northern Mississippi, said, "As we celebrate the 50th Anniversary of the March on Washington, this case serves as a reminder of the important role the EEOC continues to play in eliminating racial harassment in the workplace for many minorities. Employees shouldn't have to endure harassment and abuse to support their families. We commend U-Haul for agreeing to policies and procedures to protect its employees in the workplace."

According to company information, U-Haul is a national moving supply rental company based in Phoenix, Ariz. U-Haul provides its customers with rental moving vans and trailers for use in moving household goods. It also offers its customers various tools to complete their move, including boxes of various sizes, tape packing materials and storage facilities.

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

EEOC Sues Carolina Mattress Guild for Racial Harassment and Retaliation

Thomasville Company Subjected Black Employees to Racial Abuse, Fired One of the Victims for Complaining, Federal Agency Charges

 

Carolina Mattress Guild, Inc., a Thomasville, N.C.-based mattress manufacturer and distributor, subjected black employees to a racially hostile work environment and unlawfully fired the employee who complained about racial comments, the U.S. Equal Employment Opportunity Commission (EEOC) alleged in a lawsuit filed today.

 

According to the EEOC's complaint, from as early as June 2012 through about Aug. 9, 2012, Ricky Clark, a truck loader, as well as other black employees, were repeatedly subjected to unwelcome derogatory racial comments and slurs by a white employee at the Carolina Mattress Guild facility. The comments included repeated use of the "N-word." Clark complained to company management, but the harassment continued. Three days after his last complaint, Clark was fired, the EEOC charged, in retaliation for his complaints. The suit identified one other black employee who was subjected to the same racial epithet by the white employee.

 

Title VII of the Civil Rights Act of 1964 prohibits employers from allowing a racially hostile work environment to exist in the workplace, and also prohibits employers from retaliating against employees who oppose such discriminatory conduct. The EEOC filed its lawsuit in U.S. District Court for the Middle District of North Carolina (EEOC v. Carolina Mattress Guild, Inc, Case No. 1:13-CV-00706) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeks monetary relief, including back pay, compensatory damages and punitive damages, as well as injunctive relief and reinstatement for Clark.

 

"Companies must ensure that they do not allow racial slurs to be used in the workplace, and that they take prompt and effective action in response to complaints of such misconduct," said Lynette A. Barnes, regional attorney for the EEOC's Charlotte District Office. "Employers must also remember that retaliation against people who complain about illegal employment discrimination is itself against the law. The EEOC will vigorously enforce these federal laws."

 

Source: EEOC

 

This information is intended to be educational and should not be considered legal advice on any specific matter.

 

EEOC Sues Guardian Angel Ambulance Service for Breach of a Settlement Agreement

Ambulance Company Failed to Make Promised Payments to Resolve Race and Sex Discrimination Charge, Federal Agency Says

 

Guardian Angel Ambulance Service, Inc. violated federal law by failing to comply with a negotiated agreement settlement of a discrimination charge, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it announced today.

According to the lawsuit, Mekia Austin filed a charge of discrimination alleging that she had been sexually harassed and terminated because of her race (black) and sex. Austin died during the EEOC's investigation. The ambulance service entered into a pre-determination settlement agreement to resolve the charge. It agreed to pay a total of $5,000 to Austin's two surviving minor children, but the company paid only $800 to the children, the EEOC charged.

To enforce the terms of the settlement agreement, the EEOC filed suit in U.S. District Court for the Western District of Pennsylvania (EEOC v. Guardian Angel Ambulance Service, Inc., Civil Action No. 2:13-cv-01205). The EEOC is requesting a court order requiring the ambulance service to pay $4,200, plus interest, to the minor children, report the payments to the EEOC after they are made, and pay the EEOC's costs in filing this action.

Philadelphia Regional Attorney Debra M. Lawrence said, "When an employer refuses to honor the promises it made in a voluntary settlement agreement, the EEOC will file suit to enforce that agreement."

District Director Spencer H. Lewis, Jr., of the EEOC's Philadelphia District Office added, "We encourage employers and charging parties to reach a resolution that both parties find satisfactory. A voluntary settlement is not an admission of liability, and it often saves all parties the time and expense of a full investigation or even possible litigation. But the EEOC will take action if an employer fails to comply with a negotiated settlement agreement."

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

EEOC Sues Battaglia Distributing Company for Racial Discrimination

Company Defended Racial Slurs in the Workplace as 'Locker Room Talk,' Federal Agency Charged

 

Battaglia Distributing Co., Inc., a Chicago wholesale food distributor located at 2500 South Ashland Avenue, permitted a hostile work environment where use of racial slurs was common, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed today. According to the EEOC, slurs were used by both black and white supervisors to scold black employees. In addition, frequent, offensive racial banter among hourly workers was routinely tolerated by management.

Racial slurs and offensive remarks about a person's race or color can create a hostile work environment, in violation of Title VII of the Civil Rights Act of 1964. The EEOC brought suit based on discrimination charges filed by two African-American employees and seeks relief for them and for all of the other black employees who were offended by the slurs. The suit was filed after first attempting to reach a pre-litigation settlement through the agency's conciliation process. The agency seeks, among other relief, an order barring future discrimination and compensatory and punitive damages for the affected employees. The suit, captioned EEOC v. Battaglia Distributing Co, Inc., No. 13-cv-05789, was filed on August 14, 2013 in the U.S. District Court for the Northern District of Illinois and was assigned to District Judge Robert W. Gettleman.

According to Jack Rowe, director of the EEOC's Chicago District Office, the agency's investigation discovered that despite repeated complaints, supervisors not only let the use of offensive racial terms go undisciplined, they used them regularly themselves and described the use as locker room talk. 
 
"Individuals with authority in a workplace have to realize that so-called jokes between some co-workers can make a demeaning and hostile environment for others," Rowe said. "And when complaints that supervisors use racial slurs go ignored, that is unacceptable."

EEOC Chicago Regional Attorney John C. Hendrickson added, "Any attempt to argue that the alleged racial slurs at issue are merely locker room talk will not wash. Patently offensive, racist speech on the job - whether in the executive suite, on the loading dock, or in the locker room - damages working conditions and violates federal law."

Ethan Cohen, the EEOC trial attorney who will head up the EEOC litigation team with Gregory Gochanour, added, "However acceptable racist speech may once have been, it is not now. When a historically offensive and degrading term is used in the workplace, it's bad enough. If that behavior happens repeatedly, and in spite of complaints from offended employees, that is harassment, even when those using the word are of the same race as the offended employee."

According to the company's listing on insideview.com, Battaglia Distributing Co, Inc. has distributed cheese and meat to pizza parlors and Italian restaurants since 1966. The company claims on the site to have 150 employees and revenue of $171 million.

The EEOC's Chicago District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Illinois, Iowa, Minnesota, North Dakota, South Dakota, and Wisconsin, with Area Offices in Milwaukee and Minneapolis. The case will be litigated by attorneys in the Chicago District Area Office.

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

ALJ rules against OFCCP in hiring discrimination case

A Department of Labor Administrative Law Judge (“ALJ”) ruled on August 5, 2013 that the Office of Federal Contract Compliance Programs (“OFCCP”) cannot proceed with a disparate impact claim against a clothing manufacturer because “Non-Asians” is “neither a race nor an ethnic group” for purposes of Executive Order 11246.

OFCCP issued a Notice of Violation in 2009 to VF Jeanswear Limited Partnership, an apparel manufacturer with a facility in Winston-Salem, North Carolina. The Notice stated that in 2005 VF Jeanswear discriminated against “non-Asian” applicants in the hiring of Operative job group positions. OFCCP filed an administrative complaint against VF Jeanswear in May 2011 and both parties moved for summary judgment.

The ALJ decision granted VF Jeanswear’s motion for summary judgment. The ALJ noted that the “non-Asian” classification “was apparently custom-designed for this case,” aggregating one group that was over-represented (Hispanics), one group that was under-represented (Whites) and one group that was closely proportional (African-American) compared to regional U.S. Census data. The ALJ explained that the only accepted “race” and “ethnic group” classifications for both EEOC and OFCCP purposes are African-American, Native American/Alaskan Native, Asian/Pacific Islander, Hispanic, and White. Although “non-whites” are effectively a protected class (collectively as “minorities”), the regulations do not recognize other “non-” classifications for the purposes of analysis and enforcement. The ALJ concluded that because “Non-Asian” is not a protected race, ethnic group, or class for OFCCP purposes, it could not serve as a basis for asserting a discrimination claim.

The decision recognizes constraints on OFCCP’s ability to make groupings and comparisons in assessing potential discrimination claims and issuing notices of violation.

(OFCCP v. VF Jeanswear Ltd. P'ship, DOL OALJ, No. 2011-OFC-00006, 8/5/13).

Source: Matt Nusbaum Proskauer Rose LLP

This information is intended to be educational and should not be considered legal advice on any specific matter.

Meadowbrook Meat Co. Enters into Consent Decree to Eliminate Racist Graffiti Alleged by EEOC

Offensive Graffiti in Iowa Food Distributor's Men's Room Remained for Weeks, Federal Agency Charged

A federal magistrate judge in Sioux City has entered a consent decree resolving a race discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) against one of the nation's largest food distributors for restaurant chains, Meadowbrook Meat Company, Inc.

According to the EEOC's suit, Meadowbrook, doing business as MBM Corporation, failed for months to remove racist graffiti, including the "N-word," a swastika, and references to the Ku Klux Klan, from its Mason City, Iowa warehouse.

The lawsuit claimed that in May 2011, an African-American employee complained to MBM's management that he had seen graffiti reading "N*****s STINK" in a men's restroom. The EEOC alleged that MBM supervisors, including the black employee's supervisor, used that restroom, yet the racist message remained for 30 days after he complained. The EEOC's suit also alleged that, about a week after MBM finally removed the graffiti, a second message appeared, this time stating "KKK I hate N*****s." The EEOC alleged that this second message remained visible for over three months after the employee alerted the EEOC to the situation. MBM denied the allegations.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964 which prohibits race discrimination, including racial harassment. The EEOC filed suit (EEOC v. Meadowbrook Meat Co., d/b/a MBM Corp., No. 12cv3069-MWB) in September 2012 in the U.S. District Court for the Northern District of Iowa after first attempting to reach a pre-litigation settlement through its conciliation process.

The consent decree settling the suit, entered on June 24, 2013, by U.S. Magistrate Judge Leonard T. Strand, provides that MBM will pay $15,000 in compensatory damages to three former employees who saw the graffiti at the warehouse. MBM also agreed to paint the men's restrooms with graffiti-resistant paint, adopt a policy prohibiting racist imagery, create an incentive program to encourage compliance with that policy and conduct surveys to determine whether employees are familiar with its anti-harassment policies. Also, MBM will train its employees, managers and supervisors regarding race discrimination, an employer's obligations, and the rights of employees under Title VII.

"Racial hatred has no place anywhere in America," said John C. Hendrickson, regional attorney of the EEOC's Chicago District Office, which is responsible for EEOC litigation in Wisconsin, Illinois, Minnesota, Iowa, North Dakota and South Dakota. "We are as committed as ever to eradicating race discrimination in the workplace. We appreciate MBM's willingness to provide monetary relief for the black employees affected by the race discrimination and to work with us to prevent race discrimination in its facilities." 
 
Rocky Mount, N.C.-based MBM, purchased in 2012 by McLane Company, Inc., a subsidiary of Berkshire Hathaway, has over 3,300 employees and owns 38 distribution centers across the country, distributing food products to customers in nearly all 50 states and internationally.

The EEOC's litigation efforts were led by trial attorneys Camille A. Monahan and César J. del Peral from its Milwaukee Area Office and were supervised by Associate Regional Attorney Jean Kamp.

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

EEOC Files Suit Against Two Employers for Use of Criminal Background Checks

BMW Fired and Denied Hire to Class of Employees Who Worked Successfully for Years; Dollar General Disproportionately Excluded African Americans From Hire

A BMW manufacturing facility in South Carolina, and the largest small-box discount retailer in the United States violated Title VII of the Civil Rights Act by implementing and utilizing a criminal background policy that resulted in employees being fired and others being screened out for employment, the U.S. Equal Employment Opportunity Commission alleged in two lawsuits filed today.
The EEOC's Charlotte district office filed suit in U.S. District Court of South Carolina, Spartanburg Division against BMW Manufacturing Co., LLC, and a separate suit was filed in Chicago against Dolgencorp, doing business as Dollar General.

In the suit against BMW, the EEOC alleges that BMW disproportionately screened out African Americans from jobs, and that the policy is not job related and consistent with business necessity. The claimants were employees of UTi Integrated Logistics, Inc. ("UTi"), which provided logistic services to BMW at the South Carolina facility. The logistics services included warehouse and distribution assistance, transportation services and manufacturing support.

Since 1994, BMW has had a criminal conviction policy that denies facility access to BMW employees and employees of contractors with certain criminal convictions. However, when UTi assigned the claimants to work at the BMW facility, UTi screened the employees according to UTi's criminal conviction policy. UTi's criminal background check limited review to convictions within the prior seven years. BMW's policy has no time limit with regard to convictions. The policy is a blanket exclusion without any individualized assessment of the nature and gravity of the crimes, the ages of the convictions, or the nature of the claimants' respective positions. 
 
In 2008, UTi ended its contract with BMW. During a transitional period, UTi employees were informed of the need to re-apply with the new contractor to retain their positions in the BMW warehouse. As part of the application process, BMW directed the new contractor to perform new criminal background checks on every current UTi employee applying for transition of employment. The new contractor subsequently discovered that several UTi employees had criminal convictions in violation of BMW's criminal conviction policy. As a result, those employees were told that they no longer met the criteria for working at the BMW facility and were subsequently terminated and denied rehire as employees of the new contractor, despite the fact that many of the employees had worked at the BMW facility for years.

In Illinois, the Chicago office of the EEOC filed a nationwide lawsuit based on discrimination charges filed by two rejected black applicants. That lawsuit charges that Dollar General conditions all of its job offers on criminal background checks, which results in a disparate impact against blacks. Dollar General operates 10,000 stores in 40 states, plus 11 distribution centers. Ninety percent of all Dollar General employees are store clerks who are both stockers and cashiers at the stores.

According to the EEOC, one of the applicants who had filed a charge with EEOC was given a conditional employment offer, although she had disclosed a six-year-old conviction for possession of a controlled substance. Her application also showed that she had previously worked for another discount retailer as a cashier-stocker for four years. Nevertheless, her job offer was allegedly revoked because Dollar General's practice was to use her type of conviction as a disqualification factor for 10 years.

The other applicant who filed an EEOC charge was fired by Dollar General although, according to the EEOC, the conviction records check report about her was wrong - she did not have the felony conviction attributed to her. The EEOC said that although she advised the Dollar General store manager of the mistake in the report, the company did not reverse its decision and her firing stood.

"Title VII of the Civil Rights Act of 1964 prohibits discrimination against job applicants and employees on account of their race," said EEOC Chair Jacqueline A. Berrien. "Since issuing its first written policy guidance in the 1980s regarding the use of arrest and conviction records in employment decisions, the EEOC has advised employers that under certain circumstances, their use of that information to deny employment opportunities could be at odds with Title VII."

The Commission is committed to using public education and informal resolution to address discriminatory hiring practices," said David Lopez, EEOC General Counsel. "When these methods are unsuccessful, the Commission will, if necessary, seek redress from the federal courts and ensure equal opportunity for all. This is the latest in a series of systemic cases the Commission has filed to challenge unlawful hiring practices."

Both lawsuits were brought under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race and national origin as well as retaliation. The EEOC will assert claims of disparate impact, in both cases, against African Americans. The EEOC filed suit in each instance after attempting to resolve the matter through settlement. In all, the Commission will seek back pay, as well as injunctive relief to prevent future discrimination of employees and applicants.

Eliminating barriers in recruitment and hiring, especially class-based recruitment and hiring practices that discriminate against racial, ethnic and religious groups, older workers, women, and people with disabilities, is one of six national priorities identified by the Commission's Strategic Enforcement Plan (SEP). 
 
On April 25, 2012, the EEOC issued updated enforcement guidance on employer use of arrest and conviction records. The EEOC is a member of the federal interagency Reentry Council, a Cabinet-level interagency group convened to examine all aspects of reentry of individuals with criminal records. Among other issues, the Reentry Council is working to reduce barriers to employment, so that people with past criminal involvement - after they have been held accountable and paid their dues - can compete for appropriate work opportunities in order to support themselves and their families, pay their taxes, and contribute to the economy.

Source: EEOC

This information is intended to be educational and should not be considered legal advice on any specific matter.

Court Approves Consent Decree to Prevent and Address Racial Discrimination in Student Discipline in Meridian, Miss.

The U.S. District Court for the Southern District of Mississippi today approved a landmark consent decree filed by the Justice Department, together with private plaintiffs and the Meridian Public School District in Meridian, Miss., to prevent and address racial discrimination in student discipline. The consent decree is a far-reaching plan to reform discipline practices, including suspensions, expulsions and school-based arrests that unlawfully channel black students out of their classrooms and, too often, into the criminal justice system.

“The consent decree approved by the court today will propel meaningful reform in Meridian schools and serve as a blueprint for school districts across the country,” said Jocelyn Samuels, Principal Deputy Assistant Attorney General for the Civil Rights Division. “We commend the Meridian Public School District for its commitment to keeping its students in safe and inclusive classrooms, and out of the school-to-prison pipeline.”

The consent decree amends a longstanding federal school desegregation decree enforced by the United States, which prohibits the district from discriminating against students based on race.

The district has already started to take action to implement the consent decree, which requires it to:

• Limit discipline that removes students from classrooms, such as suspensions, expulsions and alternative placement, as well as end exclusionary consequences for minor misbehavior;
• Expand use of a proven behavior management approach known as positive behavior intervention and supports and train teachers and administrators so they have the tools necessary to safely and effectively manage their classrooms and schools;
• Prevent school officials from involving law enforcement officers when a student’s behavior can be safely and appropriately handled under school disciplinary procedures;
• Provide training for school law enforcement officers on bias-free policing, child and adolescent development and age appropriate responses, practices proven to improve school climate, mentoring and working with school administrators;
• Create clear entry and exit criteria at the alternative school and provide support to facilitate students’ transitions back to their home schools;
• Enhance due process protections in student discipline hearings;
• Monitor discipline data to identify and respond to racial disparities; and
• Engage families and communities as partners in revising policies and through regular school and community forums.

“This consent decree is a major stride toward equal justice and equal opportunity for all students in Meridian,” said Gregory K. Davis, United States Attorney for the Southern District of Mississippi. “The court’s order is a powerful reminder to schools that they may not discriminate against students on the basis of race or another protected status in administering discipline.”

The department filed a related case against the Meridian Police Department, the Lauderdale County Youth Court and the State of Mississippi in October 2012, alleging that those defendants systematically violate the due process rights of students referred by the district. That case remains pending in the United States District Court for the Southern District of Mississippi.

Source: DOJ

This information is intended to be educational and should not be considered legal advice on any specific matter.