October/November 2006 Discrimination & Harassment News

• Tyson Foods Agrees to Resolve Race Harassment and Retaliation Lawsuit


• Alleged Remarks Did Not Establish That Employee's Discharge Was Motivated By Age in Violation of ADEA


• Catholic Hospital Could Assert Religious Organization Exemption to Wiccan Employee's Title VII Claims


• $585,000 Verdict in Teen Sexual Harassment Suit


• Employer's Offer of Severance In Exchange For Ban on Filing Charge With EEOC Was Not Retaliatory


• Federal Employee Established Prima Facie Case of Race-Based Failure to Promote Her to Position For Which She Did Not Apply


• Allstate's Rehire Policy Adversely Affected Older Agents


• Absence of Involvement by Employee's Direct Supervisor Precluded Hostile Racial Work Environment Claim


• Lawsuit Targets Discriminatory Practices Against Women at Goodyear Manufacturing Plant


• African-American Muslim Female Bus Driver's Title VII Harassment Claims Dismissed


• RadioShack Was Not Entitled To Summary Judgment on Terminated Store Manager's Age Discrimination Claim


• Denny's Sued For Disability Bias Against Class of Workers Nationwide


• Restaurant Chain Was Entitled to Summary Judgment on Managers' Claims of Racially Discriminatory Failure to Promote

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Tyson Foods Agrees to Resolve Race Harassment and Retaliation Lawsuit (11/7/06) - EEOC
BIRMINGHAM, Ala. - The U.S. Equal Employment Opportunity Commission (EEOC) today announced a major litigation settlement with Tyson Foods for $871,000 on behalf of black workers who alleged that they were racially harassed and retaliated against at a chicken processing plant in Ashland, Alabama. The three-year consent decree entered today by U.S. District Court Judge Karen O. Bowdre also includes significant injunctive relief that will foster a discrimination-free workplace at Tyson Foods in Ashland.

The decree resolves two race discrimination and retaliation lawsuits against the poultry giant under Title VII of the 1964 Civil Rights Act: one filed by the EEOC in August 2005, and another filed by a group of 13 former and present African-American employees. The cases, resolved during the discovery stage, had been consolidated by Judge Bowdre in U.S. District Court for the Northern District of Alabama (In Re Tyson Foods Litigation, Consolidated Case No. CV-05-BE-1704-E).

Collectively, the litigation charged Tyson Foods with maintaining a racially hostile work environment at the Ashland facility - including a racially segregated bathroom facility, racial slurs, and intimidation - and retaliating against employees who complained about the unlawful conduct. As part of its suit, the EEOC said that a Tyson employee established a locked, segregated bathroom facility, which on occasion had signs posted. Keys to the facility were allegedly distributed by that employee to white employees only.

"We are pleased that the EEOC, the attorneys for the individual plaintiffs, and the Lawyers' Committee for Civil Rights were able to work cooperatively with Tyson Foods to resolve this matter amicably," said the EEOC's newly appointed Birmingham district director, Delner Franklin-Thomas. "This comprehensive consent decree should remind all employers to be alert to discrimination, to take prompt and corrective action if and when it occurs, and to avoid retaliation."

In addition to the substantial monetary relief, the consent decree mandates the following systemic changes for the Ashland, Alabama facility:

• Appointing a senior level employee as "consent decree coordinator" to oversee the implementation of the settlement. The coordinator will be responsible for reviewing Tyson's policies and procedures for addressing discriminatory workplace conduct and supplementing those policies as necessary. The coordinator will also be responsible for preparing and submitting semi-annual reports to the EEOC over the three-year term of the decree.
• Providing periodic training to all employees on what constitutes racial discrimination, harassment, and retaliation - and on how to respond to such actions.
• Monitoring employee discipline for potential or actual disparate treatment in the distribution of discipline or the resolution of grievances.
• Holding supervisors at the Ashland plant accountable for participating in, permitting, or failing to report incidents of racial discrimination or harassment. Tyson will substantially discipline - up to and including termination, suspension without pay and demotion - any supervisor found to have violated its policies. Performance appraisals on supervisors at the Ashland plant will include compliance with the discrimination and harassment policies.

C. Emanuel Smith, regional attorney of the EEOC's Birmingham District Office, said, "This resolution, along with the additional steps which Tyson Foods took on its own, fairly compensates the employees at the Ashland facility. The consent decree also puts in place sufficient protective measures to allow early resolution of future employment disputes."

Charles Guerrier, the senior trial attorney in Birmingham who led the EEOC's litigation effort, said, "The resolution of this case long before trial is in part a product of early remedial measures taken by Tyson and the support of the attorneys representing the plaintiffs. This settlement is a win-win outcome for all parties and will have a lasting impact in addressing any future discrimination."

The individual plaintiffs were represented by a team comprised of attorneys from the Lawyer's Committee for Civil Rights Under Law in Washington; Shearman & Sterling LLP in New York; Nakamura Quinn & Walls LLP in Birmingham; and Lightfoot Franklin & White, LLC, also in Birmingham. Tyson was represented by Maynard, Cooper & Gale, P.C., in Birmingham, and Akin Gump Strauss Hauer & Feld LLP in Washington.

According to its web site (www.tysonfoodsinc.com): "Tyson Foods, Inc., founded in 1935 with headquarters in Springdale, Arkansas, is the world's largest processor and marketer of chicken, beef and pork and the second-largest food company in the Fortune 500. Tyson is the recognized market leader in the retail and food service markets it serves, providing products and service to customers throughout the United States and more than 80 countries. Tyson has approximately 114,000 Team Members employed at more than 300 facilities and offices in the United States and around the world."

The EEOC enforces federal laws prohibiting employment discrimination based on race, color, sex, religion, national origin, age, and disability. The Birmingham District Office's jurisdiction includes Alabama, most of Mississippi, and the Florida panhandle. Further information about the EEOC is available on its web site at www.eeoc.gov.

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Alleged Remarks Did Not Establish That Employee's Discharge Was Motivated By Age in Violation of ADEA (11/3/06) - 7th Cir.
The alleged remarks by one supervisor, stating that he wanted to get rid of the "good old boys," referring to the employee as the "old guy" in the department, and expressing an interest in "higher energy" employees, did not demonstrate that a 52-year-old employee's discharge was motivated by age discrimination, as required under the Age Discrimination in Employment Act ("ADEA"). The supervisor who made the remarks was not responsible for the employee's discharge. Also, there was no showing that the supervisor played any role in the events culminating in the employee's discharge.

Luks v. Baxter Healthcare Corp.

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The 7th Circuit Court of Appeals' jurisdiction includes Illinois, Indiana and Wisconsin.

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Catholic Hospital Could Assert Religious Organization Exemption to Wiccan Employee's Title VII Claims (10/5/06) - US Dist Ct., N.D.Iowa
A U.S. District Court has held that a Catholic hospital in Iowa was entitled to assert the "religious organization" exemption in a Title VII suit by an employee of the Wiccan religion who alleged she was fired in part because she read Wiccan literature at work.

Both the "nature" of the hospital and the "atmosphere" at the hospital were unequivocally religious. The fact the members of the hospital's governing board were not required to be Catholic and only ten of its fifteen members were Catholic was not determinative. Even if the hospital recruited its employees from the population at large and did not require them to take religious instruction or (with one exception) to have a particular religious affiliation, those were nothing more than isolated factors in an otherwise overwhelmingly religious context.

The employee's contentions that the hospital's purpose to provide health care and her position and job duties were secular did not change the outcome.

Saeemodarae v. Mercy Health Services

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$585,000 Verdict in Teen Sexual Harassment Suit (10/27/06) - EEOC
ROCHESTER, N.Y. - A jury in federal district court here has returned a $585,000 verdict in a major sexual harassment lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC) against a national residential basement waterproofing company on behalf of a class of 13 young women, mostly teenage girls still in high school, who were subjected to a sexually hostile work environment by male managers and salesmen.

EEOC's lawsuit, filed in 2001 under Title VII of the 1964 Civil Rights Act, charged Everdry Marketing and Management, Inc. and Everdry Management Services, Inc.-- also known as Everdry Waterproofing and Everdry of Rochester -- with sexually harassing the class of female former workers from 1998 onward at the company's Rochester location (Everdry Marketing and Management Inc., based in Cleveland, Ohio, and its Rochester, N.Y., affiliate are two Everdry companies that are part of one integrated business enterprise). The harassment took the form of egregious acts of verbal and physical sexual conduct on the part of the companies' managers and salesmen. EEOC said that Everdry failed to take necessary steps to stop the harassment, despite complaints to local and national management. EEOC also asserted that the work conditions were so intolerable that some of the women were forced to quit (constructively discharged).

After a nearly two week trial that started October 10, the jury rendered a verdict in favor of the EEOC, providing $325,000 to the 13 young women to compensate them for lost wages and the emotional pain and suffering they endured. The jury also assessed punitive damages against Everdry in the amount of $260,000. EEOC will also ask the court to award injunctive relief designed to prevent future discrimination.

"The jury's award sends a strong message to employers that they must maintain work environments free of sexual harassment and be vigilant in protecting teen employees - one of the most vulnerable segments of the labor force," said Robert Rose, an EEOC trial attorney on the case. "We applaud the courage of these young women for speaking out and coming to the EEOC. This jury verdict shows that justice has been done."

EEOC said at trial that the sexual harassment at Everdry occurred for four years and included male managers smacking female employees on the buttocks, attempting to grab their breasts, and pressuring them for sex. The harassment also included a constant stream of lewd and graphic sexual comments, gestures, and requests for female employees to wear specific types of clothing and do table top dances for the men. A 16-year-old girl was coerced into having her toes sucked by her male manager in front of her co-workers on her first day on the job.

Anna Stevenson, one of the claimants in the lawsuit, said, "I am very pleased with the jury's verdict and am thankful for the EEOC's willingness to pursue this lawsuit for me and for the other women who were sexually harassed at Everdry."

Raechel Adams, the other EEOC trial attorney on the case, said, "The harassment at Everdry was especially egregious because many of the employees were teenage girls who were abused by their supervisors and may have felt they had no where to turn for help. This lawsuit demonstrates that the EEOC is committed to protecting teen workers through strong enforcement when employers fail to prevent and correct discrimination."

EEOC New York District Director Spencer H. Lewis, Jr., said: "One important component of our national Youth@Work Initiative is helping companies to implement effective measures to prevent teen harassment and to remedy any discrimination promptly if and when it occurs. We strongly believe that proactive prevention is the best medicine."

In September 2004, EEOC Chair Naomi C. Earp (then vice chair) launched the federal agency's national Youth@Work initiative -- a comprehensive outreach and education campaign designed to inform teens about their employment rights and responsibilities and to help employers create positive first work experiences for young adults. Thus far, the EEOC has held more than 1,600 Youth@Work events, reaching over 112,000 students, education professionals, and employers nationwide. Further information about the program, including how to schedule a free Youth@Work outreach presentation, is available on the EEOC's web site at http://www.eeoc.gov/initiatives/youth/index.html. Specific EEOC-related information for teens is available on the Youth@Work web site at http://www.youth.eeoc.gov.

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Employer's Offer of Severance In Exchange For Ban on Filing Charge With EEOC Was Not Retaliatory (10/24/06) - 6th Cir.
An employer's mere offer to all employees terminated in a reduction in force of a severance payment that was not otherwise owed in exchange for a promise from the terminated employee not to file charges with the EEOC, without more, did not amount to facial retaliation under Title VII, the Equal Pay Act (EPA), the Americans with Disabilities Act (ADA), or the Age Discrimination in Employment Act (ADEA). Although the charge-filing ban may have been unenforceable as against public policy, its inclusion in the agreement did not make the employer's offering that agreement in and of itself retaliatory.

E.E.O.C. v. SunDance Rehabilitation Corp.

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The 6th Circuit Court of Appeals' jurisdiction includes Michigan, Ohio, Kentucky and Tennessee.

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Federal Employee Established Prima Facie Case of Race-Based Failure to Promote Her to Position For Which She Did Not Apply (9/18/06) - US Dist Ct., D.D.C.
An African-American GS-12 federal employee established a prima facie case of race-based disparate treatment in connection with her nonpromotion to a GS-13 position. The employee, who did not believe herself to be the best-qualified candidate, asserted that the agency's actions led her to believe the vacancy announcement was meant to fill one position and chilled her from applying therefore. The agency then actually filled five positions.

Prince v. Rice

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Allstate's Rehire Policy Adversely Affected Older Agents (10/19/06) - EEOC
ST. LOUIS - A federal court ruled today in a nationwide lawsuit that Allstate Insurance Company's one-year moratorium on rehiring its former sales agents had an adverse impact on older agents, the U.S. Equal Employment Opportunity Commission (EEOC) announced.

Judge E. Richard Webber, of the U.S. District Court for the Eastern District of Missouri in St. Louis, granted the EEOC's motion for summary judgment on the issue of whether Allstate's rehire policy affected workers 40 years of age or older disproportionately.

The lawsuit, filed under the Age Discrimination in Employment Act (ADEA) which prohibits discrimination against persons over 40 years of age, now will be heard by a jury to decide whether the rehire policy falls under an exception to the ADEA. According to that exception, any action based on a "reasonable factor other than age" is not unlawful.

The EEOC charged in its lawsuit that in 2000 Allstate terminated its sales agents, offered to make them independent contractors, and refused to rehire them in other positions as employees for one year. Because more than 90% of the agents were 40 years of age or older, the EEOC said that the rehire policy violated the ADEA.

Judge Webber decided that the EEOC, "has provided sufficient evidence to show a disparate impact on the protected group" of agents 40 years of age or older. Allstate argued that the court should dismiss the case without a trial because its rehire policy had no disparate impact and was based on a reasonable factor other than age. Judge Webber denied the company's motion and ordered that a jury would decide the reasonableness issue.

"This decision is an important landmark in the further development of age discrimination law," said Robert Johnson, the EEOC regional attorney for the St. Louis District. "Since the Supreme Court ruled last year that the ADEA does extend to disparate impact cases, this is one of the first court decisions applying that ruling to a new case."

Felix Miller, senior trial attorney for the EEOC, said, "Even when there is no intentional age discrimination, an employer violates the ADEA if its policy has an adverse impact on older workers and the policy was not based on a reasonable factor other than age. We fully expect to be able to prove to a jury that Allstate's policy was unreasonable."

This lawsuit is the second national lawsuit filed by the EEOC concerning Allstate's 2000 reorganization from employee agents to what the company considered independent contractors. In 2001, the EEOC filed suit claiming that Allstate unlawfully required its agents to release any employment discrimination claims if they wished to continue working as agents after the reorganization. In that first lawsuit, brought in U.S. District Court in Philadelphia, the court held that the release requirement was unlawful retaliation, but the case awaits further rulings before final resolution.

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Absence of Involvement by Employee's Direct Supervisor Precluded Hostile Racial Work Environment Claim (9/28/06) - US Dist Ct., D.Mass
In this case, the district court held that a company owning a supermarket was not vicariously liable under Title VII for any hostile work environment to which a black employee customer services manager was subject, when two employees of the meat department strung a noose near the manager's desk, with the meat department supervisor allegedly looking on. The court found that the necessary involvement of the manager's supervisor was missing.

On the other hand, the district court found that a reasonable jury could determine that the plaintiff was subjected to a racially-hostile work environment and that there might be a basis to hold the defendant liable as plaintiff's employer--but only to the extent the harassment may have been perpetrated by co-workers, not supervisors:

Title VII would [not] recognize a claim for supervisory liability on the undisputed facts of this case. Moreover, with regard to Plaintiff's claim based upon co-worker harassment, the court agrees that "the dispute about Defendant's knowledge and the adequacy of its response involves reasonable assessments not easily amenable to summary judgment." Although Plaintiff's case may have some weaknesses, he is entitled to present his claim to the jury. Certainly, the "joke" of hanging a noose in an African-American co-worker's office is particularly despicable and is far from one of "the ordinary, if occasionally unpleasant, vicissitudes of the workplace."

Rosemond v. Stop and Shop Supermarket Co.

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Lawsuit Targets Discriminatory Practices Against Women at Goodyear Manufacturing Plant (6/16/06) - DOL
PHILADEPHIA --The U.S. Department of Labor has filed suit against The Goodyear Tire & Rubber Company, headquartered in Akron, Ohio, alleging hiring discrimination against female applicants at the company's Danville, Va., manufacturing facility.

As a federal contractor, Goodyear is required to comply with Executive Order 11246, which prohibits federal contractors, federally-assisted construction contractors and subcontractors from discriminating in employment decisions on the basis of race, color, religion, sex, and national origin.

A compliance review conducted by the department's Office of Federal Contract Compliance Programs (OFCCP) found that from January 1998 through June 1999, Goodyear utilized a hiring process and selection procedures that discriminated against hundreds of female applicants for entry-level positions on the basis of gender.

"Companies doing business with the federal government have a responsibility to take all of the steps necessary to establish and maintain an equal opportunity employment program," said Patsy Baker Blackshear, acting regional director of the Mid-Atlantic OFCCP regional office in Philadelphia.

The lawsuit seeks to have Goodyear hire and provide monetary relief, retroactive seniority and all other employment benefits to the unsuccessful female applicants. The review was initiated by the Richmond, Va. OFCCP district office.

OFCCP administers and enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, and the affirmative action provisions of the Vietnam Era Veterans' Readjustment Assistance Act of 1974. Collectively, these laws require federal contractors to provide equal employment opportunity for women, minorities, individuals with disabilities and protected veterans.

(Chao v. The Goodyear Tire & Rubber Company)
Civil Action No.: 2006-OFCCP-2

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African-American Muslim Female Bus Driver's Title VII Harassment Claims Dismissed (9/22/06) - US Dist Ct., E.D.N.Y.
Gladys Muhammad, an African-American Muslim female bus driver, who was not allowed to wear her "khimar" head covering, which was required by her religion, while she was operating a bus in passenger service unless she also wore a New York City Transit Authority issued baseball cap over it, brought suit alleging, among other claims, gender, religious and racial harassment in violation of Title VII.

The district court granted summary judgment for NYCTA on the harassment claims, holding that Muhammad did not allege that her coworkers' hostility toward her was because of her religion, gender, race or membership in another protected class, and implied it stemmed from jealousy and resentment over the fact that she "was given regular days off that should have gone to more senior employees."

Muhammad v. New York City Transit Authority

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RadioShack Was Not Entitled To Summary Judgment on Terminated Store Manager's Age Discrimination Claim (9/22/06) - US Dist Ct., N.D.Ill
After a 22-year career with RadioShack, Paul Lindsey was terminated. He claimed that he was fired because of his age, 62, and brought suit under the Age Discrimination in Employment Act ("ADEA"). RadioShack argued that the termination was based on Lindsey's poor job performance, and filed a motion for summary judgment. The district court denied that motion, concluding that Lindsey had produced sufficient evidence to survive summary judgment.

Lindsey had been placed in a program that was designed to identify the weakest performing managers and develop an accelerated plan to improve their skills. He presented a genuine issue of material fact as to whether the proffered reason for his termination, his failure to satisfy RadioShack's expectations under that program, was pretextual. The Regional Manager's (RM's) statements during a store visit and in a memo to the District Manager (DM) could lead a jury to conclude that: the RM had decided Lindsey would be terminated once a replacement was trained; the RM set a performance target anticipating Lindsey would be unable to meet it in order to use it as an eventual justification for his termination, and; Lindsey's age of 62 was a determining factor in the RM's decision. The timing of Lindsey's termination was suspicious, in that his sales gains and other store performance measures were steadily improving and within striking distance of set targets, yet he was terminated more than two months before the program's stated completion date. Finally, other managers who did not satisfy the program's requirements were demoted, not terminated.

Lindsey v. RadioShack Corp.

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Denny's Sued For Disability Bias Against Class of Workers Nationwide (9/28/06) - EEOC
BALTIMORE -- The U.S. Equal Employment Opportunity Commission (EEOC) announced today that it filed a federal discrimination lawsuit under the Americans with Disabilities Act (ADA) against Denny's, Inc., which operates more than 500 corporate-owned restaurants in 30 states, on behalf of disabled employees nationwide who were not provided reasonable accommodation and were fired after being denied medical leave needed in connection with their disabilities.

In its suit, the EEOC charges that Denny's refused to provide one of its restaurant managers in Baltimore with legally-required reasonable accommodations for her disability, a leg amputation; prohibited her from working in its restaurants because of her disability, despite her desire to return to work; and fired the employee because of her disability. EEOC further charges that Denny's violated the rights of a class of workers with disabilities by maintaining a maximum medical leave policy that automatically denied additional medical leave beyond a pre-determined limit -- even when additional leave was required by the ADA as a reasonable accommodation for those workers -- resulting in their unlawful terminations.

"We have worked hard at the EEOC to make equal employment opportunities for people with disabilities a reality," EEOC Chair Naomi C. Earp said. "The Commission remains committed to vigorous ADA enforcement and outreach to ensure that all individuals with disabilities have the freedom to compete in the workplace on a fair and level playing field."

EEOC's lawsuit was filed in U.S. District Court for the District of Maryland (Civil Action No. 1:06-cv-02527-AMD) only after attempts to voluntarily settle the matter proved unsuccessful. EEOC seeks a court order requiring Denny's to comply with the ADA and barring Denny's from applying its maximum medical leave policy to disabled employees who are lawfully entitled to additional medical leave. In addition, EEOC seeks lost wages and benefits, compensatory and punitive damages, and other relief for victims and the public.

"This lawsuit reminds us that disability discrimination is still a persistent problem in today's workplace, more than 15 years after passage of the landmark Americans with Disabilities Act," said Jacqueline McNair, EEOC Regional Attorney for the Philadelphia District, which includes Baltimore. "Employers should remember that people with disabilities are an untapped pool of talent who are ready, willing and able to work--often times, all they need is an equal opportunity."

Title I of the ADA prohibits employment discrimination against people with disabilities in the private sector and state and local governments. Since Title I of the ADA became effective in July 1992, the EEOC has obtained more than $600 million in monetary relief, compensation and other benefits for victims of disability discrimination through the agency's enforcement and litigation process - as well as injunctive relief.

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Restaurant Chain Was Entitled to Summary Judgment on Managers' Claims of Racially Discriminatory Failure to Promote (8/22/06) - US Dist Ct., N.D.Ala.
African-American Restaurant General Managers (RGMs) for a national pizza restaurant chain failed to establish a prima facie case of race discrimination in connection with their failure to be promoted to an Area General Manager (AGM) position which became available through a termination.

None of the three plaintiffs had expressed to the hiring manager their interest in being promoted to an AGM position or showed that they applied for the position, that a clear policy of exclusion made it futile for them to apply, or that the employer had a reason or duty to consider them for the position. The plaintiffs also had not presented substantial evidence they were qualified for the AGM position.

Even if the plaintiffs had established a prima facie case, the employer's proffered reasons for hiring a white candidate, her superior qualifications and experience, were legitimate and nondiscriminatory and were not shown to be a pretext for race discrimination.

Davis v. NPC Pizza Hut

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