December 2006 Discrimination & Harassment News

• Slavery and Human Trafficking Suit Settled for $1 Million
• Employer Established Ellerth-Faragher Defense with Respect to Alleged Supervisor Harassment of African-American Employee
• Railroad Did Not Regard Engineer as Substantially Limited in Major Life Activity of Pumping and Circulating of Blood
• Chase Reaches $2.2 Million Settlement In Disability Discrimination Claim
• Employer Was Negligent in Preventing Sexual Assault by Inmate on Corrections Employee

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Slavery and Human Trafficking Suit Settled for $1 Million (12/8/06) - EEOC
LOS ANGELES - The U.S. Equal Employment Opportunity Commission (EEOC) today announced a major litigation settlement with Trans Bay Steel, Inc. for an estimated $1 million in total monetary relief and compensation for 48 welders of Thai descent who were discriminated against and exploited due to their national origin.

EEOC charged that the class of Thai nationals, contracted under H2B visas by Trans Bay and a third party agency, were held against their will, had their passports confiscated, had their movements restricted, and were forced to work without pay. Additionally, some workers were confined to cramped apartments without any electricity, water, or gas.

At least 17 of the workers were told if they tried to leave the location where they were being forcibly held, the police and immigration officials would be called to arrest them. EEOC also contends that all the workers were made to pay exorbitant "fees" to the recruiting company which kept them in involuntary servitude. Ultimately, some of the workers escaped the slave-like conditions.

Trans Bay received a large sub-contract to provide services to retrofit the Bay Bridge and became the sponsoring employer for the workers. Trans Bay contracted with Kota Manpower Co., and Hi Cap Enterprises, Inc., to bring the skilled welders from Thailand to meet the needs of the project. While Kota and Hi-Cap brought over approximately 48 welders from Thailand, only nine of them went to work for Trans Bay. The remaining welders were brought to Los Angeles and Long Beach and forced to work without pay at Thai Restaurants owned by Kota Manpower and Hi-Cap, and forced to work other menial jobs without pay.

"The issues of human trafficking and slavery are an enforcement priority for the Commission," said Anna Y. Park, Regional Attorney in EEOC's Los Angeles District Office, which has jurisdiction for the southern half of California. "The EEOC is committed to the protection of all workers, particularly those most vulnerable in our society. The workers in this case sought out the American dream, but instead faced a nightmare."

EEOC conducted a comprehensive investigation of the charges and, after extensive negotiations, entered into a three-year consent decree with Trans Bay to resolve the case for an estimated $1 million in total monetary relief and compensation. Under the decree, Trans Bay will:

• Provide monetary relief for each of the claimants;
• Guarantee work on the Bay Bridge Project;
• Provide housing for the claimants who agree to work for Trans Bay, including a housing stipend;
• Pay for tuition and books at a local college for training as a welder;
• Provide sponsorship, if required, to continue to work in the U.S. and certify claimant welders;
• Guarantee minimum pay and a base pay once the claimants complete the training period;
• Pay the claimants relocation costs, including reimbursement for travel;
• Reimburse the claimants for moving expenses to relocate to Napa, Calif.

EEOC filed the lawsuit under Title VII of the Civil Rights Act of 1964, as amended in U.S. District Court for the Central District of California (U.S. EEOC v. Trans Bay Steel, Inc., Case Number CV 06-07766 CAS (JTLx)) after first attempting to resolve the matter out of court. Other injunctive measures contained in the consent decree include:

• Monitoring by the EEOC to ensure compliance;
• Training of Trans Bay's employees on anti-discrimination laws;
• Revising Trans Bay policies and procedures;
• Developing a viable complaint procedure.

EEOC Los Angeles District Director Olophius E. Perry said, "Through the cooperative efforts between the federal government and non-profit organizations, a just resolution was reached that is a win/win for the workers and for the employer."

The EEOC worked closely with non-profit organizations such as the Thai Community Development Center, the Coalition to Abolish Slavery and Trafficking, and the Legal Aid Foundation of Los Angeles.

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Employer Established Ellerth-Faragher Defense with Respect to Alleged Supervisor Harassment of African-American Employee (12/6/06) - 8th Cir.
In this case, a construction company's antidiscrimination policies and an African-American employee's failure to attempt to use its remedies established the Ellerth-Faragher defense with respect to alleged supervisor harassment. The supervisor had allegedly greeted the employee with racially offensive remarks two or three times a week, as well as making other offensive remarks to him. The employer published an Employee Policy Manual that described its antidiscrimination policies and reporting procedures, including a policy against harassment. It was distributed to all employees at the beginning of each construction season, and the employee acknowledged receiving the policy before the season in question. The manual identified three company officials to whom harassment could be reported and provided their work and home telephone numbers. The subject employee never reported the alleged harassment to any of those officials, claiming he failed to do so because he believed reporting would be ineffective.

Gordon v. Shafer Contracting Co., Inc.

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The 8th Circuit Court of Appeals' jurisdiction includes North Dakota, South
Dakota, Minnesota, Nebraska, Iowa, Missouri and Arkansas.

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Railroad Did Not Regard Engineer as Substantially Limited in Major Life Activity of Pumping and Circulating of Blood (11/15/06) - U.S. Dist Ct., E.D.Pa.
In this case, the U.S. District Court held that a railroad, as an employer, did not regard a locomotive engineer, as an employee, as substantially limited in the major life activity of pumping and circulating of blood, for purpose of an ADA discrimination claim that was made after the engineer was medically disqualified from his position on the basis of a history of heart disease and evidence of heart ischemia, and thus the engineer had not been regarded as disabled by the employer. The diagnosis was equivocal, the employer was aware that no clinical symptoms of ischemia presented themselves in the engineer, and the employer viewed his diagnosis as capable of changing.

Snyder v. Norfolk Southern Railway Corp.

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Chase Reaches $2.2 Million Settlement In Disability Discrimination Claim (11/22/06) - EEOC
CHICAGO - The U.S. Equal Employment Opportunity Commission (EEOC) and JPMorgan Chase & Co. (Chase) today announced the $2.2 million settlement of a claim brought under the Americans with Disabilities Act (ADA) against Bank One Corporation.

The EEOC issued an administrative determination on March 11, 2004, finding that there was reasonable cause to believe that Bank One violated the ADA by failing to properly accommodate a group of employees who were medically released to return to work after leaves of absence exceeding six months. Bank One automatically protected employees' jobs when employees went on a leave of absence for less than six months. However, for employees who went on longer leaves of absence, the EEOC found that Bank One violated the ADA by terminating some employees without first attempting to determine on an individual basis whether they required additional job protection or other accommodations because of a disability. In 2004, after the EEOC's finding was issued, Bank One merged with Chase. Chase assumed negotiations with the EEOC following the merger of the two companies.

As a result of the settlement, the merged company will distribute $2.2 million among 222 individuals who went on a long-term disability (LTD) leave of absence from Bank One and whose employment was ultimately terminated. Chase will also reinforce its policies to individually assess whether a disabled employee on a disability leave of absence should receive additional job protection or other accommodations. Chase will provide training on the ADA and its revised policy to all managers, human resources professionals, and employees of its Disability Management Services department.

"Chase is settling this case to resolve this matter expeditiously, and also because this agreement reaffirms its commitment to providing reasonable accommodations to its employees," according to a statement by JPMorgan Chase. The settlement also provides for Chase to make a monetary contribution to Open Doors, a Chicago-based, non-profit organization, to support the agency's education and advocacy work on behalf of the employees with disabilities.

During its investigation, the EEOC found that Bank One's policy permitted employees who returned from short-term disability within six months to return to their jobs. Employees who required more than six months of disability leave, however, were not guaranteed to return to their previous position. If their position had been filled, employees who were released to return to work after more than six months of disability leave had thirty days to find other positions within Bank One or were terminated. The ADA requires that employers individually assess whether or not additional leave will assist employees with disabilities in returning to work without placing an undue hardship on the company.

EEOC Chair Naomi C. Earp stated, "We commend Chase for working cooperatively with us to resolve this matter and for its commitment to providing equal opportunities for persons with disabilities."

John P. Rowe, district director of the Chicago District Office, said, "Through the conciliation process, we were able to ensure that disabled employees will receive the individualized attention they need in the future and provide remedies to those affected by Bank One's practice. We are particularly pleased that Chase was willing to work with us to achieve this result without having to resort to protracted litigation."

Konrad Batog, EEOC's lead investigator of the charge filed against Bank One, said, "Everyone knows that employees on leave may be able to return to work at some point. Being open to the possibility that individuals with disabilities may need a little extra time is a win-win for employers. Employees will appreciate the individualized consideration, and employers will be able to retain seasoned, trained employees."

The EEOC is responsible for enforcing the nation's laws prohibiting discrimination in employment based on race, color, sex (including sexual harassment and pregnancy), religion, national origin, age, disability, and retaliation. Further information about the Commission is available on its web site at www.eeoc.gov.

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Employer Was Negligent in Preventing Sexual Assault by Inmate on Corrections Employee (11/14/06) - 7th Cir.
Georgia Erickson, a payroll and benefits specialist at the Wisconsin Correctional Center System (WCCS), a division of the Wisconsin Department of Corrections (WDC), brought suit against her employer under Title VII's hostile work environment doctrine and § 1983 after she was raped by John Spicer, an inmate at the Oregon Correctional Center (OCC). The OCC, an all-male minimum security prison also under the authority of WDC, is housed in the same building as WCCS. A jury ultimately found for Erickson, and the district court upheld the verdict after concluding that "the evidence was sufficient to support the jury's verdict that WDC's agents knew of a significant risk of serious harassment, were in a position to take remedial action and failed to act to prevent the sexual harassment from occurring." On appeal, the 7th Circuit affirmed.

Erickson v. WI Dept of Corrections

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

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