Findlay Honda to Pay $150,000 to Resolve EEOC Discrimination Lawsuit

Black Employees Endured Racial Comments, Bias and Reprisal for Protesting, Federal Agency Charged

LAS VEGAS – Shack-Findlay Automotive, LLC, doing business as Findlay Honda and Findlay Automotive Group, Inc., a car dealership in Henderson, Nev., will pay $150,000 to two black employees for subjecting them to discrimination, harassment and retaliation, the U.S. Equal Employment Opportunity Commission (EEOC) announced today.

The EEOC filed suit against the company on behalf of the two individuals in September 2010 in the U.S. District Court for the District of Nevada (EEOC v. Shack-Findlay Automotive, LLC d/b/a Findlay Honda and Findlay Automotive Group, Inc., Case No. 2:10-cv-01692-KJD-RJJ). In its lawsuit, the EEOC asserted that a parts department manager made racially derogatory comments and jokes on a near-daily basis and imposed stricter work-related rules on black employees than non-black employees. Two black employees were eventually fired, one after communicating that he was going to file a discrimination charge against the company.

Race discrimination and retaliation for complaining about it violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

Findlay Honda agreed to enter into a consent decree with the EEOC resolving the matter. Aside from the monetary relief for the victims, the consent decree also requires that the company hire an outside EEO consultant; distribute its policies and complaint procedures with respect to workplace discrimination, harassment and retaliation; track future complaints; and provide annual equal employment opportunity training.

“We commend Shack-Findlay Automotive for taking proactive measures to ensure a workplace free of discrimination,” said Anna Y. Park, regional attorney of the EEOC’s Los Angeles District Office, whose jurisdiction includes Nevada. “We encourage other employers to take steps to ensure that managers are trained about their obligations under Title VII.”

Adriana Lopez, acting local director for the EEOC’s Las Vegas Local Office, added, “Retaliation is the No. 1 type of complaint filed with the EEOC nationwide and also in our district. Workers are increasingly aware that they have the right to report discrimination and harassment without reprisal by employers. We encourage employers to take preventative measures to combat this form of discrimination.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Age discrimination occurs when an employer treats an individual less favorably because of their age. Unfortunately, age discrimination is an increasing problem in American workplaces.

Both Michigan and federal law prohibit age discrimination and provide damages for its victims. The application of these laws is complex and you should consult with an attorney experienced in Age Discrimination Law.

In Michigan, the Elliott-Larsen Civil Rights Act (ELCRA) prohibits discrimination based upon age. This law, MCL 37.2202, states:

An employer must not refuse to hire or recruit, discharge, or otherwise discriminate against an individual with respect to employment, compensation, or a term, condition, or privilege of employment, because of… age.

Federal Law

The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. ADEA protections apply to both employees and job applicants. Under the ADEA, it is unlawful to discriminate against a person because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

It is also unlawful for an employer to retaliate against an individual for opposing employment practices that discriminate based on age, for filing an age discrimination charge, or for testifying or participating in any way in an ADEA investigation, proceeding, or litigation.

However, the law does allow an employer to force retirement based on age, in certain job categories, like law enforcement officers, firefighters, and highly paid corporate executives.

The ADEA applies to employers with 20 or more employees, including federal, state, and local governments, employment agencies, and labor organizations.

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The ADEA prohibits job notices or advertisements, which include age preferences, limitations, or specifications, unless age clearly is a bona fide occupational qualification (BFOQ), or reasonably necessary to the essence of the business.

Pre-Employment Inquiries

Although the ADEA does not specifically prohibit an employer from asking a job applicant’s age or date of birth, these questions are subject to close legal scrutiny because they may discourage older workers from applying for work. Thus, an employer must be able to show that it has a legitimate reason for knowing the age of a job applicant.

Benefits

The Older Workers Benefit Protection Act of 1990 (OWBPA) amended the ADEA, to specifically prohibit employers from denying benefits to older workers. An employer may reduce benefits based on age, only if its cost of reduced benefits for older workers is the same as the cost of regular benefits for younger workers.

Waivers of ADEA Rights

At an employer’s request, an individual may agree to give up, or waive, rights or claims under the ADEA. To be valid and legally enforceable, a waiver agreement must meet specific standards, including: *Be in writing and be understandableSpecifically refer to ADEA rights or claims *Not waive rights or claims that may arise in the future *Be in exchange for valuable consideration *Advise the individual in writing to consult an attorney before signing the waiver; and *Provide the individual at least 21 days to consider the agreement and at least 7 days to revoke the agreement after signing it.

The requirements for an ADEA waiver are stricter, if an employer requests it in connection with an exit incentive or early retirement program.

Age Discrimination and Replacement of Higher-Wage EarnersThe law does not prohibit an employer from ever replacing workers making higher wages with workers who will make less, based on lower seniority. At the same time, this often involves replacement of older workers with younger ones. An employer who uses wage rates as an excuse, but just wants to get rid of older workers, is violating the law. In an ADEA legal action, the worker must show that it really was age, rather than wages, which motivated the firing of older workers.

The Law Offices of Samuel I. Bernstein, our Michigan personal injury and employment discrimination law firm, has championed the cause of seriously injured Michigan victims for three generations.

This may be discrimination, but it is legal discrimination (no matter how unfair). The attached Article from an Unemployed Watchdog group identifies the problem, but offers little solution, because a good solution via amendment to federal labor laws does not and will never exist.

Employers engage in legal employment discrimination each and every day. In fact, we all discriminate everyday. That is because “discriminate” means, in essence, to “make a choice.”

By and large, in almost every state in the United States, it is legal for employers to make choices between employees within the workplace – they can choose to promote someone they simply like more than someone else, they can choose to disproportionately increase the workload of someone because they disagree with their views on politics (in the private sector, that is!), they can promote a sister over a stranger to the family, they can demote someone who has less education in favor of someone who has been with the company a shorter time but has more education, etc.

In other words, supervisors and managers can (and do) make choices about employees based upon their own preferences, even if others (including the employee, or the President or the Pope, for that matter), believe they have made a bad decision, a wrong decision, a biased decision. Just like we all make choices others may criticize.

These types of seemingly unfair, but totally legal employer choices are protected in almost every state by the employment at will doctrine. That will never change.

And, it is these practices that constitute many employees’ biggest hurdle: how do I effectively deal with such “discrimination” at my job? Employees faced with such circumstances will often lodge a “hostile work environment” claim with HR, and hope that management rectifies the situation. And management usually does; sometimes, by engaging in effective conflict resolution. More often, though, the response is to punch the complaining employee’s ticket out of town, first papering the file with Performance Improvement Plans, poor performance evaluations, write ups for innocuous violations, etc. Employees who are victimized by such a response will often call me and seek to sue for “retaliation.”

My response is to say: “It is only illegal to retaliate against employees who have complained about unlawful discrimination. You complained about lawful discrimination, and they can therefore fire you, no matter how crappy such an approach may seem to be to you, me or Mother Theresa.”

What does any of this have to do with discrimination against unemployed workers? Well, two things:

1) “discrimination” in the work place is by and large lawful unless it is based upon discrimination because of someone’s age, sex, race, national origin, religion or disability, or if dsomeone has sought to enforce their rights under statutes such as the Family and Medical Leave Act, the Fair Labor Standards Act or state workers’ compensation laws. therefore, discrimination based upon jobless status is not illegal;

2) roughly half of America’s unemployed workforce actually quit their jobs; we surmise, based upon experience, that a significant percentage of those quits were a response to the types of lawful discrimination discussed above, thereby potentially sealing their fate in the near term job market. Many others were fired for “willful misconduct.”

On the first point, it is important to understand why the rules against illegal discrimination exist. In a nutshell, the laws by and large are designed to protect employees who have been discriminated against because of things beyond their control. The way they were born, when they were born, where their ancestors came from, a disability they cannot fix. This is employment law in a nutshell.

Illegal retaliation? It is designed to protect only those who complain about unlawful discrimination from adverse employer responses. In other words, you only have a retaliation claim if the retaliation came about after you specifically complained about discrimination based upon race, age, disability, etc., or after you asserted your rights under statutes such as FMLA, FLSA, etc.

However, many of the unemployed are out of work for reasons within their control, which include:

1) quitting their jobs because they were the subject of legal discrimination (no matter distasteful, unfair or immoral);

2) engaging in willful misconduct at work. So, for those people, the law says, they are not out of work for reasons beyond their control. They were not fired because of the way they were born, or when they were born, or who their ancestors are, or because they are blind.

Therefore, the law says, since their situation (unemployment) was of their own doing (quitting or doing some bad justifying termination), it cannot be illegal to discriminate against them. Therefore, in my view, despite the potential unfairness of the situation, there will never be a statute protecting the jobless from unlawful discrimination via hiring practices that per se exclude them for employment.

I can hear now the cries of my clients: “but I cannot control that my boss is a jerk, or that he likes his sister more than me…” Yes, that is true, but the law presumes that you can control whether you quit your job, or get fired for willful misconduct.

Others will lament: “But I was laid off due to a reduction in force, and was not my fault.” To which, sadly, our response is to say: “The law is imperfect, and bright line rules always leave some innocents out in the cold.”

America’s Workforce: Employee side employment lawyers are on your side. It is for that reason that Blogs such as this one exist. The goal here is to help employees understand what treatment they are protected against, and what treatment they just have to “put up with,” or else face “jobless status” discrimination….

To make matters even worse, you probably will not get unemployment benefits if you quit your job or if you engaged in willful misconduct, at least not in Pennsylvania.

Our advice? If you are already out of work, find a job somewhere, anywhere, and get back on the horse. Then look for a more suitable job. Accept that your pay will be less, but by all means try and find a way to get off of unemployment and back into the workforce.

If you are still employed, understand what is lawful versus unlawful “discrimination.” Learn to deal with lawful discrimination in the same way we learn to deal with others’ disapproval of our life choices, such as those of our family relating to things such as choice of mates, finances and how to spend our spare time. Do not quit your job, except in the most dire circumstances, and usually only if you believe you have been subject to unlawful discrimination of retaliation.

If you believe that you are facing illegal discrimination or retaliation, consult an attorney to figure out your options and best strategies.

To view this article with all Links, go to http://employmentlaw101.blogspot.com

Best of luck, and thanks for reading.

John A. Gallagher, Philadelphia Discrimination and Retaliation Attorney
Paoli, PA
610-647-5027

Author: John A Gallagher
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KOKH and Parent Company, Sinclair Broadcast Group, Paid Black Female Reporter Less Than Coworkers, Federal Agency Charged

OKLAHOMA CITY – KOKH-TV (Fox 25) in Oklahoma City will pay $45,000 and additional consideration to a veteran African-American TV news reporter to settle a race and sex discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today. The settlement terms are set forth in a proposed Consent Decree, approval of which is pending before the Court.

The EEOC charged that Phyllis Williams’ employers, KOKH and its parent company, Sinclair Broadcast Group, paid her lower wages than comparable white female reporters and male reporters of all races, and subjected her to unequal terms and conditions of employment until August 2007, when she signed an employment contract for a higher salary. Sinclair and KOKH had routinely offered employment contracts to other reporters at Channel 25. Williams has reported for Fox 25 since 1996.

Fox Broadcasting Company, which has an affiliate agreement allowing the station to use the Fox name, did not employ Williams and was not a party to the lawsuit.

Race and sex discrimination violate Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Western District of Oklahoma (EEOC, et al. v. KOKH, et al., Case No. 5:07-cv-01043-D) after first attempting to reach a pre-litigation settlement through its conciliation process.

After the EEOC filed its charges, Williams intervened in the EEOC’s suit and added a retaliation claim under a separate civil rights statute known as Section 1981, which prohibits race discrimination and retaliation for reporting the same. KOKH and Sinclair agreed to resolve her Section 1981 claim in a private settlement for consideration in addition to the $45,000 being paid to resolve the Title VII claim.

In addition to monetary payment, during the three-year term of the consent decree KOKH and Sinclair must post an anti-discrimination notice, disseminate an anti-discrimination policy, and provide live training on preventing sex and race discrimination on at least an annual basis to all KOKH employees.

“This decree will remind KOKH Channel 25, Sinclair and all news organizations to treat their employees equally as required by law, including women and people of color, who traditionally have been the victims of job discrimination,” said Barbara Seely, regional attorney of the EEOC’s St. Louis District Office, which has jurisdiction over Oklahoma. “The notice posting and training required by the consent decree will go far in educating the station’s managers on their employees’ right to work in an environment free of race and sex discrimination.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on the agency’s web site at www.eeoc.gov

In its lawsuit, the EEOC charged that Convergys refused to hire Shannon Fantroy when he told them he could not work on Saturdays because of his Hebrew Israelite religion. Fantroy had answered an online advertisement for a customer service position at Convergys’s call center in Hazelwood, Mo. The ad stated that a successful candidate should be able to work a flexible work schedule and/or overtime as required, the EEOC said. Fantroy’s religious beliefs require him to observe the Sabbath from sunup until sundown on Saturday and he can conduct no business at all during these hours. A recruiter for Convergys interviewed Fantroy and told him that he would have to work weekends. Fantroy told her that he was unable to work on Saturdays due to his religious beliefs. The recruiter then told Fantroy that the interview was over unless he could work Saturdays, the EEOC said.

Title VII of the Civil Rights Act of 1964 prohibits religious discrimination and requires employers to make reasonable accommodations to employees’ and applicants’ sincerely held religious beliefs as long as this does not pose an undue hardship. The EEOC filed its lawsuit in U.S. District Court for the Eastern District of Missouri in St. Louis (EEOC v. Convergys Corporation, 4:11-CV-00395) after first attempting to reach a pre-litigation settlement through its conciliation process. The EEOC seeksfront pay, back pay, compensatory and punitive damages for Fantroy and injunctive relief, including training for all Convergys recruiters on religious accommodations.

“Giving an employee an alternative schedule in such a large call center should not be impossible,” said Barbara A. Seely, regional attorney for the EEOC’s St. Louis District Office. “Refusing to hire a person in this situation without even discussing a possible accommodation for his religion is unlawful discrimination.”

According to company information, Cincinnati-based Convergys is a global provider of customer relationship management services that employs about 560 people at its Hazelwood, Mo., call center facility and more than 70,000 people worldwide.

The EEOC is responsible for enforcing federal laws against employment discrimination. Further information is available at www.eeoc.gov

Retirement System Penalized Older Firefighters Because of Age, Federal Agency Charged

NEW YORK – The Village of Amityville, N.Y., and the Amityville Fire Department will pay $209,280 to settle a class age-discrimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC’s suit alleged that Amityville refused to let volunteer firefighters over age 65 accrue credit toward a “length of service award,” the equivalent of a retirement pension, because of their age. As a result, senior firefighters lost pension amounts after they turned 65, in violation of the Age Discrimination in Employment Act (ADEA) a federal law that protects workers age 40 and older from age discrimination. The EEOC filed suit in U.S. District Court for the Southern District of New York, Civ. No. 2:09-03742 ADS/AKT, after first attempting to reach a pre-litigation settlement.

The consent decree filed in resolution of this suit permanently eliminates an age restriction on service credit, mandates training for individuals responsible for this program and institutes an anti-discrimination policy. Further, retroactive payments will be made to 23 volunteer firefighters who had been barred from receiving credit for their service because of their age. The settlement also provides for increased monthly pension amounts for 15 of those firefighters still living.

“The fire department’s system penalized older firefighters because of their age, and that was simply illegal,” said Adela Santos, the EEOC trial attorney assigned to the case.

EEOC Acting Regional Attorney Judy Keenan said, “We are pleased that the parties worked together to resolve this matter so that these brave firefighters, who risk their lives, will finally receive appropriate compensation for their years of service.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov

WINSTON-SALEM , N.C. – A Winston-Salem, N.C. –based, family-owned and operated electric company discriminated against a black electrician when it fired him because of his race, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.

According to the EEOC’s suit, around Dec. 17, 2007, Salem Electric Company terminated Rodney Tonkins’ employment as a journeyman electrician, alleging that he was responsible for a crew of employees who damaged light fixtures on a light installation project. The EEOC contends in the suit that as a journeyman electrician, Tonkins did not supervise work crews and therefore was not responsible for the damaged light fixtures. Instead, according to the EEOC’s complaint, the company’s superintendent and foreman, both white, were in charge of the project and the crew workers. Neither of those individuals, nor the non-black employees who actually caused the damage to the light fixtures, was terminated.

Discrimination on the basis of race violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit in U.S. District Court for the Middle District of North Carolina, Winston-Salem Division (EEOC v. Salem Electric Company, Civil Action No. 1:11-cv-00119), after first attempting to reach a voluntary settlement through its conciliation process. In its suit, the EEOC seeks back pay, compensatory damages and punitive damages for Tonkins. The EEOC also seeks injunctive relief prohibiting Salem Electric from engaging in further racial discrimination.

“This case is a reminder to employers that fair and equal treatment of its employees must be applied in all phases of employment, including addressing performance concerns,” said EEOC Regional Attorney Lynette A. Barnes of the agency’s Charlotte District Office. “The EEOC will continue to vigorously protect the rights of workers who are targeted for adverse treatment based on race or other illegal factors.”

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, national origin, sex and pregnancy, disability, age, or genetic information, or for association with another person who falls into one of these categories. When harassment based on these factors happens frequently enough to create a hostile work environment for a victim, or if a victim is fired, demoted, or forced to resign due to the harassment, the actions are considered illegal.

National Origin Discrimination

Sometimes people face discrimination or verbal abuse at work based on their nation of origin. The following violations are prohibited under Title VII:

• Employment decisions: An employee may not be hired, fired, laid off, or recruited based on national origin
• Harassment: Any conduct that creates a hostile work environment for a person based on his or her national origin is prohibited
• Language: In most cases, an employer may not discriminate based on a person’s accent or English fluency, and may not establish English-only rules.

An employer is allowed to take accent and fluency into account if it interferes with the employee’s ability to perform job duties that require language proficiency. Additionally, an employer may create English-only rules if they are necessary to promote safe or efficient business operations.

Nation of Origin Harassment

Harassment can come from virtually any person associated with the victim in the workplace, including:

• Coworkers
• A supervisor
• The supervisor of a separate area or department
• Clients, customers or other non-employees

In some cases, the victim of harassment and the person inflicting the harassment are of the same nation of origin.

To learn more about national origin harassment in the workplace, visit the website of the Austin employment attorneys of Melton & Kumler, LLP.

James Witherspoon

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By James Witherspoon

The Age Discrimination in Employment Act was passed in 1967 to protect a sizable population of workers from losing their jobs on the sole basis of their age. The law in part protected older workers from the incoming rush of the baby boomer generation, which had recently been reaching the working age for career-oriented jobs. As the ADEA was not a part of the Civil Rights Act, the actual details of the law differ.

The number and type of employees in a company can affect whether the ADEA applies or not. As a federal law governing what is otherwise a state matter, the ADEA only applies to companies that engage in interstate commerce. However, considering the growing scope of the modern business marketplace, many industries must function on an interstate level just to stay competitive. In addition to interstate business being a requirement, there must be at least 20 employees in the company for the law to apply. Although this can include employees working outside of the United States, the total number of 20 is an increase from the Civil Rights Act’s 15 employee requirement.

In addition to directly stated concerns, the ADEA must protect certain industries that require young workers to produce the services they offer. For example, films and theatrical productions are often scrutinized by the physical appearance of their actors, which may need to at least look a certain age. Additionally, jobs that widely affect public safety, namely those in transportation, may discriminate along the lines of age, as younger candidates tend to prove less prone to serious health conditions.

It is worth noting that, according to the ADEA, the law does not necessarily make it illegal to discriminate against a young worker. According to prior legal precedence, it is not against the ADEA to select an older candidate over a younger candidate for a position. Depending on other applicable laws or statutes, this may be illegal in some jurisdictions.

For more information regarding the Age Discrimination in Employment Act, contact an employment attorney.

If you have been wrongfully judged according to your age and passed over for a promotion or asked to retire, contact the Houston employment attorneys of the Ross Law Group.

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If you have a physical or mental impairment, but can perform the essential functions of your job with some reasonable accommodations at work, you should know what to do to obtain those accommodations. Here are a few pointers:

1. You have no obligation to disclose a disability unless asked and only then if a) you have already been given a job offer and b) the request for information is stated as “Do you have a disability for which you may need some assistance or accommodation to perform your duties?’ The employer may not use this information to discriminate against you in offering or maintaining your employment.

2. States may have their own disability and accommodation laws, in addition to the federal Americans with Disability Act. [A.D.A.] Check your own state’s laws because they may offer greater protections than the federal law. California for example defines “disability” to include more conditions. California has declared as a matter of “public policy” that it wants to extend greater protections than those offered by the A.D.A.

3. If you need assistance or accommodation at work, you have the obligation to let the employer know. The best way is in writing, and best support is with a supporting statement from your doctor that incorporates an understanding of what is required of you in your work. Provide the doctor with a job description that explains the kinds of work you do, and the mental and physical demands of each basic daily task.

4. The employer has a legal duty to engage in “an interactive process” that involves exchanging information among three basic participants: you, your doctor, and the employer (usually the H.R. representative). The whole purpose of the “interactive process” is to identify the need for accommodation, and the scope of the accommodation needed, and whether the changes are reasonable, that is, whether they are cost effective and suitable for the situation. The interactive process should, in my opinion, include an interview between you and the Human Resources official.

5. Be careful as an employee not to overstate the extent of your disability, or to demand extraordinarily expensive or disruptive accommodations. If you cannot perform the essential functions of your job even with “reasonable” accommodations, you are not entitled to continue in your employment.

6. If you are ignored, evaded, or dismissed by the employer’s H.R. department, or your supervisor(s) as you make these requests, you can file an administrative complaint under the Americans with Disability Act through the Department of Labor, or if your state has a disability accommodation law, you can file with that agency, often described as a “Fair Employment” or “Human Rights” department. If those agencies do not satisfy your demands, you may then, but only then, file an action in court after obtaining a “right to sue” letter from the agency.

7. The law prohibits an employer from retaliating against an employee because the employee seeks accommodation, or because the employee files with a state or federal agency for redress.

In conclusion, disability accommodation is a right, but you must be proactive in making the request for accommodation and providing supporting information. The employer has a duty to apply its personnel and resources to provide the accommodation, as long as it is not unduly expensive or unduly disruptive of work operations. The larger and more resourceful the employer, the greater the duty to accommodate. Do not exaggerate the scope of your disability, or be extreme in your accommodation demands, because the employer’s duty is limited to “reasonable” accommodation, and you must be able to perform the essential functions of your job.

Frank Pray
http://www.employee-rights-atty.com
http://www.employeerightsatty.blogspot.com
949.251.1006

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