In a typical year, the EEOC can field between 60,000 and 80,000 charges of discrimination. Most are either settled through the EEOC’s voluntary mediation process or end up being resolved through state agencies (in places like Massachusetts, Maine and New Hampshire which have them) or through private litigation. On rare occasions, the federal agency, which has limited resources for litigating, files a lawsuit directly against an employer. This usually happens when the EEOC wants to make a point in a developing area of the law or believes that a lawsuit will impact a significant number of employees. The lawsuits filed usually signal to employers the risks of which they should be mindful. It is interesting to see where the EEOC is putting its focus and energy so far in 2023.
Retaliation claims are still the largest number of claims filed with the agency, but a review of recent litigation shows that race discrimination, sexual harassment, and disability discrimination claims are also numerous.
Race Discrimination-Still a Major Workplace Problem
LM Wind Power Blades, Inc.: The EEOC alleged in a lawsuit filed May 4, 2023, that LM Wind Power Blades, Inc, a wind turbine blade manufacturer, violated federal law when it subjected an African American employee to a racially hostile work environment and then retaliated against him for complaining. According to the EEOC’s lawsuit, the employee was the target of sustained racial hostility from white employees and supervisors, which included racial slurs and threats of violence. White co-workers referred to the employee using the N-word, described him as a “monkey” on social media, and tagged him in online posts discussing white power. A white supervisor threatened to “slap the black off” the employee, and, when challenged, said he wished to hang him from a bridge or drag him behind a truck. Despite the employee’s frequent complaints, LM Wind Power failed to meaningfully discipline the harassers, and instead allowed the abusive conditions to continue. Eventually, LM Wind Power fired the employee in retaliation for his complaints.
Whiting-Turner Contracting Company: A construction management and general contracting company headquartered in Baltimore, agreed to pay $1.2 million to a class of Black former workers to settle a race harassment and retaliation lawsuit brought by the EEOC. According to the lawsuit, Whiting-Turner served as the prime contractor for the construction of the Google Data Center in Clarksville, Tennessee. From at least May 2018 through the fall of 2019, the Company is alleged to have subjected Black employees who worked at a construction jobsite to a racially hostile work environment and retaliated against two employees after they complained about race discrimination. The discriminatory treatment included referring to Black employees as “boy” “m—-f—–” and “you.” Many porta potties and buildings on the jobsite were defaced with racially offensive graffiti and a noose was displayed in the workplace on Martin Luther King Jr.’s birthday. Although Black employees reported these issues to Whiting-Turner several times, the company failed to investigate the complaints and instead fired the two employees.
PRC Industries: The EEOC filed suit against a Nevada E-commerce remanufacturer alleging violation of federal law due to its tolerating the harassment of two Black workers and firing them in retaliation for complaining. According to the EEOC’s suit, the married couple hired in Jan. 2020 to work at PRC’s repair facility in Reno, faced constant racial taunts and slurs, including the ‘n-word,’ from their supervisors, a brother and sister. The couple also observed the sibling supervisors routinely denigrating other Black employees due to their race. This conduct occurred openly, in front of co-workers and managers. Senior personnel, including a site manager and a vice president, failed to take adequate steps to curb the misconduct, despite being put on notice of the racial harassment. In late-May 2020, when the couple continued to report ongoing offensive treatment, they were fired via text message by one of the supervisors accused of harassment.
McDonald Oil Company: This employer agreed to pay $400,000 to settle a sexual harassment lawsuit filed by the EEOC. McDonald Oil is a Georgia-based corporation that operates gas stations and convenience stores in Alabama and Georgia. The EEOC stated that McDonald Oil ignored frequent complaints from multiple female employees and customers about ongoing sexual harassment by a male employee. The agency charged that multiple managers were aware of the complaints but failed to correct the hostile work environment, choosing instead to transfer the harasser to another store where he continued sexually harassing female employees. The allegations against the individual included subjecting female employees and customers to unwanted sexual touching, sexual comments about their bodies and questions about their sex lives. It was also alleged that the harasser solicited co-workers for sex, repeatedly disrobed at work and circulated nude and semi-nude photos of himself that ultimately resulted in his criminal prosecution.
McDonald’s Restaurants: An Arizona headquartered franchise owner operating approximately 18 McDonald’s restaurants in Nevada, Arizona, and California, agreed to pay $1,997,500 to resolve a sexual harassment lawsuit. According to the lawsuit, since at least 2017, the owner knew about sexual harassment and allowed it to continue, unabated, by supervisors, managers, and coworkers at various of its McDonald’s restaurants. The harassing conduct, which was mainly directed at young, teenage employees, included frequent unwanted touching, offensive comments, unwelcome sexual advances, and intimidation. Due to the employer’s failure to adequately address the complaints of sexual harassment, many workers found the working conditions so intolerable that they had no choice but to quit.
Pacific Culinary Group, Inc. and CB Foods, Inc.: The EEOC filed suit in April 2023 against two companies involved in the sale, production, and/or distribution of Asian food products. According to the lawsuit, since at least 2020, Pacific Culinary and CB Foods subjected both female and male workers at their Monterey Park, California location to ongoing verbal and physical sexual harassment. The harassment, allegedly perpetrated by their chief operating officer, included but was not limited to, frequent and offensive unwanted groping and touching of their bodies, unwelcome sexual advances and comments about their appearance, and inappropriate questions about employees’ sexual preferences and sexual activities. Despite having received multiple complaints of the sexual harassment, the companies failed to take prompt and effective action, and the sexual harassment continued. The EEOC also said when employees objected to or reported the harassment, they were retaliated against with further harassment and/or by discipline, including termination. The unlawful employment practices resulted in intolerable working conditions, compelling some of the workers to quit.
Disability Discrimination-Wal-Mart and COVID, Double De ja Vus
Wal-Mart Stores East, LP: The EEOC alleged in a March 2023 suit that Wal-Mart violated federal law when it refused to excuse an employee’s disability-related leave and discharged her for violating the company’s attendance policy. According to the EEOC’s lawsuit, on several occasions from November 2016 through April 2017, Walmart refused to provide reasonable accommodation to a deli associate who was suffering from symptoms related to Crohn’s disease. Specifically, the associate requested intermittent leave or excused disability-related absences and requested to be transferred to a position closer to a bathroom. Although Walmart excused a few of the associate’s disability-related absences, it did not excuse others, including several absences due to medical appointments and a hospitalization. The associate, who had worked for Walmart since February of 2014, was fired in April 2017 for incurring unexcused absences exceeding the number of absences allowed under company policy, even though she had provided doctor’s notes.
In a second suit, the EEOC’ alleged that on several occasions from April 2017 through August 2018, Walmart refused to provide a reasonable accommodation to a general merchandise support manager with a disability who was suffering from symptoms related to generalized convulsive epilepsy. Walmart hired the manager as a cashier in 2012 and promoted him several times over the next four years. Beginning in 2017, the manager began experiencing seizures requiring medical treatment which caused him to be late for his shift or to miss work on several occasions. On each occasion, the manager told Walmart his absence was related to his disability. In July 2017, the manager requested reasonable accommodation for his disability in the form of intermittent leave. Walmart did not grant the request or excuse the disability-related absences. In 2018, Walmart demoted the manager to deli sales associate because of his disability-related absences and then fired him for violating the company’s attendance policy.
Total Systems Services, LLC: A global payments processing company based in Columbus, Georgia, is alleged to have violated federal law by denying repeated requests by an employee with a disability for remote work as a reasonable accommodation due to increased risks related to COVID-19. The EEOC also alleged that the company further violated the law by retaliating against the employee for taking medical leave to avoid exposure.
From May through August 2020, a customer service representative with a disability in a Total Systems’ call center repeatedly requested to work remotely as a reasonable accommodation because of her high-risk status with respect to COVID-19. At the time, the employee’s call center co-workers were regularly testing positive for the virus. On the advice of her doctor, the employee requested remote work after a May 2020 workplace COVID-19 exposure. Total Systems denied the employee’s accommodation request. To avoid further exposure — and the increased risks she faced if she contracted COVID-19 — the employee went on medical leave until a remote position became available. By the time the employee’s leave expired in July 2020, most of the department was working remotely, but Total Systems continued to deny the employee’s request.
In addition to these suits the EEOC has also brought pregnancy disability and gender pay equity claims, long designated as a focus area for the agency. In review, business should keep in mind the following important proactive risk management measures which should be taken:
- Front line managers, store managers, and supervisors need to be trained on anti-discrimination, anti-harassment and anti-retaliation. The first defense is good policies and training which can signal to courts and administrative agencies that the employer is serious about providing a safe workplace for employees.
- Do not ignore employee complaints. Refusing to investigate or take action when discrimination and harassment are alleged, creates a very high risk of future litigation.
- The definition of disability is broad, and employees seeking accommodation for disabilities and medical conditions are entitled to participate in an interactive process wherein the employer and employee work to find a way for the employee to perform a job he or she is qualified to do. Failing to engage in this process and to provide accommodation, if there is a reasonable one, can be costly.
- Protect employees from retaliation. Period. Employees who complain should not be fired (or made so miserable that they quit).
- Do not assume that all is well in your workplace because no one has complained. People often quit first and complain later, or leave and don’t say a thing…sometimes leaving behind co-workers who are being subject to illegal conduct.