Pepsi Settles Federal Race Discrimination Claim

Pepsi Beverages reached a settlement agreement with the Equal Employment Opportunity Commission (EEOC), in which it will pay $3.13 million and modify its training and hiring processes based on allegations of racial discrimination. An investigation by the EEOC found evidence that Pepsi’s use of criminal background checks during the hiring process had an adverse and disproportionate impact on black job applicants. Under Pepsi’s policy, job applicants who had been arrested pending prosecution were refused job offers, even if they had not been convicted. In addition, Pepsi’s policy denied employment to job applicants arrested or convicted of particular minor offenses. The EEOC found that Pepsi’s policy disproportionately impacted more than three hundred individuals.

This case demonstrates how a policy that is not specifically intended to discriminate may still violate anti-discrimination laws. Disparate impact gives rise to liability where a facially neutral employment practice or policy, that serves no purpose in promoting a legitimate business interest, disproportionately affects employees in a certain protected class. Under this framework, proof of discriminatory animus is unnecessary.

The Supreme Court’s ruling in Griggs v. Duke Power Co., which was decided just two years after race discrimination in the workplace became illegal, is a prime example. There, the company required job applicants to obtain a high school education or to pass a standardized general intelligence test as a condition of employment. At the time, these requirements disproportionately affected black applicants. In considering whether this policy violated Title VII, the Court stated “the consequence would appear to be directly traceable to race,” noting that blacks “have long received inferior education in segregated schools.” Finally, the Court found that “neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used.” For these reasons, the policy violated Title VII.

Similar to Title VII, the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B) recognizes disparate impact claims. In School Committee of Braintree v. MCAD, for instance, a female teacher brought a sex discrimination claim under the disparate impact framework. There, the school relied on a policy and denied the plaintiff the ability to use her accumulated sick time during her maternity leave. In sharp contrast, the school had allowed the use of accumulated sick time for reasons other than pregnancy such as Peace Corps work and military service. The Massachusetts Commission Against Discrimination found the school’s policy had a disparate impact on women. The Supreme Judicial Court agreed:

Unlike leaves of other kinds, maternity leave possesses an essential character of being medically necessary. During several weeks of maternity leave a woman, by necessity, is physically disabled and incapable of performing her job. No comparable situation exists with respect to men.

The Boston race discrimination lawyers at The Law Office of Alan H. Crede, P.C. specialize in employment law and solely represent employees. If you are a victim of race discrimination, please contact The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Race Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit, Boston Employment Lawyer Blog (December 28, 2011)
Race Discrimination Claim Filed Against Texas Company Alleging Rampant Use Of Racial Slurs, Boston Employment Lawyer Blog (February 7, 2011)
Race Discrimination and Sexual Harassment Lawsuit Filed Against NASCAR, Boston Employment Lawyer Blog (June 26, 2008)

New York Fish Market Settles Race Discrimination and Sexual Harassment Lawsuit

The Equal Employment Opportunity Commission (EEOC) recently settled a discrimination suit against New York-based fish wholesaler M. Slavin & Sons, Inc. for $900,000. The EEOC filed suit in December 2009 based on complaints by more than thirty employees of physical and verbal sexual harassment. According to the EEOC’s 2009 Press Release, some of M. Slavin’s owners and managers subjected certain non-Caucasian male employees, mostly African-American, to ongoing harassment including groping, offensive sexual comments, and racial slurs.

Some employees left the company because of the harassment, and the individual who first reported the harassment further alleges that he faced retaliation from M. Slavin managers. He claims that managers instructed other employees not to associate with him and threatened his life.

The EEOC’s lawsuit, filed in U.S. District Court for the Eastern District of New York, claimed that M. Slavin violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination in employment based on race, color, sex, and other protected categories. Discrimination based on sex includes sexual harassment, and it encompasses actions against any gender. The law also protects people who seek to defend their rights from retaliation by their employer, and it allows employees to make claims against employers who create a hostile work environment based on race, sex, and other protected categories.

On December 15, 2011, the EEOC announced that M. Slavin had agreed to pay $900,000 to settle the lawsuit, in addition to providing other relief. As part of the settlement, the company is required to revise its policies on sexual harassment, discrimination, and retaliation, and submit to monitoring by the EEOC for a period of five years. The Company is also required to retain an independent consultant to handle discrimination complaints and must provide one-on-one training for the owners and managers who committed the worst acts of harassment. Finally, the Company is required to provide annual anti-discrimination training for all of its owners and managers, publicize the resolution of the lawsuit to all employees at the work site, and notify the EEOC of any and all new discrimination complaints.

Age Discrimination Presents a Problem for Older Job Seekers

Age discrimination in the workplace manifests itself not only in the form who gets fired, but also who gets hired. A study performed by AARP reviewing employment data for August 2011 found that job seekers age 55 or older spent an average of 52.4 weeks unemployed. In sharp contrast, the average length of time for younger job seekers was 37.4 weeks. The unemployment rate for applicants in the same age demographic jumped from about 3% in December 2007 to about 7% in August 2011, with rates roughly equal for men and women. By August 2011, nearly half of older job seekers met the criteria to be designated “long-term unemployed,” meaning they had been out of work for 27 weeks or more.

Not surprisingly, there appears to be a correlation between a faltering economy and age discrimination claims. According to the National Bureau of Economic Research, the most recent recession began around December 2007 and ended in about June 2009. Based on the EEOC’s Enforcement & Litigation Statistics, the number of age discrimination cases filed dramatically rose from 2007 to 2008 by 5,479 or about 29%. There was a relatively small decrease from 2008 to 2009 and a relatively small increase from 2009 to 2010. Overall, from 2007 through 2010, the EEOC saw about a 21% rise in age discrimination claims.

The federal Age Discrimination in Employment Act (ADEA) protects employees age 40 years old or older from age discrimination. The law prohibits employers with 20 or more employees from discriminating in hiring or firing, as well as pay, job duties, and other aspects of employment, because of age. The Massachusetts Fair Employment Practices provides similar protection for employees age 40 years old or older, but applies to employers with 6 or more employees.

Age Discrimination Criticism Arises as EEOC Works to Revise Standards for Employers

Age discrimination continues to be a hot button issue. Fox News commentator John Stossel stirred controversy in a report on age discrimination in the workplace in which he suggests that the law should not protect older workers from termination based solely on their age. In doing so, Stossel states “we slow down as we age” and “maybe 25 year olds can do it better.”

Of course, federal law protects employees from discrimination based on age. Specifically, the Age Discrimination in Employment Act of 1967 (ADEA) prohibits age discrimination against employees who are at least 40 years old. Such protection applies to both employees and job seekers in relation to any and all terms and conditions of employment, benefits, promotions, hiring, firing, layoffs, and job assignments.

The Equal Employment Opportunity Commission, the federal agency responsible for enforcing anti-discrimination laws, recently voted 3-2 to propose regulations defining “reasonable factors other than age” (RFOA) in the ADEA. The proposals could significantly increase protections for older employees, both in the context of layoffs and firings. Congress and the Supreme Court have held that personnel decisions that affect older workers in greater proportion than younger workers need only be “reasonable” to comply with the ADEA. This is different from the higher standard of “business necessity” used for disparate impact claims based on sex or race under Title VII. As the Supreme Court in Smith v. City of Jackson recognized:

Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement.

The proposed RFOA standards define “reasonable” from the objective standpoint of a hypothetical reasonable employer, and they provide a sample list of factors employers should consider. Such factors, relating to an employer’s practices that impact older workers, include whether: (1) the practice is common to the employer’s business, (2) it directly relates to the employer’s business goals, (3) the employer adequately assessed the impact on older employees, (4) the employer considered other options, and (5) the employer attempted to mitigate any harm to older workers. Much of this proposal appeared in the Federal Register in February 2010. Clarification is still needed as to how each factor will be weighed and when to follow them. The Office of Management and Budget will review the EEOC’s proposal, and the process of reviewing, drafting, and modifying the proposal may continue for months.

The Boston age discrimination attorneys at
The Law Office of Alan H. Crede, P.C. specialize in employment law and exclusively represent employees. If you are a victim of age discrimination, please contact
The Law Office of Alan H. Crede, P.C. through our website or at (617)973-6434 to schedule a confidential consultation.

More Age Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain, Boston Employment Lawyer Blog (October 22, 2011)
Age Discrimination Misconceptions: A Little Knowledge Is A Dangerous Thing, Boston Employment Lawyer Blog (April 1, 2011)
Age Discrimination Mixed Motive Standard Before the Supreme Court, Boston Employment Lawyer Blog (January 1, 2009)

Americans with Disabilities Act Violations Alleged in EEOC Lawsuit Against New Hampshire Company

Discrimination by employers because of an employee’s disability or health condition is a serious problem for American workers. The Equal Employment Opportunity Commission (EEOC), a federal agency that investigates discrimination claims, has filed suit against a Nashua, New Hampshire company, alleging that it fired an employee because she has a heart condition in violation of the Americans with Disabilities Act (ADA).

The lawsuit, filed in a federal court in Concord, New Hampshire, alleges that Windmill International, Inc., a defense contractor, terminated employee Nancy Hajjar, shortly after she gave notice that she would need time off for a surgical procedure related to a heart condition and that she may require heart surgery as well. The EEOC claims that the company terminated her because of “an actual or perceived impairment of her circulatory or cardiovascular functions.” Windmill claims that it fired Ms. Hajjar because of job performance problems, but the EEOC alleges that the company did not follow the same progressive discipline procedures afforded to other employees, concluding that the company’s explanation is false. The EEOC’s Press Release can be viewed here, EEOC Sues Windmill International for Disability Discrimination.

The ADA, which became effective in 1992 and was amended in 2009, protects employees suffering from disabilities from certain types of discrimination in the workplace. Employers with 15 or more employees must provide equal opportunity to disabled employees for all employment opportunities available to other employees. The law prohibits discrimination in hiring, firing, promotions, pay, and terms and conditions of employment. The same holds true under the Massachusetts Fair Employment Practices Act (M.G.L. c. 151B), which also prohibits handicap discrimination in the workplace and which applies to employers with 6 or more employees.

The EEOC is an independent law enforcement agency in the executive branch of the federal government. The agency was created in 1965, after passage of the Civil Rights Act of 1964. It investigates claims of discrimination based on certain protected categories including race, gender, religion, age, and disability. It has authority to bring suit against employers that it suspects violated anti-discrimination statutes. People who believe they are the victims of unlawful discrimination must file a complaint with the EEOC, which will investigate the claim. A prospective plaintiff, before filing a lawsuit, must receive a “right-to-sue” letter from the EEOC when it concludes its review of the case. To learn more about disability discrimination and your rights, the following resources may be helpful:

Handicap Discrimination Overview, The Law Office of Alan H. Crede, P.C.
A Guide to Disability Rights Laws, Civil Rights Division, U.S. Department of Justice
Disability Resources, Americans with Disabilities Act

According to an article by the New Hampshire Business Review entitled, EEOC charges Nashua firm in disability case, approximately 25% of the 100,000 complaints that the EEOC received in fiscal year 2010 involved disability discrimination. According to the Business Review’s research, Ms. Hajjar’s case may be the first disability-based claim filed by the EEOC in New Hampshire in a decade.

The Boston employment discrimination attorneys at The Law Office of Alan H. Crede, P.C. represent people who are the victims of workplace discrimination based on a handicap or disability. To schedule a confidential consultation to discuss your case, contact the Firm through our website or at (617)973-6434.

More Handicap Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:
ADA Amendments Act Provides Employees with Greater Protection, Boston Employment Lawyer Blog (December 15, 2009)
Handicap Discrimination Claim Succeeds Against Wal-Mart, Boston Employment Lawyer Blog (August 12, 2008)
Disability Discrimination Suit Against Wal-Mart Settles for $250,000, Boston Employment Lawyer Blog (July 13, 2008)

Age Discrimination Lawsuit Brought by EEOC Against Texas Roadhouse Restaurant Chain

Age discrimination claims continue to be on the rise. Texas Roadhouse, a Kentucky-based chain of more than 350 restaurants in 46 U.S. states, faces a lawsuit from the Equal Employment Opportunity Commission (EEOC) over claims of alleged widespread age discrimination in hiring for host, bartender, and server positions. The suit, filed in U.S. District Court for the District of Massachusetts, requests anti-discrimination training for managers and employees aimed at preventing further alleged age discrimination. The lawsuit also requests monetary damages for people denied employment based on discriminatory reasons.

The EEOC alleges that the restaurant chain discriminates against older job applicants. According to a press release issued by the EEOC, the number of complaints received by the agency has increased significantly since at least 2007, prompting the agency to commence an investigation at the end of 2010. That investigation led to the current lawsuit. According the lawsuit:

Defendants’ hiring officials have told older unsuccessful applicants that “there are younger people here who can grow with the company”; “you seem older to be applying for this job” and “do you think you would fit in?”; the restaurant was “a younger set environment”; “we are looking for people on the younger side… but you have a lot of experience”; “How do you feel about working with younger people?”; “we think you are a little too old to work here… we like younger people”; “we’re hiring for greeters but we need the young, hot ones who are ‘chipper’ and stuff”; “our age group is in their young 20s, college students”; “I’m basically looking for young teenagers”; and “we really go with a younger crowd and have a younger establishment.”

The lawsuit is premised on the Age Discrimination in Employment Act (ADEA), a federal statute that protects employees 40 years old or older from discrimination based on age. The ADEA prohibits favoring a younger person over a person who is at least 40 years old solely based on age in all aspects of employment. This includes hiring, firing, promotions, layoff, job duties and assignments, benefits, and other features or requirements of employment.

The ADEA further prohibits harassment based on age in the workplace for people 40 years old or older. This includes offensive comments about an employee’s age. The conduct must rise to the level of creating a “hostile work environment” for the law to apply, and can apply against a supervisor, co-worker, or even a customer or client if the employer fails to take reasonable steps to prevent the harassment. The law also prohibits policies that negatively impact employees 40 years old or older if those policies do not have some reasonable basis other than age.

The Law Office of Alan H. Crede, P.C. assists employees who have suffered unlawful discrimination in the workplace. We devote our practice to employment law and exclusively represent the rights of employees. To schedule a confidential consultation to discuss your case, contact the Firm through our website or at (617)973-6434.

More Age Discrimination Blog Posts by The Law Office of Alan H. Crede, P.C.:

Age Discrimination Misconceptions: A Little Knowledge Is A Dangerous Thing, Boston Employment Lawyer Blog (April 1, 2011)
Age Discrimination Mixed Motive Standard Before the Supreme Court, Boston Employment Lawyer Blog (January 1, 2009)
Age Discrimination in Employment Act (ADEA) Fails to Account for Emotional Distress Damages, Boston Employment Lawyer Blog (August 13, 2008)

Race Discrimination Claim Filed Against Texas Company Alleging Rampant Use Of Racial Slurs

Race discrimination claims continue to grab headlines. In its article entitled Industrial Services Firm Faces Bias Suit, the Wall Street Journal recently reported that “[n]early 250 workers sued Turner Industries Group of Baton Rouge on Sunday, alleging racial discrimination in hiring, pay, promotions and on-the-job treatment.”

The allegations in the complaint, which numbers more than 300 pages, are especially egregious:

Robinson and his similarly situated Black co-workers have been and continue to be subjected to racially offensive graffiti displayed at Turner job sites. For example, he has seen “Nigger hang from a tree,” and “fuck you niggers, go back to Africa.” He has also seen a noose and several confederate flags hung in the bays at Turner.

Jeffery and his similarly situated Black co-workers have been subjected to racial graffiti and depictions throughout Turner facilities and job sites. The bathrooms were constantly covered in offensive comments such as, “Niggers don’t belong here,” and he has seen drawings of White people wearing KKK hats.

Jones and his similarly situated Black co-workers have been subjected to a racially hostile atmosphere at Turner’s facilities. For example, White workers would leave notes on his truck calling him “nigger” and saying, “I know you sell drugs you nigger fucker.” Jones reported these notes to management, but Turner did not do anything to stop the notes.

The Equal Employment Opportunity Commission investigated similar complaints of racial harassment at Turner Industries. In early 2010, the EEOC found that numerous instances of racial harassment occurred at the company’s Paris, Texas plant — which included the use of racial epithets and symbols of discrimination. The Dallas Morning News reported the EEOC’s findings in its article entitled,
EEOC: Black workers harassed at pipe factory in East Texas.

If you’re the victim of race discrimination and harassment, its important to act quickly to preserve your rights and hopefully put an end to the hostile work environment. Please contact us to learn more about this process and about our Firm’s special focus in this area.

Age Discrimination Victims Gain Significant Victory Before Supreme Court

The Supreme Court in Meacham v. Knolls Atomic Power Labs issued a pro-employee decision that will make proving age discrimination under the Age Discrimination in Employment Act (ADEA) more practical. We blogged about this case in January 2008 when the Supreme Court first granted certiorari: Supreme Court Grants Certiorari in Retaliation and Age Discrimination Cases.

In Meacham, Knolls Atomic Power Labs terminated 31 employees, all but one of whom were 40 years old or older. The employees brought suit under the ADEA and prevailed before a jury. The Second Circuit overturned the verdicts, reasoning that the burden of proof rested with the workers. In its decision, the Supreme Court vacated the Second Circuit’s ruling, finding that Congress intended the burden of persuasion to fall with the employer.

To read more about the decision, please visit the New York Times article entitled, Supreme Court Eases Age Bias Suits for Workers.

Disability Discrimination Suit Against Wal-Mart Settles for $250,000

Handicapped employees must often overcome significant hurdles in the workplace — both those related to their medical conditions and, unfortunately, misconceptions that commonly result. Where feasible, employers must provide reasonable accommodations to handicapped employees. Failing to do so, as Wal-Mart recently learned, violates the Americans with Disabilities Act (ADA). In Massachusetts, such infractions also trigger liability under the Fair Employment Practices statute.

In June 2008, the Equal Employment Opportunity Commission (EEOC) reached a settlement with Wal-Mart on behalf of a long-time pharmacy technician who suffered a disability, which the company failed to accommodate. Glenda D. Allen was a Wal-Mart employee since July 1993. In 1994, she was wounded during the course of a robbery at another employer causing permanent damage to her spinal cord. As a result, Ms. Allen walked with an abnormal gait, which required her to use a cane.

Despite her medical condition, Ms. Allen was able to perform the full scope of her duties and responsibilities as a pharmacy technician. Nevertheless, Wal-Mart terminated Ms. Allen. The EEOC settled the suit on behalf of Ms. Allen for $250,000. In discussing the victory, Ms. Allen had this to say:

After beating all the odds — surviving my injury when not expected to survive, walking again when told that I would never walk again, and returning to work where I received excellent performance evaluations and consistent merit increases — I was devastated to have the rug pulled out from underneath me simply because Wal-Mart could no longer accommodate my handicap needs. I am hopeful that this settlement will make Wal-Mart take a closer look at its policies and practices with respect to the employment of individuals with disabilities so that what happened to me will not happen to someone else.

To read more about the settlement, please visit the EEOC’s Press Release entitled, Wal-Mart to Pay $250,000 for Disability Bias.

Sexual Harassment and Race Discrimination Claims Against Tavern on the Green Settled for $2.2 million

The Equal Employment Opportunity Commission (EEOC) recently finished prosecuting a case involving severe sexual harassment as well as gender and race discrimination against New York’s landmark restaurant, Tavern on the Green. According to the EEOC, Tavern on the Green subjected female, black, and Hispanic employees to continual lewd and degrading conduct. Female employees were allegedly forced to endure demands for sexual acts as well as various forms of groping and inappropriate touching. Black and Hispanic employees also allegedly experienced racial epithets and ridicule for their accents.

The EEOC, which brought the suit on behalf of 50 employees, was successful in securing a settlement of $2.2 million. As part of the settlement, Tavern on the Green is also required to establish a telephone hotline for employees to report discrimination complaints. In its Press Release, EEOC New York District Director Spencer H. Lewis made clear the duty that employers owe to their workers:

This case should remind employers to take seriously allegations of harassment and retaliation, especially where managers in positions of authority are involved in the misconduct.

According to Professor Marcia McCormick of Cumberland School of Law (Samford University), the lawsuit signified a victory for the EEOC’s EEOC’s E-RACE Initiative (Eradicating Racism and Colorism from Employment), which was launched in 2008 to eliminate race discrimination from the workplace by enhancing public awareness and through litigating unlawful employment practices.

For more information, please visit the New York Times’ article entitled, Tavern on the Green to Pay $2.2 Million to Settle Harassment Claim.