Do Not Take Vacations: The EEOC Is Watching And Waiting

Bamboo Lemur, Lemur, Primates, Hapalemur

I’ve been on vacation for only a week – and boy, has the EEOC been busy!

Four new lawsuits worth discussing:  racial harassment (with that old, ubiquitous N-word being used); pregnancy discrimination; violation of the ADA involving someone with diabetes; and national origin discrimination.

The EEOC sued an oilfield services company in Texas for alleged “widespread racial harassment of African-American employees and punishing those who complained about the abuse.” The claim is that the company’s “employees and managers hurl[ed] racial epithets towards African-American employees at work, including … referr[ing] to an African-American supervisor with the N-word. … the African-American supervisor reported the treatment to management, but was terminated while the offending employees were retained.”

Open hand raised, Stop Racism sign painted

Moreover, it is alleged that “white employees were given preference based on race over black employees in duties, compensation and job assignments,” and “employees who reported discrimination to … management and who cooperated with EEOC’s investigation were subjected to reprisal actions which sometimes led to firing.”

Takeaway: I would advise this employer to undergo lengthy training – or maybe old-fashioned psychoanalysis (which in this case might take less time).

In a second lawsuit, the EEOC charged that a Florida insurance brokerage rescinded a job offer to a woman because she was pregnant. After being offered a position, the applicant asked about maternity benefits because she was pregnant, and within minutes her offer was rescinded because the company said that it “had a very urgent need to have somebody in the position long term …We appreciate you telling us beforehand.”

Pregnant young woman working on laptop

An EEOC attorney provided the Takeaway: “Pregnant women have the right to seek jobs and not be denied employment because they are pregnant. The federal law which prohibits pregnancy discrimination against pregnant employees also applies to pregnant applicants.”

Third, at another oilfield services company, in Louisiana, an applicant for an offshore service technician position who had Type I insulin-dependent diabetes received an offer of employment, and subsequently passed a physical with the doctor stating that he was in “good physical shape” and that his diabetes was “well-controlled.”

However, although the applicant said that “he was on an insulin pump, that he had two years of previous experience working offshore as a diabetic, without incident, and that he took necessary precautions to ensure his safety,” the doctor nonetheless was “concerned,” notified the company that Type I diabetics are “fragile” and determined that the applicant was not qualified for the position. The company rescinded the offer.

Diabetes, Blood, Finger, Glucose

The EEOC claimed that the company “did not base its decision to withdraw the job offer on the type of fact-intensive assessment mandated by the Americans with Disabilities Act (ADA). Rather, the company simply revoked the offer on the basis of a sweeping determination that Type I insulin-dependent diabetics could not work offshore, regardless of whether the particular diabetic employee could perform the essential functions of his job.”

The Takeaway is again nicely provided by two EEOC attorneys: “This lawsuit reminds employers of their obligation to conduct individualized assessments of a person’s ability to perform the essential functions of a job,” said one. The local Field Office Director said that “Hiring decisions based upon reliance on negative stereotypes associated with particular disabilities violate the ADA and will not be tolerated.”

Finally, a New Mexico packaging company allegedly paid its female supervisor less than its male supervisor “who was doing substantially equal work under similar working conditions,” in violation of the Equal Pay Act of 1963 (EPA). The EEOC also charged that the company violated Title VII when it “imposed a restrictive language policy on the female production supervisor when it prohibited her use of Spanish at the workplace.”

An EEOC attorney commented that “Unfortunately, women in New Mexico today make an average of 79 cents for every dollar a man is paid for the same job. By enforcing the Equal Pay Act, the EEOC is attempting to ensure that women in New Mexico will be paid an equal and fair wage.”

Takeaway: You cannot treat men and women differently in terms of wages when each is doing substantially equal work under similar working conditions. Additionally, you cannot create a language requirement which disparately impacts a protected class, i.e., national origin, nor apply it discriminatorily, i.e., only against one gender.

Overall Takeaway:  Don’t take a vacation: the EEOC knows when you do and will come charging out of the gates and blitz the Courts with lawsuits!  In this case, I blame myself.




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Richard Cohen

Richard B. Cohen is a partner in the New York City office of FisherBroyles, LLP, a national law firm. Richard Cohen has litigated and arbitrated complex corporate, commercial and employment disputes for more than 35 years, and is a trusted advisor to business owners and in-house counsel both in the United States and internationally. His clients have included Fortune 100 companies, domestic and foreign commercial and investment banks, Pacific-rim corporations and real estate development companies, as well as start-up businesses throughout the United States. Email Richard at [email protected]