EEOC Bad Boys — Schooling the Employers

Circa 2010

The Equal Employment Opportunity Commission (EEOC) enforces federal laws prohibiting discrimination in employment. The following are recent cases brought about from the EEOC.


Nationwide Temp Agency Refused to Refer Deaf Worker in Wisconsin For Food Production Job Because of His Disability, Agency Charged

Olsten Staffing Services Corp., a nationwide temporary employment agency, will pay $75,000 to settle a disability discrimination suit filed by the EEOC.

In its suit, the EEOC charged that Olsten, based in Melville, NY, violated the Americans with Disabilities Act (ADA) by refusing to refer a deaf job applicant for temporary employment as a production worker at Main Street Ingredients, a La Crosse, Wisconsin food products manufacturer.

The EEOC said that, on two occasions, a staffing specialist at Olsten’s La Crosse office decided not to refer the applicant to Main Street because he is deaf, despite his meeting all the actual qualifications for the job.

EEOC Chicago District Director John Rowe, who managed the federal agency’s pre-suit investigation, said that emails obtained by the EEOC showed that Olsten’s staffing specialist had flagged the applicant’s disability as a “concern.” Rowe said that when the staffing specialist was later asked by the applicant why he did not get the job, the specialist falsely attributed the decision to concerns expressed by Main Street, when in fact Main Street had not expressed such concerns. Evidence obtained by the EEOC indicated that hearing ability was not a requirement of the food production job at Main Street; in fact, according to Rowe, workplace noise required a number of employees there to wear ear protection that prevented them from hearing while working.

The ADA requires that temporary employment agencies evaluate job applicants with disabilities on the basis of their ability to perform, with or without reasonable accommodation, the essential functions of the jobs for which they are being considered. The ADA prohibits such agencies from declining to refer a qualified individual because of his disability. Moreover, if an agency has reason to believe that one of its clients is discriminating against one of the agency’s temporary employees in any phase of the employment relationship (including hiring and referral), the agency has an affirmative obligation under the law to take reasonable steps within its control to remedy that discrimination.

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“This case is a reminder that employment agencies, no less than any other employer, have important obligations under the ADA,” said John Hendrickson, the EEOC regional attorney for the Chicago District, which includes Wisconsin. “Decisions made by agencies concerning whether to refer a job applicant must be based on qualifications, period—not on the basis of a disability.”

The EEOC’s lawsuit was filed on September 29, 2008, in the US District Court for the Western District of Wisconsin. The case was resolved by a two-year consent decree which was entered today by US Magistrate Judge Stephen L. Crocker, who presided over the case. In addition to requiring Olsten to pay lost wages of $5,000 and damages of $70,000, the decree contains an injunction prohibiting Olsten’s La Crosse office from engaging in any further discrimination on the basis of disability. The decree also requires that Olsten provide training to its employees concerning the ADA and report any further complaints of discrimination to the EEOC for the next two years.

The government’s litigation effort was led by EEOC Trial Attorneys Justin Mulaire and Laurie Elkin and EEOC Supervisory Trial Attorney Gregory Gochanour.


Kalil Unlawfully Fired Employee Because of Diabetes, Federal Agency Charged

Kalil Bottling Co., a large Arizona soft drink bottling and distribution company, has agreed to settle a disability discrimination lawsuit filed by the EEOC.

The suit, filed in US District Court for the District of Arizona in Tucson, charged that Kalil violated federal law when it fired Gerald Nez, who has diabetes. As a merchandiser, Nez was required to drive his own personal compact pickup truck to complete his duties. The suit further alleged that despite at least four months of flawless work and an impeccable driving record, Kalil required that Nez pass a medical exam. When the medical exam revealed that he had diabetes and was using insulin, Kalil fired him for that reason alone.

For the last 30 years, Kalil has had a policy requiring all employees who drive any motor vehicles as part of their employment, even their own vehicles, to pass a federal Department of Transportation (DOT) medical exam designed for people seeking a commercial driver’s license (CDL) required for trucks over 10,000 pounds. Nez did not need a CDL to fulfill his job at Kalil, the EEOC argued.

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“The DOT’s exam automatically prohibits people who use insulin from obtaining CDLs,” said Mary Jo O’Neill, the EEOC’s regional attorney in Phoenix. “That may be perfectly fine when the job requires a CDL, but Nez never needed a CDL to drive his own pickup for Kalil. Under the ADA, this policy is an unlawful qualification standard that tends to screen out individuals with disabilities, including people with diabetes.”

Firing an employee because of a disability violates Title I of the ADA, which prohibits employers from discriminating against qualified individuals with disabilities in employment. Under the law, employers may not try to get around the prohibitions against disability discrimination by relying on irrelevant qualification standards that screen out people with diabetes or any other disability.

Nez has since passed away. Pursuant to the consent decree settling the suit, the company will pay $33,000 to Nez’s widow, conduct anti-discrimination training, and eliminate its policy of automatically excluding insulinusing people with diabetes from jobs involving operating motor vehicles.

“The key problem in this case is that insulin-requiring diabetes was an automatic exclusion from employment at Kalil,” said O’Neill. “The company failed to do an individualized assessment of Mr. Nez to see if, in fact, his diabetic condition made him a safety hazard. Millions of Americans use insulin and millions drive in their own cars and are perfectly safe drivers.”

“While Kalil initially may have had good intentions to ensure greater driver safety, it used a shotgun approach that excluded perfectly qualified people with disabilities from employment —people like Mr. Nez,” said EEOC Trial Attorney Diana Chen. “At the time Kalil fired him, it had absolutely no evidence that his diabetes posed any risk on the road. Companies must be mindful that policies they put in place don’t violate anti-discrimination laws.”

EEOC Acting District Director Julie Bowman added, “We are pleased that Kalil decided to change its policy. This outcome is a win-win. Kalil now has access to a larger pool of qualified applicants and people with disabilities have more opportunities in the job market.”

Headquartered in Tucson, Ariz., Kalil supplies popular soft drinks like Snapple, Gatorade and Monster Energy to consumers in Arizona, New Mexico, Colorado and Texas.

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Car Dealership Dropped Job Offer After Drug Test Results Revealed Use of Prescription Meds

The EEOC announced the settlement of a lawsuit filed against Valley Isle Motors Ltd, a Maui-based car dealership, resulting in a $32,500 payment to a job applicant and other relief to remedy alleged disability discrimination.

In its lawsuit, the EEOC asserted that the car dealership reneged on an offer to hire a job applicant as a salesperson only after a urine test revealed he was taking prescribed medication. Valley Isle Motors then erroneously perceived the applicant as too disabled to do the job despite normal medical test results and medical authorization to the contrary, the EEOC said.

The EEOC argued that the conduct was in direct violation of the ADA. The EEOC originally filed the lawsuit in February 2009 on the applicant’s behalf after first attempting to reach a pre-litigation settlement.

The parties entered into a three-year consent decree, approved yesterday by the US District Court of Hawaii. The consent decree requires that Valley Isle Motors implement an internal policy, procedures and staff training to safeguard against disability discrimination. The car dealership must also submit annual reports to the EEOC to track future complaints of disability bias and requests for disability-related accommodations during the hiring process.

“Employers cannot make assumptions about a prospective employee’s ability to work,” said Anna Y. Park, regional attorney for the EEOC’s Los Angeles District Office. “The ADA expressly prohibits that stereotypes of this nature weigh into the decision to hire or deny hire to an individual.”

Timothy Riera, director of the EEOC’s Honolulu Local Office, added, “Employers should heed the lesson learned by Valley Isle Motors and be mindful to judge a candidate by his or her qualifications, not by some illinformed presumption. Communication with prospective employees is the key in determining whether one’s actual or perceived condition will interfere with work. Businesses should take advantage of appropriate training opportunities that are available to learn how to appropriately engage in that interactive process.”

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A&A Contracting Fired Worker Because of Health History

A&A Contracting, a St. Louis construction company, has agreed to settle a disability discrimination lawsuit filed by the EEOC. The suit, which was filed last fall, charged that the company violated federal law by firing one of its permanent construction workers because it regarded him as disabled due to his history of liver and kidney problems, including cancer.

Title I of the ADA prohibits employers from discriminating against employees and applicants who are disabled, have a record of disability, or who are regarded as disabled. At the time of his termination, the EEOC said, Rick Wells was in good health and had been cleared to work by his doctor, but A&A Contracting became aware of his health history when he applied for the company’s health insurance coverage.

The settlement agreement, which was filed in the US District Court for the Eastern District of Missouri, provides for payment of $17,000 in lost wages and compensatory damages to Mr. Wells, implementation of a comprehensive anti-discrimination policy, training of all management employees, and designation of a human resources professional to consult and participate in HR-related matters.

“While it was important to the EEOC that Mr. Wells be compensated for his lost wages and for the humiliation of being fired for a perceived disability, we are equally pleased that this settlement means that another St. Louis employer will be taking important steps to prevent any similar problems in the future,” said Barbara A. Seely, Regional Attorney of the EEOC’s St. Louis District Office.

James R. Neely, District Director of the EEOC’s St. Louis District Office, said, “Even small employers need to keep themselves educated and informed of the law’s requirements. At the time Mr. Wells was fired, A&A Contracting had approximately 20-25 employees. Any business with that size work force needs to make sure that it has clear, effective anti-discrimination policies and that it provides thorough, comprehensive anti-discrimination training to its managers and employees on a regular basis.”

The EEOC St. Louis District Office is responsible for processing charges of discrimination, administrative enforcement and the conduct of agency litigation in Kansas, Missouri, Nebraska, Oklahoma and southern Illinois, with area offices in Kansas City and Oklahoma City.

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Beverage Distributor Unlawfully Fired Employees Who Needed Medical Leave

Federal District Judge John W. Darrah has signed a consent decree under which Direct Wines, Inc., formerly known as Beverage Solutions, Inc., a Lake Forest, IL beverage distribution company, will pay $50,000 to end a disability discrimination lawsuit filed by the EEOC.

Direct Wines operates home delivery membership clubs such as Beer Across America and International Wine Club.

The EEOC charged in the suit that the company violated the ADA by failing to accommodate Pamela Stokes and a class of employees with disabilities by terminating their employment because they needed medical leave. The ADA prohibits employment discrimination against people with disabilities and requires that employers provide reasonable accommodations to employees, including leaves of absence, unless doing so would cause an undue hardship to the employer.

According to EEOC Chicago District Director John Rowe, who supervised the federal agency’s administrative investigation of the matter, Beverage Solutions had a policy that provided that employees could only take leave between February 15 and May 15 or between July 15 and October 15, when Beverage Solutions claimed its business was slower. When Stokes requested six to eight weeks of medical leave beginning on September 20, 2006 so that she could have heart surgery, Rowe said, Beverage Solutions denied her leave request and told her that by taking leave she would be effectively resigning. Stokes underwent surgery and was released to return to work on November 20, 2006. She then contacted Beverage Solutions about coming back, but was refused.

The EEOC filed the lawsuit on June 25, 2009, in the US District Court for the Northern District of Illinois, Eastern Division. The case was assigned to Judge Darrah. The judge signed the consent decree February 26, 2010, and it was received by the EEOC.

Under the terms of the consent decree, Direct Wines will pay $50,000 to Stokes and one other employee who was terminated for needing medical leave. The decree also requires that Direct Wines adopt and distribute a policy against disability discrimination and revise its leave policies to provide reasonable accommodations to employees with disabilities. In addition, the two-year decree enjoins Direct Wines from engaging in further disability discrimination or retaliation, requires that it provide annual training to its employees regarding disability discrimination and mandates that it submit periodic reports to the EEOC regarding any such complaints.

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“We’re pleased that Direct Wines agreed to resolve this lawsuit without protracted litigation,” said John Hendrickson, the EEOC’s regional attorney in Chicago. “Early resolutions like this one have real down-to-earth benefits. Employers aren’t spending money that could be used to grow business on suiting up lawyers to do battle. Victims of discrimination are more quickly made whole and can move on with careers. Current and future workers are—immediately and for the long term—assured their rights under federal law will be protected and respected. From our perspective at the EEOC, these are all entries on the positive side of the ledger, not only for all the parties, but for the taxpayers as well.”

EEOC trial attorney Ann Henry and Supervisory Trial Attorney Diane Smason were responsible for the conduct of the litigation. “This case should remind employers that inflexible leave policies may spell trouble under the ADA,” Henry said. “Even if an employee with a disability may not be eligible for leave under the Family Medical Leave Act, the ADA still may compel an exception to a leave policy as a reasonable accommodation. So, as with any other reasonable accommodation issue, this is not an area for knee-jerk decision making.”

The EEOC Chicago District Office is responsible for processing charges of discrimination, administrative enforcement, and the conduct of agency litigation in Illinois, Wisconsin, Minnesota, Iowa, and North and South Dakota, with area offices in Milwaukee and Minneapolis.



EEOC Obtains $30,000 for Woman With Paralyzed Arm Fired Within Hours of Starting Work

Akeena Solar, a Los Gatos California-based solar power company will pay $30,000 to a payroll and accounts technician and will implement preventative measures to settle a federal disability discrimination lawsuit.

This resolved the EEOC’s suit alleging that Gladys Tellez, a 44-year-old Latina hired to be a payroll and accounts technician on November 13, 2006, was fired by Akeena Solar within hours of her first day at work, after her supervisor discovered that her left arm was paralyzed. The EEOC’s investigation determined that Tellez was fully qualified and capable of performing the essential functions of the position despite her disability.

Title I of the ADA prohibits employment discrimination against people with disabilities in the private sector and state and local governments. After a neutral investigation conducted by EEOC Investigator Juan Vaca and first attempting to reach a voluntary settlement through conciliation, the EEOC filed the suit in US District Court for the Northern District of California.

Under the terms of the consent decree, Akeena Solar will pay Tellez $30,000 in damages, post a notice in the workplace concerning the company’s commitment to complying with the ADA, institute annual training on preventing disability discrimination to staff involved in hiring and recruitment, and report to the EEOC any disability discrimination complaints that arise for the next three years.

“All too frequently the mainstream public, including employers, perceives people with disabilities through a filter of myths and stereotypes, instead of assessing each person on his or her own terms,” said EEOC Regional Attorney William Tamayo. “In Ms. Tellez’s case, she was not even given a full day to prove herself. We hope this resolution will encourage employers to give persons with disabilities a fair shot at establishing their individual worth and value at work.”

“A truly green business will make the most of human resources as well as energy sources,” said EEOC San Francisco District Director Michael Baldonado. “This settlement benefits Akeena Solar’s workforce by ensuring that management is educated to recognize and prevent disability bias.”

According to its website,, Akeena Solar is one of the leading designers and integrators of solar power photovoltaic systems for residential and commercial customers in California, New York, New Jersey and Connecticut.

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