Tag Archives: EEOC

Bilingual, EEOC, Fluency, National Origin

New EEOC Guidance on National Origin Discrimination

WASHINGTON – On November 21, the U.S. Equal Employment Opportunity Commission (EEOC) has issued its updated enforcement guidance on national origin discrimination to replace its 2002 compliance manual section on that subject.  The Commission has also issued two short user-friendly resource documents to accompany the guidance: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language. In 2015, only 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination (such as failure to hire, termination, language-related issues, and harassment cases).

Here are a few reminders from the EEOC:

Avoid exclusive use of word-of-mouth recruitment. Word-of-mouth recruitment is the practice of asking current employees to tell their family, friends, or acquaintances about job openings and to refer potential candidates to the employer. Exclusive reliance on word-of-mouth referrals may reinforce the existing racial or ethnic makeup of the workplace and should generally be accompanied by additional recruitment techniques.

An employer may not base an employment decision on an accent unless the ability to communicate in spoken English is required to perform job duties effectively and the individuals accent materially interferes with that job performance.  Further, a language fluency requirement is lawful if fluency is required for the effective performance of the position for which it is imposed. For instance, Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in an overwhelmingly English-speaking, non-bilingual community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers who only speak English is limited. Under these circumstances, XYZ’s decision to exclude Jorge from the sales position does not violate Title VII.

Bilingual Job Requirement is not Discriminatory.  As with English fluency requirements, requiring fluency in a language other than English is only permissible if it is required for the effective performance of the position for which it is imposed. For example, a business that provides services to numerous Spanish-speaking customers may have a sound business reason for requiring that some of its employees speak Spanish.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Accommodation, EEOC, Title VII

“No pants” religious belief required accommodation by Employer

COLUMBIA, S.C. – Akebono Brake Corporation, a Michigan-based company that designs and manufactures automotive brake components, was alleged to have violated federal law when it refused to hire a temporary laborer because of her religion, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. The EEOC charged that the company discriminatorily interfered with the temporary laborer’s employment opportunities with her direct employer, a temporary labor service provider.

Clintoria Burnett is an observant member of the Apostolic Faith Church of God and True Holiness, a Pentecostal Christian denomination. Burnett holds the religious belief that she cannot wear pants because she is a woman, and that she is commanded to wear skirts or dresses. Burnett was hired as a temp to work at Akebono’s West Columbia, S.C.  Even while she was temping, Akebono maintained the ultimate authority to deny hire to any employee recruited by the TLSP.  Burnett was hired by the temp firm to work at Akabono, but the company maintained a dress code policy requiring employees to wear pants while at Akebono’s facility. Ultimately, Akebono directed the temp company not to hire Burnett due to her religious belief and the Company did not consider any potential religious accommodations. The temp agency withdrew her offer of employment.

Title VII of the Civil Rights Act of 1964 prohibits employers from refusing to hire people because of their religion. Unless it would be an undue hardship on the employer’s operation of its business, an employer must reasonably accommodate an employee’s religious beliefs or practices. The EEOC filed suit in U.S. District Court for the District of South Carolina, Columbia Division (EEOC v. Akebono Brake Corporation, Civil Action No. 3:16-cv-03545-CMC-SVH). When an employee or applicant needs a dress or grooming accommodation for religious reasons, she should notify the employer that she needs such an accommodation for religious reasons. If the employer reasonably needs more information, the employer and the employee should engage in an interactive process to discuss the request. If the request does not pose an undue hardship on the business, the employer must grant the accommodation.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

EEOC, Medical Exams, New Hire

Required Post Offer Medical Examination leads to EEOC Lawsuit

A Southern Indiana manufacturing services company refused to hire or provide reasonable accommodations to a class of job applicants because of medical information it obtained during pre-employment medical examinations, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed on October 19, 2016.

According to EEOC’s lawsuit, Chemtrusion, Inc. made job offers to experienced, qualified applicants which were conditioned on successful completion of a medical examination. Chemtrusion summarily withdrew the job offers upon receiving notice of medical impairments and/or the lawful use of prescription medication without individualized analyses or good faith effort to determine whether reasonable accommodations existed. In so doing, Chemtrusion was alleged to have violated the Americans with Disabilities Act (ADA).  EEOC filed suit (Case No. 4:16-cv-00180) in the U.S. District Court for the Southern District of Indiana, New Albany Division.  The agency is seeking back pay, compensatory and punitive damages, and injunctive relief to prevent the Company  from rejecting qualified individuals on the basis of disability or from failing to engage in an interactive dialogue to determine if a reasonable accommodation exists to enable applicants to perform the job for which they received a conditional job offer.

Based on earlier EEOC cases, employers using medical examinations should conduct a functional job analysis and create written job descriptions for each position subject to a post-offer medical examination.  Employers are directed to individually assess whether an applicant’s medical impairments or medications prevent that applicant from performing essential job functions with or without a reasonable accommodation before rejecting an applicant because of a mental or physical impairment. Blanket rejections based on a medical condition does not meet the ADA interactive process requirements.  The same concepts will apply to the use of a post offer medical questionnaire.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Accommodation, Construction, EEOC, Religion

Mandating Saturday work to employee costs Ready Mix Concrete company $42,500

With the busy #construction season in full gear, many companies ask employees to work on weekends and nights. #HR What happens when an employee is asked to work a Saturday shift and he turns it down because he says his faith does not allow him to work on the Sabbath?  A Greenville, NC ready mix concrete company recently agreed to pay a $42,500 settlement to an employee that refused to work on Saturday because he was a Seventh Day Adventist.  The EEOC initiated legal action against Greenville Ready Mix Concrete for allegedly violating Title VII of the Civil Rights Act when it refused to accommodate the employee’s religious beliefs and then fired him.

What happened?  The employee had worked at the company for 7 years as a truck driver.  In February 2014, the employee was baptized as a Seventh-day Adventist. His faith required him to refrain from working for hire on Saturdays, specifically from sunset on Friday to sunset on Saturday, in observance of the Sabbath.  The Company’s facilities were usually closed on Saturday and he was not normally scheduled to work on Saturday.  About one month after the conversion to his new faith, the Company asked him to work on a Saturday.  The employee refused to work and was later discharged.

Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations to sincerely held religious beliefs of employees absent undue hardship (more than a minimal burden on the operations of the employer’s business).  It does not matter that the employee had recently converted to a new religion, or that he had been able to work occasional Saturdays in the past.  According to the EEOC, examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices. An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

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