MAY 2010

• Kmart To Pay $120,000 To Settle EEOC Age Bias Suit
• Employee Discrimination Claims Hit Record High in 2009
• ADA Does Not Require Reducing Doctor's Workload as an Accommodation
• Employers Required to Provide Breaks for Breastfeeding Under Health Care Reform Act
• US Labor Department orders Tennessee Commerce Bank to reinstate whistleblower and pay more than $1 million in back wages and other relief

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Kmart To Pay $120,000 To Settle EEOC Age Bias Suit

HONOLULU, HI -- Kmart Corporation will pay $120,000 and furnish other relief to settle an age harassment, constructive discharge and retaliation lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC). Kmart was charged with discriminating against a 70-year-old pharmacist at a Honolulu store. According to the EEOC's suit, over the course of four years, a pharmacy manager openly professed on several occasions that the pharmacist was "too old," "should just retire," and was "greedy" for continuing to work at age 70. The manager continued to further humiliate her in writing by stating, "The pharmacy is no longer your forte," and "You need to retire from pharmacy work now," in a communication book open to the entire department. The manager also purposely scheduled her to work on Sundays -- knowing that she attended church those days -- to encourage her to quit, according to the EEOC. The agency further contended that the victim complained to a district manager, general manager and human resources manager regarding the age-based harassment, to no avail. Kmart threatened legal action against the pharmacist using a pretext on an unrelated matter to retaliate against her for her discrimination complaint. The pharmacist finally had to quit to escape the mistreatment. In June 2009, the EEOC filed its lawsuit claiming that Kmart failed to take remedial action, which forced the pharmacist to resign. The EEOC argued that the harassment and Kmart's failure to adequately address it were in direct violation of the Age Discrimination in Employment Act (ADEA). "Instead of addressing this pharmacist's legitimate complaints of age discrimination, Kmart made a bad situation worse by threatening her for complaining," said EEOC Acting Chairman Stuart J. Ishimaru. "Such retaliation only compounds an employer's culpability." In cooperation with the EEOC, Kmart entered into a three-year consent decree which also stipulated that Kmart post a notice on the matter; hire an EEO trainer; review and revise its existing anti-discrimination policy; provide annual ADEA training to all staff; and ensure that performance evaluations reflect discriminatory misconduct by management staff.

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Employee Discrimination Claims Hit Record High in 2009

Last year the U.S. Equal Employment Opportunity Commission (EEOC) won $294 million on behalf of employees in back wages on behalf of employee claimants, a record high. It also collected another $82 million from complaints that actually made it to court. According to the EEOC's recent annual report, the number of pregnancy-discrimination claims jumped more than 30 percent since 2005, compared to almost 24 percent increase in all job bias claims. In 2009, the EEOC received 93,277 complaints. Nearly a quarter of those complaints were claims of disability discrimination. The numbers of disability complaints are expected to continue to rise now that the definition of disability has been broadened under the Americans With Disabilities Act (ADA).

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ADA Does Not Require Reducing Doctor's Workload as an Accommodation

The 4th U.S. Circuit Court of Appeals has ruled that hospitals do not have to reduce a doctor's patient load as a reasonable accommodation under the Americans With Disabilities Act (ADA). When Frank Shin, a medical intern, began making serious medical errors, his supervisors reduced his patient load and began to "shadow" him, which placed a burden on the supervisors and other interns at the hospital. Because of the ongoing difficulties, Shin was recommended to submit to a mental health evaluation and was diagnosed with attention deficit disorder. When medication and rehabilitation did not improve his job performance, he requested that the hospital reduce his patient load and provide an on-call nurse practitioner as accommodations. When the hospital refused and terminated Shin, he filed suit, alleging a failure to accommodate him on the basis of a disability. A district court ruled in favor of the hospital and Shin appealed. Because Shin was not able to perform the job's essential functions with or without accommodations, a prerequisite to filing an ADA claim, the court never addressed whether the intern's ADD qualified as a disability under the law.

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Employers Required to Provide Breaks for Breastfeeding Under Health Care Reform Act

Employers covered by the Fair Labor Standards Act (FLSA) are required to provide reasonable breaks to mothers of children up to one year old for the purpose of breastfeeding under the Patient Protection and Affordable Care Act. This provision was included in an amendment to the FLSA in the Act signed by President Barack Obama on March 23, 2010. In addition to providing time for breaks, employers are also required to furnish a private space, other than a restroom, for mothers to express milk. This provision does not apply to employers with fewer than 50 employees if its requirements would "impose an undue hardship causing employers significant difficulty or expense."

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US Labor Department orders Tennessee Commerce Bank to reinstate whistleblower and pay more than $1 million in back wages and other relief

NASHVILLE, TN -- The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has ordered Tennessee Commerce Bank in Nashville to reinstate a former corporate officer and pay more than $1 million in back wages, interest, attorney's fees, compensatory damages and other relief. The OSHA found the bank had fired the individual in violation of the whistleblower protection provisions of the Sarbanes-Oxley Act of 2002. "Sarbanes-Oxley provides protection to workers who report alleged violations of mail, wire, bank or securities fraud; violations of rules or regulations of the Securities and Exchange Commission; or federal laws relating to fraud against shareholders," said Assistant Secretary of Labor for OSHA, Dr. David Michaels. "This case clearly shows the department's commitment to ensuring that individuals are provided the protections and relief afforded by the law and sends a strong message that retaliatory actions will not be tolerated." A complaint filed with OSHA in April 2008 named Tennessee Commerce Bank and Tennessee Commerce Bancorp Inc. as defendants. The complaint alleged that the employee was placed on administrative leave in March 2008 and fired in May 2008 after raising concerns about internal controls, employee accounts, insider trading and other issues. The complainant first raised concerns to the bank's audit committee and later to the Federal Deposit Insurance Corp. and the Tennessee Department of Financial Institutions. OSHA investigated the complaint as part of its responsibilities to enforce the whistleblower provisions of Sarbanes-Oxley and 16 other statutes protecting employees who report violations of various securities laws; trucking, airline, nuclear power, pipeline, environmental, rail, and workplace safety and health regulations; and consumer product safety laws. Under the numerous whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Fact sheets and detailed information on employee whistleblower rights are available online at http://www.osha.gov/dep/oia/whistleblower/index.html.

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Editor's Note: The items presented above contain only selected employment law cases and do not represent a comprehensive listing of all employment law settlements, awards and decisions in the United States. This information has been abridged from many different sources, and DiversityCentral and EPS make no claims to any original copyrighted works. DiversityCentral and EPS do not guarantee the accurateness of excerpts, articles, or information contained in this list.

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