The EEOC has found reasonable cause to believe there is overt racial discrimination at a plant in Paris, Texas.  Paris is in deep East Texas, more Southern than Western in its culture.  The EEOC is seeking to conciliate the matter.  See report.  The EEOC found that black workers were routinely subjected to racial slurs, comments and intimidation at a pipe fabrication plant owned by Turner Industries.  Black workers were passed over for promotion and subjected to discipline more harshly than white workers.  The workers provided photos of the notes, the nooses and the graffitti.  Turner Industries claims it cleaned up the graffiti as soon as possible.  Turner Industries has other locations in Texas.  See CNN story.  

If the employer claims it took remedial action, the  the case will likely turn on whether they took strong enough action quickly enough.  Conciliation, as practiced by the EEOC, can proceed quickly.  The last time I went through conciliation, the EEOC proposed settlement terms.  The employer refused and that was it.  Conciliation in my experience can go pretty quickly.  According to the CNN story, management retaliated against white workers who complained.  If that can be shown, then the employer will pay a steep price to conciliate.  

EEOC offices can vary a great deal from area to area, but in my experience, the EEOC is very careful about making direct public claims of discrimination.  If the EEOC makes public a claim of discrimination, they have pretty strong evidence in support. 

Yes, Dorothy, there is still overt discrimination in the world. 

 A recent Third Circuit Court of Appeals decision finds that a change in shifts is indeed an accommodation which an employer may have to provide in certain circumstances.  In Colwell v. Rite Aid, the employee had no vision in one eye due to glaucoma.  So, she could not drive at night.  She asked to change shifts from the night shift to the day shift.  Rite Aid refused, because "it would not be fair to other employees."  A doctor provided a note also stating that she should not work at night.  But, it was to no avail.  Rite Aid refused.  The employee relied on family members to pick her up from work after 5:00 pm.  But, after a year of frustration and being treated by managers and co-workers as a pariah, she quit.

On appeal, the employer argued that it was not responsible for how an employee arrives to work, only for what occurs once the employee does arrive.  The federal Third Circuit rejected that argument.  The court found that the employer should have allowed the shift change.  The Americans with Disabilities Act expressly provides that one possible accommodation is "job restructuring, part-time or modified work schedules."  

As the Third Circuit noted, there are many cases finding that an employer is indeed not responsible for how an employee gets to work.  But, this requested accommodation was different.  This requested accommodation concerned more the conditions of employment once the employee was actually at work.  The employer did indeed control whether the employee would work at night or during the day.  

The employer must engage in an "interactive process" to arrive at a solution to the accommodation request.  Rite Aid had "flatly" rejected Colwell’s requests for an accommodation.  And, later, Colwell resigned before any further meetings could occur.  Under the facts here, the jury could conclude that Colwell or Rite Aid failed to engage sincerely in the interactive process.  But, that decision was a fact question.  Facts questions should be decided by the jury, not a judge.  

 The Americans with Disabilities Act and Title VII do not apply to churches or religious institutions.  But, what happens when the church operates a secular activity, such as a school?  It depends.  The church can require that teachers conform to particular church doctrine.  As this decision explains, however, much depends on whether the teacher’s duties are ministerial, like a minister, or secular.  See EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School.  At the Hosanna school, they had what they referred to as "called" teachers.  Called teachers were expected to perform some 45 minutes of religious instruction out of a seven hour work day.  Called teachers were full-time.  The contract teachers were not always full-time.   The Sixth Circuit Court of Appeals (federal court) found the 45 minutes was too little time to qualify for the ministerial exception to the ADA.  

The plaintiff was a teacher ho returned to work from leave related to her disability.  The school then fired her when she  threatened to take legal action.  This alleged retaliation, held the Sixth Circuit, was not barred by the ministerial exception.  The teacher, even at a religious school, had the right to protection for her anti-discriminatory activity.  

What probably made things difficult for the school was that they had "called" teachers and contract teachers.  Called teachers had to conform to church doctrine, while contract teachers did not.  Yet, their duties were virtually identical.  Both taught religious education.  Both types of teachers performed essentially the same duties.  So, the school could not sincerely argue that called teachers performed ministerial duties often enough to fit the ministerial definition.  

As Law Professor points out, the school only attempted at appeal to claim that the teacher was fired for reasons related to church doctrine.  Anytime an argument first appears on appeal, it looks suspicious.  By that point, it was too late, said the court.  A new approach to evidence so late appears less than sincere.  

 

 Microsoft commissioned a study which found last December that 70% of hiring managers and job recruiters  rejected at least one job applicant based on information the employer acquired online.  See report.  The survey was posed to managers and recruiters in the US, Germany and the United Kingdom.  Watch those Facebook entries…..

 Periodically, the Department of Labor issues guidance on interpretation of the regulations and statutes regarding the Fair Labor Standards Act.  The FLSA is the statute hat requires overtime pay and payment of minimum wage.  The DOL has issued an opinion recently stating that it now believes mortgage loan officers are not exempt employees and are, therefore, entitled to overtime pay.  According to one commentator, this new interpretation will apply to employees who work primarily in the employer’s place of business and to employees who do not engage in cold-calling, contacting potential customers.  If you think you may have employees who fit these criteria, you should seek guidance regarding changes to be made as soon as possible. 

 The National Labor Relations Act protects the rights of workers who organize unions.  One thing the employer cannot do during an organization attempt is ask questions of the employees about the organizing activity and threaten the workers with fewer hours and less pay if they do form a union.  That appears to be what the Grand Hyatt corporation did when a worker tried to organize a union.  See San Antonio Express News story.  Now, they have to reinstate the employee and pay lost wages.  This came as a result of a National Labor Relation Board’s complaint.  The NLRB does not accept many complaints.  When they do, the employer needs to be ready.  

 The unemployment rate may be dropping in the San Antonio area, but finding a job is still tough out there.  Ronda Templeton gives some good advice on job hunting in this column from the San Antonio Express-News.  Notice Ms. Templeton’s emphasis on using social media sites.  She says be sure to clean up your page on any such sites to remove anything that might keep you from being hired.  

 It is very unwise to change lawyers in the middle of a lawsuit.  Allen Stanford, the Houston investment counselor who has been charged with fraud, has changed lawyers a couple of times already and is seeking to change lawyers yet again.  His case is criminal, but the same principle applies: a lawyer or a set of lawyers understand nuances about a case that cannot be simply interchanged.  When a lawyer deposes a witness, for example, the lawyer acquires valuable information about a witness’ ability to testify.  These observations include much more than just what the witness says in response to a particular question.  When a client changes lawyers, much of those observations are lost.  

Change a lawyer if you must, but be very sure when you do so.  It now looks like Mr. Stanford had differences with his lawyers about trial "strategy."  It better be important strategy to incur the risk of losing so much "institutional" knowledge.