Diversity Insight

All Eyes on Arizona

Arizona’s new immigration law, Senate Bill (SB) 1070, authorizes state and local law enforcement officials to inquire into the immigration status of any person “where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States.” The law regulates aliens directly, not by means of the employer-employee relationship. Nevertheless, many people believe that the new law is preventing employers from hiring Hispanic workers for fear of workplace disruption.

The Problem

According to Mike Sunnucks at the Phoenix Business Journal, Arizona labor and employment attorneys report a growing number of businesses opting out of hiring Hispanics, which could lead to an increase in employment discrimination claims. According to labor and employment attorney Julie Pace, “Anyone who looks and sounds foreign is a concern to some employers. They want to avoid some of the things [e.g., workplace raids] they see in the paper.” Mary Jo O’Neil, a Phoenix attorney for the Equal Employment Opportunity Commission, says she is also seeing an increase in discrimination complaints alleging unfair treatment based on national origin.

Though opponents find comfort in President Barack Obama’s public condemnation of SB 1070, polls from the Pew Research Center show broad national support for the law. According to a recent Pew poll, 59 percent of people support the law in its entirety. Percentages are higher when the law is broken down by element, such as requiring people to produce documents verifying legal status, allowing police to detain anyone unable to verify legal status, and allowing police to question anyone they think may be in the country illegally. Perhaps most interesting is the level of support the law has received from Democrats. Fifty percent of Democrats polled said they support the provision, which allows police to question anyone they think may be in the country illegally.

Bottom Line

Though Arizona’s law is just that ― Arizona’s law ― the Pew poll shows there is support for tougher immigration laws across the country. Labor and employment attorneys are watching Arizona closely. Can it enforce SB 1070 without seeing an increase in claims filed under Title VII of the Civil Rights Act of 1964? Only time will tell.

Categories: Blogs

White House Expands Domestic Partner Benefits

President Barack Obama recently issued a memo directing federal agencies to extend benefits to the same-sex domestic partners of federal employees to the extent permitted by current law. The memo begins:

For far too long, many of our Government’s hard-working, dedicated LGBT employees have been denied equal access to the basic rights and benefits their colleagues enjoy. This kind of systemic inequality undermines the health, well-being, and security not just of our Federal workforce, but also of their families and communities.

The President said he regretted that the full range of federal employee benefits can’t be extended to same-sex domestic partners without a change in the law, and he urged passage of the Domestic Partnership Benefits and Obligations Act currently being considered by Congress, which would effect the necessary legislative change.

The memo requires the Office of Personnel Management (OPM) to:

• clarify that same-sex partners’ children count as a “child” for child-care subsidies and services;

• clarify that domestic partners and their children are “family members” for purposes of employee assistance programs;

• propose a rule to add retirees’ same-sex partners to the list of individuals assumed to have an insurable interest in the employee; and

• amend the guidance implementing President Bill Clinton’s expanded family and medical leave policies to specify that the 24 hours of unpaid leave available in connection with school and early childhood education, routine family medical purposes, and elderly relatives’ health or care needs also are available to meet the needs of a same-sex domestic partner or his or her children.

The memo also directs the General Services Administration to amend its federal travel regulations to allow domestic partners and their children full benefits, including travel, relocation, and subsistence payments.

The OPM provides guidance on defining a domestic partnership and states that agencies may wish to secure documentation to prove domestic partnership, but it’s not required, and agencies should consider whether there is a similar requirement for opposite-sex spouses, consistent with the President’s intent to promote equality. The OPM also directed agencies to pay attention to the memo’s requirement that agencies that adopt new employee benefits also extend those benefits to same-sex domestic partners to the extent permitted by law.

Categories: Blogs

DOL Offers Disability Law Advisor Tool Online

The Department of Labor (DOL) has made a tool available on its website for employers that want to make sure their policies and practices don’t discriminate against qualified individuals with disabilities. The online Disability Nondiscrimination Law Advisor, available at www.dol.gov/elaws/odep.htm, helps employers determine which federal disability nondiscrimination laws apply to their business, including:

• Title I of the Americans with Disabilities Act of 1990 (ADA);

• Title II, Subtitle A, of the Americans with Disabilities Act of 1990 (ADA);

• Section 188 of the Workforce Investment Act of 1998;

• Section 504 of the Rehabilitation Act of 1973, as amended (only as it pertains to federal financial assistance);

• Section 503 of the Rehabilitation Act of 1973, as amended; or

• The Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended.

The Advisor can be used by employees, job applicants, applicants for, or participants in programs that receive federal financial assistance. It may also be useful for individuals receiving services from public entities who want to learn more about their rights under these federal disability nondiscrimination laws.

The Advisor asks users questions about relevant variables, such as nature of the organization, size of the staff, and whether the business or organization receives federal financial assistance. Based on the responses provided, the adviser then generates a customized list of federal disability nondiscrimination laws that likely apply along with information about employers’ responsibilities under them.

The Advisor does not address the following nondiscrimination laws:

• Section 501 of the Rehabilitation Act, which covers employees of the federal government;

• Title III of the Americans with Disabilities Act, which applies to places of public accommodation, commercial facilities, and examinations and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade purposes;

• Workers’ compensation laws; or

• State and local disability nondiscrimination laws.

Categories: Blogs

Adminstaff Pays $115,000 For Religious Bias

Adminstaff, Inc., a nationwide company that provides full-service HR services to small and medium-size businesses, has agreed to pay $115,000 and furnish substantial remedial relief to settle a religious harassment lawsuit filed by the Equal Employment Opportunity Commission (EEOC) in Baltimore.

According to the EEOC’s suit, Texas-based Adminstaff and Conn-x, LLC, a Florida-based cable service provider, violated federal law by engaging in religious discrimination against two employees at Conn-x’s Edgewood office. The agency alleged that two Conn-x employees, who are brothers, were called “dirty Jew[s],” “dumb Jew[s],”and other anti-Semitic slurs by managers and coworkers.

The EEOC alleged that the harassment, which began in September 2005, continued for a couple of years and included the defacing of one employee’s work vehicle with a swastika. One of the employees was also physically harassed when he was forced into a trash bin for the amusement of managers, who observed the incident on a surveillance camera and called it “throw the Jew in the dumpster.” The EEOC’s lawsuit against Conn-x remains unresolved.

In addition to the monetary relief for the two employees, the consent decree settling the lawsuit bars Adminstaff from engaging in harassment on the basis of religion or retaliating against employees who complain about it. The company agreed to revise its policy against harassment and retaliation, provide training on antidiscrimination laws to its managers, and post notices stating its commitment to maintaining an environment free of religious harassment and retaliation. EEOC v. Adminstaff, Inc. , Case No. 1:09-CV-02881-BEL, DC MD.

Olsten to pay $75,000 to settle disability claims

On March 18, 2010, Olsten Staffing Services Corp., a nationwide temporary employment agency based in Melville, New York, agreed to pay $75,000 to settle a disability discrimination lawsuit filed by the EEOC in Madison, Wisconsin. The agency alleged that Olsten violated the Americans with Disabilities Act (ADA) by refusing to refer a deaf job applicant for temporary employment as a production worker for an employer in La Crosse, Wisconsin.

The EEOC alleged that a staffing specialist at Olsten’s La Crosse office twice refused to refer the applicant for employment because he is deaf, even though he met all of the actual qualifications for the job. According to the EEOC, company e-mails showed that Olsten’s staffing specialists had flagged the applicant’s disability as a “concern.” When the applicant later asked the staffing specialist why he didn’t get the job, the Olsten employee falsely attributed the decision to concerns raised by the employer when it hadn’t expressed any such concerns. Hearing ability wasn’t a requirement at the food production job, and in fact, workplace noise required a number of employees to wear ear protection that prevented them from hearing while working.

The case was resolved by a two-year consent decree that requires Olsten to pay lost wages of $5,000 and damages of $70,000 to the applicant. The decree also contains an injunction prohibiting the La Crosse office from engaging in any further discrimination on the basis of disability and requires Olsten to provide ADA training to its employees and report any further complaints of discrimination to the EEOC for the next two years. EEOC v. Olsten Staffing Services Corp. , Case No. 98-CV-565 (DC WIS).

Celestica Corporation settles EEOC disability suit

On April 8, 2010, Celestica, Inc., a Canadian electronics company, agreed to pay $102,100 and provide other relief to settle a disability discrimination lawsuit filed by the EEOC. In its suit, the agency alleged that Celestica willfully ignored a request for reasonable accommodation under the ADA.

An employee hired through a placement agency worked inside a 400,000-square- foot warehouse operated by Celestica. The employee, who suffers from lupus, chronic obstructive pulmonary disease, and cardiomyopathy, asked to use her own electric wheelchair to get to her desk inside the warehouse from a handicapped parking space close to the side entrance. Although the placement agency allowed use of the wheelchair, Celestica ignored the employee’s requests. She continued working for a few months without accommodation, but ultimately quit.

In addition to providing monetary relief, the two-year consent decree settling the suit prohibits Celestica from further refusing or ignoring any reasonable accommodation requests from disabled individuals. The company must also issue its policy on ADA reasonable accommodations to all employees in the United States, train its site managers and HR managers on reasonable accommodations, have the trainer administer a test after the training and review the test results with trainees, report requests for reasonable accommodations to the EEOC, and post notices on the settlement and the ADA around the facility. EEOC v. Celestica, Inc. , Case No. 3:09-0813 (DC TN).

Categories: Blogs