CVS and Best Buy Reach Conciliation Agreements on Personality Tests, Other Employers Resolve Disability and Harassment Charges, and New EEOC Suits Filed

June 15, 2018

The Equal Employment Opportunity Commission (EEOC) announced unrelated developments in which employers have agreed to resolve allegations of disability discrimination, sexual harassment, sex discrimination, and race and national origin discrimination. The EEOC also filed new lawsuits alleging disability discrimination and breach of conciliation agreement.

Disability discrimination

In EEOC v Regional International Corporation, a commercial truck and trailer dealership with locations in Western New York, has agreed to pay $65,000 and furnish other relief to settle allegations that it violated the Americans with Disabilities Act (ADA) when it fired a truck parts delivery driver shortly after he requested leave for hip replacement surgery to treat hip osteoarthritis. Allegedly, the same supervisor who had recently given the driver a performance rating of "Exceptional" and wrote that he had received "no complaints from customers" nevertheless told the driver that he was being fired due to customer complaints. This supervisor also informed the EEOC during the agency's investigation that disabled people could not work for the company because they would not be able to get the work done, EEOC claimed.

In addition to the monetary award, the three-year consent decree resolving the lawsuit includes multiple steps to prevent disability discrimination from occurring at the company in the future, including comprehensive training on the protections of the ADA for all employees, as well as the adoption of policies and practices to promote a workplace free of disability discrimination.

In EEOC v M&R Consulting, LLC, the EEOC asserts in a new lawsuit that the Towson, Maryland-based home care agency, dba Home Instead Senior Care, violated the ADA when it rescinded a job offer because it regarded an applicant as having tuberculosis. The company conditionally hired the qualified applicant for a caregiving position in Towson, subject to her passing pre-employment requirements, including a skin test for tuberculosis, the EEOC contends. The applicant, who had prior caregiving experience, allegedly tested positive for tuberculosis on the purified protein derivative skin test, which only shows that someone has been exposed to tuberculosis bacteria, not whether the person has latent tuberculosis or has progressed to active tuberculosis disease. Before the test, the applicant purportedly had never tested positive for tuberculosis and had no symptoms of the disease.

M&R Consulting’s HR coordinator told the applicant to submit to a chest x-ray for tuberculosis; the applicant purportedly emailed the x-ray, which confirmed that she did not have tuberculosis. But the company allegedly emailed the applicant that, "any positive results are not accepted whether latent or otherwise" and wrongfully rescinded the job offer because it perceived the applicant as disabled.

Race and national origin discrimination

CVS Caremark Corporation and the EEOC have entered into a conciliation agreement to resolve the federal agency’s investigation finding it probable that between 2001 and 2010, the nationwide retail pharmacy and health care company based in Woonsocket, Rhode Island, violated Title VII through its use of personality tests/assessments during the application process that adversely impacted applicants based on race and national origin. CVS stopped using the problematic assessments after receiving the discrimination charge to demonstrate its support of Title VII and without admitting liability.

Under the conciliation agreement, CVS will implement many "best practices" nationally, such as modifying its hiring process, employing staff to recruit and monitor the hiring of minorities, and developing a comprehensive training curriculum for managers focused on diversity, inclusion, and the prevention of barriers to equal employment. The company will also conduct regular evaluations of its hiring practices and will provide regular reports to the EEOC for several years.

The EEOC and Best Buy have reached a conciliation agreement to resolve charges of race and national origin discrimination raised against the nationwide electronics retailer based in Richfield, Minnesota, by a former EEOC Commissioner. Following a lengthy investigation, the EEOC found it probable that between 2003 and 2010, the company, through use of personality tests/assessments during the application process, adversely impacted applicants based on race and national origin in violation of Title VII.

To demonstrate its support of Title VII and without admitting liability, the company stopped using the problematic assessments after receiving the discrimination charge and agreed to implement many "best practices" nationally, such as modifying its hiring process, adding staff to recruit and monitor the hiring of minorities, creating comprehensive in-house training modules for hiring managers, and forming regional diversity and inclusion committees where employees in the field and at the corporate level are empowered to address and prevent barriers to equal employment. Best Buy will also conduct regular evaluations of its hiring performance and submit regular reports to the EEOC for several years.

Sexual harassment and sex discrimination

In EEOC v Price Ventures, LLC dba La Fiesta Fresh Mexican Grill and Cantina, a Bluefield, Virginia, Mexican restaurant will pay $25,000 and provide other relief to resolve allegations that it violated Title VII when an 18-year-old female hostess was subjected to unwelcome sexual comments and touching by a significantly older male manager. The manager had previously engaged in the same or similar sexual conduct with at least one other female employee, according to the EEOC. At the time the alleged sexual harassment occurred, La Fiesta purportedly did not have a sexual harassment policy or employee complaint procedures in effect. After the employee complained about the sexual harassment, La Fiesta allegedly reduced her work hours.

Under the consent decree resolving the case, La Fiesta has also agreed to implement new policies, conduct training for employees and management, post an anti-discrimination notice at the workplace, and report compliance to the EEOC for a three-year period.

In EEOC v Keller Paving and Landscaping, Inc., a North Dakota civil construction company operating in Minot, North Dakota, has agreed to pay $59,000 to settle a lawsuit asserting that the company violated Title VII when it subjected a female employee to a hostile work environment based on her sex and to work conditions that were so intolerable she was forced to resign. The employee worked from June to October 2013 as a truck driver. During her employment, she was allegedly subjected to sexual harassment by several male coworkers, including comments that she did not belong at the worksite but should be at home in the kitchen taking care of her children. One male coworker allegedly asked her to perform oral sex on him, and on one occasion, a male coworker inappropriately touched her shoulder and her leg. Although the employee complained to the company's owners and site manager, the harassment purportedly continued, and work conditions became so intolerable that the employee was finally forced to quit her job.

The consent decree resolving the litigation also requires the company to train its management personnel on Title VII, including its prohibitions against sexual harassment; train its non-management employees on their rights under Title VII, including their right to file discrimination charges with the EEOC; and to report complaints of sexual harassment to the EEOC during the consent decree period.

The EEOC and The Collection, a South Florida automobile dealership, have entered a voluntary conciliation agreement to resolve an investigation finding that the dealership violated Title VII when it discriminated in its hiring practices on the basis of gender by failing to hire enough females into the position of sales representative. To demonstrate its support of the EEOC and without admitting liability, the company will pay a monetary settlement to the affected females; hire qualified external trainers to conduct anti-discrimination training for all employees; create the position of director of diversity and inclusion to act as a liaison with the EEOC; and implement new recruiting tools and resources to attract female candidates for open positions, among other anti-discrimination hiring tactics.

Breach of mediation agreement

In EEOC v Transmodal Solutions, LLC, a Washington State limited liability corporation which conducts business in Norfolk, Virginia, allegedly breached a mediation agreement entered into as part of the EEOC’s Alternative Dispute Resolution program. The parties purportedly entered into a mediation agreement in October 2017, under which Trans-modal Solutions was required to pay the complainant $18,420 to settle her claim of employment discrimination. The settlement monies were to be paid in full by March 2018, but the EEOC contends that the payment was not made and the company thereby breached its obligations under the agreement.