Week in Review

March 02, 2015

Texas Wal-Mart settles suit alleging bias against older manager with diabetes
Wal-Mart Stores of Texas, L.L.C. will pay $150,000 and provide other relief to put an end to an age and disability discrimination lawsuit brought by the EEOC. The retailer violated the ADEA and the ADA when it discriminated against the manager of the Keller, Texas, Wal-Mart store by subjecting him to harassment, discriminatory treatment, and discharge because of his age, the federal agency asserted. Wal-Mart also purportedly refused to provide a reasonable accommodation for the man's disability. The manager was ridiculed with frequent taunts from his direct supervisor, including "old man" and "old food guy," the EEOC said in a February 19 release. After his diagnosis and on the advice of his doctor, the manager allegedly requested reassignment to a store co-manager or assistant manager position. But Wal-Mart refused to engage in the interactive process of discussing the manager's requested accommodation, eventually rejecting his request in violation of the ADA, according to the EEOC.
In addition to the monetary relief to be paid to the manager, the two-year consent decree settling suit requires that Wal-Mart provide training for employees on the ADA and the ADEA. The training must include instruction on the kind of conduct that may constitute unlawful discrimination or harassment, as well as instruction on Wal-Mart's procedures for handling requests for reasonable accommodations under the ADA. Wal-Mart will also report to the EEOC on its compliance with the consent decree and post a notice to employees about the settlement.

EEOC sues companies for refusing temp assignment to hearing-impaired worker
The EEOC has filed a lawsuit against Sims Recycling Solutions, Inc., and All-Star Personnel, Inc., asserting that the two companies violated the ADA when they refused to assign temporary work to an individual because she has a hearing impairment. Sims Recycling Solutions is an international firm that partners with local, national, and global businesses in the recycling of electronics and computers. All-Star is a staffing agency headquartered in Franklin, Tennessee. According to the complaint filed by the EEOC on February 18, All-Star assigned the employee to work at a Sims recycling facility in LaVergne, Tennessee. When Sims learned the employee had a hearing impairment, both companies purportedly told the employee that she could not work there. "Sims and All-Star decided that an employee, simply because of her hearing impairment, could not do her job," commented EEOC District Director Katharine W. Kores. "The purpose of the ADA is to make sure that employers ask questions and decide based on facts, not their assumptions."

Georgia Governor Deal issues "ban-the-box' order for state employment
Georgia Governor Nathan Deal has issued a directive that makes "ban-the-box" the law of the land for state employees. Citing, among other things, the recommendations of the Special Council on Criminal Justice Reform for Georgians, Governor Deal signed an executive order on Monday, February 23, prohibiting state government entities from using a criminal record as an automatic bar from employment. The governor's order also references the fact that about 97 percent of individuals sentenced to prison will eventually return to society. "Georgia is positioned to enhance its reputation as leader by becoming the first state in the South to implement a fair hiring policy for applicants with criminal records," according to the order.
Ban-the-box hiring policy. Specifically, the new executive order directs state government entities to "implement a hiring policy intended to encourage the full participation of motivated and qualified persons with criminal histories in the workforce, reduce recidivism, and assure public safety." The policy should establish practices that:
Prohibit the use of a criminal record as an automatic bar to employment.
Bar the use of application forms that inappropriately exclude and discriminate against qualified job applicants.
Promote accurate use and interpretation of criminal records.
Provide qualified applicants an opportunity to discuss any inaccuracies, contest the content and relevance of a criminal record, and provide information that demonstrates rehabilitation.

Employment Issues Under DC's New Marijuana Law
The District of Columbia's "Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Initiative of 2014" (also known as Initiative 71) became effective February 26, 2015, despite threats by members of Congress against the Mayor if she allowed Initiative 71 to take effect. Nearly two thirds of D.C. voters approved Initiative 71 in November. Under the initiative, people ages 21 or older will be allowed to possess two ounces or less of marijuana, use marijuana on private property and give one ounce or less to another person as long as no money, goods or services are exchanged. Residents will also be permitted to cultivate up to six marijuana plants — although no more than three mature plants- in their primary home.
Many employers are wondering how the initiative will affect current workplace rules regarding marijuana use. A DC employer still may take adverse action against employees who possess or use recreational marijuana in the workplace or off the job. Initiative 71 specifically states that it shall not be construed to "require any employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale, or growing of marijuana in the workplace or to affect the ability of any such employer to establish and enforce policies restricting the use of marijuana by employees." In other words, the employer does not have to allow recreational marijuana use or possession in the workplace or off the job, can have policies prohibiting such activities, and can take disciplinary action (including termination) against employees who violate the company's policies.