Employment Discrimination

The Equal Employment Opportunity Commission has settled its disability discrimination lawsuit against Garney Construction Company and Georgia Power Company.  In June 2012, the EEOC announced that Garney Construction and Georgia Power will pay $49,500 and provide additional training and guidance to employees and management regarding illegal disability discrimination.

The EEOC filed the Georgia disability discrimination lawsuit on behalf of Bryan Mimmovich, who applied for a job as a front-end loader with Garney Construction, a job he had held twice previously.  Mr. Mimmovich was diagnosed with epilepsy at age 12 and had been free of seizures for more than eight years while taking anti-seizure medication. 

Garney Construction’s contract with Georgia Power required job applicants to pass a physical examination – either the Department of Transportation (DOT) physical examination, an American Society of Mechanical Engineers (ASME) physical examination for crane operators, or another equivalent medical examination.  However, federal law does not require heavy equipment operators to pass a physical examination.  Because he was taking medication for epilepsy, Mr. Mimmovich automatically failed the DOT physical examination.  Garney Construction withdrew its job offer, stating that its contract with Georgia Power prevented it from hiring Mr. Mimmovich.

Mr. Mimmovich filed a complaint with the EEOC, which filed a lawsuit against Garney Construction and Georgia Power after failing to resolve the issue via mediation and conciliation efforts.  The EEOC’s lawsuit claimed that Garney Power illegally discriminated against Mr. Mimmovich because of his disability and that Georgia Power illegally interfered with Mr. Mimmovich’s employment relationship with Garney Construction by requiring Garney to refuse to hire Mr. Mimmovich when he failed the DOT physical examination instead of requiring Garney Construction to offer Mr. Mimmovich an individualized assessment of his ability to perform the job of front-end loader operator.

To settle the lawsuit, Garney Construction and Georgia Power will pay $49,500 to Mr. Mimmovich.  Both companies will also re-distribute anti-discrimination policies and schedule employee training regarding disability discrimination and pre-employment physicals.

Employers who use pre-employment physical examinations to screen potential employees should take care to ensure that these examinations do not illegally exclude applicants who are actually qualified to perform the job for which they are applying.  Employers should consider offering individual employment assessments to applicants with disabilities and should seek qualified legal advice to answer any questions that arise during the hiring process.

Almost 2,000 current and former female employees of Wal-Mart have filed charges of discrimination in pay and promotions with the Equal Employment Opportunity Commission (EEOC). The charges were filed in 48 states (all states except Montana and Vermont), with Georgia having the third largest number of claims in the suit, at 119.

The EEOC enforces federal laws that prohibit employment discrimination. Last year, the U.S. Supreme Court denied the women the right to certify as a national class action, finding that the legal and factual issues involving the female employees did not have enough in common to be certified as a class action suit. By filing charges with the EEOC, the women protect their right to sue for discrimination. The claims date back to 1998, and include both Wal-Mart and Sam’s Club.

In addition to the charges with the EEOC, regional class actions were filed in federal courts in California and Texas in October 2011, and numerous other class actions are expected to be filed in other states this year. The lawsuits claim that attitudes were pervasive throughout Wal-Mart that men deserved more money than women, and that men were better managers. One lawsuit also alleges that job opportunities weren’t posted, but were passed along through word-of-mouth, primarily to men. The case began when a female employee was fired after she complained that she was discriminated against based on her sex. She found out that a male employee with the same job and less experience was making $23,000 per year more than she was.

By law, employers are not allowed to discriminate against employees based on sex. Currently, the Equal Pay Act requires that men and women in the same workplace must be given equal pay for equal work. Their jobs don’t have to be identical, but they must be substantially equal. Title VII, the Age Discrimination in Employment Act, and the Americans with Disabilities Act also prohibit compensation discrimination on the basis of sex.

Employees in who feel that they have been discriminated against in the workplace based on sex may have a claim for employment discrimination. Those individuals should seek out a qualified Georgia employment attorney as soon as possible to explore the possibility of pursuing a legal claim.

Shorter University, a Baptist college located in Rome, Georgia, recently mandated that its 200 employees sign a “personal lifestyle pledge”. The pledge declared that they reject adultery, premarital sex, and homosexuality. The pledge also required that employees abstain from using drugs and participate in local churches.

According to some sources, many faculty members have resigned or are planning to resign as a result of the pledge. Some faculty members took issue with the fact that the pledge singled out some sins but not others, while others claimed that the pledge was approved as a result of a very biased survey. Students are also said to be unhappy about the pledge. Supporters of the pledge claim that the goal was to declare what the college was all about.

So are employers allowed to discriminate on the basis of religion? Yes. Although Title VII of the Civil Rights Act of 1964 prohibits employers with at least 15 employees from discriminating in employment based on religion, there are exceptions. Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. This exception only applies to institutions whose purpose and character are primarily religious. In order to decide whether an entity is religious, courts consider whether it’s working for a religious purpose, whether its day-to-day operations are religious, whether it’s not-for-profit, and whether it’s affiliated with a church or another religious organization.

Therefore, a private employer that is considered religious can discriminate in its hiring and general employment practices. However, there are limits to what a religious employer can do. For example, a religious employer can’t otherwise discriminate in employment on the basis of race, national origin, sex, etc. by claiming that according to its religious beliefs, their employees are not allowed to associate with people of other races.

In general, religious employers have some wiggle room in what types of employment discrimination they can engage in, although there are limits. The actions taken by Shorter University are most likely legal, although they may end up ultimately having a detrimental effect on the faculty and student populations.

This month, four Muslim men sued IHOP, claiming they were wrongfully terminated from their managerial positions because of their religion, as well as their ethnicity.

In the lawsuit, they claimed that although they got positive performance reviews, all were fired in the course of a year and were replaced by white, non-Muslim managers. They allege that one of those replacements told other managers at a meeting that “Arab men  treat women poorly and with disrespect . . . we’re going to have to let these people go and have new faces coming in”. One of the men at the meeting was fired a few weeks later for an incident that occurred while he was counseling a female employee over a mistake she made.

Late last year, a Georgia representative introduced a bill in the Georgia House of Representatives that would ban job discrimination against state employees because of their sexual orientation or gender identity. The bill failed to pass out of the House Judiciary Committee earlier this month, and is dead for the year. The representative plans to introduce the bill again next year.

Some concerns that were expressed against the bill included fears that Georgia would be required to hire pedophiles and necrophiliacs. Others were concerned the bill would serve as an affirmative action bill that would create a quota system. However, the LGBT (lesbian, gay, bisexual and transgender) community enthusiastically supports the measure, expressing that they are afraid that if their sexual orientation became known at work with the state of Georgia, they would be discriminated against or even fired. The state representative who introduced the bill believes that the bill will have more support in 2013 because it is not an election year.

Currently, 21 other states ban discrimination against public employees based on their sexual orientation. Twelve states have laws that prohibit employment discrimination against state employees based on gender identity and expression. There is no federal law that addresses employment discrimination based on sexual orientation or gender identity in the federal government. Since 1994, a bill has been proposed in the U.S. Congress that would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by nonreligious employers with at least 15 employees. The bill has not yet passed and is currently in committee.

If you feel that you have been discriminated against in an employment situation, contact a qualified employment attorney today. You may have a case against the employer, depending on what type of discrimination is involved.