Businesses across the United States have closed their doors to comply with state-wide closures and mandates.
The Illinois Governor issued a “stay-at-home” order back in March, and it is unclear when it will be lifted. However, some parts of the country are starting to lift restrictive orders, at least for certain businesses.
Businesses have had to respond by laying off workers, cutting back hours significantly, and even shutting down altogether. However, as companies restart operations, some workers may not be comfortable going back to work. Certain federal laws may protect workers who are not comfortable working in their positions if they are not sufficiently safeguarded from the potential spread of COVID-19.
The Occupational Safety and Health Act of 1970
Many workers are generally familiar with OSHA, which is a federal agency that is designed to help promote the health and safety of the United States workforce. What they may not realize is that OSHA provides rights to workers if they feel that their workplace is unsafe, even before an injury occurs.
In general, employers are required to ensure that their team’s workplace is free from hazards that are likely to cause death or serious physical harm. The potential physical harm component has traditionally included viruses and other infectious diseases or risks.
In the context of COVID-19, that typically means that employers should:
Implement the use of masks and other protective gear
Permit additional protections and precautions for those in higher-risk categories, such as those with chronic respiratory illnesses, diabetes, or heart disease, and older workers
Follow appropriate disinfecting and cleanliness protocols
OSHA regulations state that if an employee “refuses in good faith to expose himself to the dangerous condition, he [will] be protected against subsequent discrimination.” In some situations, that regulation can give you the option to refuse to work in an unsafe environment without fear of termination and to take legal action if the employer retaliates against you for complaining about unsafe work areas.
The Americans with Disabilities Act
Employees who have certain disabilities may be at a higher risk if they are exposed to COVID 19. Examples may include those with diabetes, asthma, heart problems and those with compromised immune systems due to cancer or other medical conditions. The ADA requires employers to provide reasonable accommodations to these employees where possible. This may include working remotely, allowing the employee to work in an area away from other employees and customers, or other reasonable alternatives. The employee should provide a written note from their physician indicating what accommodations may be needed. If the employer denies this request, you should seek out an employment lawyer immediately.
Application of These Federal Laws
The unique circumstances that COVID-19 has created make many people unsure of what an unsafe working environment looks like. It is unclear how or even whether these protections will protect workers in many situations, but it seems like this is the very situation in which these laws should apply.
If you have serious concerns about the safety of your working environment, you may have legal options. The employment lawyers at Goldman & Ehrlich can help. Call today or contact us online, for more information or to set up a consultation: 312-332-6733.
An Illinois employee recently filed a lawsuit against the City of Danville, according to aWCIA newsreport. The employment discrimination claim also names former city leaders. The employee, a former administrative assistant, alleges discrimination on the basis of race and sex. The city fired the 51-year-old Danville employee, Lisa Robinson, in 2018. Robinson started working for the city in 1994. By the time of her termination, she had worked for the city for more than 20 years. A union arbitrator ordered the city to give her back her job. However, Robinson will still move forward with her discrimination complaint. She recently filed the complaint in federal court.
Robinson’s complaint alleges that the employer denied her access to files on the basis of race and age. She alleges that she faced discrimination in the workplace and that her termination amounted to retaliation. After being subject to workplace discrimination, Robinson reported it to human resources. After making a report, Robinson alleges that her employer retaliated against her before terminating her.
The Illinois Human Rights Act (IHRA) protects employees from discrimination on the basis of race, age, and many other classifications. The IHRA also prohibits retaliation when an employee exercises his or her IHRA rights. In addition to protections under state law, many federal laws prohibit different forms of employment discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, sex, religion, and other categories. The Age Discrimination in Employment Act (ADEA) prohibits discrimination on the basis of age. It provides specific protections for employees and job applications aged 40 and older. Both federal laws also prohibit retaliation.
According toChicago employment discrimination lawyer Arthur R. Ehrlich, “the IHRA provides protections beyond those provided by federal law.” As Ehrlich explained, “whether an employee files a state or federal discrimination claim depends on many factors, including coverage.” For example, the IHRA expressly prohibits discrimination on the basis of sexual orientation, while federal law may not apply. The US Supreme Court is now considering that issue. For discrimination because of race or age, an employee is eligible to file a state or federal law claim. Robinson filed a federal claim, specifically citing the ADEA.
In addition to damages and attorney’s fees, Robinson wants the city to institute new policies. Specifically, she wants new policies to prohibit discrimination on the basis of race and age. Robinson also wants the city to appoint an independent monitor to implement and oversee those policies.
Wal-Mart Stores East, LP, which operates an outlet in Northwest Washington, agreed to pay $100,000 and provide other relief to settle allegations it discriminated against two deaf employee who applied for jobs.
According to the Equal Employment Opportunity Commission, Walmart refused to provide accommodations, such as closed-captioned training videos and sign language interpreters, to two hearing-impaired applicants. In addition to the money, Wal-Mart Stores East, L.P. agreed to revise its employee manual and submit to court supervision. These are standard provisions in EEOC settlements. “This settlement should encourage all employers to provide reasonable accommodations that allow equal access for deaf and hard-of-hearing employees and applicants to engage fully in the workplace,” said Acting Washington Field Office District Director Mindy Weinstein.
Earlier this year, Safeway and Blue Cross/Blue Shield of Texas each paid $75,000 to settle similar allegations. In each instance, the employer failed to provide accommodations not for current employees, but for job applicants. These three cases clearly indicate that the EEOC is aggressively pursuing these matters. So, if you are an employer, now is a very good time to review the accommodations you provide job applicants. The Civil Rights Act of 1964 does not apply just to hearing impaired people. Other protected classes include:
Sexual orientation, a category which probably includes gender identity,
Finally, an employers application process, such as filling out forms and taking tests, could be seen as discriminatory for employees with disabilities if they are not offered accommodations that give them an equal opportunity to apply for a position.
Excluding certain applicants because of their national origin or race is another example of disparate treatment. Refusing to provide a translator may be discriminatory. These cases raise another issue as well, such as what is considered to be a reasonable accommodation? The law requires that the employer provide an accommodation that is reasonable under the circumstances. This may require an interactive process where the employer and employee discuss what accommodations are needed and what would be reasonable under the facts. If a disabled person’s request is reasonable, the employer is generally required to provide that request, absent compelling reasons. If the employer must establish that the request is too expensive in proportion to its profits, or would cause undue hardship to its operations
Finally, the Civil Rights Act does not just apply to current employees.
It applies to potential employees as well, in addition to former employees who were terminated when they were not provided with a reasonable accommodation that would have enabled them to perform their job. All these people are entitled to the same accommodations under the law.
Northern Star (Pogo) LLC, an Alaska-based gold mining company, agreed to pay $690,000 and provide other relief to resolve a discrimination and retaliation action.
According to the Equal Employment Opportunity Commission, the company refused to promote a woman and instead promoted other, less-qualified male candidates. When Hanna Hurst applied for the promotion and then complained, Northern Star created additional qualifications for her to complete. But the company exempted male employees from these tests. In addition to paying money, Northern Star must adhere to a long-term consent agreement that will insure equal opportunities for promotion for females.
“Gender bias continues to be a problem in today’s workplace, certainly no less in those industries traditionally dominated by men,” said EEOC Seattle Field Director Nancy Sienko. “We commend Northern Star as the new successor company for demonstrating its commitment to see such discrimination doesn’t continue under its leadership.”
Substantive sexual harassment cases can sometimes be complex, they cautioned. There are two types of sexual harassment claims in Illinois:
Quid Pro Quo: It is illegal to condition any employment-related decision on any sexual favor. This happens more often than many people believe but is often done in a subtle manner. A female employee should be careful when her boss asks if they can discuss some matter at lunch or dinner when no other employees are present.”
Hostile Environment: This occurs when there is a severe and pervasive pattern of unwelcome sexual or gender comments or acts. A single joke or off-color remark does not constitutes sexual harassment. The conduct must be frequent enough to adversely affect a reasonable person or make it difficult for the employee to perform her normal job duties.
A single-episode of a sexual assault or an extremely aggressive attempt at a sexual overture may be sufficient.
Repeated touching to the point where it is clearly not accidental may also be enough, especially when inappropriate jokes are common. The employer’s failure to investigate a complaint or take action to stop harassment by co-workers will strengthen a sexual harassment case. A failure to conduct an adequate and diligent investigations happens all too frequently, especially in mining, construction, and other male-dominated industries. Post-complaint investigations must be done immediately, and should be comprehensive, and transparent.
Statistically, the EEOC usually handles more retaliation claims than anything else. This includes retaliation for making a complaint for sexual harassment.
Retaliation occurs when an employer punishes an employee who participated in a protected activity. Protected activities include the following:
Filing a complaint or serving as a witness in an employment discrimination claim,
Lodging an informal discrimination complaint,
Resisting sexual advances or other discriminatory conduct,
Intervening to help others in these situations, and
Refusing to follow discriminatory orders.
Even if the underlying complaint of discrimination does not prove that the law was violated, an employee is still protected from retaliation as long as the complaint was made in good faith. Contact Goldman & Ehrlich to discuss your discrimination case today.
Chicago Mayoral Candidate was targeted recently over her support of anti-discrimination legislation introduced in Congress to protect members of the LGBTQ community against employment discrimination.
According to a March 19, 2019 NBC News report, a distribution of homophobic flyers across Chicago’s South Side portrayed mayoral candidate Lori Lightfoot as supporting a ‘Gay Equality Act’ in Illinois. While the front side of the flyers design looked as if it was being distributed by Lightfoot’s campaign election committee, the other side claimed, “All Contracts, Jobs and employment newly assigned exclusively to gay people!”
While there is no such thing as a ‘Gay Equality Act’, the flyer is likely in reference to a federal bill introduced by Democrats the previous week.
The Equality Act would amend existing civil rights legislation to ban discrimination in employment, housing, education, and other areas on the basis of gender or sexual orientation. Lightfoot was likely targeted as she is openly homosexual. Both she and her opponent in the mayor’s race, fellow Democrat Toni Preckwinkle, denounced the flyers, as did other community leaders.
“Targeting this particular candidate in this manner is a clear illustration as to why protections against employment discrimination are so important,” says attorney Jonathan C. Goldman of the Chicago employment law firm Goldman & Ehrlich.
There are several federal laws, including the Civil Rights Act of 1964, the Fair Housing Act, and the Equal Credit Opportunity Act. Meant to protect people against discrimination based on race, color, religion, sex, or national origin. However, the Equality Act goes a step further in specifically addressing unfair actions taken against the LGBTQ community.
According to research by the American Center for Progress, close to half of all gay people report experiencing some form of harassment or discrimination in the workplace.
Among transgender individuals, an alarming 90 percent report discrimination. “Screening applicants, withholding jobs and promotions, or engaging in other forms of discrimination and harassment against members of the LGBTQ community is against the law,” says Goldman. “While tougher protections are still needed, when it occurs employers can be held accountable.” Contact Goldman & Ehrlich today to discuss your case.
EEOC Announces Major Pay Discrimination Settlement
Multistate diesel engine manufacturer Cummins, Inc. agreed to pay $77,500 to settle a pay discrimination suit out of court. According to the Equal Employment Opportunity Commission, a Nashville worker received less than her male co-workers. Cummins officials reviewed the woman’s salary and concluded that there was a gender gap. But they refused to adjust the woman’s pay. S part of the settlement, Cummins, which also operates in Illinois, agreed to two years of court supervision.
“Employers should provide men and women in the same workplace with equal pay for equal work” because it’s not only fair, “it’s the law,” proclaimed EEOC Memphis Regional Attorney Faye Williams. “Technological and legal advances have made equal pay cases easier than ever to win,” remarked Chicago employment law attorney Jonathan Goldman. “But the EEOC still does not take on this issue very frequently.”
The Equal Opportunity Commission, or a similar state agency, usually has first crack at unequal pay and other employment discrimination cases, he explained.
First file an unequal pay claim with the EEOC before filing in court in order to fully exhaust administrative remedies. There are occasions when the EEOC will take these claims to court, but those occasions are rare. Once the EEOC concluded its investigation, it will issue a Right to Sue letter, which gives the employee 90 days to file in court. When attorneys take these cases, technology often comes into play. Until fairly recently, large companies could bury claimants in papers during discovery. There may be a smoking gun in there somewhere, but it was almost impossible to find. Now, attorneys can feed documents into high-speed scanners, enter search terms, and easily view relevant documents.
If you bring an unequal pay claim in Chicago, the law is on your side.
The Windy City recently passed an ordinance which bans salary history inquiries. That issue may seem unrelated to pay discrimination, but there’s actually a very close link. When they start their careers, many women accept lower wages than their male counterparts. The pay gap gets even larger over time. A woman’s salary may increase, but not as much as a man’s. So, in an unequal pay case, it may not be necessary to look beyond the initial interview and resume requirements. If there is anything illegal, substantial compensation may be available.
That compensation generally includes both back pay, and will require future pay adjustments to match male employees performing the same work. These lost wages are from the date of employment to the current date. A judge will award a reasonable amount of money that the claimant would have earned had she stayed at that job and earned an equal wage. Contact the lawyers at Goldman & Ehrlich to discuss your case.
The U.S. Supreme Court will hear three cases this fall concerning LGBT employment discrimination, according to aCBS Chicago report.
Each of the three cases arise under Title VII of the Civil Rights Act of 1964, a federal law. Ultimately, the Court’s ruling may affect LGBT employees’ rights. The outcome will determine whether LGBT workers can file a federal claim for sexual orientation or gender identity discrimination in federal court. In 2017, the U.S. Court of Appeals for the 7th Circuit heard a related case. In an 8-3 decision, the 7th Circuit ruled that Title VII protects LGBT employees. Chief Judge Diane Wood emphasized that sexual orientation discrimination cannot occur without unlawful discrimination on the basis of sex. However, the U.S. Supreme Court’s ruling could reverse that decision.
Chicago LGBT employees currently have protections against employment discrimination under the Illinois Human Rights Act.
Currently, the Illinois Human Rights Act applies to employers with at least 15 employees. LGBT rights advocates sought recently to repeal that requirement so that the law would apply to all Illinois employers. The Illinois Legislature even passed a bill to do so. Yet Governor Bruce Rauner vetoed it. While many LGBT employees in Chicago have rights under state law, and under City laws, their protections under federal law will depend on the Supreme Court ruling.
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex.
However, that federal law does not explicitly prohibit sexual orientation or gender identity discrimination. Courts like the 7th Circuit have ruled that sex discrimination includes sexual orientation discrimination. Similarly, the U.S. Equal Employment Opportunity Commission (EEOC) says that Title VII guarantees protections against LGBT discrimination at work.
Yet other courts have disagreed.
Indeed, an example appears in one of the cases that will come before the Supreme Court this fall. In one of those cases, the 11th Circuit ruled that Title VII does not prohibit discrimination against LGBT employees. The other two cases that will come before the Court found in favor of the LGBT employee who alleged discrimination. Those cases arose out of the 2nd Circuit in New York and the 6th Circuit in Cincinnati.
Goldman remarked, “the Court could determine that Title VII does not apply to sexual orientation or gender identity discrimination.” Such a decision could mean that LGBT employees have no protections against discrimination under federal law. In such a situation, LGBT employees in Chicago would only have protections against employment discrimination under state law, Cook County law, and City law. Contact Goldman & Ehrlich today to discuss your case.
Just as the partial government shutdown shuttered the doors at the Equal Employment Opportunity Commission, the agency announced a $4.9 million settlement in a religious discrimination case.
According to the agency, the shipping company refused to hire persons with long hair or beards, even if their appearance had a religious reason. Furthermore, UPS delayed religious accommodation requests or denied them outright, according to court documents. The company did not admit liability and characterized the settlement as a business decision. We want “to focus our energy on our hiring and promotion process, rather than lengthy and costly court proceedings,” UPS said in a statement.
The settlement is just the latest in a series of employment discrimination claims against UPS.
The company settled a multimillion-dollar disability discrimination action in 2017, and another religious discrimination action in 2013. “Failure to make a reasonable accommodation is the most common type of religious discrimination in Illinois,” commented Chicago employment law attorney Jonathan Goldman. “But this term confuses many workers. As a result, they give in too quickly and give up too much.”
Most people assume that a phrase like reasonable accommodation means give and take, he explained. But in this context, and as far as the employee is concerned, this process is basically all taking and no giving. If the worker requests a religious accommodation, the employer must grant it unless the request would cause an undue hardship.
For example, assume David works in retail. He is a Christian and he wants Sundays off. His boss is also a Christian, but he feels that the religion does not specifically prohibit working on Sundays. Nevertheless, David’s boss offers to let him off every other Sunday. David might be tempted to take that offer.
But the “not officially recognized” bit is irrelevant. If David’s religious beliefs about Sundays are sincere, the law protects him. In fact, even if David started his own church and embraced certain beliefs, the law would still protect him. It does not matter if the belief was dogmatic or not.
Second, in the “reasonable accommodation” department, David and other workers meet their initial burden by demonstrating their religious beliefs and needs. They do not have to negotiate further unless the employer establishes an undue hardship. Assuming there are other employees who are available to work on Sunday, that defense probably does not apply. That’s true even if the other workers are not as qualified as David. A marginal loss is not the same thing as an undue hardship.
The second form of religious discrimination is decisions that are based, at least in part, on religion.
Typically, these decisions include hiring/firing and promotions/demotions. One would think that employers know the law and would not engage in this activity, but it happens often. For example, an employer could refuse to hire a woman who wears a hijab or give a woman a promotion on the condition that she begin attending church.
A few religious discrimination cases involve employee harassment. If that happens, the employer has a duty to promptly and thoroughly investigate the matter, and then take appropriate action based on the investigation’s results. A breakdown in any phase could give rise to a legal claim.
Contact us today at 312.332.6733 to schedule a free consultation.
Chinatown’s Xing Ying Employment Agency promised workers good wages and pleasant employment conditions.
But instead, according to court documents, the company “essentially acted as central a supply house for a buffet restaurant industry seeking to profit from illegal and exploitative wages and conditions of employment.”
Again according to court documents, the Agency ran advertisements in Chinese-language newspapers targeting immigrant workers. Once these individuals enrolled with the company, the promised lavish wages never appeared. Neither did the promised housing. Many Xing Ying workers lived under an 18th Street bridge. According to a media investigation, Xing Ying was part of a much wider ring of similar exploitative employment services.
These issues are widespread, as “our Civil Rights bureau and workplace rights bureau are always taking complaints,” remarked an Illinois Attorney General spokesperson.
Types of Illegal Discrimination
Like most other jurisdictions, Illinois is an at-will employment state. For the most part, employers may hire and fire employees at any time for good reason, bad reason, or no reason at all. However, even in this environment, workers have legal rights.
“Workers cannot be fired for an illegal reason, and they must be treated fairly at work,” said Chicago employment law attorney Jonathan Goldman. Fair treatment means minimum wage, no unauthorized paycheck deductions, and no illegal conduct. The types of illegal discrimination include:
Some forms of discrimination are in a grey area.
For example, the Supreme Court has yet to rule whether transgender discrimination falls into the “sexual orientation” discrimination category under federal law. However, several courts, including the 7th Circuit Court of Appeals, have found that “gender stereotyping”, expecting a female or male to conform to their gender identities and expected gender character, are illegal. Illinois state law also prohibits transgender discrimination.
To establish an employment discrimination case, the victim must present enough evidence to suggest that the adverse action against the employee was based on discrimination.
Replacing an older employee with a younger employee is often sufficient. The employer must then provide a nondiscriminatory reason for the adverse action. That burden is often easy to meet. Most cases are then fought on the issue of whether the employer’s claimed reason was just a pretext or an excuse for discrimination.
Damages in most employment law cases include both monetary and injunctive relief.
Back wages are often the biggest category of monetary damages. Usually, the parties do not resolve their dispute for many months. Other types of economic damages may be available as well, such as lost health insurance benefits. Additional noneconomic damages may be available as well, such as compensatory damages for the stress and anxiety that a victim of discrimination may suffer.
Injunctive relief is available as well. Sometimes, that could mean reinstatement. Other injunctive relief includes antidiscrimination programs on the job, so other employees are not victimized in the same way.
Many EEOC cases involve sexual harassment claims. The EEOC is anxious to resolve these cases, and that attitude sometimes works in the defendant’s favor.
On June 25, 2017, the Equal Employment Opportunity Commission announced that Anchor Staffing would pay $30,000 to settle sexual harassment and retaliation allegations. Court documents state that the temporary agency refused to give Ana Magdana more work after she complained about sexual harassment. In addition to paying money, Anchor Staffing must abide by a two-year consent decree.
About a month earlier, the EEOC announced a similar settlement with a Downers Grove Burger King franchise. Heartland Food LLC agreed to pay $55,000 and furnish similar non-monetary relief to resolve sexual harassment claims. The agency said little about that case, besides the fact that a female employee complained about a male manager.
“These two cases are significant for two reasons,” offered Chicago employment attorney Jonathan Goldman. “First, these settlements are not big dollar amounts for big companies. But for regional businesses and small franchisees, $50,000 may be almost a year’s profits. Second, the government is very aggressive in sexual harassment cases, largely because they are easy to prove.”
The Anchor Staffing settlement did not even involve sexual harassment, Mr. Goldman noted. Instead, the EEOC pursued a retaliation claim. As a result, the agency does not need to prove sexual harassment, age discrimination, or anything else. It simply must establish that the defendant took some action against the employee because of the complaint.
Generally, the EEOC need only establish a temporal relationship. If the complaint was on June 1 and the action was on June 15, an employer will be hard-pressed to defeat a retaliation claim. So, we take a very proactive approach and try to resolve these cases as quickly and cheaply as possible.
Details were so sketchy with regard to the Burger King settlement because the employer probably included a confidentiality clause in the settlement, Mr. Goldman speculated. In many cases, the EEOC insists on a slightly larger monetary settlement before it agrees to such a clause. But in many cases, such language is worth a little extra money.
A confidentiality clause makes the EEOC’s evidence appear weak. The bellicose quote in the press release, which is something like “that company got what it deserved,” then seems rather empty. Furthermore, it is easier for the defendant to characterize the settlement as a business decision. That’s normally the case, because it would cost a lot more than $30,000 or $50,000 to litigate such a claim. Furthermore, if anyone presses the company for details, the spokesperson simply cites the confidentiality clause and drops the matter. Contact us today at 312.332.6733 to discuss your case.
Goldman & Ehrlich is located in Chicago, IL and serves clients in and around Chicago, Cook County, Lake County, DuPage County, Will County, Kane County, and McHenry County.
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