TWO RECENT EEOC SETTLEMENTS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Since early May, the EEOC has announced a dozen or so settlements involving harassment and/or retaliation. These settlements may be viewed at the EEOC newsroom link. I found two of them to be especially interesting. The first one was for $110,000 against Creative Networks, LLC, a provider of services for the disabled. The second one was for $150,000 against Affordable Care, Inc., a national dental services provider. The awards themselves are not huge given EEOC standards, but other features of both settlements are interesting.

The case against Creative Networks is textbook “don’t do” retaliation. One employee (Rhonda Encinas-Castro) filed a claim with the EEOC for discrimination based on race and national origin and another employee (Kathryn Allen) agreed to serve as a witness. Encinas-Castro was terminated and Allen, who had never been disciplined for any violations against the company, was threatened with termination. The retaliation provisions in Section 704(a) in Title VII cite two causes: (1) opposition, which complaining to management or filing a formal charge with the EEOC and (2) participation, which means having “participated in any manner in an investigation, proceeding or hearing.” Thus, Encinas-Castro opposed and Kathryn Allen participated. For present purposes, the case for Kathryn Allen is the more interesting one because it follows directly from Crawford v. Metropolitan Government of Nashville (2009), in which Crawford was terminated for embezzlement after she testified in an internal investigation in a claim of sexual harassment by a fellow employee. The 6th Circuit supported Metropolitan on grounds that Crawford merely participated in an internal investigation, but did not oppose or participate in any claim of harassment or retaliation. The Supreme Court overturned the 6th Circuit in a unanimous ruling. The settlement for Kathryn Allen against Creative Networks has a similar ring.

The case against Affordable Care was based on the actions of a single dentist alleged to have racially harassed one female employee and to have sexually harassed another female employee. It’s rare that a harasser harasses one employee for one reason and another employee for another reason. This was one bad dude. However, that’s not the sole reason this case is interesting. There are two other reasons. First, Affordable Care, based in North Carolina, has 150 affiliated practices in 37 states. Thus, a national company was brought down by the actions of a single employee in an affiliated practice. Second, and perhaps more importantly, the company agreed to create and enforce an anti-harassment policy similar to recommendations in EEOC Policy Guidance 915.002. In particular, the settlement mandates that the company hire an EEO officer to monitor, receive complaints, and provide training.

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