EEOC settles race bias case against construction company: HR Hero Line

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EEOC settles race discrimination case against construction company

June 6, 2009

The Equal Employment Opportunity Commission (EEOC) has entered into an agreement with Wheeler Construction in which Wheeler will pay two employees a total of $325,000 to settle a race discrimination claim. The case may reflect the EEOC's increased attention to race discrimination claims, which, like other discrimination claims, are rising at a rapid rate.

That's going to cost you
The U.S. District Court for the District of Arizona recently signed off on a consent decree between the EEOC and Wheeler Construction. Under the two-year agreement, Wheeler will pay $275,000 to Leonard Lopez and $50,000 to Juan Campos. It also agreed to conduct equal employment opportunity (EEO) training for its employees, appoint an individual to monitor its compliance with the decree and handle future discrimination claims, and issue apologies to Lopez and Campos.

Lopez claimed that a Wheeler supervisor made anti-Hispanic slurs to him and other Hispanic employees. He alleged that the supervisor referred to Hispanic workers as "wetbacks" and "spics" and told them to "go back to Mexico." Additionally, he contended that Wheeler fired him in retaliation for making complaints about the discriminatory conduct. According to the EEOC, Lopez was born and raised in Glendale, Arizona, and had worked for Wheeler for 20 years at the time of the alleged harassment.

The consent decree states that it is not "an adjudication and/or a finding on the merits" of the lawsuit filed under Title VII of the Civil Rights Act of 1964. In a statement, Wheeler said it "vehemently denied" the EEOC's claims as "unproven allegations" and that it settled the case for business reasons. It also criticized statements by EEOC attorneys and directors about the case as selective and irresponsible: "Wheeler Construction is partially Hispanic-owned and has been voluntarily operating with a union workforce in the Phoenix metropolitan area for over 31 years. Wheeler Construction takes its equal employment opportunity and antidiscrimination policies very seriously. It was not aware of, would never have allowed, and expressly denies, the discrimination and retaliation alleged by the EEOC in this instance."

Sign of the times
Discrimination claims filed with the EEOC jumped 15 percent in fiscal year (FY) 2008 to 95,402 -- the highest level since the agency opened in 1965. That number is up from 82,792 claims filed the previous year. Of the 95,402 discrimination claims filed in FY 2008, 33,937 were charges of race discrimination.

The number is particularly noteworthy because the unemployment numbers for FY 2008 didn't spike until the last few months of the year, and the EEOC's fiscal year ended on September 30. Commentators predict there could be more than 100,000 discrimination claims filed during 2009. Because of the recession and resulting unemployment levels, people may be more likely to file claims.

The increase in claims led the EEOC to launch an initiative to combat race and color discrimination. The E-RACE (Eradicating Racism and Colorism from Employment) Initiative is a five-year national outreach, education, and enforcement campaign that the EEOC will run until FY 2013. The increased attention means employers should strive to be more aware of these particular forms of discrimination.

Bottom line
In these difficult times, it's more important than ever to take action to ensure that your organization is doing everything possible to avoid discriminatory practices and discrimination claims. Every decision to terminate an employee carries the risk of a complaint. With fewer jobs available, laid-off or terminated employees may view a legal complaint as their only option.

Termination decisions must be made cautiously and carefully. Be sure your organization isn't discriminating against any group or class of employees. The EEOC has set up a website for its E-RACE initiative, with a page of best practices to avoid race and color discrimination claims. Some of the tips include:

monitor compensation practices and performance appraisal systems for patterns of potential discrimination;

recruit, hire, and promote with EEO principles in mind by implementing practices designed to widen and diversify the pool of candidates considered for employment openings; and

establish neutral and objective criteria to prevent subjective employment decisions based on personal stereotypes or hidden biases.

Implementing these practices will help your organization avoid discrimination claims in a time when you can least afford it. For a complete list of the EEOC's best practices, visit www.eeoc.gov/initiatives/e-race/bestpractices-employers.html.

Copyright 2009 M. Lee Smith Publishers LLC. ARIZONA EMPLOYMENTLAW LETTER . ARIZONA EMPLOYMENT LAW LETTER should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only. Anyone needing specific legal advice should consult an attorney. For further information about the content of any article in this newsletter, please contact any of the editors.

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