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Jul 092012

In what’s been called a “radical departure” from its historic enforcement of the Equal Pay Act, the EEOC is now directly targeting employers for compensation audits. The National Equal Pay Enforcement Task Force recommended that the EEOC begin agency-driven investigations of employer pay practices, rather than waiting for a charge of discrimination. The result of this recommendation? The launch of the EEOC’s Equal Pay Act Directed Investigation Pilot Project. Three EEOC district offices – New York, Chicago and Phoenix – are actively participating in the project.

In this week’s episode of The Proactive Employer, we’ll be talking about the EEOC’s Directed Investigation Pilot Project with Katharine Parker and Leslie Silverman. We’ll discuss what we do – and don’t – know about the project, what the project could mean for future enforcement efforts by the EEOC, and why employers should conduct a proactive compensation self-audit. We’ll also talk about some practical things employers can do right now to prepare for increased scrutiny of their compensation policies and practices.

This show will air live on Thursday, July 12th at 3 PM Eastern / 12 Noon Pacific on the VoiceAmerica Business Channel.

Tweet your questions using the hashtag #TPE or call in at 1-866-472-5790 to talk to our guests. The show will be available for on-demand listening at The Proactive Employer website, on the VoiceAmerica Business Channel and via iTunes following the broadcast.




Jul 062012

Last week an EEOC race harassment and discrimination lawsuit against a major transportation company ended with an $11 million consent decree.

The suit alleged that African-American employees at the Chicago Ridge facility of Yellow Transportation, Inc. and YRC, Inc. – Yellow Transportation merged with Roadway Express in 2008 forming YRC – were subjected to a racially hostile work environment and discriminatory conditions and terms of employment.

Prior to the settlement, the EEOC was fully prepared to go to trial with evidence that black employees were subjected on multiple occasions to hangman’s nooses and racist graffiti, comments and cartoons. The EEOC supposedly also had evidence that black employees were given more difficult and time-consuming work tasks and were subjected to harsher discipline and scrutiny than their white counterparts.

Numerous black employees claim to have complained about these conditions over the years and allege that the company continuously failed to remedy the situation.

EEOC General Counsel David Lopez says, “We are approaching the 50th anniversary of the Civil Rights Act of 1964. This case, with evidence of hangman’s nooses, vile racist graffiti, and race-based work assignments, proves that even after these many years, there is work to be done to eradicate pernicious racial hatred and discrimination. We have successfully prosecuted several racial harassment cases and will continue to do so until this toxic workplace behavior is eradicated.” He adds that we’ve come a long way and that hopefully this decree “moves us further along the road we must travel as a nation – together.”

Although the Chicago Ridge facility closed in 2009, many of the African-American employees continued to work for YRC at the Chicago Heights facility which was itself the subject of a similar EEOC suit which resulted in a $10 million settlement back in 2010.

“This case is the second large race case the Chicago office has resolved with YRC in recent years. The company has now had to pay out $21 million to resolve egregious racial harassment and discrimination at two of its facilities,” says Chicago Regional Attorney John Hendrickson. “Employers should not believe that because they are in an industry – like trucking – that is known for rough working conditions, they can ignore discrimination when it arises. A noose is not an acceptable symbol there or anywhere else – that’s the law.”

Under this recent decree, $11 million will be awarded to discrimination victims and as many as 324 African-American employees who worked at the facility on the dock and in the yard will benefit.  The decree enjoins YRC from engaging in any further race discrimination or retaliation against anyone who complains of racial bias.

Additionally, the YRC must retain consultants to review the company’s discipline and work assignment procedures and policies and provide recommendations for revisions to prevent any future racial inequalities and activities at the Chicago Heights location are being reviewed by a monitor who reports semi-annually to the court and the EEOC on the company’s compliance.

Jun 132012

The EEOC is in the process of developing a “Strategic Enforcement Plan” and is looking for input from the public.

The Strategic Enforcement Plan is required under the first performance measure of the EEOC’s Strategic Plan for the Fiscal Years 2012-2016 that was approved by the Agency in February 2012.

The EEOC is interested in input from individuals, employers, advocacy groups, agency stakeholders and other interested parties on what the EEOC’s priotities should be. Specifically, the EEOC is soliciting feedback on what its national priorities should be for the next three years to have the greatest impact in combating discrimination in the workplace, as well as recommendations for improving enforcement, outreach and prevention.

All comments must be submitted via email by 5 PM Eastern on June 19th to or received via mail at Executive Officer, Office of the Executive Secretariat, U.S. Equal Employment Opportunity Commission, 131 M Street, NE, Washington DC 20507.

Here’s your opportunity to help set the EEOC’s priorities should be for the next three years – make your voice heard!

May 112012

Can a minor offense committed decades ago affect your employment? As one Milwaukee woman can now tell you: YES.

Yolanda Quesada was escorted out of the building and fired last week from the mortgage unit position she had held for five years at Wells Fargo.  While she claims to have been a good employee and says she has pins, certificates and photos to prove it, her past came back to haunt her.

Her termination came after a background check revealed that she had been arrested for shoplifting back in 1972 and had received a ticket and a misdemeanor for which she was fined and given probation. “I did do the crime. I had just come out of high school,” says Quesada, who apparently stole clothing from a Milwaukee department store. She says that she was one of 12 children and needed work clothing. According to Quesada, she is ashamed of what she did and believes she has paid for her crime and has changed her life. “I think there are more important things in life than something I did 40 years ago,” she adds.

Quesada claims to have had no knowledge that Wells Fargo was making inquiries regarding her background such as the FBI check and states, “I just got the FBI report on Saturday in the mail. Monday, they said ‘you’re fired’. They never let me say what happened, explain myself, nothing.”  While she believes it is unfair for a youthful discretion to cost her a job so many years later, changes to banking regulations last year require institutions to run checks on all mortgage team members, including a fingerprint check with the FBI, and take appropriate action if the need arises.

Although Quesada was supposedly a good employee and worked in phone customer service where she never handled cash on the job, according to Wells Fargo spokesman Jim Hines since the company is an insured depository institution they are “bound by federal law that generally prohibits us from hiring or continuing employment of any person who we know has a criminal record involving dishonesty or breach of trust.”  As soon as the background check revealed her past offenses, Wells Fargo was evidently left with no choice but to let her go.

Interestingly, the news of Quesada’s firing comes on the heels of the EEOC’s release of their updated and streamlined guidance on the hiring of individuals with criminal records. The new guidelines update data and consolidate prior EEOC policy statements into one document while illustrating the application of Title VII of the Civil Rights Act of 1964 to various scenarios relating to the arrest or conviction history of a current or prospective employee.

In many instances, the EEOC recommends that employers afford applicants the opportunity to explain past offenses on their record before automatically rejecting their application.  Quesada, for one, agrees with that theory and thinks she should have been allowed to explain her situation. While there is validity that banking institutions hiring workers are bound by specific regulations and need to exercise caution and sensitivity to potential issues stemming from the hire of employees with criminal histories, there is no concrete time limit indicating when it’s safe to hire an ex-offender. Many employers stick with an arbitrary statute of limitations somewhere between five and ten years.

Since her story went public, many are sympathizing with Quesada and several other former Wells Fargo employees have stepped forward stating that they know what she’s going through and have faced similar firings. Among them, Shavonne Mortonson, who was supposedly terminated for a retail theft case 15 years ago in which someone she was with shoplifted. Even though she didn’t herself actually  commit a crime, was never convicted and the case against her was dismissed, she still lost her job.

Mortonson, who says she received performance based raises and bonuses, believes, “We were just discarded with no thought given to whether we were serving our purpose as Wells Fargo employees or if the cases in questions in any way affected our ability to contribute to Wells Fargo.”  Yet another former employee fired for a misdemeanor theft conviction says the company knew about it when they hired her four years ago and doesn’t understand if “it was not a liability issue then, why are they making it a liability issue now?”

Wells Fargo contends that they were acting justly based on Section 19 of the FDIC and while the terminations may seem harsh, Hines believes Wells Fargo took appropriate action in following the regulations set in place to “protect the interest of consumers who put their trust in financial service companies.” Additionally, Wells Fargo could be protecting themselves from the costly risk of violation potentially resulting in hefty penalties of fines up to $1 million per day and imprisonment.

Quesada, on the other hand, says that nowhere in the termination letters are those details included. Besides, it appears if Wells Fargo really valued these employees, they could apply for an FDIC waiver to consider the nature of the offense, the offender’s age at the time and evidence of rehabilitation since then. The law does not automatically exclude crimes because they were decades ago, but has been interpreted to disregard civil tickets and misdemeanors that can be shown to be isolated and minor.

While public opinion seems to side with Quesada and the others terminated for instances thought to be long forgotten, it appears Wells Fargo acted appropriately and legally and it does not look good for action against them. Quesada, who is fighting to be reinstated to her position or receive a severance package, says she understands their side, but hopes that by going public, if nothing else, she will help other employees and perhaps a more compassionate screening system will eventually be instituted.


Apr 242012

According to an April 20th opinion by the EEOC, an employer who discriminates against an applicant or employee on the basis of gender identity is violating the sex discrimination prohibition of Title VII of the Civil Rights Act.

On Monday, April 23, the EEOC announced its unanimous ruling in the case of Mia Macy, a transgender woman who was allegedly denied a job as a ballistics technician at the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives’ Walnut Creek, California laboratory. In the ruling, the Commission stated:

“[W]e conclude that intentional discrimination against a transgender individual because the person is transgender is, by definition, discrimination ‘based on… sex,’ and such discrimination therefore violates Title VII.”

In this week’s installment of The Proactive Employer, we’ll talk about the EEOC’s historic decision, what it could mean for the future of transgender discrimination cases, pending legislation relating to LGBT discrimination, and what employers should do now to ensure their workplaces are free from LGBT discrimination. The installment will air on Friday, April 27th at 8:30 AM Eastern on BlogTalkRadio and will be available for on-demand listening at The Proactive Employer website, on mobile devices via BluBrry and via iTunes following the broadcast.