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EEOC - Page 4 - 2000

The Unites States Equal Employment Opportunity Commission: 1-800-669-4000

"If you do not look out for your own interests, no one else will"

Best Buy EEOC Sexual Harassment Complaint

Dow Jones - December 13, 2000

WASHINGTON, Dec. 13 /PRNewswire/ -- The Council on American-Islamic Relations (CAIR) announced today that it has filed an EEOC complaint against Minnesota-based Best Buy Co., one of the nation's largest electronics retailers, after that company failed to resolve a case of sexual harassment involving a female Muslim employee in Maryland. (Best Buy operates more than 350 retail stores in 39 states.) The filing of an EEOC complaint is necessary prior to any lawsuit.

According to the Best Buy employee, who wears a religiously-mandated headscarf, a supervisor repeatedly made sexually explicit comments, which she tried to ignore. On September 8, 2000, the worker says the supervisor approached her from behind in a state of sexual arousal and whispered, "This is (for) you, This is (for) you," while rubbing against her.

The next day the supervisor again approached the Muslim woman, grabbed her hand and attempted to pull her close to him. She resisted and told him to stop and indicated that she was a married woman. The supervisor allegedly said: "That is good, because I am married too, I won't have to worry about my wife finding out because we both would have a lot to lose." He did not stop the harassment until another worker intervened.

Following that incident, the woman asked for time off because she no longer felt comfortable in the store. She said other workers who heard about the incident were avoiding her. Company officials allowed her to take time off but said she would not be paid and that the negative co-worker reactions were a result of the employee "running her mouth" about the incident.

In two letters to Best Buy, CAIR demanded that the company: 1) Reprimand the supervisor for his actions. (The supervisor was subsequently terminated.) 2) Institute sensitivity training for Best Buy supervisors. 3) Offer the Muslim employee a formal apology. 4) Offer compensation for any humiliation and emotional distress that she has suffered as a result of the harassment.

A similar case resulted in a female employee of Wal-Mart in Missouri being awarded 50 million dollars by a jury that found she was subjected to a hostile work environment.

CAIR Civil Rights Coordinator S. Eric Shakir wrote to Best Buy: "It is...clear that Best Buy felt comfortable discriminating against (the employee) as harshly as she was for three reasons: 1. She is Muslim, 2. She is African-American, and 3. She is a woman.

"Had the victim not been a member of the above groups, we are confident that Best Buy's response would have been more appropriate. Instead, Best Buy chose to pressure (the employee) in the hopes that she would "break," absolving Best Buy of the responsibility to do anything at all in the form of just compensation ... This ... is one of the most egregious cases of discrimination we have ever seen ... " EEOC guidelines define sexual harassment as "unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature."

CAIR has resolved cases involving accommodation of Islamic religious practices at major corporations such as Seneca Foods, Seagate Technology, JCPenney, Domino's Pizza, Cox Communications, Dunkin' Donuts, McDonald's, Taco Bell, Solectron, Sears, Argenbright Security, Burger King, Office Max, Office Depot, and others. The group publishes a booklet titled "An Employer's Guide to Islamic Religious Practices," designed to prevent these types of incidents from occurring.

Workers Suing For Age Bias Can Keep Severance

The Wall Street Journal - December 12, 2000

WASHINGTON -- Workers who accept severance pay in exchange for waiving their rights to sue for age discrimination may still challenge those agreements in court without first having to give back the money, the U.S. Equal Employment Opportunity Commission said.

The decision -- though long expected - came under criticism from business groups, which predicted it would encourage lawsuits by laid-off employees and discourage companies from offering severance packages. Workers' advocates said the new rule clarifies existing law and does not unduly burden employers.

The agency's action stems from a 1998 Supreme Court decision that held that workers who agree not to sue their employers can still do so if their waiver agreement doesn't meet federal rules protecting older worker's benefits. Those rules include a requirement that employers give employees 21 days to sign a waiver and a seven-day period to rescind the agreement after signing.

The Supreme Court case -- Oubre vs. Entergy Operations Inc. -- involved a power-plant employee in Louisiana who was encouraged to leave the company after she received a poor performance review. Although the woman signed a release giving up her right to sue and accepted severance pay, she later sued, alleging that she had been pressured to quit because of her age, 41 at the time. Her employer tried to have the case thrown out because she refused to return the money.

As a result of the Supreme Court's decision, EEOC officials said, some companies tried to evade federal requirements by cloaking waiver agreements in different names, such as "covenants," even though their intention - to discourage lawsuits -- was essentially the same. The agency's new rule makes clear that such agreements -- no matter what they're called -- can't force terminated workers to "sign away their rights," said Ellen Vargyas, an EEOC attorney.

"We're not trying to create windfalls here - just enforcement of existing law," Ms. Vargyas said.

Business groups, such as the U.S. Chamber of Commerce, predicted the ruling would lead to more lawsuits, because employees who can keep their severance pay and still sue their former employer will have little to lose.

"Many employers may say it's not worth it to offer these enhanced severance agreements to begin with," said Randel Johnson, vice president for labor and employment at the Chamber of Commerce. "It's going to have a chilling effect."

Mr. Johnson said his group had not decided whether to file suit in federal court to challenge the new rules, which take effect early next year.

Forcing Pledge Not to Sue


The Equal Employment Opportunity Commission - December 11, 2000

New Regulation Addresses Supreme Court Ruling on Waivers under Age Bias Law

WASHINGTON - The U.S. Equal Employment Opportunity Commission (EEOC) today announced the publication of a final regulation prohibiting the return, or "tender back," of consideration in connection with challenges to waivers under the Age Discrimination in Employment Act (ADEA). The new rule, scheduled to appear in today's Federal Register, addresses the Supreme Court's 1998 decision in Oubre v. Entergy Operations, Inc. (522 U.S. 422) and related issues regarding waivers. The full text of the rule, as well as a supplementary question- and-answer document, will be available shortly on the Commission's Web site at

"The issuance of this regulation supports the vigorous enforcement of the ADEA's provisions regarding the use of waivers in layoffs and reductions in force, in accordance with the Supreme Court's decision in Oubre," said EEOC Chairwoman Ida L. Castro. "By providing detailed guidance on the tender back question, the rule will enhance the ability of both employers and employees to understand and comply with the law."

An ADEA waiver is an agreement between an employer and employee in which the employee gives up the right to pursue an age discrimination claim against the employer in exchange for severance or early retirement benefits or something else of value. Employees are often asked to sign waivers in connection with layoffs or RIFs.

Under Title II of the Older Workers Benefits Protection Act of 1990 (OWBPA), which amended the ADEA, Congress decided to permit these waivers but set out a series of specific requirements with which waivers must comply to be valid. Although employers may ask for waivers, they must also comply with the ADEA requirements to ensure that the process is fair.

Consistent with the Supreme Court's ruling in Oubre, the regulation provides that an employer may not require an employee to return, or "tender back," severance pay or other benefits in order to challenge a waiver as inconsistent with the ADEA.

In addition, the rule prohibits the imposition of other financial penalties against an employee simply for challenging a waiver in court. It does, however, protect an employer's ability to recover attorney's fees if a challenge is filed in bad faith. The rule also sets out standards regarding when an employer may obtain restitution of funds it has paid an employee and what an employer's duties are when a waiver is challenged. EEOC published a Notice of Proposed Rulemaking on the tender back issue in the Federal Register on April 23, 1999 . The Commission subsequently received 27 comments from representatives of employers and employees. After careful consideration of the comments, EEOC approved the revised final regulation in accordance with the federal rulemaking process.

This is EEOC's second regulation interpreting OWBPA's waiver provisions. EEOC previously issued a negotiated rule addressing waivers in June 1998 (29 C.F.R. Section 1625.22) which, among other things, prohibited any requirement that an older worker return severance or other benefit payments before filing an administrative charge of age discrimination with EEOC. However, the rule did not address tender back with respect to ADEA lawsuits.

In addition to enforcing the ADEA, which prohibits discrimination against individuals 40 years of age or older, EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin; sections of the Civil Rights Act of 1991; the Equal Pay Act; Title I of the Americans with Disabilities Act, which prohibits discrimination against people with disabilities in the private sector and state and local governments; and the Rehabilitation Act's prohibitions against disability discrimination in the federal government.

This notice on the EEOC site

The full ruling on the EEOC site

More Leeway in Age-Bias Suits

The Washington Post - December 11, 2000

The U.S. Equal Employment Opportunity Commission plans to issue new regulations today that allow people who accept severance pay in exchange for waiving their right to sue for age discrimination to challenge those agreements in court without having to first give back that money.

The new rule is meant to clarify a 1998 U.S. Supreme Court decision that said workers who sign such agreements can still sue their employers if the agreements do not meet federal requirements.

Some lawyers and employers' groups have criticized the new rule, saying it would lead to a wave of lawsuits by employees who now have nothing to lose. They also say employers now could be less likely to offer these types of severance packages.

The EEOC said, however, that it is only trying to fill in holes left by the Supreme Court and to make it easier for older workers to test the validity of these agreements in court.

In 1998, the Supreme Court said that a person may not forfeit his right to sue, even if he has accepted severance pay, if the agreement does not meet federal requirements aimed at protecting against age bias. For example, employers must provide workers at least 21 days to consider the agreement and at least seven days to revoke the agreement after signing it.

The Supreme Court case was brought by a power plant employee in Louisiana who was encouraged to leave the company after she received a poor performance review.

Despite signing a release giving up her right to sue and accepting severance pay, she later filed a federal lawsuit alleging that she was pressured to quit because of her age--41 at the time. Her employer asked that the case be dismissed because she refused to return the money.

In addition to spelling out rules against forcing a worker to return severance pay to sue, the new guidelines protect older workers who file age discrimination suits in several other ways.

For example, the rules prohibit an employer from forcing workers to pay the employer's attorney's fees and require employers to continue to pay any retirement benefits to workers while a case is pending.

The guidelines also say that no matter what an agreement giving up the right to sue is called, it still must meet federal laws governing waivers. Some employers had tried to get around those laws by having employees sign other types of agreements, EEOC lawyers said.

Northwest Settles Harassment Case

Dow Jones - December 8, 2000

SAN FRANCISCO -(Dow Jones)- Northwest Airlines Corp. (NWAC) reached an agreement with the Equal Employment Opportunity Commission resolving a complaint concerning a Filipino American employee who found a noose in his locker.

In a press release Friday, Northwest Airlines said it denied liability in the case and reconfirmed its commitment to a "zero tolerance" policy toward workplace harassment.

The company also agred to provide additional training to its maintenance employees at San Francisco airport, where the incident occurred in 1996.

According to The San Francisco Chronicle, Marcel Espiritu, the employee who originally filed the complaint in January, reached a separate settlement with the airline for an undisclosed sum. In its suit, the EEOC supervisors and co-workers subjected Espiritu to racial slurs and mocked his accent over a five-year period. After he complained to the EEOC, he found a noose and a note that said "Get Marcel" in his locker, the suit said.

Swift Transportation Settles Suit

Dow Jones - December 7, 2000

PHOENIX -(Dow Jones)- Swift Transportation Co. (SWFT) agreed to settle a U.S. Equal Employment Opportunity Commission lawsuit by increasing the wages of four current female employees. Swift also provided the employees, and two female former employees, with an undisclosed lump sum payment.

The EEOC lawsuit had alleged that the six women were paid less than their male counterparts. In a press release Thursday, Swift said it settled the matter to avoid the "significant costs" of litigation and management distraction.

The settlement doesn't constitute an admission of wrongdoing, said Swift, and won't have a material adverse impact on financial results.

Swift had denied the allegations and any liability, saying it has nondiscriminatory employment policies.

Sara Lee Settles EEOC Suit

The Charlotte Observer - December 2, 2000

The U.S. Equal Employment Opportunity Commission said Friday it settled a racial harassment lawsuit against Sara Lee Corp.

The EEOC had filed the April lawsuit on behalf of Jeffery Hemphill, an employee at Sara Lee's former facility in Forest City.

The EEOC had alleged that the discrimination included racially derogatory comments, name-calling, jokes, graffiti and the hanging of at least one noose in the workplace.

The Chicago-based company denied the allegations.

As part of the agreement, Sara Lee Corp. has agreed to train its employees and managers on EEOC laws and the company's anti-discrimination policy. The settlement, which still must be approved by the court, also includes a payment to Hemphill.

Federal Judge Orders Morgan Stanley to
Turn Over Complaints of Discrimination

Dow Jones - November 28, 2000

NEW YORK -- A federal judge ordered Morgan Stanley Dean Witter & Co. to turn over all formal complaints of race or sex discrimination filed by its employees to the Equal Employment Opportunity Commission.

U.S. District Judge Gerard E. Lynch in Manhattan issued the ruling on several subpoenas for documents in the commission's investigation of alleged race and sex discrimination filed by four African-American female employees of the firm.

Morgan Stanley (MWD) had argued that the production of such documents could undermine a potential settlement in at least one of the cases. The firm, which has more than 93,000 employees world-wide, also said the request for all complaints could be too burdensome.

The first charges were filed in June 1999 by Dawn Simmons, an African-American woman employed as an analyst in Morgan Stanley's derivative products group, who said she was denied equal pay because of her race. She also alleged "continuous mistreatment" of other African-American employees of the firm. Three other female Morgan Stanley employees -- a sales assistant and two staff members of the firm's insurance operations department -- filed similar charges of discrimination months later.

A Morgan Stanley spokesman wasn't immediately available for comment.

In a similar matter last year, a different judge ordered the firm to produce all formal complaints of sex discrimination after Allison Schieffelin, a principal in the firm's institutional-stock division, filed gender-bias charges with the EEOC.

Ms. Schieffelin was fired from Morgan Stanley earlier this year and has since filed supplemental charges of discrimination and retaliation. Morgan Stanley has denied those charges.

Duke Age Bias Charge Under Investigation

Duke Energy Employee Advocate - November 27, 2000

From talks with Senator John Edward's staff, we verified that the cash balance plan age discrimination charge against Duke Energy Corporation is open and under investigation. This could be the best chance, and maybe the only chance, to regain your lost pension benefits.

This is NOT a class action charge. Only the employees who file a charge will have their case investigated for possible age discrimination. Complaining without action, will get you nothing but more of the same treatment. Remember the age limit for filing has been waived.

If you are a Duke Energy employee, and wish to file a cash balance plan age discrimination charge, keep reading.

Aggressive Stance Opposing Age Bias?

Duke Energy Employee Advocate - October 30, 2000

An e-mail message from Congressman Sanders' office explains: "The EEOC has been waiting to make sure that the Senate Finance Committee pension reform bill legalizing age discrimination in cash balance plans would not become law this year before they took any action."

This was a prudent move for the EEOC. It would have been foolish to have prepared an age discrimination case against cash balance conversions, only to have Congress retroactively legalize them.

The message further stated: "…We are hopeful that the EEOC will take an aggressive stance opposing age discrimination in cash balance plans."

If you have not filed your cash balance plan age discrimination charge against Duke Energy, you still have time. We talked to several people in the Charlotte, North Carolina EEOC Office last week. If you want to file a charge, they will take it.

Some employees who have been tied up working "outages" are now filing charges with the EEOC. Some employees are just starting outages. If you can possibly find the time, it is well worth you while to file a charge.

EEOC Cash Balance Plan Age Discrimination Facts:

  • The filing age limit has been waived for Duke Energy employees in North and South Carolina.

  • There is no cost to file a charge.

  • 1-800-669-4000 will connect you to the nearest EEOC office.

  • The charge can be filed in North or South Carolina.

  • No appointment with the EEOC is necessary to file an age discrimination charge. The Charlotte, N. C. office is loacted at: 129 West Trade Street, Suite 400 (fourth floor). Just walk in and file your charge

If you work for another company or live in a state other than N.C. or S.C., call the EEOC and inquire about your options. We know that IBM employees are also filing age discrimination charges.

Click the link below to read Congressman Sanders' message to us.

Good News From Congressman Sanders

Combating New Forms of Age Discrimination

The Equal Employment Opportunity Commission - posted 10/22/00

During the decade of the 1990s, age discrimination charge receipts grew dramatically. Companies consolidating and streamlining staff often chose mechanisms that adversely affected older workers. All in all, almost 170,000 ADEA charges were filed in this decade, more than half of which involved allegations of discharges or layoffs based of age.

Concerned about the Supreme Court's decision that permitted employers inroads to discriminate against seniors in retirement benefits, Congress passed the Older Workers Benefit Protect Act (OWBPA) in 1990, which overturned the Supreme Court's decision in Public Employees Retirement System of Ohio v. Betts and eliminated any ambiguity that the ADEA covers discrimination in fringe benefits. In the OWBPA, Congress made EEOC's "equal cost" rule that employers must either provide equal benefits or incur equal costs for the benefits of their older and younger workers part of the law. The OWBPA also addressed the growing concern regarding seniors effectively signing away ADEA rights as a condition for taking an employer-offered incentive for retirement. This practice of requiring waivers or releases of ADEA rights in some instances unfairly prejudiced senior workers who often were unaware of their rights, or did not have an adequate opportunity to consider their options. The OWBPA set standards for evaluating the validity of employee waivers under the ADEA.

In developing guidance interpreting these standards, the Commission opted for a fully consultative procedure. It invited 20 experts representing labor, management, and employees from both private industry and the public sector to assist in a "negotiated rulemaking" process. A final rule on waivers was issued in 1998. The Commission also published in 1999 a proposed rule applying and providing guidance on the 1998 Supreme Court decision that held that employees cannot be required to tender back money or other benefits received under a waiver as a condition for challenging the waiver's legality.

Issues concerning retirement benefits have continued to emerge. A new challenge facing the Commission is the legality of "cash balance" pension plans under the ADEA. Unlike traditional defined benefit pension plans in which the value of the benefit at normal age retirement tends to accumulate exponentially with seniority, the normal age retirement value of the benefit in a cash balance pension plan arguably accumulates in a manner that decreases with age. Because cash balance plans take various forms, are invariably complex, and may in some cases be detrimental to older workers, EEOC has established a nationwide intra-agency team to address the myriad unresolved issues and to coordinate the charges filed with the agency alleging age discrimination as a result of employers' conversions to such pension plans. The Commission has been coordinating with the Departments of the Treasury and Labor and with the Internal Revenue Service, all of whom have specific expertise and jurisdiction over questions affecting cash balance pension plans.

EEOC's litigation program produced many victories for older workers during the 1990s. Some examples include:

  • A 1993 consent decree with McDonnell Douglas Corp. involving allegations arising from a reduction-in-force affecting approximately 900 employees over age 55. EEOC secured re-employment of former employees for at least a four-year period, and $20.1 million in back pay and pension benefits.
  • A 1997 resolution against Martin Marietta Corp., wherein EEOC obtained $13 million in monetary relief for approximately 2,000 individuals, and an agreement to hire 450 persons, as well as to provide outplacement services and retraining for the affected employees.
  • A 1999 settlement with a New York insurance and brokerage firm paying $28 million to 13 individuals. This followed earlier favorable court decisions on liability, causing the employer to abandon its policy requiring employee-directors to retire at age 60 or 62.


New EEOC Compliance Manual

Duke Energy Employee Advocate - October 6, 2000

The U. S. Equal Employment Opportunity Commission has posted a new compliance manual at the link posted below. This is a great site to read about your rights under The Age Discrimination in Employment Act of 1967 (ADEA).

But please do not "knock yourself out" trying to decipher all the complexities regarding the cash balance plan issue. Many experienced attorneys have been studying the law for some time, with no resolution yet!

The best news is that you do not have to knock yourself out attempting to interpret law; the EEOC will do this for you, at no charge.

Duke Energy employees in North and South Carolina can file a cash balance plan age discrimination charge regardless of age! Call the EEOC at 1-800-669-4000, and ask to speak to an investigator.

If you work for another company or live in another state, call the same number and inquire about your situation. This number will connect you to the nearest EEOC office.

There have been over 800 charges filed against over 30 companies. Let's try to at least break a thousand charges filed! You will never get your retirement benefits back by merely wishing; it is time to take action!


EEOC - Page 3 - 2000