Employment and Workplace Issues

Australian Building Company Signs EU After Disability Discrimination
Asia Pacific

The Australian Fair Work Ombudsman (FWO) has announced that building materials company James Hardie has signed an enforceable undertaking (EU) with the FWO and agreed to pay a prospective employee AU$30,000 in compensation, after it refused to employ him due to his disability. James Hardie offered the man the position of business development manager in 2010 “but failed to inform him at the time the offer was conditional on him satisfactorily completing a medical assessment”. Although “[t]he advertised position did not mention any physical requirements of the job”, the applicant “disclosed a long-term shoulder injury” and James Hardie withdrew the job offer based on a medical assessor’s report. However, James Hardie never showed the applicant this report, instead revoking the job offer “despite the [FWO's] concerns that physical work was not an inherent part of the business development manager’s position”. The FWO said that the company could have made minor adjustments to the position in order for the applicant to avoid physically strenuous work and added that “[e]mployers need to ensure that medical assessments are confined to assessing a worker’s ability to perform tasks that are an inherent part of the position”. As part of the EU, James Hardie will, inter alia, advertise its breaches and publicly apologise for them, implement anti-discrimination training for recruitment staff, “establish an ongoing anti-discrimination training program” and “review its recruitment and discrimination policies, in particular in relation to the use of medical examinations, and report the results of the review to the [FWO]“.

FWO’s media release (1 June 2012)
(Source: FWO)

US Justice Department Settles Government Employment Discrimination Case

The United States (US) Department of Justice (DoJ) has announced that Pierce County, Washington has agreed to enter a consent decree with regards to allegations that the county, through its agents at the Pierce County Assessor-Treasurer’s Office, had discriminated against administrative officer Sally Barnes because she had engaged in activity protected under Title VII of the Civil Rights Act of 1964. The DoJ alleged that Ms Barnes had suffered “multiple adverse employment actions’ between 22 January and 30 November 2009, “including the loss of her administrative officer and other supervisory duties, exclusion from important meetings and information necessary for the management of her division and an involuntary relocation to an undesirable work location”.

DoJ’s media release (1 June 2012)
(Source: DoJ)

US Rehabilitation and Nursing Company Settles Discrimination Case

The United States (US) Equal Opportunity Commission (EEOC) has announced that Health Partners, Inc., a Southfield, Michigan rehabilitation and nursing company, has agreed to a two-year consent decree that requires it to pay US$25,000 to an employee who could not work after her preliminary skin test was positive for tuberculosis. The EEOC claims that the test requirement violated the Americans with Disabilities Act (ADA) because Health Partners, Inc. regarded the employee as disabled despite her not being contagious and posing any health risk. The company has also agreed to provide training to hiring process employees on ADA requirements.

EEOC’s media release (30 May 2012)
(Source: EEOC; US Department of Justice)

US Hospital Settles Disability Lawsuit

The United States (US) Equal Opportunity Commission (EEOC) has announced that Children’s Hospital Colorado (the Hospital) in Aurora, Colorado has settled a lawsuit arising from the Hospital’s withdrawal of an offer of employment to Cecilia McMurray after it emerged during a mandatory pre-employment health screen that she had fibromyalgia. The Hospital has agreed to enter a consent decree, and must pay US$95,000 to Ms McMurray, in addition to providing training to all hiring process employees on Americans with Disabilities Act requirements.

EEOC’s media release (31 May 2012)
(Source: EEOC; US Department of Justice)

Wal-Mart Settles Religious Discrimination Case

The United States (US) Equal Opportunity Commission (EEOC) has announced that retailer Wal-Mart has agreed to a consent decree under which it must pay US$70,000 in monetary and other remedies to an assistant manager in Seattle, Washington, who was a devout Mormon and had refrained from working on Sundays due to religious observance. Wal-Mart had apparently allowed the employee to do so from 1995 until 2009 when, under a new scheduling system, Wal-Mart began disciplining the employee for missing work on Sundays when he could not find a replacement. The EEOC found Wal-Mart’s actions violated Title VII of the Civil Rights Act of 1964, which requires employees to reasonably accommodate the sincere religious beliefs of an employee unless such accommodation unduly burdened the employer. The consent decree also requires Wal-Mart to provide training to human resources personnel on religious accommodation and anti-retaliation.

EEOC’s media release (1 June 2012)
(Source: EEOC)