Dallas-based property management company, Alden Short and Hinson Jennings, LLC (“Alden Short”) will pay $85,000 and furnish other relief under a consent degree entered in the EEOC v. Alden Short & Hinson Jennings, LLC national origin harassment lawsuit. Part of the deluge of discrimination suits the EEOC is prosecuting under the Biden Administration’s civil rights agenda, the litigation highlights the advisability of all employers covered by federal discrimination laws to tighten their compliance and risk management efforts.
Alden Short Judgement
The U.S. Equal Employment Opportunity Commission (“EEOC”) originally filed the lawsuit in the Northern District of Texas in 2018 pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §2000e et seq. (“Title VII”), and Title I of the Civil Rights Act of 1991, 42. U.S.C. §1981a,
The EEOC alleges that that owner and president and the chief operating officer (COO) of Alden Alden Short subjected Claudia Guardiola, Linda Spears, and Leticia Stewart to a hostile work environment in violationn of federal law because of their Hispanic national origin by making disparaging comments relating to their national origin to the employees relating to their heritage, parents and children.
According to Assistant Regional Attorney Suzanne Anderson, one former employee said the COO told her he could treat her any way he wanted to because she is Mexican. Alden Short and Hinson Jennings to Pay $85,000 to Settle EEOC National Origin Discrimination Suit (April 6, 2023).
According to EEOC Trial Attorney Brooke López, the employees complained because these companies rent to tenants in predominantly Hispanic communities, yet management treated their Hispanic employees with disparagement or discrimination, Id.
The EEOC alleged this comment violated Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on national origin.
Prior to agreeing to the consent decree, Alden Short in October, 2020 unsuccessfully sought summary judgment on the suit, arguing insufficient evidence to raise a genuine dispute of material fact regarding the third and forth elements of the EEOC’s hostile work environment claim as required to establish a prima facie case of harassment as well as that Alden Short was not an employer under Title VII
In his September 21, 2021 opinion denying summary judgment to Alden Short, U.S. District Judge Sam Lindsey noted that while the EEOC characterized the alleged improper discrimination as national origin discrimination, the allegations in the EEOC’s Complaint more clearly alleged a race claim, as the Complaint suggested but does not expressly state the womens’ country of birth or that of their ancestors. In ruling the failure to allege the country of origin in the complaint insufficient to merit summary judgement, Judge Lindsey noted:
National origin, though often confused with race, refers to “the country where a person was born, or, more broadly, the country from which his or her ancestors came.” Espinoza v. Farrah Mfg. Co., 414 U.S. 86, 88 (1973). In any event, in some contexts national origin and racial discrimination are “so closely related . . . as to be indistinguishable.” Bullard v. OMI Georgia, Inc., 640 F.2d 632, 634 (5th Cir. Unit B 1981). Discrimination against Hispanics is often referred to interchangeably under both of these categories. Cf., e.g., Gonzalez v. Trinity Marine Group, Inc., 117 F.3d 894, 895-96(5th Cir. 1997) (claim under 42 U.S.C. § 1981). Accordingly, the court will consider the EEOC’s Complaint as sufficiently alleging a claim for discrimination based on national origin.
In addition to paying the any uninsured legal defense costs of the protracted litigation, the three-year consent decree settling the suit entered April 4, 2023 orders Alden Short to pay $85,000 in damages to the Hispanic employees, prohibits its future discrimination and requires Alden Short to develop and implement a new employee handbook and to provide employees with annual training on discrimination.
Discrimination Exposures Heightened
The Alden Short lawsuit and order are illustrative of the rise in EEOC and private civil rights and other employment discrimination and retaliation investigations, charges, and lawsuits under the proactive civil rights agenda of the Biden Administration.
In pursuit of its mission to advance equal employment opportunity, the EEOC focused on several major areas during FY 2022, including aggressive educational outreach, addressing systemic discrimination, advancing racial justice in the workplace, enforcing pay equity, and addressing the use of artificial intelligence in employment decisions.
Among other things, the EEOC 2022 Annual Performance Report (APR) (“2022 Data”) shows EEOC has seen an uptick in complaints filed by workers. In Fiscal Year (“FY”) 2022, the agency received 73,485 new discrimination charges, which represents an increase of almost 20% when compared to the previous fiscal year. The agency also handled more than 475,000 calls —an 18% increase from FY 2021—and managed 32% more emails from the public than the previous year.
To help manage the increased demand and strengthen the agency’s ability to prevent and remedy employment discrimination, the EEOC specifically focused on growing its workforce to meet growing requests for its assistance by filling 352 new positions and 500 total staff vacancies in FY 2022, the majority of which were in frontline positions.
The effects of this proactivity is confirmed by the 2022 EEOC enforcement data. The agency marked several significant accomplishments in FY 2022.
- Obtained more than $513 million in monetary benefits for victims of discrimination, an increase from the previous fiscal year;
- Resolved over 65,000 charges of discrimination.
Meanwhile in the federal sector, the EEOC:
- Conducted more than 3,000 free outreach events reaching almost 220,000 individuals.
- Resolved 9,336 hearings;
- Recovered more than $132 million for federal workers and applicants; and
- Significantly reduced the federal hearing inventory by 25% from FY 2021 to FY 2022
EEOC appears to be continuing its aggressive enforcement into 2023. In March, 2023 alone, for instance, the EEOC announced the following discrimination and retaliation enforcement actions and results:
- EEOC Sues Sandia Transportation for Harassment of Female Employees;
- EEOC Sues Exact Sciences Laboratories for Age Discrimination in Hiring;
- J&M Industries Sued by EEOC for Age Discrimination;
- EEOC Sues T.C. Wheelers for Harassing and Driving Out Transgender Employee;
- EEOC Sues Walmart for Disability Discrimination;
- EEOC Sues PRC Industries for Racial Harassment and Retaliatory Termination;
- Total Employment and Management to Pay $276,000 to Resolve EEOC National Origin, Retaliation Charge;
- EEOC Sues Total Systems Services for Disability Discrimination and Retaliation;
- EEOC Sues Walmart for Disability Discrimination;
- Federal Court Awards More Than $2.6 Million to EEOC Against Green JobWorks LLC ;
- EEOC Sues Otis Elevator Company for Disability Discrimination;
- DHI Group, Inc. Conciliates EEOC National Origin Discrimination Findin;
- EEOC Scores Summary Judgment Win Against UPS in Disability Discrimination Case;
- ResourceMFG to Pay $75,000 to Settle EEOC National Origin Discrimination Suit;
- EEOC Sues Subway Franchises for Unlawful Employment Practices on the Basis of Race and Color;
- EEOC Sues Papa John’s Pizza for Disability Discrimination;
- EEOC Sues Innovative Services NW for Disability Discrimination;
- Owners and Managers of Kingston Properties Pay $240,000 in Sex Harassment Settlement; and
- Exxon Mobil Corporation Sued by EEOC for Race Discrimination.
These and other developments, send a strong message to businesses and business leaders to audit and strengthen their employment, discrimination and retaliation compliance and risk management efforts. When assessing risk, businesses should keep in mind the possibility that COVID-19 related operational disturbances likely affected compliance oversight, investigations, training, recordkeeping and other risk management. COVID and post COVID job changes also offer new fodder for potential retaliation claims. Staffing changes also may affect the availability of critical witnesses and their testimony. Businesses should review their situation broadly within the scope of attorney-client privilege when assessing a particular charge or their broader organizational risk. Reassessment if the adequacy of liability insurance and other reserves also may make sense. Public companies also should weigh their prospectus and other disclosure obligations.
We hope this update is helpful. For more information about the these or other health or other legal, management or public policy developments, please contact the author Cynthia Marcotte Stamer via e-mail or via telephone at (214) 452 -8297.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 35+ years of workforce and other management work, public policy leadership and advocacy, coaching, teachings, scholarship and thought leadership.
A Fellow in the American College of Employee Benefit Counsel, Vice Chair of the American Bar Association (“ABA”) International Section Life Sciences and Health Committee, Past Chair of the ABA Managed Care & Insurance Interest Group, Scribe for the ABA JCEB Annual Agency Meeting with HHS-OCR, past chair of the ABA RPTE Employee Benefits & Other Compensation Group and current co-Chair of its Welfare Benefit Committee, Ms. Stamer’s work throughout her 35 year career has focused heavily on working with employer and other staffing and workforce organizations, health care and managed care, health and other employee benefit plan, insurance and financial services and other public and private organizations and their technology, data, and other service providers and advisors domestically and internationally with legal and operational compliance and risk management, performance and workforce management, regulatory and public policy and other legal and operational concerns. As an ongoing component of this work, she regularly advises, represents and defends employers, PEOs, staffing, employee leasing and other businesses about worker compensation, payroll and other tax, wage and hour and other compensation and employee benefit, occupational health and safety, contracting, compliance, risk management and other internal and external controls in a wide range of areas and has published and spoken extensively on these concerns. She also has decades of regulatory and other government affairs experience with these concerns including defending these and other businesses before the IRS, EBSA, WHD, EEOC, OCR, HHS, state labor, insurance, and other authorities, and evaluating and responding to federal, state and local statutory, regulatory and enforcement actions by federal and state legislators and regulators. A prolific author and popular speaker, Ms. Stamer also is widely recognized for her decades of pragmatic, leading edge work, scholarship and thought leadership on workforce, compensation, and other operations, risk management, compliance and regulatory and public affairs concerns.
For more information about Ms. Stamer or her health industry and other experience and involvements, see www.cynthiastamer.com or contact Ms. Stamer via telephone at (214) 452-8297 or via e-mail here.
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