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LABOR & EMPLOYMENT LAW — 01/14/10

Saks Fifth Avenue, EEOC settle suit for disability bias at New Orleans store

New York-based retailer Saks Fifth Avenue has agreed to pay $170,000 to settle an Americans With Disabilities Act (ADA) suit brought by the US Equal Employment Opportunity Commission (EEOC), announced the agency on January 7, 2010. The settlement resolves a charge filed by a former Saks makeup artist, Marlene Babin, that Saks fired her from its New Orleans store because of her disability, ulcerative colitis.

Allegations. Babin began working for Saks in 2000, according to the EEOC's lawsuit (EDLa, No 08-4464). She was diagnosed with ulcerative colitis, an inflammatory bowel disease, in 1999. From February of 2004 through December of 2004, Babin underwent five major surgeries in connection with her colitis. During this time, she spent a total of three months in the hospital and had to take four extended medical leaves of absence from work.

In January of 2005, while Babin was recovering from her fifth surgery, Saks informed her that she had to return to work in February or be fired, claiming that she had exhausted her available leave, the EEOC alleged. But in fact, Babin had more than 900 hours of available paid leave balances, the federal agency said. Although Babin had been scheduled by her surgeon to return to work in March, she obtained a release to return earlier, to avoid being fired.

Just before her return, Babin fell and broke her wrist. On the next work day, Saks told Babin that she was terminated, effective immediately, because she had allegedly exhausted her available leave, and because she could not be accommodated to work with her broken wrist, even though Babin had been working with the broken wrist for six days, according to the EEOC. However, two other employees in the New Orleans store had in recent years worked with a broken wrist or hand, and were not fired, the EEOC said. Saks told Babin to reapply once her wrist had healed.

On the day after her cast was removed, Babin applied for an open makeup artist position at the store's La Mer counter. Six weeks later, Babin interviewed for the La Mer position. That same day, Saks sent Babin a letter stating that it did not have any positions appropriate for her background, even though Babin had more than 20 years of experience as a makeup artist, the EEOC asserted. Saks left the position vacant for about two months, later hiring a non-disabled person with no full-time experience as a makeup artist, the federal agency said.

Saks later admitted that Babin had in fact been "very qualified" for the La Mer position. The EEOC contended that Saks fired Babin because of her colitis, and that the issue of her broken wrist was merely a cover for its discriminatory motives.

Settlement. Besides the monetary award, the company agreed to a number of measures, such as implementing a written policy on disability discrimination and having supervisory and human resources staff undergo training on disability discrimination on an annual basis during the two-year period of the consent decree.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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