Saks Fifth Avenue Settles EEOC Disability Discrimination Suit

New Orleans Store Fired Employee Because of Ulcerative Colitis, Federal Agency Says

HOUSTON — Saks Fifth Avenue, the high-end retailer based in New York City, has agreed to pay $170,000 to settle a disability discrimination suit brought  by the U.S. Equal Employment Oppor­tunity Commission (EEOC), the agency  announced today. The settlement resolves the charge of a former Saks makeup artist, Marlene Babin, who claimed that Saks  fired her from its New Orleans store because of her disability, ulcerative colitis.

According to the EEOC's suit (No. 08-4464 in U.S. District Court for the Eastern District of Louisiana), Babin began working for Saks in 2000. 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. In fact, Babin had more than 900 hours of available paid leave balances, the EEOC 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, however, she 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.  However, two other employees in the New Orleans store had in recent years worked with a broken wrist or hand, and were not fired. 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 said. Saks left the position vacant for about two  months, later hiring a non-disabled person with no full-time experience as a makeup artist.

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.

Disability discrimination violates  the Americans With Disabilities Act of 1990 (ADA). The EEOC filed suit after first attempting to reach a pre-litigation settlement. Babin was also represented by private attorney Jeffrey T. Greenberg.

After extensive sworn deposition testimony was taken from witnesses in the case, Saks filed a motion with the  court, asking that the suit be dismissed for lack of evidence. Federal Judge Martin L.C. Feldman, presiding  for U.S. District Court in New Orleans, issued a 30-page decision in which he denied Saks's motion to dismiss the case  and set forth reasons why a jury could find in Babin's favor. The decision set the stage for a jury trial, which will not be necessary now because of the 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.

Babin commented on the settlement,  "I was devastated when Saks fired me and then refused to hire me back. I loved my job and took a lot of pride and joy from working with people. The  court's decision in refusing to throw my case out means a great deal to  me. I am grateful that I had the oppor­tunity to have my story heard. I feel that by this settlement, justice was served."

Jim Sacher, the EEOC's regional attorney in Houston, who is in charge of all EEOC litigation in Louisiana, said, "This is a strong and appropriate settlement. The allegations here were very serious and  were supported by a wealth of solid evidence. Ms. Babin was an excellent employee who did not deserve to be fired because of her disability. We are  pleased that Saks has agreed to compen­sate Ms. Babin and to take additional steps which will benefit employees and applicants in the future. The EEOC will continue to scrutinize  situations like this very closely, and to file suit where necessary to enforce  the ADA."

According  to company information, Saks has 53 stores nationwide and employs approximately 15,000 people. In 2009, Saks reported a  net worth of more than $900 million.

The EEOC enforces federal laws prohibiting employment  discrimination. Further information about EEOC is available on its web site at www.eeoc.gov.