SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Disability discrimination remains a persistent problem in the workplace. But it does not happen only at work. Last month, a Norwood, New Jersey teenager was cut from her school’s volleyball team because she has epilepsy. After her father reported what he believed to be discriminatory conduct and demanded that the school adhere to her rights under the New Jersey Law Against Discrimination, she was permitted back on the team. Once she was playing again, however, she was subjected to bullying and harassment from her teammates that lasted the entire school year according to the Complaint filed by her father on October 1, 2020.

fullsizeoutput_3f-300x169Norwood is a small K-8 district where the minor plaintiff (referred to by her initials, EP) received special education and related services due to several disabilities including social anxiety and epilepsy. In addition to being a special education student at Norwood public school, EP was also a member of the volleyball team. Along with her teammates, she tried out for and made the team in her 6th and 7th grade years. When she tried out in her 8thgrade year, she was shocked when she found out that she was the only 8thgrade student who did not make it. When her father addressed his daughter’s removal from the volleyball team with school administrators, EP was allowed back on the team, but was subject to bullying by her teammates for the rest of the school year.

The family filed a Complaint in the New Jersey Superior Court for Bergen County against the Norwood Board of Education and Vito DeLaura, the principal of Norwood public school, alleging violations of the New Jersey Law Against Discrimination and Anti-Bullying Bill of Rights Act. In the lawsuit, the family alleges that Mr. DeLaura, who they claim has a history of singling out and humiliating EP due to her disabilities, instructed the volleyball coach not to let EP play. Specifically, the lawsuit claims the volleyball coach cut EP from the team because her epilepsy required the school to hire a nurse who would be present at all games and practices, creating a significant financial burden on the school district. The family claims that the subsequent bullying was due to EP’s disabilities and was not addressed properly by the school.

Late last month the state of California, the California Department of Fair Employment and Housing, the state of Minnesota, the Minnesota Department of Human Rights, the state of Maryland and the Maryland Commission on Civil Rights, together filed a lawsuit against the Equal Employment Opportunity Commission (EEOC) stemming from the EEOC’s decision to stop sharing important data with state and local “fairness in employment practices agencies” (FEPAs). The complaint filed in the Federal District Court for the Northern District of California alleges that the EEOC’s decision has negatively impacted state efforts to eradicate workplace discrimination and violates Title VII of the Civil Rights Act of 1964. It also alleges that the decision violates the federal Administrative Procedure Act, because the change was made without consultation or adequate notice to state FEPAs with whom the EEOC has longstanding worksharing agreements. The states and state agencies involved in the lawsuit are seeking an order setting aside the EEOC’s new policy and requiring the EEOC to reinstate FEPAs’ access to employment data.

What Is EEOC Data and Why Is It Important to The States?

Since 1966, spurred by the new legal requirements of Title VII of the Civil Rights Act of 1964 prohibiting employment discrimination based on race, color, religion, sex and national origin,the EEOC has required employers with 100 or more employees to report employment data broken down by job category, race, sex and ethnicity on forms called EEO-1s. The intent of the EEO-1 data is to help identify and eradicate workplace discrimination in accordance with Title VII. Specifically, Title VII requires employers to maintain records that can show whether unlawful employment practices have been committed, and to preserve and produce those records as mandated by the EEOC. In further support of that mandate, Title VII also requires that the EEOC maintain open communication and coordinate its efforts with FEPAs. In part, the EEOC must provide FEPAs employment information reported to it if the reporting employer is in the FEPA’s state. In return, FEPAs are bound by confidentiality provisions. Worksharing Agreements between the EEOC and FEPAs generally set forth terms governing the relationship between the two agencies and often require both agencies to make data available to the other if it will assist in carrying out their responsibilities under Title VII.

While there are federal and state laws that protect employees from racial discrimination in the workplace throughout the country, these laws are not always uniform in terms of the severity or pervasive enough of the complained of conduct that constitute an actionable hostile work environment.  Generally speaking, when the racially discriminatory conduct is so severe or pervasive as to change the nature of the job, a worker has grounds to bring a lawsuit for hostile work environment. But what type of conduct meets the standard for a successful claim? More specifically, can a single instance of race-based discrimination create a hostile work environment? The answer may depend on where the suit is filed. For example, in New Jersey, our courts have held that a single racial epithet can constitute a hostile work environment, while other courts outside New Jersey have adopted a strict rule that a single racial epithet, no matter how offensive, can never be enough to constitute a hostile work environment.

IMG_1E2345D1B7BA-1-300x225Earlier this month, a judge in the federal district court for the Northern District of Alabama granted a defendant employer summary judgment against three plaintiff employees’ claims of racial discrimination and hostile work environment. In Bone v. Alliance Investment Co., LLC, Case No. 5:18-cv-01706-LCB (N.D. Ala. Oct. 8, 2020), three African American carpenters sued their employer, claiming that supervisors frequently referred to them as the n-word behind their backs and routinely assigned them more physically demanding work than their white counterparts. One plaintiff was called the n-word directly to his face and others overheard it being used. The company argued that the employees had failed to present evidence that the harassing conduct was severe or pervasive enough to alter the terms or conditions of their employment. Agreeing, the court dismissed the hostile work environment claim with prejudice.Specifically, the court found that in order to establish a hostile work environment in the Eleventh Circuit, the plaintiffs had to show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” The test for severe and pervasive conduct is both subjective and objective, meaning that the environment became what a reasonable person would find hostile or abusive as well as one that the victim subjectively perceived to be abusive. The court found that although the behavior was subjectively abusive to plaintiffs, under the totality of the circumstances, a reasonable person would not find the workplace to be hostile. Recognizing the severity of the n-word, the court still held that because the plaintiffs’ job performance was not impacted by it, their claim for hostile work environment failed as a matter of law.

The Bone case is reminiscent of a 2019 case decided by recently appointed Supreme Court Justice, Amy Coney Barrett, when she sat on the U.S. Court of Appeals for the Seventh Circuit. In Smith v. Ill. Dept. of Transportation, 936 F.3d 554 (7thCir. 2019), an employee for the Illinois Department of Transportation was fired after a probationary period of employment during which he allegedly performed quite poorly. The employee sued the Department, arguing that it had subjected him to a hostile work environment and fired him in retaliation for his complaints about racial discrimination. The Circuit Court affirmed the dismissal of his claims for failing to establish a hostile work environment as a matter of law. In his lawsuit, the employee claimed he was treated differently from other employees due to his race and his supervisor called him the n-word during a confrontation. The employee was fired two weeks after the confrontation. Addressing the hostile work environment claim, the Circuit Court found that the majority of the harassment he cited was unconnected to his race and arose from generally unpleasant and profane language that was used routinely toward all employees. The one incident, however, that plainly constituted race-based harassment was when one of his supervisors called him a “stupid ass [n-word]” after finding out that he had filed a complaint with the Equal Employment Opportunity office. The Court noted that “while there is no ‘magic number of slurs’ that indicates a hostile work environment, an ‘unambiguously racial epithet falls on the more severe end of the spectrum.’” Even still, a plaintiff cannot win a hostile work environment claim simply by proving that the word was said unless he can also show that it altered the conditions of his employment. Unlike in Bone, the Seventh Circuit Court found that the plaintiff failed to prove even his own subjective belief that being called the n-word created a hostile work environment. The court found that because his entire employment had been rocky, and by the time he was called the n-word his termination proceedings were already under way, there was no proof that the racial slur changed the always unpleasant work environment. Because he could not show that the distress he suffered from being called the n-word was distinct from the distress he suffered routinely at work, the plaintiff’s claim for hostile work environment was dismissed.

In the wake of several recent equal pay settlements between female university professors and their employers, the newest litigation of this ilk has popped up in New Jersey. A lawsuit filed under the New Jersey Equal Pay law in state court last week by five women professors at Rutgers University alleges that they are paid significantly less than their male counterparts. Three of the five plaintiffs are world-renowned scholars in their fields, having published multiple books, hundreds of articles, given numerous presentations, and won several awards. In fact, two of the plaintiffs have achieved the most prestigious professional designation at Rutgers, and yet all five are still paid tens of thousands of dollars less than male professors with the same or less impressive credentials.

IMG_5357-300x169One of the plaintiffs, Professor Deepa Kumar, who teaches journalism and media studies and is one of the country’s leading experts on Islamaphobia, was hired in 2004 at a salary that was the same or higher than four white men and women who were hired contemporaneously. However, today, Professor Kumar makes approximately $25,000 less per year than other professors in her department despite multiple attempts to negotiate pay raises. Another plaintiff, Professor Judith Storch, a distinguished professor of nutritional sciences, recently learned that her salary was on average $46,000 lower than all other distinguished professors in biomedical science.

Remarkably, Rutgers already has in place a system of review by which professors may request wage increases in order to advance the goal of pay equity. The plaintiffs in the current lawsuit claim that system is not working. In 2018, the University’s faculty union commissioned a study that showed pay discrepancies between male and female faculty members. Overall, women faculty were paid 7% less than men. Over time, that gap can add up to a substantial amount of lost income. Professor Kumar estimates that she has lost over $300,000 since her employment with Rutgers began. Another litigant against Rutgers, Professor Nancy Wolff claims she lost $500,000. Putting that loss into terms of gender inequity, Professor Wolff pointed out that half million dollars that should have been paid to her was instead used by her employer to pay her white male counterparts at significantly higher rates than she was being paid.

Two recent New Jersey lawsuit settlements highlight the prevalent issues of sexual harassment and sex discrimination that woman police officers continue to face in the workplace.  These cases illustrate how important it is for male-dominated work environments such as police departments to take preventative measures against sexual harassment and to take immediate remedial measures when it occurs.

IMG_3469-300x169Last month, it was reported that Franklin Township settled a gender discrimination and retaliation lawsuit with a female police lieutenant, Kristen Durham for the sum of $300,000. The settlement also allows Durham to remain on paid personal administrative leave until she achieves 25 years of service credit in the New Jersey Division of Pensions, Police and Firemen’s Retirement System.

Durham, of Robbinsville, started working for the Franklin Township Police Department in 1996, where women make up only about ten percent of the department. Durham is the first and only female lieutenant. In her complaint, she alleged that her male supervisors publicly engaged in extramarital affairs and openly discussed their sexual activities. One male supervisor even ordered Durham to watch a subordinate with whom he was having an affair when he was not at work and to report back to him if any male officers spoke to her. Durham’s responsibilities included recruiting for the department and in that capacity, she personally recruited nine African American officers, and often advocated for female, Black and Hispanic officers to receive equal treatment to their white male counterparts in the department.

The absence of pay equity between men and women, commonly known as the “gender wage gap” has been a newsworthy yet unresolved manifestation of gender discrimination for decades. Pay inequities exist in virtually all industries and professions and are not limited to gender disparities.

IMG_2135-300x169Most recently, one of New Jersey’s premier educational institutions, Princeton University, settled a lengthy dispute over whether it was paying female professors equally to male professors. On average, a full-time professor at Princeton earns over $200,000 per year, but there are variations in pay that Princeton asserts are dependent on department, job performance, and the market-driven economics of filling top spots in academia. But when the U.S. Department of Labor conducted a federal pay discrimination investigation into Princeton’s compensation structure, its findings indicated discriminatory pay practices along gender lines. The Department of Labor’s review of salaries between 2012 and 2014 found that among professors, women were being paid less than men despite holding the same jobs and having the same experience and credentials.

Princeton contested the Department of Labor’s findings for years and still admits no culpability, arguing that the investigation was flawed. It has, however, finally agreed to pay nearly $1.2 million — including $925,000 in back pay and at least $250,000 in future salary adjustments — to female professors, including those who have left the university. Under the Early Resolution Conciliation Agreement between Princeton and the Department of Labor, Princeton will award back pay to the 106 female professors identified by the investigation as having been underpaid between 2012 and 2014 and award future pay raises. Princeton also agreed to analyze faculty salaries at the time of hire and in its annual merit increase process, to make sure there are no future pay gaps between male and female employees. In a statement, a Princeton spokesperson said that the university would engage in hiring initiatives in fields that typically have a low representation of women and encourage women to serve in leadership positions such as deanships. It will also train employees on pay equity.

In recent celebrity employment law news, former reality television star, Angelina Larangeira (nee Pivarnick) settled a federal employment discrimination lawsuit against the Fire Department of the City of New York (FDNY) for $350,000. Pivarnick has been working as an Emergency Medical Technician (EMT) in Staten Island since 2016, where she alleges she was the victim of sexual harassment and assault. Specifically, Pivarnick sued the FDNY as well as one of her supervisors, Lieutenant Jonathan Schechter, alleging a hostile work environment and severe sexual misconduct that took place between 2017 and 2018.

IMG_2433-300x171In the Complaint, Pivarnick alleges that she was subjected to “repeated and unwelcome sexual advances, degrading comments about her body, vulgar sexual comments, inappropriate questions about her private relationships and, in one instance, the groping of an intimate part of her body without her consent”. This sexual misconduct allegedly took place in person at her work and via text message, when her supervisor sent her a message stating, “Your ass looked amazing and I wish I wasn’t working or in uniform because I definitely would’ve kissed those amazing lips”. As in many sexual harassment cases, Pivarnick was also assaulted. In her pleadings, she alleged that in May 2018, her supervisor groped her buttock and “made contact with her vaginal area.”

At the time her suit was filed, Pivarnick released a statement: “I suffered severe sexual harassment while working for EMS and was retaliated against by my management when I complained internally. It should go without saying that what I experienced has nothing to do with television or entertainment. Like all women, I am entitled to be treated with dignity and respect at work, and I should not have to accept unwanted sexual advances, crude comments about my body, or physical assault.” In response to news of her settlement breaking, Pivarnick stated, “I said when the case was filed that it had nothing to do with television or entertainment and that remains true. Sexual harassment is serious and has devastating consequences for so many women. It has for #MeToo. Although I experienced horrendous treatment at EMS, I’m pleased with the resolution of my case and I look forward to using my voice to speak about the need to protect all women from sexual harassment.”

New Jersey Governor Phil Murphy signed legislation this month that makes it a crime to use 911 as a tool to intimidate another person based on his or her race. The bill, which has already taken effect, was introduced to the State Senate on June 29, 2020. It amends and expands the state’s existing false public alarm statute to include false incrimination and filing a false police report as forms of bias intimidation when they are done in an attempt to intimidate or harass an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

IMG_5257-300x169Bias intimidation has long been a crime in New Jersey, and it occurs when a person is the target of a crime specifically because of his or her race or other protected status. When this additional layer of intent is present in the commission of a crime, it is commonly referred to as a “hate crime”. The penalties for committing a hate crime or bias intimidation are usually harsher and in addition to the penalties for committing the underlying offense. The reason for the harsher penalties is that the charge of bias intimidation is generally considered a crime of one degree higher than the most serious underlying offense. For instance, let’s assume that a Caucasian man ran his car into an African American man as he crossed the street, causing serious bodily harm, and the Caucasian man did so because of his race. Because assault by auto resulting in serious bodily injury is a crime of the fourth degree, the Caucasian driver is subject to 18 months in prison and a $10,000 fine for assault by auto. When the additional charge of bias intimidation is considered, he is now facing an additional 3-5 years in prison and $15,000 fine.

The state’s new law addressing racially-motivated 911 calls and false police reports appears to work slightly differently, however, by merging bias intimidation with the underlying crime. The statute (found at N.J.S. 2C:33-3), has been amended to add:

As drastic changes to the U.S. Postal Service (USPS) result in mail delivery delays, some postal workers have chosen to speak publicly about how these changes are impacting their work environment. Given the highly-politicized news coverage of postal service changes leading up to what is expected to be a largely mail-in presidential election, postal workers who refuse to remain silent may face retaliation from their employer.

IMG_0999-300x169Last month, Frank Bollinger, a union official representing approximately 900 members of South Jersey Area Local 0526, gave an interview to NJ Advance Media in which he described the problems he saw at work and the negative impact they were having on both his union members and the general public. After the interview was published, Mr. Bollinger received a threatening letter from his employer that indicated his job might be in trouble for speaking publicly about workplace issues. Specifically, management responded to Bollinger’s interview by sending him a letter demanding his appearance at an investigative interview. The letter had a threatening tone, reading in part that the investigative interview would be Bollinger’s “Day in Court” and that he was facing “a very serious matter.” After NJ Advance Media published a second story, outing the employer’s letter to Mr. Bollinger, management at the USPS backpedaled and backed down. Although the post office management has since canceled the investigative interview, Mr. Bollinger questioned whether he could be disciplined for speaking out or if his speech was protected under the National Labor Relations Act (NLRA).

The NLRA, however, does not apply to federal, state, or local government employees, many agricultural workers, or employees who work on interstate railroads and airlines. Congress enacted the NLRA in 1935 to protect the rights and general welfare of private sector employees, encourage collective bargaining, and curtail certain private sector labor management practices that were harming workers and the U.S. economy. It is considered an unfair labor practice for an employerto interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA. Under the NLRA, employees have the right to organize, form labor organizations and labor unions, appoint representatives to engage in collective bargaining, and engage in other “concerted activities” for the purpose of collective bargaining or other workplace safety and fairness issues. Concerted activities are activities that bring workers together as a cohesive group to address work-related issues. Some examples of concerted activities are talking with co-workers about wages and benefits, circulating a petition to improve hours, participating in a concerted refusal to work in unsafe conditions, and joining with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace. An employer cannot fire, discipline, threaten or “coercively question” an employee for any of these activities. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. However, a private sector employee is not protected under the NLRA if he or she says or does something egregiously offensive or knowingly false, or if he or she publicly disparages the employer without any underlying labor controversy.

As schools scramble to figure out how best to reopen in a couple of weeks, with many opting for a fully remote start to the school year, teachers in some districts are faced with an all too familiar problem for working parents. How will they manage teaching in person and caring for their own kids at the same time? In towns that had planned to reopen with in person instruction, an increasing number of teachers whose children will be at home learning remotely are availing themselves of the 12-week leave available to them under the Families First Coronavirus Response Act (FFCRA). This leave will allow them to care for their own children while many school buildings and childcare centers remain closed.

IMG_4199-300x169The FFCRA is a temporary expansion to the Family and Medical Leave Act (FMLA) that requires certain employers to provide their employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. These provisions will apply through December 31, 2020 to covered employers (those with between 50 and 500 employees) and any employee who has been employed for at least 30 days. Employees can request leave at any time, for several reasons, including because the employee must quarantine, a dependent of the employee must quarantine, or for childcare when the child’s school or usual childcare provider is closed or unavailable for reasons related to COVID-19. When the leave is requested for childcare, employees are entitled to up to 12 weeks of partially paid leave that is subtracted from what would otherwise be their FMLA time. Employers of healthcare workers and first responders can opt out of providing this leave, and employers with fewer than 50 employees can opt out of granting leave requests specifically for childcare issues if granting the request would jeopardize the viability of the business.

Teachers who suffer from disabilities may also be entitled to accommodations, including leave of absence, if they can show the requested accommodation is reasonable and supported by medical evidence.  The Law Against Discrimination prohibits employers from discriminating against disabled employees in connection the terms and conditions of their employment.  The Law Against Discrimination also requires employers to engage in an interactive process with disabled employees who are in need for assistance, and provide them with reasonable accommodations, unless they can show it would be undue hardship on the school’s operations to provide the accommodation.

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