A newly released study by the Association of American Universities (AAU) has shown an increase in incidents of sexual assault and misconduct on college campuses in the United States since they last published a similar report in 2015. Using data gathered for the current study came from twenty-seven universities during the 2018 school year and 2019 spring semester; comprised of over 180,000 respondents from both public and private institutions, in both undergraduate and graduate programs. The study is yet another indicator that despite the increased public attention of the #MeToo movement, women continue to be confronted with issues of sexual harassment and sexual assault at an alarming rate.

IMG_6669-300x169The findings of the report categorize the respondents as male, female, transgendered, or non-identified gendered, as well as whether they were graduate or undergraduate students at the time. The findings of the report show that compared to the original 2015 report there is an increased awareness across the board on what is considered to be sexual assault and misconduct amongst all students. While this is encouraging, this finding coincides with a notable increase in sexual misconduct experienced by students even as campuses nationwide have implemented more comprehensive plans to address the problem.

According to the study undergraduate women are almost three times more likely than graduate women to encountered nonconsensual sexual contact (25.9% to 9.7%). The same holds true for undergraduate men (6.8%) when compared to graduate men (2.5%). While transgendered or non-identified gendered students also found that undergraduate students (22.8%) were subjected to more nonconsensual sexual contact than graduate students (14.5%). The study has shown that older students were less likely to experience nonconsensual sexual misconduct than their younger colleagues. This is true in the comparison of undergraduate and graduate students, but also when comparing younger undergraduates to their older counterparts. First year undergraduates were found more likely to report nonconsensual sexual contact than any other year as an undergraduate, with the rate decreasing steadily with each additional year of undergraduate study.

In the midst of increased public scrutiny concerning allegations of a toxic work environment, NBC has announced that it will not seek to enforce any non-disclosure agreements (“NDA”) against any former or current NBC employee who wishes to speak openly about incidents of sexual harassment.  The announcement comes in response to recent reports that several former NBC employees are unwilling to speak publicly about their experiences of sexual harassment at NBC in fear that they would be breaching the NDA’s if they did so. While NBC maintains that the NDA agreements never prohibited employees from speaking out against sexual harassment, at least a few employees have been reported to believe differently.  The announcement should resolve any confusion of whether former or current NBC employees’ can speak freely about the NBC work environment. It also serves as a reminder to all employers of the significant legal risks associated with attempting to use NDA’s to keep employees silent about issues of workplace discrimination  


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The #Metoo movement has encouraged many victims of sexual harassment to openly and publicly discuss their experiences in working in a hostile work environment.  For far too long, victims of sexual harassment have remained silent and not hold the perpetrators responsible for the grave harms caused by their actions.  Many times, the decision to stay silent is voluntary. Victims would rather try to ignore what happened for fear that they will not be believed, their employer will not take any action, or even worse, suffer retaliation.  In fact, according to the report of the 2016 Task Force on the Study of Harassment in the Workplace, the least common response of a victim of harassment is to take some form of formal action, whether it be report the harassment internally or file a formal legal lawsuit.  In fact, approximately 75% of victims of sexual harassment will never talk to management, HR or a union representative about an incident of workplace sexual harassment.

Other victims of sexual harassment cannot speak freely about their experiences because they signed a written NDA contract with their former or current employer.  An NDA prohibiting an employee from discussing workplace sexual harassment is typically executed either when an employee starts his or her employment, or when the employment is separated.  When starting employment, many employers require the employee to sign employment agreements that include confidentiality of company trade secrets, proprietary information and other aspects of the employment that require confidentiality.  Some employers attempt to use these provisions to restrain current or former employees from disclosing incidents of workplace sexual harassment and deem them “confidential” under the NDA provision. While these confidentiality provisions in employment agreements are in most situations unenforceable as against public policy, many employees feel restrained by the provision and remain afraid to breach it.  Some employees are even afraid to speak to an employment attorney for advice and counsel concerning their rights under anti-discrimination laws. 

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The Third Circuit Court of Appeals has ruled in favor of a public employee who alleges she was terminated by her public employer for inquiring into a complaint that she had been illegally recorded during a conversation with a union leader.  In reversing the district court’s decision, the court reinforced the separation of a public employee’s speech in their capacity as a private citizen in comparison to what they say in their capacity as a public employee.  This case is a reminder that public employees do not waive their First Amendment rights by accepting public employment and have job protections when they engage in protected activity under the United States Constitution.  

In this case entitled Javitz v. County of Lucerne, the plaintiff, Donna Javitz’s was employed as the director of human resources for Lucerne County.  During her employment, Ms. Javitz’s alleges that she made a report to the district attorney that she had allegedly been illegally recorded when she met a union leader in her official capacity. The county manager told Javitz and the district attorney to drop the matter, but Javitz followed up with questions on the status of the investigation regarding the recording. Suddenly, her relationship with her employer became rocky and Javitz was abruptly terminated. Javitz claimed that her termination was in retaliation for reporting the alleged illegal recording to the district attorney. 

The county employer alleged that Javitz had been working within her capacity as a public employee when she was inquiring about the status of the investigation and therefore no First Amendment violation existed. The district court agreed and cited to the Lucerne County Code of Ethics as the source by which it found her conduct in reporting the illegal activity to be within her official capacity as a county employee. Because the action was within her duties as an employee, the District Court concluded that the report did not qualify as speech protected by the First Amendment. 

An Essex County New Jersey Superior Court judge has issued an opinion that held that a Professional Employer Organization (also known as PEO) can be considered a co-employer for the purposes of the state’s Law Against Discrimination.  In the case, Stephanie Perez sued not only her W-2 employer, the Dermatology Group, P.C., but also their designated PEOs, ADP TotalSource II, Inc. and ADP, LLC t/a ADP Major, for claims of pregnancy discrimination, failure to reasonably accommodate and unlawful retaliation. This is an important development in how New Jersey courts are treating the relationship between employees, their primary employers, and PEOs.

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PEOs are organizations that provide support services, including human resources services, to companies. Typically, PEOs provide such services to small and medium sized companies that do not have internal staff committed to providing such services. Over the past 40 years, PEOs have become a substantial segment of the national employment landscape. According to statistics reported by the National Association of Professional Employer Organizations (“NAPEO”), there are now over 907 PEOs operating in the United States providing services to 175,000 small and medium-sized businesses, which in turn employ approximately 3,700,000 employees nationwide.

Often, PEOs are designated as the W-2 employer or act in a capacity of being a co-employer with an employee’s primary employer. As NAPEO acknowledges, PEOs typically work alongside the primary employer and “both parties might share responsibility for [certain] obligations and be ‘an’ employer” in the context of the performance of those obligations.  Because many PEO’s provide advice and counsel on employment law related policies as part of their services, issues arise when that advice or counsel is wrong and plays a determinative factor in causing an unlawful termination.

New Jersey law provides for strong protections for disabled employees who suffer discrimination at the workplace. What is widely considered as on the most powerful anti-discrimination laws in the country, the New Jersey Law Against Discrimination bars discrimination of individuals based on protected characteristics in the terms and conditions of employment. The law specifically prohibits discrimination based on an employee’s disability or perceived disability and requires employers to engage in an interactive process in order to determine whether a reasonable accommodation can be provided to employees with a disability. What exactly this process and the resulting accommodations may consist of has been established by various court case rulings since the law’s passing in 1945.

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Tynan v. Vicinage 13 is a landmark disability discrimination and failure to reasonable accommodated case that was decided in 2002 by a New Jersey Superior Court in the Appellate Division.  The plaintiff employee in this case was employed by Vicinage 13 of Superior Court as the Hunterdon County Jury Manager.  She suffered from a combination of physical and mental disabilities including migraines, Post-Traumatic Stress Disorder, depression, irritable bowel syndrome, and hypertension. The plaintiff claimed that these disabilities were exacerbated by harassment and mistreatment from her supervisor at Vicinage 13. On multiple occasions, her supervisor issued disciplinary actions against Ms. Tyan for minor oversights and threatened to terminate her employment regularly. The stress caused by the severe treatment and allegedly hostile work environment exacerbated Ms. Tynan’s disabilities and caused her to become sicker, both mentally and physically. Ms. Tynan complained formally to the Assistant Trial Court Administrato and the court’s Human Resources Division, describing her disabilities, the supervisor’s behavior, and a need for accommodations. Tynan was provided with a plan to remedy the situation involving processes of mediation between her and her supervisor.

Shortly after this plan was created, Ms. Tynan’s exacerbated medical conditions caused her to require a leave from her employment with Vicinage 13. She was approved for family leave and planned to return approximately 11 months later. During this leave, Ms. Tynan received treatment for various disabilities, particularly for her depression and hypertension. Her treating physicians recommended that Ms. Tynan continue her leave from Vicinage 13, and that it would be important for her to report to a different administrator upon return as a result of the extreme stress that Pardo’s treatment caused Ms. Tynan. At the end of her planned family leave, Ms. Tynan requested additional time off and to report to a different administrator upon return. The employer denied both of these accommodations and told Ms. Tynan that if she did not report to work immediately, she will be considered to have resigned from her position. Ms. Tynan could not return to work as a result of her disabilities and was effectively terminated from her position with Vicinage 13.

On October 8, 2019, the United States Supreme Court will consider three companion cases concerning whether Title VII of the Civil Rights Act of 1964 guarantees gay and transgender employees across the nation protection from workplace discrimination. In two cases, the Court will decide whether sexual orientation discrimination is a form of sex discrimination within the meaning of Title VII. In the third, the Court will decide whether Title VII prohibits discrimination against transgender people.  The Supreme Court’s decisions to both these questions will have dramatic impact on the rights (or lack thereof) of LGBT persons throughout the country.

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The outcomes of these cases will not only have a significant impact on employees’ rights nationwide, they will also have a significant impact on the individual employee-plaintiffs in each lawsuit. For some brief background, their stories are presented below:

(1)       Bostock v. Clayton County

Institutions of higher education are often perceived as being ahead of the curve when it comes to issues of equality and progressive treatment of members of protected groups. In reality, this is not always the case — especially when it comes to women working as college coaches or as employees within the athletic departments of universities. In fact, there have been several high-profile instances of employment discrimination lawsuits within athletic departments of several “Power 5” athletic universities have made news in recent years. These high profile lawsuits have resulted in much needed increased public scrutiny of important issues of systemic discrimination within our country’s university athletic departments.   

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Perhaps most notably is the gender and sex orientation discrimination brought by a former field hockey coach and senior athletic official against the University of Iowa athletic department. In that case, Tracey Griesbaum and her partner Jane Meyer were employed by the University of Iowa’s athletic department. Griesbaum, a former field hockey coach at the University of Iowa, and Meyer, a senior department director, were romantic partners during their tenure at Iowa. Throughout their employment, both women alleged they were subjected to gender and sexual orientation discrimination by department director Gary Barta. Meyer and Griesbaum’s relationship was often scrutinized and used against them in their job performance reviews and assessments, despite being approved by administrative officials through appropriate process. Further, Meyer was passed over for promotions and paid drastically less than male coworkers who had fewer job responsibilities and less experience. 

The discrimination escalated when Griesbaum was fired in 2014. The University attributed her termination to allegations that she abused her athletes, but an extensive investigation revealed that these allegations were baseless. As a senior department director who recognized the unlawful behavior, Meyer complained about Griesbaum’s termination, explaining that it was discriminatory and unlawful, and brought up additional instances of gender discrimination occurring within the department. The following day, following her complaints, Meyer was subjected to that same discrimination when she was placed on administrative leave and transferred out of the athletic department. Following Meyer’s unlawful transfer and termination, the two former employees filed lawsuit in a Iowa state court. Through the suit, Meyer and Griesbaum argued that they had been victims of discrimination based on both gender and sexual orientation. 

As with any legal issue, claims of sexual harassment involve many different legal factors that require consideration. Among these are a plaintiff’s potential damages, the statute of limitations related to the legal issue, and what exactly constitutes individual instances of harassment. These factors are made increasingly difficult to assess because of the nature of sexual harassment, especially when the harassment is pervasive as opposed to severe.

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Various court cases have provided clarity on many of the issues involved in sexual harassment cases. Karen Caggiano v. Armando Fontoura et al., helped to explain when a plaintiff’s right to file a complaint regarding sexual harassment expires, as well as what type of behavior may constitute continuous harassment.  In this case, Karen Caggiano endured years of pervasive harassment while employed as a Sheriff’s Officer in Essex County. Armando Fontoura, among others, constantly made derogatory comments relating to Ms. Caggiano’s sexual orientation and appearance. Her male coworkers regularly propositioned her for sex in extremely explicit and offensive language, and one individual went further, exposing himself to her on numerous occasions.

Fearing termination or other adverse employment action, Ms. Caggiano did not file a formal complaint regarding the harassment. However, in December 1996, Ms. Caggiano’s Captain overheard her discussing the harassment with a coworker. Her Captain ordered Ms. Caggiano to file a formal report of the conduct. Following this report, the incidents of harassment ceased, and Ms. Caggiano, along with several of the perpetrators, were transferred to different offices. A final incident of harassment occurred in February 1997, when Ms. Caggiano was assigned to attend same sexual harassment training in a group with two of her harassers. She was forced into this interaction despite the fact that there were approximately 400 employees attending the training in groups of 10. Nearly two years later, Ms. Caggiano decided to file a civil lawsuit alleging sexual harassment in the workplace.

On the morning of July 10, 2019, New York State Governor Andrew Cuomo signed new legislation into law providing protections for equal pay for women and increasing protections against race and gender based employment discrimination. The legislation was signed at the ticker-tape parade for the United States Women’s National Soccer Team, who won the World Cup on July 7th and have made headlines in recent months regarding gender-based pay disparity. The passage of these bills was a symbolic action of solidarity between New York State and the U.S. Women’s National Team, who filed an equal pay lawsuit in Federal Court earlier this year. After signing the legislation into law, Governor Cuomo stated, “We say to the U.S. Soccer League, and we say to FIFA, if you don’t pay women what you pay men, then you have no business in the state of New York.”

These three bills, signed this past summer, are part of a larger effort by the New York State to provide greater protections to employees in the state, aiming to prohibit employment discrimination based on gender and race. These laws will hopefully mark the development of a more employee-friendly workplace environment within the state. As New York is the third largest contributing state to America’s national GDP, such an improvement would be significant. New Jersey has also adopted significant employee-friendly legislation in the past two (2) years, including the New Jersey Equal Pay Act, the S121 Non-Disclosure Bill, Paid Sick Leave and amendments to the New Jersey Wage Payment and New Jersey Wage and Hour law. Following these enactments, New York’s similar enactments will serve to further enhance the protections for employees within both states, and across the region.

The first of two bills Governor Cuomo signed on July 10, Senate Bill 5248, prohibits wage differentials based on protected class status. It requires equal pay for substantially similar work when performed under similar working conditions. Similar to the New Jersey Equal Pay Act, the bill only allows for a differential rate of pay when it is based on a seniority or merit system, a system that measures earnings by quantity or quality, or a bona fide factor consistent with business necessity. Additionally, the bill lowers the burden of proof for a person claiming discrimination and provides a civil penalty for violations of the act. The stated purpose of the law is to prevent irrelevant factors – such as gender – from influencing employers in their salary distribution decisions. The passage of this law came after a wave of equal pay lawsuits have shaken governments across the United States. The bill will go into effect 90 days after its enactment.

A recent federal court decision serves as a reminder of the extremely high burden a litigant has in order to close court proceedings from the public.  In our judicial system, the doors of the courthouse open in assuring the public’s right to access to the judicial process. This federal court decision is being considered by many as a victory for the public’s freedom to access judicial information.

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In the federal case, Silvka v. YMCA of the Pikes Peak Region, a Colorado District Court struck down the defendant employer’s motion for a gag order and a motion to restrict. In the opinion, Chief Judge Brimmer’s provided a thorough explanation and insight into the public’s right to have access to judicial proceedings. The order also reflected the core principle’s espoused in Professor Eugene Volokh’s objection to the motions raised by the YMCA; that the First Amendment and the common law assert a public right to access court proceedings whether civil or criminal in nature. 

The motion for a gag order came as a result of Silvka’s complaint against the YMCA of the Pikes Peak Region. The complaint alleged that a YMCA manager sexually harassed and forcibly groped the former employee and that the YMCA failed to conduct a proper investigation into her complaints.  The allegations of the sexual harassment lawsuit include a hostile work environment that involved employees binge drinking, and male upper level personnel abusing their power by coercing young female employees to have sex with them in order to advance in the organization. Silvka claimed to be the latest victim of this culture in her complaint. In response to the complaint and its publication by local news outlets in Colorado, the YMCA sought to impose a gag order fearing the complaint’s publication would prejudice a jury against them.