New Jersey lawmakers have introduced a bill that will prohibit an employer from requiring that victims of discrimination, retaliation and harassment to keep their claims confidential as part of a settlement. Employers routinely require that non-disclosure provisions are included as a material term of any settlement agreement in cases of sexual harassment and other employment discrimination.  Bill No. 121, if passed, will render any confidentiality provision contained in a settlement agreement as unenforceable.

Earlier this year, the federal government passed the Tax Cuts and Jobs Acts (“TCJA”).  In an apparent response to the #MeToo movement, the TCJA included a provision that prohibits employers from taking a deduction for attorney fees’ and costs that are incurred in any sexual harassment or sexual abuse case if the settlement agreement includes a non-disclosure provision.  While this provision was clearly aimed at curbing the use of the non-disclosure provisions in sexual harassment lawsuits, it did not prohibit the use of non-disclosure provisions all together.  Under TCJA, an employer can still require a victim of sexual harassment or abuse to keep any settlement of his or her claim confidential if they are willing to forgo the tax deduction.

Bill No. 121 takes it much further by making any confidentiality provision in any settlement agreement that attempts to conceal discrimination, retaliation, or sexual harassment, null and void.  Under the bill, an employer must include a prominent notice that the clause is unenforceable if they choose to add it to any settlement agreement.  The bill also prohibits an employer from taking any retaliatory action against an employee who refuses to sign an employment agreement that contains any illegal non-disclosure clause.

A New Jersey Appellate Division has affirmed a jury verdict of $525K in favor of a former customer service representative against her former company, RockTenn Co., and supervisor for claims of hostile work environment and unlawful retaliation. This sexual harassment case is another reminder to all New Jersey employers of the importance of having effective anti-discrimination policies in place that stop and remediate workplace sexual harassment.

In the case, Velez v. RockTenn Company and Raymond Perry,  the employee, Ms. Velez began her employment with RockTenn as a customer service representative in November, 2010 earning $45,000 per year.  Shortly after beginning her employment, Ms. Velez’s supervisor, Mr. Perry, engaged in sexually harassing behavior toward her.  The unwelcomed sexual harassment included Mr. Perry showing Ms. Velez a picture of his girlfriend and telling Ms. Velez that they had recently broke up.  Mr. Perry commented that his girlfriend had “nice thighs” and he loved Latino women. Ms. Velez, who is also Latino, testified that Mr. Perry would inappropriate look at her breasts, legs and backside while he spoke to her at work and one time asked her out on a date.  Ms. Velez also testified that he asked her out and that his conduct caused her to avoid going into his office.  At the company holiday party, Mr. Perry again showed a picture of his girlfriend to Ms. Velez and announced that she was trying to convince him to have a threesome.  A month later in January, 2011, Mr. Perry placed his hand over Ms. Velez’s hand during a work-related conversation and stated, “Oh, I should not be doing this, should I?”

Mr. Perry also exhibited controlling behavior over Ms. Velez during her employment.  Mr. Perry attempted to limit Ms. Velez’s interactions with other employees and went as far as to instruct her not to have lunch with another male employee, whom Mr. Perry did not believe was a good person. Mr. Perry also prevented Ms. Velez from attending a mandatory training, which Ms. Velez claims was in retaliation for her rebuffing of Mr. Perry’s harassing conduct.

An arbitration award supporting the termination of a Woodbridge teacher for repeated shoplifting has been affirmed by the New Jersey Superior Court and Appellate Division. In this case, Michele Schwab v. Woodbridge Township School District Board of Education, the terminated teacher argued that her shoplifting incidents were caused by a mental health disability and that she should not have been terminated for cause.  In rejecting this argument on appeal, the courts have issue another reminder of how difficult it is to overturn the decision of a private arbitrator.

During her sixteen years as an educator, Michele Schwab received awards such as “Educator of the Year” and was frequently described as a highly effective teacher. However, in February of 2015, Ms. Schwab engaged in criminal behavior by shoplifting from a store in the Woodbridge Center Mall. Ms. Schwab’s arrest and the charges against her were later dismissed. More than a year later, she again was charged with shoplifting and pled guilty to the charges brought against her after a video of the act surfaced on social media.  The video of her shoplifting that was seen by several of her fourth-grade students. Ms. Schward did not report her arrest to her employer, which the Board of Education claimed is a violation of a district policy.

When the school learned of the charges, Ms. Schwab was placed on suspension pending an investigation. Ms. Schwab’s employer additionally filed tenure charges against her, citing two counts of theft, failure to report her arrest, violation of district policies, and a pattern of unbecoming conduct. The charges were transmitted to an arbitrator for a hearing. After an investigation, the arbitrator decided that the Board of Education had established just cause to discipline Ms. Schwab, and that termination was an appropriate response to her charges.

Over the weekend, German Soccer Star, Mesut Ozil, retired from the German National Team following what he claimed to be rampant racist remarks and mistreatment based on his Turkish heritage, according to the BBC. The German Football Association, “DFB”, denies accusations of maintaining a hostile and discriminatory work environment for athletes of foreign descent. Ozil’s allegations align with experiences of other World Cup athletes who claim that they’ve been victims of racially hostile treatment based on their national origin.

The FIFA World Cup of soccer took over the international sports stage this summer and served to shed light on issues of discrimination worldwide. Though athletes were required to be citizens of the countries that they played for in the tournament, many players identified as immigrants to these nations, or shared heritage with other countries as well. A common experience of these dual-citizenship or immigrant athletes was to feel as though their fans accepted them as fellow citizens only when their team won; after a loss, the “foreign” athletes were treated as undesirable outsiders. This sentiment would manifest in hate mail, racist or discriminatory statements, and the reception of undue blame for their team’s poor performance.

Along these lines, Mesut Ozil claims he was discriminated against, singled out and scapegoated for Germany’s failure to advance past the group stages in the World Cup this year. Ozil, who is of Turkish descent, claims that he received racially harassing hate mail and was unfairly blamed for Germany’s poor World Cup performance.  Earlier this year, Ozil posted a photograph featuring himself alongside the President of Turkey after a friendly, soccer related meeting. Ozil was immediately criticized by DFB officials and fans who questioned his loyalty to democratic values.  Ozil was also abandoned by partners and sponsors and denounced by DFB officials such as Reinhard Grindel for the photograph and meeting. Fans referred to him as a “Turkish pig” and German media outlets openly blamed his Turkish heritage and meeting with Erdogan for Germany’s losses in the World Cup.

New Jersey is taking a stand against the unreasonable of non-compete agreements and other restrictive covenants in the fast food industry. New Jersey has joined a group of states leading an investigative charge against several corporations in the fast food industry for the utilization of no-poach and non-compete agreements. While non-compete agreements are common in a wide variety of industries in which the companies could show they have a protectable interest in restricting an important and/or high wage earner, this is rarely this case in the fast food industry. Because of this, the New Jersey Attorney General has decided to address the issue.

Non-compete agreements are a type of restrictive covenant where an employer restricts an employee from working in a particular industry for a definite period of time after the separation of their employment. Non-compete agreements often seek to restrain employees from working for specific competitive companies, while others prohibit the employee from working in the entire industry for a particular period of time. When these agreements are in place, they leave employees with only two options: attempt to move up the ranks of their own individual franchise location or find work in a different industry. Plaintiff-side employment lawyers often argue that non-competes damage labor competition within particular industries, suppress wages, restrict an employee’s earning potential and cause damage to a state’s economy. Defense-side employment lawyers argue that their employer clients extend substantial resources in employees that is worthy of protection for a period of time.

The corporations involved in the New Jersey investigation include Burger King, Dunkin’ Donuts, Five Guys Burgers and Fries, Little Caesars, Wendy’s, Arby’s, Popeye’s Louisiana Chicken and Panera Bread. The large size corporations allow them to nearly dominate the fast food industry, which heightens the impact that the non-compete agreements have on fast food employees. Fast food employees are particularly at risk of being damaged by restrictive covenants because of the trend of low wages and a common lack of resources available to them. These employees usually lack high levels of education and can be desperate for work. They typically do not have access to attorneys who can review their employment agreements or explain their protected rights. Because of this, New Jersey along with other states are attempting to address the harmful policies in order to protect the rights of vulnerable individuals.

More than a year before #MeToo, a Select Task Force was created by President Obama to examine the problem of sexual harassment at the workplace. The Select Task Force consisted of a select group of outside experts who analyzed the causes and effects of workplace harassment and made recommendations what should be done to prevent it. The Select Task Force’s Report of the Co-Chairs of the Select Task Force on the Study of Harassment in the Workplace was published in 2016 before the #MeToo movement.

The mission of the Select Task Force on the Study of Harassment in the Workplace was to determine the extent to which harassment impacts employees of various industries nationwide, as well as how best to mediate this behavior. The Task Force operated in conjunction with the United States Equal Employment Opportunity Commission (EEOC), and its eighteen (18) members include academics, lawyers, EEOC representatives, and other experts from all across the country.  The Select Task Force’s June 2016 Report outlined that analyzed the different factors that increase the risk of workplace harassment, how workplace harassment impacts employees and productivity, and how workplaces can both address and prevent the occurrence of harassment in their office. The eruption of movements have revealed the continuing epidemic of sexual harassment in the workplace which has caused an renewed interest in the report.

The report revealed that Equal Employment Opportunity Commission (EEOC) received approximately 30,000 charges of workplace harassment in 2015 alone. This statistic is even more shocking in light of the Select Task Force’s finding that only 25% of the victims report the harassment to their employers. In fact, reporting harassment to the employer is the least common response to harassment.  Victims of sexual harassment fear disbelief, inaction, or blatant retaliation by their superiors or the harasser.

The Third Circuit has reversed a trial court’s decision that dismissed a sexual harassment lawsuit because the plaintiff employee never complained directly to her employer. The decision is causing employment attorneys across the country to question the continued viability of the Faragher-Ellerth defense, which permits employers to avoid liability for sexual harassment where an employee fails to make a formal complaint about sexual harassment directly to the employer.

In the case of Sheri Minarsky v. Susquehanna County and Thomas Yadlosky, Jr., the employee began her employment as a part-time secretary with the Susquehanna County Department of Veterans Affairs from September, 2009. The employee claimed that she had been sexually harassed by her supervisor throughout her employment starting from the very beginning. The sexual harassment included her supervisor attempting to kiss her on the lips, massaging her shoulders while she was at her computer and approaching her from behind and pulling her against him. The employee also claimed that the supervisor would often question her whereabouts during her lunch hour and would also call her at home under the pretense of a work-related inquiry only to then ask personal questions unrelated to work.  The supervisor also sent sexually explicit messages through email to the employee.

While the employee never complained to her employer about her claims of sexual harassment in fear of retaliation, the employer was aware of the supervisor’s inappropriate behavior toward other women, which resulted in two verbal reprimands. Other employees also raised concerns that the supervisor would attempt to kiss employees under the mistletoe during Christmas time.

The United States has historically been plagued by systematic employment discrimination based on protected characteristics that often take the form of unjustifiable wage disparity. The Diane B. Allen New Jersey Equal Pay Act attempts to curb this practice in New Jersey by placing strict regulations in situations where employers pay their employees disparate wages, and imposing large penalties on employers who violate this statute. Governor Phil Murphy signed the bill into law on April 24, 2018 in hopes of creating a work environment in the state that fosters pay equity. It takes effect, today, July 1, 2018.

The Equal Pay Act amends the New Jersey Law Against Discrimination to strengthen protections against discrimination by specifically prohibiting unfair pay practices based on gender, race, or other characteristics. It restricts employers from paying employees who are members of protected classes reduced wages in comparison to non-protected class employees by making it unlawful for women to be paid less than their male counterparts simply because of their gender. An employer may utilize differing compensation rates only pursuant to:

  • A seniority or merit system

The United States has been slowly progressing towards equity when it comes to employment policies that outlaw gender, disability, and other types of discrimination. Despite this advancement, there are a few areas that have shown reluctance to moving forward. One such industry is that of professional sports.  As a result of the nature of sports related occupations, issues such as disability, gender, and pregnancy discrimination have proven difficult to overcome. Athletes who are considering starting a family must contemplate the reactions of their sponsors, fans, and coaches, and they fear the cancelling of sponsorships as well as receiving less playing time from their coaches. Fortunately, a recent situation arose in women’s professional tennis that forced the United States Tennis Association to quickly consider changes to pregnancy and discrimination policies.

Arguably the greatest female tennis player in history, Serena Williams has won twenty-three Grand Slam singles titles since 1999, as well as four Olympic gold medals and seventy-two total career singles titles. Williams recently took a leave of absence from competing as she became pregnant and gave birth to her child, Olympia, in September of 2017. She also unfortunately experienced severe complications from this pregnancy that added to the physical strain of giving birth. Despite her record-breaking athletic history, she returned from pregnancy leave to find that she was unseeded in the French Open this year. In professional tennis, seeds are awarded to the highest ranked players of the year, and unseeded players encounter additional obstacles in the tournament, such as facing highly competitive players very early on in the tournament. For such a successful and powerful athlete as Williams, not being awarded a seeded spot following her pregnancy was not only disrespectful, but also viewed as discriminatory.

As a result of the backlash that the actions of the French Open have received, the United States Tennis Association (USTA) has announced that they plan to alter their seeding procedure in order to take into account additional factors that may have influenced an athlete’s ranking, which will include pregnancy and the complications that arise from the condition. Wimbledon already reserves and occasionally exercises the right to alter computer calculated seeding if they feel there are additional factors (such as pregnancy) that should be taken into consideration. In support of Wimbledon’s practice, the President and Chairwoman of USTA, Katrina Adams, explained that players should not be penalized for exercising their rights to start a family, and that the new US Open policy will help the sport to achieve greater equality and strike down discriminatory practices. Adams compared the French Open’s actions to the business environment, stating that forcing a player to return from maternity leave to a lower ranked position would be the same as having a business executive return to an entry level position. If this happened in any company in the United States, the employer would be guilty of pregnancy discrimination. Why is this not the case with the Women’s Tennis Association?

As reported by Asbury Park Press, a Holmdel High School student is claiming that school officials prohibited her from coming on to the stage to receive her high school diploma during last week’s graduation ceremony.  The incident has sparked outrage from some in the community concerning the school’s lack of planning and communication to accommodate the student’s ability to come onto the stage with her wheelchair.  To their credit, school officials  fully accepted blame and have apologized to the student for what it has referred to as a significant mistake.  This unfortunate incident is an example of the profound impact that a failure to provide necessary accommodations to a disabled person can have in his or her life experiences.

Individuals who suffer from disabilities face significant obstacles throughout their lives, which include often being excluded from certain activities and other life events.  Both federal and state laws, including the federal Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination were enacted to prohibit certain forms of discrimination in employment, schools and in other public places of accommodation.  These anti-discrimination disability laws are designed to provide disabled employees the assistance they need in order to be employed, receive an education and be properly accommodated in the public domain.

The New Jersey Law Against Discrimination specifically identifies schools as a place of public accommodation.  A place of public accommodation may not discriminate against disabled persons and must provide reasonable accommodations unless it is shown that the requested or needed accommodation would impose an undue hardship.  If a disabled student needs or requests a reasonable accommodation, the school must initiate an interactive process to search and determine what appropriate reasonable accommodation is necessary. This interactive process requires the school to take some initiative and identify the potential reasonable accommodations that could be adopted to overcome the student’s precise limitations resulting from the disability. The law requires all parties to act in good faith to explore potential accommodations.  A school that obstructs or delays the interactive process or fails to communicate with the other party will be viewed as not acting in good faith.  When this occurs, the courts will attempt to isolate the cause of the breakdown and then assign responsibility.