On June 3, 2019, the United States Supreme Court released an important decision in the case Fort Bend County, Texas v. Davis (slip opinion available at: https://www.supremecourt.gov/opinions/18pdf/18-525_m6hn.pdf) regarding claims of employment discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”). This decision promises to have widespread impact for many cases of employment discrimination filed in federal court, as it reevaluates and clarifies the role and impact of filing a charge with the Equal Employment Opportunity Commission (“EEOC”). 

When an individual believes that they suffered employment discrimination in the workplace, federal law may provide a remedy. In such a case, when an individual seeks to vindicate their rights under federal employment discrimination law, Title VII requires that complainants first file what is known as a “charge” with the EEOC prior to pursuing a civil action in federal court. This procedure has been treated by many courts as a prerequisite to the federal court’s jurisdiction over the individual’s discrimination claim.

After the EEOC receives a charge of discrimination they notify the employer(s) named by the charging party and investigate the allegations. The EEOC’s goal is to evaluate the truth of the allegations, as well as to determine if the dispute can be resolved through informal means or, if that is not possible, whether the EEOC will bring a civil action on behalf of the charging party against the employer(s) in court. The EEOC has 180 days from the date the charge is filed to complete this process, after which (if neither of those courses is taken) they must provide a “right-to-sue” notice to the complainant. Once a complainant receives a right to sue notice, they may then pursue a civil action against their employer on their own behalf. 

In the recent case David F. Calabotta v. Phibro Animal Health Corp., et al., Smith Eibeler employment attorney Kathryn McClure, Esq., along with co-counsel, Mary Ann Sedey secured a substantial victory for employees, both inside and outside of New Jersey. Through its opinion, the Appellate Division reaffirmed New Jersey’s commitment to the eradication of workplace discrimination and the expansive reach of the New Jersey Law Against Discrimination.

The case provides clarification to federal and state courts that it is inappropriate to impose a “bright-line rule” that the Law Against Discrimination only applies where an individual was employed within the State of New Jersey. Rather, a case-by-case analysis must be performed, with attention paid to the particular facts and circumstances at issue in each given case. Further, the Appellate Division again approved of a claim for associational discrimination under the Law Against Discrimination, despite the absence of explicit legislative approval of such a claim.

David Calabotta, the plaintiff in the Calabotta case, was not a member of a protected class himself, but rather brought a claim for associational discrimination under the Law Against Discrimination. David’s claim was premised on his relationship with his wife, who was diagnosed with breast cancer and thus was disabled within the meaning of the Law Against Discrimination. David brought his claim after his employer refused to consider him for a promotion and then subsequently terminated his employment after his wife became disabled. David alleged that his employer took those actions against him because of his association with his disabled wife.

In a demonstration of support for and solidarity with New Jersey employees that have experienced sexual harassment and sexual assault in the workplace, Governor Murphy signed Senate Bill 2986, nicknamed the “Panic Button Bill,” on June 11th, 2019. This bill was introduced to the New Jersey Senate in September of 2018 and, with Governor Murphy’s signature, will take effect in January of 2020. Governor Murphy claims that, with its passage, New Jersey becomes the first state nationwide to enact legislation of its kind.  The  passing of the legislation is another victory for employees, and particularly victims of sexual harassment in the #MeToo movement.

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In an effort to recognize the prevalence of sexual misconduct in specific areas of employment, the New Jersey Senate has targeted the hospitality industry with regulations intended to protect hotel employees from facing such unlawful behavior. The bill states, “[d]ue to the unique nature of hotel work, hotel employees are particularly vulnerable when working alone in hotel guest rooms…this solitary work places them at risk of assault, including sexual assault, and sexual harassment.” This statement was proven true by a horrific case of sexual assault that occurred in 2018, when a 51-year-old house keeper at Billy’s Casino in Atlantic City was forced into a hotel room and sexually assaulted by a guest. This criminal act sparked a widespread demand for safer working conditions for hotel employees.

New Jersey employees are protected from sexual harassment and sexual misconduct in the workplace by the New Jersey Law Against Discrimination (LAD)The New Jersey Law Against Discrimination prohibits discrimination on the basis of sex, which includes behavior such as inappropriate touching, unwelcome sexual advances, and retaliation for opposing sexual harassment conduct or participating in an investigation into such conduct. These are just some of the many different forms sexual harassment and assault can take. The New Jersey Law Against Discrimination requires that employers take the utmost caution in assuring that their employees are not vulnerable to experiencing this type of unlawful behavior. This is the basis for the Panic Button Bill that Governor Murphy signed into law.

The FIFA Women’s World Cup has captivated the attention of nations around the world, and the United States is no exception. With the group stage coming to a close this week, the U.S. Women’s National Team (“WNT”) has already demonstrated dominance in their first two games, beating Thailand and Chile by a combined score of 16-0. As the WNT’s World Cup successes have increasingly dominated headlines, the team’s recent lawsuit  filed against their employer, the U.S. Soccer Federation, Inc. (“USSF”), has attracted increased attention as well. While the team battles to defend their FIFA World Cup title on the pitch, they battle in court to defend their rights, and the rights of women nationwide, to receive equal pay for equal work.

The law has long been that all people in the United States are entitled to equal pay for equal work (regardless of gender, race, or any other protected characteristic), as well as fair employment standards and work conditions. These protections were established with the passage of the Equal Pay Act of 1963 and Title VII of the Civil Rights Act of 1964 and can be traced back to 1868 and the adoption of the Fourteenth Amendment to the United States Constitution. According to their Complaint, for decades the WNT has endured grossly unequal pay and inferior working conditions in comparison to the Men’s National Team (“MNT”). This has continued despite the fact that the WNT is demonstrably more successful and produces comparable revenue to the MNT for the USSF, which employs both the WNT and the MNT.

The Complaint filed by the WNT details the pay gap that exists between the two teams. It explains that if a male and female national team player each played 20 exhibition games in one year, the male player would earn an average of $263,320 while the female player would earn a maximum of $99,000. Male players who try out for and earn a place on a World Cup team earn $55,000, while female players only earn $15,000 for the same accomplishment. In 2014, the USSF provided the MNT with performance bonuses totaling $5,375,000 for losing in the Round of 16. By contrast, the WNT only earned $1,725,000 for winning the entire tournament. Despite advancing three rounds further that the MNT, and ultimately winning the entire tournament, WNT players earned less than a third of what the MNT players earned.  

JP Morgan-Chase (“JPMC”) has settled a class action lawsuit brought by male employees who alleged they were denied being provided benefits on equivalent terms as female employees, under JPMC’s primary caregiver (“PCG”) policy.  The male plaintiffs in this sex discrimination lawsuit claimed that JPMC treated them differently from their female coworkers between 2011 and 2017, when they were denied the sixteen weeks of parental leave their female coworkers were provided following the birth of their children and instead limiting them to two weeks of parental leave as “secondary caregivers.”  The terms of the settlement require that JPMC establish a five million-dollar ($5,000,000) compensation fund to compensate the class of male primary caregivers, comprising nearly 5,000 fathers. The settlement has been jointly presented to Federal Magistrate Judge Michael R. Barrett, of the United States District Court of Ohio, Southern District, for court approval.

Derek Rotondo, the named plaintiff in the lawsuit against JPMC, initiated the suit in 2017 when he was denied status as a primary caregiver. Rotondo alleged that he was told by the company that the mother was the presumptive primary caregiver. As a result, Rotondo was denied the sixteen weeks of leave he sought and should have received as his child’s primary caregiver, and instead was given only two weeks of leave. Shortly after being denied the time he should have been awarded as a primary caregiver, Rotondo filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) against JPMC, alleging that this denial of primary caregiver status and thus denial of fourteen (14) weeks of parental leave constituted unlawful gender discrimination in violation of Title VII. JPMC soon after reversed course and granted Rotondo the full sixteen (16) weeks to which he was entitled.

While the federal Family and Medical Leave Act (“FMLA”) provides fathers and mothers with the same rights for job protected leave to bond with newborn children or newly adopted children, some companies offer greater job protection or even paid leave to their employees in excess of what is required under Federal law. When an employer offers such additional rights to leave or job protection, these rights must be extended to their employees without reference to or distinction based on that employee’s gender. The issues raised in this lawsuit illustrate the importance for employers to ensure that they treat all employees, regardless of their sex, in the same manner and provide them with the same benefits and privileges of employment.

A group of female cocktail waitresses – referred to as the “Borgata Babes” – have finally received a win in their suit against the Borgata Hotel and Casino which has now been in the courts for more than a decade. The Atlantic County Superior Court, Appellate Division issued a ruling on May 20, 2019 finding that the Plaintiffs’ claims of gender-based discrimination, based on Borgata’s enforcement of personal appearance standards, should be allowed to proceed to trial.  In so ruling, the Appellate Division overturned the trial court and found that, while the standards themselves (including weight, appearance, and sexual appeal) do not violate anti-discrimination laws, Borgata’s enforcement of those standards could constitute gender based harassment under the New Jersey Law Against Discrimination.

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Accordingly, the Appellate Division remanded the case back to the trial court to conduct further proceedings consistent with their decision. Unfortunately, this will only potentially benefit the five remaining Plaintiffs, out of the original twenty-one “Borgata Babes” who began the suit in 2008. At that time, the Plaintiffs’ alleged that they were humiliated and harassed by Borgata’s management in efforts to have Plaintiffs comply with and meet Borgata’s personal appearance standards.

The standards imposed on the “Borgata Babes” do not automatically violate anti-discrimination employment laws because of the niche role that these employees fill for the hotel-casino. The physical appearance standards are permissible because “Borgata Babes” are not merely servers or waitresses, they are also expected to work as models and hosts to entertain Borgata’s guests and give those guests a Las Vegas experience in their Atlantic City location.  Thus, “Borgata Babes” are displayed as physically fit and are attired in costumes meant to emphasize their physical attractiveness. Maintaining this image is mandatory for a “Borgata Bab” to keep their job.

An act that strips New Jersey public officials of their pensions and retirement benefits after being found guilty or pleading guilty to crimes of corruption will be expanded under a new amendment to now incorporate those convicted of harassment, sexual assault, sexual contact, or lewdness.  The proposed legislation, that was passed by the New Jersey Senate in a 37-0 vote, will now head to Governor Murphy for his signature.

If the legislation is enacted into law, a person who holds or has held any public office, position, or employment, elective, or appointive, under the government of the State of New Jersey, or political subdivision thereof, who is convicted of a crime or offense or touches such office, would forfeit all of the pension or retirement benefits earned during his or her employment or appointment. The proposed law defines a crime or offense that “involves or touches such office, position or employment” as meaning that “the crime or offense related directly to the person’s performance in, or circumstances flowing from, the specific public office or employment held by the person.

The proposed law would expand the criminal conduct subject to the law to twenty four (24) enumerated criminal offenses, that include the following: criminal coercion, theft by deception that exceeds $10,000, theft by extortion, theft by failure to make required disposition of property received if it exceeds of $10,000, criminal bribery, money laundering, false contract payment claims, bribery in official matters, threats and other improper influence in official and political matters, unlawful official business transaction where interest is involved, acceptance or receipt of unlawful benefit by public servant for official behavior, offer of unlawful benefit to public servant for official behavior, perjury, tampering with witnesses, tampering with public records or information, compounding, official misconduct, speculating or wagering on official action or information, pattern of official misconduct, corruption of public resources in excess of $500,000, harassment, sexual assault, sexual contact or lewdness.

The New Jersey Appellate Division ruled that the New Jersey Law Against Discrimination protects New Jersey employees from being fired for failing a drug test in connection with medical marijuana use. For employees who use medical marijuana, this provides some extra protections with respect to their employment. With approximately 45,000 registered patients in the medical marijuana program, and an additional 2,000 members joining every month, this decision has far-reaching implications as it will protect those with disabilities requiring use of medical marijuana.

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The Appellate Division suggested that, to the extent the use of medical marijuana is limited to non-working hours, it does not translate that an employee is unable to perform their job duties and responsibilities. The Appellate Division’s decision was based upon a lawsuit filed by 41-year old Justin Wild, a cancer patient, who was fired from his employment at a funeral home as a result of his medical marijuana use during non-working hours.

The New Jersey Law Against Discrimination prohibits employers from discriminating against disabled employees. The New Jersey state discrimination law requires that employees provide reasonable accommodations to disabled employees who need assistance in performing the essential functions of his or her job. When an employee provides sufficient notice to his or her employer that they need assistance as a result of a disability, the employer is obligated to work with the employee in an interactive process to determine whether the requested or other accommodation can provided to the employee.  The employer must provide a reasonable accommodation, unless they can show that the accommodation would constitute an undue hardship on their business operations.

FOR IMMEDIATE RELEASE:

HOLMDEL, NEW JERSEY (MAY 9, 2019)–The high school teacher who was blamed for a yearbook censorship controversy in Wall Township in 2017 filed a motion in the Superior Court in Monmouth County on Thursday, seeking immediate relief from a Board of Education (BOE) policy that has blocked her from being able to tell her full story to the media.

In her original lawsuit filed on May 6, 2019, Susan Parsons alleged she was framed by members of the school administration as the person responsible for digitally altering a student’s 2017 yearbook photo to remove a “Trump: Make America Great Again” logo from his shirt, a narrative she was unable to refute due to an ongoing BOE media gag order.

FOR IMMEDIATE RELEASE:

Susan Parsons seeks relief from restrictions on her ability to speak to media

HOLMDEL, NEW JERSEY (MAY 6, 2019)–Wall Township former yearbook advisor and teacher Susan Parsons, who was thrown into the center of a high profile high school yearbook controversy in 2017, filed a civil rights lawsuit in the Superior Court of New Jersey, Monmouth County on Monday against the Wall Township Board of Education (BOE) as well as Wall Township High School Superintendent Cheryl Dyer, seeking redress for violations of her First Amendment right to free speech.