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.

New Jersey’s State Policy Prohibiting Discrimination in the Workplace is considered amongst many New Jersey employment lawyers as being one of the least protective of employee rights in the entire country.  Unfortunately, the newest revisions proposed by the Civil Service Commission do not provide any meaningful improvement for State employees governed under the State’s anti-harassment policy, and particularly with respect to how it conducts investigations of claims of sexual harassment.  In fact, when it comes to New Jersey’s controversial “strict confidentiality directive” policy, the proposed changes make the New Jersey’s anti-harassment policy even worse for victims of sexual harassment and discrimination.

Much has been written over the past week regarding the Civil Service Commission’s attempts to strengthen the strict confidentiality directive.  While the Civil Service Commission’s proposed revisions could worsen the penalties for breach, the current version of the strict confidentiality directive in effect continues to require incidents of sexual harassment from the public. What many of the news reports seem to have missed is the devastating impact of the current strict confidentiality policy has and continues to have on silencing victims of sexual harassment.

The current strict confidentiality directive in place expressly threatens state employees with discipline up to and including termination if the state employee exercises his or her constitutionally protected right to speak out about allegations of harassment within the state workplace. A state employee who makes a complaint of harassment or discrimination, or is requested to participate in a discrimination or harassment investigation, is required under current state regulations and practice to keep all aspects of the investigation confidential.  This means, for example, that if a state employee is the victim of sexual assault or harassment at her state job and she complains about it to the State’s EEO/AA office, she is forbidden under current regulations and practice to tell a lawyer, a co-worker or even her spouse anything about what happened.  The strict confidential directive remains in place and every state employee must abide by it or be subject to discipline.  N.J.A.C. 4A:7-3.1(j), states:

Last month New York City took action to combat an often-overlooked form of race discrimination involving employee’s hair.  In February 2019, the New York City Commission on Human Rights (the “Commission”) published new guidance that explains that employers (as well as housing providers and providers of public accommodations) can no longer institute policies or practices that discriminate against people on the basis of their natural hair texture or their choice to wear a hairstyle commonly associated with African Americans, such as an afro or dreadlocks.  According to this new guidance, the Commission views such policies and practices as violative of the New York City Human Rights Law (the “NYCHRL”), announcing that in the Commission’s view, “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.

Discrimination based on hairstyles is an issue that courts across the country have grappled with over the years, with generally employer-friendly results. Courts have been fairly consistent in finding that where a person’s hairstyle is tied to their faith, employers cannot restrict their right to express their faith through their chosen hairstyle. On the other hand, where the person’s hairstyle is tied to their cultural identity and heritage, courts have not been so kind.  For the most part, if an employer implemented a race-neutral policy banning hairstyles associated with Black people, courts have not found discrimination. Similarly, race-neutral policies restricting “unkempt” or “messy” hairstyles have generally gained approval from the courts.

For the most part, in order to prevail, a plaintiff had to show that they were specifically targeted in some way, or that the employer’s policy was not applied neutrally.  In other words, employees had to demonstrate that the employer’s defense – that the employee failed to comply with a race-neutral employee grooming policy – was pretextual and that the employer’s true motive was discriminatory.  Proving pretext can be extremely difficult, which explains why most employers have succeeded when their grooming policies have been challenged as racially discriminatory.

New Jersey employees of four different fast-food chains won a significant victory last month when it was announced that they would no longer use or enforce “no-poach” contracts or agreements to restrict their employees.  The chains – Dunkin’, Five Guys, Arby’s, and Little Caesar’s – came to formal agreements with the State of New Jersey to end the practice.  These agreements were made in the wake of an investigation into the practice, launched by the Attorneys General of 13 states, including New Jersey. New Jersey’s Attorney General Gurbir Grewal released a statement regarding the agreements, saying “I am glad that Arby’s, Little Caesar, Five Guys and Dunkin’ now recognize the unfairness of no-poach agreements and will stop using them, and I am proud of the multistate investigation that led to their change of heart.”

The particular agreements at issue here restricted fast-food employees from leaving their employment to work for a different franchise of the same fast-food company.  For example, a cashier at a Dunkin’ in New Brunswick would be restricted from working as a cashier at a Dunkin’ in Trenton.  Upon applying to the Trenton location, the prospective employee would disclose their previous employment at the New Brunswick location, causing the Trenton location to deny the employee’s application.  This can be particularly harmful when, for example, the New Brunswick cashier applies for a vacant store manager position at the Trenton location because there was no managerial position open at the New Brunswick location.  In this case, the no-poach agreement doesn’t just stifle competition, it harms the individual employee by denying them an opportunity to advance their career and increase their earning potential.

The rationale supporting these agreements, ostensibly, is a need to protect the resources expended on training the departing employee.  Without these agreements, the fast-food companies argue, franchisors would be damaged as they would not be able to recoup the investment they made in the employee.  Additionally (though this is not one of their stated rationales) these agreements provide substantial benefit to franchisors by reducing wages and depressing wage growth. By outlawing an employee from working for another franchisor, the franchisor in question insulates themselves from competing with that franchisor.  There is no concern that an employee will go to the competitor for better pay, so there is no incentive to offer better pay.  This is an insidious result of no-poach agreements, and one of the main reasons they have come under so much scrutiny in recent years.  This is closely related to the concern that no-poach agreements may also run afoul of Federal anti-trust law, as the franchisors could be viewed as colluding to fix wages.

Any woman who returns to work after a pregnancy understands how challenging it can be. For mothers who choose to breastfeed, returning to work presents an additional layer of complexity. Figuring out how, when and where to express breast milk requires the cooperation of the employer, who all too often does not understand its legal obligations to assist the mother returning to work and provide reasonable accommodations to breastfeed or express milk during work hours. Understanding your rights respecting laws to support lactating women while at work can be instrumental to continued breastfeeding success following the return to work.

In 2018, New Jersey became the 28th state to enact protections for breastfeeding mothers in the workplace. Former Governor Chris Christie signed into law protections for breastfeeding employees who wish to express milk at work. Effective January 8, 2018, the law provides protections and accommodations for employees who breastfeed and wish to pump in the workplace. The New Jersey Law Against Discrimination now specifically includes “breastfeeding” as a protected class which makes it unlawful to discriminate against an employee on the basis of her breastfeeding status.  The law also prohibits employers from retaliating against employees who they know or should know breastfeeds or who needs to express milk at work for their newborn child.