Civil Rights Act

July 30, 2021

3rd Circuit Recognizes Associational Discrimination Under Title VII

The United States Court of Appeals for the Third Circuit held on July 29, 2021, that a white employee’s lawsuit against his former employer for workplace retaliation under Title VII could move forward. This decision is especially notable because it is the first time the Third Circuit has issued a directive on race-based associational discrimination. In the case Kengerski v. Harper, No. 20-1307, 2021 WL 3199225 (3d Cir. July 29, 2021) the plaintiff employee alleges he was fired in retaliation for complaining about his supervisor’s racist remarks targeting his bi-racial grandniece and Black and Asian coworkers.

Title VII Retaliation vs. Harassment Claims

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination and harassment based on race, color, religion, sex and national origin. It applies to all employers with fifteen or more employees, except for employees of the federal government, and it is enforced by the Equal Employment Opportunity Commission (EEOC). Under Title VII, an employer may not discriminate with regard to any term, condition or privilege of employment, including recruiting and hiring, deciding who to promote and transfer, assigning work, measuring performance, providing benefits and disciplining or firing. It means that no employee or job applicant can be treated differently in the workplace due to his or her protected characteristics. Importantly for the Kengerski plaintiff and others similarly situated, it also means that no employee, even if he or she is not part of a protected class, can be discriminated against at work based on his or her association with someone else who is part of a protected class. This unlawful practice is called “associational discrimination”.

June 23, 2021

Supreme Court Sides With SnapChat Cheerleaders and Extends First Amendment to Protect Public Students Profane Off-Campus Statements

by Smith Eibeler LLC

In an 8-1 decision, the U.S. Supreme Court has ruled in favor of a Pennsylvania teenager in a closely watched free speech case, after the student was suspended from her high school cheerleading squad after posting a series of profane “stories” to her social media Snapchat account. This case reexamined the reach of the First Amendment as it applies to public school students when they are off school grounds.

Plaintiff Brandi Levy tried out for Mahanoy Area High School’s varsity cheerleading squad, and when she did not make it, she memorialized her dissatisfaction by posting two temporary, 24-hour private stories to her Snapchat account with a friend at a local convenience store after school. The first post, which said “F**k school f**k softball f**k cheer f**k everything”, became the basis for her cheerleading coach to suspend her from the squad. Members of the cheer team notified school officials, who suspended Levy from the junior varsity cheerleading squad for the entire upcoming year under a cheer policy requiring students to be respectful, avoid profanity and not speak negatively about the sport. Levy and her family brought the case to district court. Both the district court and the court of appeals sided with Levy, granting her an injunction and nominal damage, but disagreeing with what standard applies to a school’s regulation of off-campus student speech.

The Supreme Court granted review and drew a new line where public schools have the authority to regulate student speech. The Court relied on the 1969 case of Tinker v. Des Moines Independent Community School District, which was a landmark decision by the United States Supreme Court that limited First Amendment rights of students in public schools. That decision established that public schools’ have a special interest in regulating on-campus student speech that “materially disrupts class-work or involves substantial disorder or invasion of the rights of others.” The Tinker standard holds that “[C]onduct by [a] student, in class or out of it, which for any reason—whether it stems from time, place, or type of behavior—materially disrupts classwork or involves substantial disorder or invasion of the rights of others is . . . not immunized by the constitutional guarantee of freedom of speech.” Yet Tinker is a fifty-year old case, and as such, it does not address the types of speech we often see from students today – tweets, chats, stories and other social media modalities that reach hundreds of people in a variety of different locations and at different times, depending on when the speaker’s audience of online “friends” check their smartphones or computers. Whereas students at the time of the Tinker decision were engaging in speech during school hours, with and to classmates on school grounds, public school students’ speech today has the potential to “materially disrupt[] classwork or involve[] substantial disorder or invasion of the rights of others” even when the student is nowhere near the school and the speech takes place after school hours.

May 21, 2021

Cuomo’s Definition of Sexual Harassment with New York Law

by Smith Eibeler LLC

New York Governor Andrew Cuomo has been under fire since March 2021, having been accused by over a half-dozen women of sexual harassment, including staffers who say the harassment took place at work. Some are surprised by the allegations given that Governor Cuomo has publicly been seen as one of the nation’s leaders in protecting the rights of women and fighting workplace sexual harassment.

On August 12, 2019, Governor Cuomo signed legislation under the New York State Human Rights Law that made that state’s sexual harassment law one of the strongest in the country. The legislation included extending the statute of limitations for sexual harassment claims from one year to three years, and rejecting the requirement found in other states, including New Jersey, that the harassing conduct must be severe or pervasive to be unlawful. These protections were in addition to the laws that Governor Cuomo signed in April 2019 as part of his 2019 Women’s Agenda. That agenda required all state contractors to affirm that they have a sexual harassment policy and that all employees have received training; prohibited employers from imposing mandatory arbitration to deal with sexual harassment claims and limited non-disclosure agreements to only those situations in which they were expressly requested by the harassment victim; required public employees found to have intentionally sexually harassed someone to reimburse the state for any judgment against it; and extended the law’s protections to contractors, subcontractors, vendors, consultants and other non-employees providing services in the workplace.

The New York State Equal Employment Opportunity Handbook defines sexual harassment as “unwelcome conduct which is either of a sexual nature, or which is directed at an individual because of that individual’s sex when such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile or offensive work environment, even if the reporting individual is not the intended target of the sexual harassment . . . Sexual harassment also consists of any unwanted verbal or physical advances, sexually explicit derogatory statements or sexually discriminatory remarks made by someone which are offensive or objectionable to the recipient, which cause the recipient discomfort or humiliation, or which interfere with the recipient’s job performance. . . . Quid pro quo sexual harassment occurs when a supervisor or other person with authority makes an employee’s submission to a sexual demand a condition of his or her employment. Sexual harassment need not be severe or pervasive to be unlawful, and can be any sexually harassing conduct that consists of more than petty slights or trivial inconveniences. It is not a requirement that an individual tell the person who is sexually harassing them that the conduct is unwelcome. In fact, the Human Rights Law now provides that even if a recipient of sexual harassment did not make a complaint about the harassment to the employer, the failure of the employee to complain shall not be determinative of whether the employer is liable.”

April 6, 2021

Trump Campaign Gag Orders Are Unenforceable Against Employees Exercising First Amendment Rights

by Smith Eibeler LLC

A former employee of Donald Trump’s 2016 Campaign has won a major legal victory against her former employer. Denson v. Donald J. Trump for President, Inc., Slip Copy, 2021 WL 1198666 (S.D.N.Y. March 30, 2021). Jessica Denson has won a summary judgment motion against the Campaign barring it from enforcing overly broad and vague non-disclosure and non-disparagement clauses contained in her Employment Agreement. The District Court for the Southern District of New York found in favor of plaintiff Jessica Denson and against defendant Donald J. Trump For President, Inc. and declared the Campaign’s non-disclosure and non-disparagement provisions invalid and unenforceable as unconstitutional under the First Amendment.

Denson argued that the non-disclosure and non-disparagement provisions of the Employment Agreement are unenforceable under New York law for several reasons, including that they restrict employee speech ad infinitum, their definition of confidential information is practically all-encompassing, they restrict speech on political matters and other topics of public concern, they threaten employees with severe financial penalties for breach, and they prevent employees from reporting misconduct in the workplace. In response, the Campaign claimed, among other things, that its privacy interests outweighed employee rights to unfettered free speech, and employees had waived their First Amendment rights anyway by signing the Employment Agreement. Also in response to Denson’s claims that the non-disclosure and non-disparagement clauses were overbroad prohibitions on free speech and therefore unenforceable, the Campaign argued that she had failed to adequately identify how they had hindered her speech. Specifically, the Campaign pointed to Denson’s public statements expressing her negative opinions of the Campaign and former President Donald Trump, which she had posted on social media platforms over the past couple of years, allegedly without any legal action being taken against her. The Campaign even went so far as to confirm that it has no plans to enforce the non-disclosure or non-disparagement clauses against Denson in the future if she chooses to continue expressing her views. The Campaign argued that Denson could not show that the Employment Agreement “chilled” her exercise of free speech without presenting a specific, objective present or future harm. The Court disagreed.

Relying on the reasoning of a 2010 case called Ashland Mgmt. Inc. v. Altair Invs. NA, LLC, 59 A.D.3d 97, 102 (1st Dept. 2008), aff’d as modified, 14 N.Y.3d 774 (2010), the Court applied a standards based test to the Employment Agreement. Specifically, the Court analyzed whether the clauses at issue were “reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.” As to the scope of the clauses, the Court found them to be essentially unlimited. The Campaign had defined “confidential Information” to include a variety of vague categories without clear definitions or limits. In fact, the Court was unpersuaded by the Campaign’s argument that certain categories of information are integral to the Campaign’s privacy interest, such as campaign strategy and communications. The Court found that even with respect to those categories of legitimate interest, the terms were not adequately defined, and thus were broad enough to cover any information at all relating to the Campaign. Recognizing that the Campaign has a legitimate interest in protecting certain information from disclosure, the Court still held that the non-disclosure provision was not written narrowly enough. “Indeed, the vagueness and breadth of the provision is such that a Campaign employee would have no way of knowing what may be disclosed, and accordingly Campaign employees are not free to speak about anything concerning the Campaign. The non-disclosure provision is thus much broader than what the Campaign asserts is necessary to protect its legitimate interests, and therefore is not reasonable.”

March 28, 2021

Residency Requirement for Public Employees Receives Court Scrutiny

by Smith Eibeler LLC

It is not uncommon for states or municipalities to require local residency for public employment. Proponents of residency requirements feel that they benefit the community because residents are more likely to have a strong commitment to the community, to pay local taxes, attend local schools and participate in community activities. Critics of residency requirements often argue that removing the choice of where to live imposes too great a burden on the employee and his or her family. Residency requirements have been litigated in our courts all over the country. The United States Supreme Court has upheld the constitutionality of residency requirements in general, finding that they are not per se irrational.

In New Jersey, since September 1, 2011, the “New Jersey First Act”, signed into law by former Governor Chris Christie, has required most public employees working for the state, or one of its counties or municipalities, to live in New Jersey. That requirement has applied to employees of public agencies, commissions, public colleges and universities, and all school boards, among others to reside in the State of New Jersey unless otherwise exempted under the law. Exemptions were to be granted only when a worker could prove a “critical need or hardship.” Those who claimed qualification for the exemption had to present their case to New Jersey’s Employee Residency Review Committee and hope they were granted leave to live outside the state. As adopted by the Civil Service Commission, failure to comply with the State’s regulations on residence standards required the employee’s immediate suspension as “unfit for duty”.

An analysis by NJ Advance Media several years ago showed that in practice, the Employee Residency Review Committee has typically granted requests for exemptions to workers who can prove financial hardship or health concerns or who can submit proof that they are a “critical” employee who would be difficult to replace if they quit as a result of the residency requirement. Since its enactment, the Committee has granted exemptions to approximately 80% of applicants, with reasons ranging from child custody agreements to the inability to pay New Jersey’s high property taxes, to debilitating family illnesses. Other applicants have been granted permission to live outside the state simply by presenting a letter from their employer stating that they are “critical” to their work for the state.

October 7, 2020

Princeton University Settles Female Professors Equal Pay Lawsuit for $1.2 million

by Smith Eibeler LLC

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.

Most 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.

June 13, 2020

NFL Players Suing United Airlines Highlight Issue of Anonymity for Victims of Sexual Harassment

by Smith Eibeler LLC

Workplace sexual harassment and assault have always been unfortunately common occurrences, and with the momentum of the #MeToo movement, these unlawful incidents are coming to light much more frequently. The repercussions for perpetrators is becoming more severe, but what about the unintended repercussions for the victims who come forward seeking justice? If an employee is sexually harassed or assaulted at work, how can he or she file a lawsuit without exposing himself or herself to further harm and humiliation? Does the victim have to choose between justice and personal security, or is anonymity an option in civil suits? Unfortunately for victims of sexual harassment who would like to proceed with claims anonymously, the strong constitutionally protected presumption that courts are open to the public is often very high to overcome.

The issue of proceeding anonymously will be at issue in connection with two unnamed NFL players made recent headlines for filing a lawsuit against United Airlines on an anonymous basis. In the lawsuit, the unnamed NFL players allege that flight attendants did not respond to their requests for help when a fellow passenger repeatedly groped their thighs and groins and verbally harassed them for wearing face masks on a flight from Los Angeles, CA to Newark, NJ in February. The lawsuit was filed in Los Angeles County Superior Court, and details the escalating verbal harassment and sexual assault that was allegedly reported to flight attendants twice, ignored both times, and then only addressed when one of the victims got out of his seat and sought help to have the woman moved away from them. The woman was finally removed from the victims’ vicinity for the remainder of the flight, and the victims were given $150 vouchers by the airline. The players are seeking unspecified damages for battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence and negligent hiring, training, supervision and retention.

Their attorney has stated that in bringing the lawsuit, the plaintiffs hope to help end this type of behavior and hold the airline accountable for keeping its passengers safe, but that they also fear the stigma that accompanies being male victims, which may be compounded by racial stereotypes about young African American males in particular. The NFL players have been allowed to proceed using John Doe pseudonyms so far, but it’s unclear how long their anonymity will last.

March 12, 2020

Supreme Court Allows Employee Terminated for Medical Marijuana Law to Proceed with Discrimination Lawsuit

by Smith Eibeler LLC

The New Jersey Supreme Court has issued an important decision holding that an employer’s refusal to permit an employee to use medical marijuana can constitute a violation of the New Jersey Law Against Discrimination. The New Jersey Legislature has in recent years recognized the medical benefits of cannabis use to treat symptoms of certain medical conditions. As a result, New Jersey has enacted progressive legislation, including enacting the Compassionate Use Act supporting the use of medicinal marijuana. The New Jersey Supreme Court’s ruling provides greater job protection to New Jersey employees treating serious medical conditions with medicinal marijuana and affirms New Jersey’s position on the use marijuana as a legitimate method of medical treatment.

In Wild v. Carriage Funeral Holdings, Inc., the plaintiff, Justin Wild, was employed with the defendant company, Feeney Funeral Home, LLC as a licensed Funeral Director. In 2015, Wild was diagnosed with cancer. His treating Physician prescribed medicinal marijuana as a component of his cancer treatment–primarily to help manage pain. Wild did not disclose this treatment method to his employer, but on days he worked, Wild would only take his prescribed medical marijuana after his shift had ended.

In May of 2016, Wild was involved in a motor vehicle collision during work. Another driver had run a stop sign and struck Wild’s vehicle. As a result of the accident, Wild required medical attention. At the hospital, Wild disclosed to his treating physician that he had a prescription for and had been using medical marijuana to treat his cancer. Upon inspection, the physician concluded the Wild was not under the influence of marijuana at the time of the incident.

February 27, 2020

Revisiting Battaglia v. UPS: New Jersey Employment Retaliation Law

by Smith Eibeler LLC

An employee is protected from retaliation from his or her employer when he or she engages in protected activity under the New Jersey Law Against Discrimination. But what constitutes protected activity? Is any complaint covered? Or does the employee complaint have to one that the complained of conduct violate the law? The Supreme Court of New Jersey answered these questions concerning the standard in a 2013 decision in the case of Battaglia v. United Parcel Service Inc., in holding that an employee engages in protected activity when employee’s complaint is reasonable and made with a good faith belief that the complained of conduct violates the LAD.

The Battaglia decision involved a case of sexual harassment retaliation. Michael Battaglia had been employed with UPS since 1985, when he began as a driver and worked his way up the ranks. In 2001, Battaglia became the division manager of UPS’s South Division and he began supervising Wayne DeCraine. During this time, Battaglia became aware of DeCraine’s derogatory remarks about women, including sexually inappropriate comments about female employees at UPS. Battaglia took steps at that time, in accordance with UPS policy, to address DeCraine’s conduct and behavior. For unrelated reasons, thereafter, Battaglia was moved through several other departments at UPS and ultimately in 2004, returned to working with DeCraine – now with DeCraine supervising Battaglia as a division manager.

After some time, DeCraine began making what Plaintiff perceived to be a series of inappropriate sexual comments. While the comments were only made in the presence of male employees, the comments were about other female employees. Battaglia asserts that he spoke with DeCraine each time he made a comment and further met with their supervisor who had also heard these remarks.

February 18, 2020

New Jersey DCR Releases Findings and Recommendations Aimed to Prevent and Eliminate Sexual Harassment

by Smith Eibeler LLC

The New Jersey Division of Civil Rights (DCR), in partnership with the New Jersey Coalition Against Sexual Assault (NJCASA), has released its report and recommendations to address the systemic problem of sexual harassment in New Jersey. The report entitled “Preventing and Eliminating Sexual Harassment” is the culmination of information, expertise and testimony provided by various experts, advocates, survivors and state governmental organizations concerning sexual harassment and abuse within both the workplace and in places of public accommodation. Following the release of the report, Governor Murphy announced that he will support several of the legislative initiatives recommended by the DCR to strengthen New Jersey sexual harassment law.

Sexual harassment at the workplace and in places of public accommodation are prohibited under the New Jersey Law Against Discrimination. Under New Jersey state law, employers and places of public accommodation have a legal obligation to have effective anti-harassment policies in place to prevent, stop and remediate workplace sexual harassment. The factors used by courts to determine whether an employer’s anti-harassment policy is effective are: (1) whether there are formal policies prohibiting harassment in the workplace; (2) whether there are formal and informal complaint structures for employees to report violations of the policy; (3) whether the employer provides anti-harassment training to all employees, including mandatory training for supervisors and managers; (4) whether the employer has effective sensing or monitoring mechanisms to check the trustworthiness of the policies and complaint structures; and (5) whether the employer has demonstrated an unequivocal commitment from the highest levels of the employer that harassment will not be tolerated, and commitment to the policies by consistent practice.

Employers who fail to have effective anti-harassment policies in place can be held liable for the sexual harassment of employees by supervisors, co-employees, customers or other persons associated with the business. Similarly, places of public accommodations must also take affirmative and proactive steps to assure invitees are not subjected to sexual harassment while at their place of public accommodation. Places of public accommodation are businesses, agencies, organizations or other entities that are open to the public. For example, schools, retail establishments, governmental buildings and governmental campaigns are viewed as places of public accommodation. As with any employer, places of public accommodations have the same duties to have effective anti-harassment policies in place that prevent and keep persons safe from sexual harassment.