Civil Rights Act

New Jersey to Propose Legislation Addressing Systemic Sexual Harassment within Political Campaigns

January 15, 2020 | Smith Eibeler LLC

A bipartisan team of New Jersey state legislators has announced its intention to introduce unprecedented legislation to address harassment and discrimination in New Jersey political campaigns and political parties. New Jersey is leading the push to create long-needed political campaign oversight and such legislation would be the first in the nation. The legislation comes at a time where more and more reports of rampant sexual harassment and sexual assault are brought to light in the media and in courts throughout the country.

The bill will create a new, independent process through which political and campaign staff and volunteers can immediately report allegations of harassment or discrimination without fear of retaliation. The proposed legislation will include clearly defined reporting processes with various reporting structures and mechanisms, codes of conduct, mandatory training, new guidelines and requirements for political campaigns and organizations, penalties for non-compliant entities and individuals, as well as oversight by at least one professional trained in supporting survivors of sexual assault.

While the new bill would create certain legal obligations specifically to campaigns concerning harassment, the dictates of the New Jersey Law Against Discrimination will continue to apply to campaigns. The New Jersey Law Against Discrimination prohibits sexual harassment and discrimination to employees who work on the campaign and invitees of the campaign under the public accommodation provisions of the. Invitees include persons such as volunteers, independent contractors and other persons who work on the campaign but may not be considered “employees” under the New Jersey Law Against Discrimination employment sections.

United Airlines Settles Cyber Sexual Harassment Lawsuit with EEOC

December 27, 2019 | Smith Eibeler LLC

The United States Equal Employment Commission (“EEOC”) has announced that it has settled a discrimination lawsuit in the amount of $321,000 against the United Airlines involving issues of cyber sexual harassment. The Flight Attendant alleged in her pleadings that United Airlines was negligent in allowing ongoing sexual harassment and cyber bullying of a pilot after she broke up with him in 2006 and therefore was responsible for creating at hostile work environment.

In the filed Complaint, the Flight Attendant alleges that she was engaged in a consensual intimate relationship with a United Airlines pilot from 2002 through 2006. During the consensual relationship, the Flight Attendant permitted the pilot to take photos and videos of her in provocative poses. The Flight Attendant alleges that the pilot also took at least one photograph and/or video with her knowledge or permission. In or about 2006, one of the Flight Attendant’s co-workers informed her that he had seen nude photos of her on an internet website for “swingers.” The co-worker told the Flight Attendant that he was led to believe that he had been “chatting” with her on the internet and that he had believed that she had personally emailed him additional photos after they had been communicating directly. Because of the conversation with the co-worker, the Flight Attendant came to believe that the pilot was the person responsible for posting and circulating the nude images of her on the internet. The Flight Attendant ended the relationship with the pilot after confronting the pilot about him posting the photos and videos without her permission or authorization.

The lawsuit alleged that the pilot continued to regularly post the sexually explicit photos and videos over the next decade, from 2006-2016. The Flight Attendant came to learn that the images and videos were viewed by at least two of her United Airlines co-workers and tens of thousands of other United Airlines personnel and coworkers. Despite her repeated complaints and obtaining an injunction, the pilot continued posting the videos and pictures on the internet. The pilot repeatedly referred to the Flight Attendant by name and her occupation and home airport, which she alleged he did intentionally to affect the terms and conditions of her employment.

New Jersey Moves Forward with Hair Discrimination Law

December 18, 2019 | Smith Eibeler LLC

Earlier this week, New Jersey’s Assembly and Senate passed a ban on discrimination associated with hair. Discrimination based on hair has been popping up in courtrooms and legislatures across the country. Once Governor Murphy signs off, it will be unlawful to discriminate based upon hair.

In several states, bills have been proposed to increase protections from hair based discrimination. The New Jersey State Assembly Labor Committee approved a bill this past summer to ban discrimination based upon hairstyles and textures that are traditionally associated with race and is considered a form of race discrimination. The bill was prompted by a December 2018 incident involving a New Jersey high school wrestler forced by a referee to cut his hair, styled in locs, or forfeit the match. The bill was proposed by Assemblywoman Angela McKnight, Hudson County’s representative, following the outrage surrounding the wrestler’s forced hair cut—performed publicly by the referee, in front of spectators. The bill, originally introduced this summer that was recently passed, amends the New Jersey Law Against Discrimination to reflect that “race” is inclusive of traits “historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” “Protective hair styles includes, but is not limited to, such hairstyles as braids, locks, and twists.”

The New Jersey Law Against Discrimination prohibits employers and places of public accommodation from discriminating against employees and other persons. While race has long been recognized as a protected class of persons protected by the state discrimination law, the New Jersey law will specifically prohibit discrimination based upon hair, if the governor signs it into law.

New Study Shows Uptick in College Sexual Assaults

November 7, 2019 | Smith Eibeler LLC

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.

The 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.

NBC Relieves Sexually Harassed Employees From Confidentiality Obligations

October 28, 2019 | Smith Eibeler LLC

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.

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.

SCOTUS Watch: Significant Employment Decisions on the Horizon

October 2, 2019 | Smith Eibeler LLC

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.

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

Sex Discrimination in College Athletic Departments

September 24, 2019 | Smith Eibeler LLC

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.

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.

Second Circuit Court Denies Trump the Ability to Block Twitter Critics

July 17, 2019 | Smith Eibeler LLC

The Second Circuit Court of Appeals issued a defeat to President Donald Trump and more importantly a victory for First Amendment Rights in July, finding that the President could not block individuals on the social media platform Twitter. In the matter, Knight First Amendment Institute at Columbia University v. Trump, — F.3d –, 2019 WL 2932440 (2d Cir. July 9, 2019), the Second Circuit upheld the Southern District of New York’s ruling that the President’s Twitter account was effectively a public forum. Based on this finding, the Court held that President Trump could not restrict certain individuals’ access to his Twitter account because to do so would constitute “viewpoint discrimination” in violation of the First Amendment.

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In his opinion, Circuit Judge Barrington Parker highlighted that though the account was made in 2009, before President Trump was elected, the account has become at least temporarily a government-controlled account and qualifies as a public forum. The opinion noted that the account had been used for governmental purposes in the past. This was made evident when the account was used to announce meetings with foreign leaders, or when it was used to announce the nominations of high-ranking officials, like Christopher Wray as the new Director of the FBI. Because the account was used in an “official capacity” to make announcements regarding governmental activity, the Second Circuit found that the President was likewise acting “in the same capacity when he blocks those who disagree with him.”