Articles Posted in Hostile Work Environment

On October 4, 2018 the Equal Employment Opportunity Commission (“EEOC”) released the preliminary report of the sexual harassment data they collected for fiscal year 2018 (ending September 30, 2018).  This report shows that the #MeToo movement has had a widespread impact on reporting of sexual harassment and related workplace abuses.

The EEOC is the federal agency of the United States charged with administering and enforcing civil right laws against workplace discrimination including claims of sexual harassment, unlawful discrimination and retaliation.  Individuals who have suffered wrongful termination or discrimination at the workplace can file a charge with the EEOC by themselves or through the assistance of a private employment lawyer.  The EEOC was formed in 1965 and maintains its headquarters in Washington, DC with offices throughout the United States, including New Jersey.

Over the course of the past year, there has been a seismic shift in the way that sexual harassment has been viewed and addressed across all aspects of our society in large part due to the #MeToo movement.  Nowhere has this change been seen more drastically than in the incidents of sexual harassment at the workplace.  In the past year there has been a reckoning across the United States, with a clear message being sent to harassers that discriminatory and harassing behavior and conduct will no longer be tolerated at the workplace, our schools or in any other circumstances.

A federal Court of Appeals has affirmed a jury verdict in favor of a former Costco employee in connection with her claim of a hostile work environment based upon sexual harassment by a customer.  This case reaffirms that an employer can be held legally responsible for allowing a hostile work environment created by non-employees if the conduct is severe or pervasive enough to render the employee’s work environment hostile.

In the matter of EEOC v. Costco Wholesale Corp., the EEOC sued on behalf of a former Costco employee, Dawn Suppo.  Ms. Suppo was initially employed as a seasonal, part-time employee in 2009 and then became a regular, part-time employee in May, 2010.  Around the time she became a regular employee, a customer named Thad Thompson began approaching Ms. Suppo and asking her personal questions that her uncomfortable.  Initially, Ms. Suppo did not report the interactions to her supervisor or other management.  However, in or about July/August, 2010, the conduct did not stop and Ms. Suppo informed her supervisor of Mr. Thompson’s harassing conduct and the fact that she was scared of him.  Her supervisor instructed her to notify him if she sees Mr. Thompson again.

Soon thereafter, Ms. Suppo noticed Mr. Thompson in the store again watching her through the store aisles. Ms. Suppo reported to her supervisor that Mr. Thompson was back in the store stalking her and that she was scared of him.  As a result, Ms. Suppo’s supervisor and other management brought Mr. Thompson into the warehouse office and instructed him to leave Ms. Suppo alone.  Mr. Thompson responded with anger and loudly yelled that it is a “free country” and that he had “freedom of speech.”  Ms. Suppo was extremely scared at this point and decided to call the police and file a report.  Later that day, the one of the Costco Assistant Managers yelled at Ms. Suppo for calling the police and instructed her to be nice to Mr. Thompson.

The New Jersey Appellate Division has reversed a trial court’s determination that barred an employee from pursuing punitive damages in an arbitration proceeding.  While reversing the trial court’s determination concerning the issue of punitive damages, the court affirmed the trial court’s dismissal of the lawsuit by holding that the plaintiff knowingly agreed to arbitrate her sexual harassment claims by waiving her right to a jury trial as set forth in the employment agreement. As a result, the employee will now pursue her sexual harassment claims in a private arbitration, but will be permitted to pursue her claims for punitive damages in the arbitration proceedings.

In the case of Milagros Roman v. Bergen Logistics, LLC,the employee, Ms. Roman, alleges that she experienced sexual harassment during her employment with Bergen Logistics.  Roman began her employment as a human resource generalist in 2015.  In April, 2017, Roman alleges that she was subjected to sexual harassment from her immediate supervisor and was terminated form her employment in retaliation for rebuffing the sexual advances.  Roman subsequently filed a complaint in the Superior Court of New Jersey for claims sexual harassment, retaliation, hostile work environment and intentional infliction of emotional distress.

The employer responded by filing a motion to dismiss and to compel Roman to bring her claims in a private arbitration proceeding based upon an employment agreement that she signed in which she waived her right to a jury trial.  The employment agreement also included a provision that barred Roman from pursuing punitive damages in any action against the employer.  Specifically, the agreement read the employee and the employer agreed not to “file or maintain any lawsuit, action or legal proceeding of any nature with respect to any dispute, controversy or claim within the scope of [the] Agreement,” and that “BY SIGNING [THE] AGREEMENT [PLAINTIFF] AND THE COMPANY ARE WAIVING ANY RIGHT, STATUTORY OR OTHERWISE TO A TRIAL BY JURY.” The trial court granted the employer’s motion and dismissed Roman’s claim and also found that the arbitration agreement’s clause that waived Roman’s right to pursue punitive damages as enforceable.

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.

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.

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.

Two recent New Jersey court cases further demonstrate that unlawful workplace harassment can occur in any industry, at any level, targeting employees of all demographics. Despite this fact, some workplaces are more susceptible to experiencing harassment than others. One such industry is the restaurant and hospitality industry. According to a recent study conducted by the Equal Employment Opportunity Commission, more restaurant and hospitality workers submitted complaints of workplace harassment than any other industry specified in the study. To some, this may seem predictable because of the frequency of late shifts, the presence of alcohol, and a reliance on tips in this industry.

One recent lawsuit that has received attention from local media originated from an employee of the well known Snuffy’s Steakhouse in Scotch Plains, New Jersey. In a complaint recently filed, Alston Shakera v. Snuffy Pantagis ENT. Inc., Alston alleged that she came out of the bathroom to find a busboy exposing himself, and then physically grabbing her when she refused his advances. Prior to this, Alston had been subject to a consistent pattern of sexually harassing comments and unwanted contact by both coworkers and customers. While this may seem like an extreme example of workplace sexual harassment, experts say that employees of restaurants are subject to unwanted touching and lewd remarks or text messages at a particularly high rate.

The restaurant industry is clearly not the only workplace plagued by unlawful harassing behavior. In another recent sexual harassment lawsuit filed against the Mountainside Police Department, several employees have alleged they were subjected to severe harassment and torment stemming including regular homophobic comments, sexual advances and even aggravated assault.

The Sayreville Board of Education cancelled the varsity football team’s Thursday night game last week for what was described by Superintendent Richard Labbe as inappropriate conduct of a significant and serious nature within the football program. On Tuesday, the Board of Education cancelled the entire season in midst of the Middlesex County Prosecutor’s Office continued investigation into potential criminal conduct that occurred within the Sayreville football program.

ABC news reported that the allegations included younger kids of the Sayreville football team being routinely taunted, bullied and intimidated by the older players, often with “sexual overtones.” On Wednesday, nj.com published an exclusive article of specific allegations of sexual assault from an anonymous parent of a Sayreville football player. The article describes an almost daily locker room ritual of senior football players sexually assaulting freshman football players during this season as follows:

It came without warning.