Articles Posted in Law Against Discrimination

In the midst of a national discussion regarding sexual harassment in the workplace, the laws prohibiting such egregious behavior as well as the methods of reporting and investigating related complaints have come under scrutiny. Many businesses across the country are reviewing their anti-harassment policies to become legally compliant and limit their liability when sexual harassment occurs at their workplace. In New Jersey, a claim of sexual harassment was first recognized in 1993, in the landmark New Jersey Supreme Court case Lehmann v. Toys ‘R’ Us. Commonly referred to as Lehman by New Jersey employment lawyer and judges, this case set the standard for stating a cause of action for a claim of sexual harassment that created a hostile work environment.

Sexual harassment cases are typically divided into two categories: quid pro quo harassment or harassment that generates a hostile work environment. Quid pro quo sexual harassment occurs when an employer or supervisor attempts to make an employee submit to sexual demands as a condition of his or her employment. Sexual harassment that creates a hostile work environment was ill defined prior to 1993, which made Lehmann v. Toys ‘R’ Us the landmark case for sexual harassment cases in New Jersey.

In 1986, Ms. Theresa Lehmann’s employment with Toys ‘R’ Us was drastically altered upon the hiring of Don Baylous as the Director of Purchasing Administration. Under his supervision, Ms. Lehmann and her female coworkers began to experience pervasive sexual harassment that varied from sexualized comments about Ms. Lehmann’s breasts to an instance where Mr. Baylous physically pulled Ms. Lehmann’s shirt over her head to expose her breasts. Ms. Lehmann attempted to report the conduct to several managers, but very little was done to remedy the situation. Instead of addressing Mr. Baylous’s behavior, Ms. Lehmann was offered a transfer to a different department. She rejected this, and later resigned as a result of the harassing conduct and the retaliation she experienced from reporting it. In response to this inadequate managerial reaction, Ms. Lehmann submitted a formal legal complaint of sexual harassment that was initially heard by a trial court. The trial court dismissed all causes of action except battery. Ms. Lehmann appealed, and the appellate court reversed the trial court’s dismissal of her claims of a hostile work environment brought on by sexual harassment, which they remanded for further fact finding. The case eventually found its way to the New Jersey Supreme Court, where it developed into a monumental case in New Jersey court history.

Smith Eibeler, LLC, on behalf of our client, Katherine Brennan, has filed an Order to Show Cause For Temporary and Preliminary Restraints against the State of New Jersey (hereinafter, the “State”), from (1) enforcing the “strict confidentiality directive” found in N.J.A.C. 4A:7-3.1(j) against Ms. Brennan and any witnesses in the EEO/AA investigation being launched in response to her December 4, 2018, testimony before the Legislative Select Oversight Committee (“LSOC”)(hereinafter, the “EEO/AA Investigation”); (2) requiring Ms. Brennan to participate in any EEO/AA investigation until after this litigation and any criminal proceedings resulting from Ms. Brennan’s allegation of sexual assault are completed; (3) requiring Ms. Brennan and other witnesses in the EEO/AA Investigation to sign the “strict confidentiality directive” form; (4) requiring the EEO/AA to investigate the numerous violations of the State’s Policy Prohibiting Discrimination in the Workplace (“State Policy”) as set forth in the Complaint; and (5) declaring the “strict confidentiality directive”of N.J.A.C. 4A:7-3.1(j)  as null and void.

For the past year, the State has refused to conduct any investigation into any of Ms. Brennan’s reporting that she had been raped by Alvarez. Ms. Brennan exhausted all possible internal avenues of recourse and received no aid or support. Having no other option, Ms. Brennanwas compelled, as a last resort, to bring her allegations into public light. On October 14, 2018, her story was published in The Wall Street Journal. The article laid out in detail not only the rape Ms. Brennan had endured, but also her extensive efforts to prompt the State, through complaints to numerous high level State officials, to take action.

Ms. Brennan’s act of publicly telling her story accomplished what her numerous internal complaints and reports could not: it triggered investigations. As a result of the October 14 Wall Street Journal article, in or about October 2018, numerous investigations and/or reviews were launched in various departments of State and county government, including: (1) an ongoing review by the Middlesex County Prosecutor’s Office of the criminal investigation conducted by the Hudson County Prosecutor’s Office (“HCPO”) into Ms. Brennan’s criminal complaint; (2) a review by Attorney General Gurbir Grewal and the Office of Public Integrity and Accountability (“OPIA”) into Hudson County Prosecutor Esther Suarez’s involvement in the investigation of Ms. Brennan’s allegations of sexual assault; (3) the ongoing investigation by the LSOC into how sexual misconduct complaints are handled by the state, as well as hiring practices; (4) Governor Murphy’s directive to the Division of EEO/AA to review policies and procedures for addressing allegations of sexual misconduct; and (5) an investigation on behalf of the Office of the Governor by former Supreme Court Justice Peter Verniero into the hiring of Alvarez.

Most people know what sexual harassment is when they see it.  Whether an employer is responsible for sexual harassment that occurs at the workplace, however, is a more complicated fact specific inquiry.

It is first important to understand the definition of unlawful sexual harassment.  Sexual harassment is a form of unlawful discrimination under the New Jersey Law Against Discrimination.  The first form of sexual harassment is quid pro quo harassment.  A claim of quid pro sexual harassment occurs when an employer attempts to make an employee’s submission upon a sexual demand or sexual proposition a condition of employment.  The second form of sexual harassment is a claim of hostile work environment sexual harassment.  The elements of a hostile work environment sexual harassment is when the harassment (1) would not have occurred but for the employee’s sex, and the harassment was (2) severe and pervasive enough to make a (3) reasonable woman believe that (4) the conditions of the employment are altered and the working environment is hostile or abusive.

The first issue to determining whether an employer can be liable for sexual harassment that occurs at its workplace in a lawsuit is to identify the damages an employee is seeking in the case.  An employer will be liable for equitable damages and relief  if he or she seeks restoration of the terms, conditions and privileges of employment that he or she would have enjoyed but for the discrimination or sexual harassment.  Equitable relief is not money damages.  Instead, an employee who seeks equitable relief as a result of sexual harassment is looking for the court to require the employer to act or refrain from performing a particular act such as stopping the harassment, job reinstatement or other non-monetary relief.

On Monday, the New Jersey State Assembly approved a bill that would provide a substantial tax benefit to victims of unlawful workplace discrimination, retaliation, or other violations of laws that regulate any aspect of the employment relationship.  This bill was first introduced in the New Jersey State Senate in January 2018, and has enjoyed widespread, bi-partisan support as it has worked its way through the legislative process.  Monday’s approval by the Assembly, by a unanimous vote of 79 to 0, was the final legislative hurdle.  If Governor Phil Murphy signs the bill into law, it will be a great victory for victims of workplace discrimination and retaliation across New Jersey.

In 2004, the United States Congress passed the Civil Rights Tax Relief Act. The Civil Rights Tax Relief Act was intended to, among other things, eliminate a flaw in the tax treatment of awards won by plaintiffs who successfully prosecuted claims of discrimination or retaliation.  Prior to 2004, a plaintiff who received an award in a discrimination or retaliation case were required to include in their gross income the entire amount of that award.

This was the case, despite the fact that a portion of that award constituted attorney’s fees and costs that were awarded along with the amount awarded for the plaintiff’s damages. Not only did this tax treatment negatively impact those plaintiffs, it also subjected that portion of the award to double taxation, as the attorneys who ultimately collected those fees and costs were also required to include that amount in their gross income. Congress cured this flaw by exempting that portion of such a plaintiff’s award from their gross income.  In approving the legislation on Monday, New Jersey is finally following suit.

The #MeToo movement has brought long overdue attention to the systemic societal problems concerning workplace sexual harassment throughout the United States and the State of New Jersey.  Most sexual harassment claims by a New Jersey employee are brought under the New Jersey Law Against Discrimination, a state statute.  While a New Jersey employee or resident may also bring a claim of sexual harassment under the federal statute, Title VII, most New Jersey employment lawyers counsel clients to proceed with their sexual harassment claim under the New Jersey Law Against Discrimination (LAD). This blog outlines the various types of workplace sexual harassment claims brought under the New Jersey Law Against Discrimination.

In enacting New Jersey’s anti-discrimination law, the state legislature expressly declared “discrimination threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a democratic State.”  N.J.S.A.10:5-3.  New Jersey courts interpreting the LAD have long and consistently recognized that employers are best situated to avoid or eliminate impermissible, pernicious employment practices relating to sexual harassment, to implement corrective measures to stop future sexual harassment, and to adopt and enforce employment policies that will serve to achieve the salutary purposes of the legislative mandate to end workplace discrimination.  New Jersey courts consistently remind us that the overarching goal of the New Jersey Law Against Discrimination is nothing less than the eradication of the cancer of discrimination.

There are different claims of sexual harassment that are actionable against an employer.  These include claims of hostile work environment, quid pro quo sexual harassment, and sexual harassment retaliation.

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.

An extensive independent investigation into the Dallas Mavericks has substantiated numerous claims of sexual harassment and other serious workplace misconduct within the organization over a span of over 20 years.  In response to the findings, Mavericks owner Mark Cuban has apologized to all the women involved and promised that the organization will be better in addressing issues of sexual harassment in the future.  Mr. Cuban will also pledge $10 million to women’s groups in response to the findings of report.

Incidents of sexual harassment first became public in a February 20, 2018 Sports Illustrated article titled “Exclusive: Inside the Corrosive Workplace Culture of the Dallas Mavericks.  In the article, SI details various allegations of severe and pervasive sexual harassment within the Maverick organization. The allegations included more than a dozen current and ex-employees referring to the sexual harassment, domestic violence and other serious misconduct within the workplace as being as an “open secret.” Many of the incidents of the sexual harassment came from Team President and CEO, Terdema Ussery, who was accused of sexually harassing employees from the very beginning of his employment in 1998 when he became President and CEO.  The allegations against Mr. Ussery included him repeatedly positioning employees for sex, unwelcomed touching of employees during meetings and other incidents of sexual harassment.  Mr. Ussery left the Mavericks in 2015 to take a position with Under Armour as president for global sports.  It has been reported thecomeback.com/nba/mavericks-former-president-terdema-ussery-accused-serial-sexual-harassment.html that Mr. Ussery was accused of sexual harassment at Under Armour and resigned after two months in the position.

The Dallas Mavericks responded to the SI story by hiring prominent employment lawyers from the law firms of Lowenstein Sandler and Krutoy Law, P.C. to conduct a thorough investigation into the allegations in the article and all other any issues of serious misconduct.  According to the investigation report, the employments lawyers conducted interviews of 215 witnesses during the seven-month long investigation.  The employment lawyers reviewed 1.6 million documents and emails with the assistance of an independent forensics firm.  They also reviewed human resource files, employee handbooks, policies and training and other information on the hiring, firing, promotions salaries, salary increases and bonuses provide to employees.

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.

The United States Court of Appeals Third Circuit has reversed a district court’s dismissal of a disability discrimination lawsuit brought by a registered nurse against her former employer. In the lawsuit captioned Aleka Ruggiero v. Mount Nittany Medical Center, the registered nurse claims that she was unlawfully terminated from her employment in violation of the Americans with Disabilities Act (“ADA”) for being terminated after refusing to get required vaccination because of her disability.

The plaintiff, Aleka Ruggiero, was employed as a registered nurse at Mount Nittany Medical Center before being terminated in July of 2015. According to the Complaint, Ms. Ruggiero suffers from severe anxiety and eosinophilic esophagitis, which limited her certain areas of life, including her ability to eat, sleep and engage in social communications. Despite her disabilities, Ms. Ruggiero was able to perform her job duties.

However, Ms. Ruggiero was required by the medical to receive a vaccination for tetanus, diphtheria and pertussis (the “TDAP”) vaccination as a result of her position as a nurse.  After not obtaining the vaccination prior to the deadline mandated by the hospital, Ms. Ruggiero provided a medical note from her doctor that medically exempted her from having to receive the vaccination. Mount Nittany Medical Center rejected the doctor’s note and requested further detail concerning Ms. Ruggiero’s medical inability to get the TDAP vaccination. After the treating doctor provided further information from the treating doctor, the medical center again rejected it as insufficient.  The medical center also rejected Ms. Ruggiero’s request to wear a surgical mask while at work as a different form of reasonable accommodation. After rejecting both reasonable accommodations requests, Ms. Ruggiero was eventually terminated after she missed the new imposed deadline to obtain the TDAP vaccination.

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.