Articles Posted in Law Against Discrimination

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The New Jersey Appellate Division has reversed the trial court’s dismissal of an out of state resident’s claim of age discrimination under New Jersey Law Against Discrimination.  The decision is an important reminder to employers that New Jersey’s strong public policy to eradicate discriminate in all its ugly forms may extend to non-New Jersey residents who suffer from discrimination that is protected under the New Jersey state law.

In the case Trevejo v. Legal Cost Control, Inc., and John Marquess, the employee, Susan Trevejo, lived in Massachusetts and worked remotely from her home for the employer, whose principal place of business was located in Haddonfield, New Jersey.  In claiming that she had standing to sue under the New Jersey Law Against Discrimination, Ms. Trevejo pointed out the fact that she was provided a company computer to connect to the company’s corporate server in New Jersey and a company phone to communicate with other company employees, some of whom lived and worked in New Jersey.  The employer argued that Ms. Trevino was never a resident of New Jersey at any point in her employment, never lived in New Jersey and never sought or received any benefits from the state of New Jersey.  The employer also pointed out the fact that although Ms. Trevejo had traveled to New Jersey for business at times during her employment, she had not done so any time from 2009 through 2015.

Twelve years into her employment, the employer terminated Ms. Trevejo’s employment. In response, Ms. Trevejo filed a lawsuit alleging age discrimination under the New Jersey Law Against Discrimination.  During the lawsuit, Ms. Trevejo’s employment lawyers requested broad discovery to prove she was entitled to pursue her age discrimination claims under New Jersey’s discrimination laws, including the nature and substance of her electronic and other virtual contact and connection to the employers’ New Jersey office as part of her day-to-day work activities.

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Governor Phil Murphy has signed into law the “Diane B. Allen Equal Pay Act”, which is rightfully being touted as the strongest equal pay law in the United States.  The New Jersey Equal Pay Act amends the New Jersey Law Against Discrimination to specifically protect employees from discriminatory pay practices.  It provides severe penalties to employers who violate the new law.

The New Jersey Equal Pay Act, which will be effective immediately on July 1, 2018, specifically prohibits employers from paying employees less than other employers because of their gender, race or other protected class.  Employers must be able to refute a claim of wage discrimination by showing that any difference in pay is based upon a seniority system, a merit system or other legitimate bona fide factors (e.g. training, education, experience, quality or quantity of work).

The new law also provides some significant changes to the applicable statute of limitations.  For example, the New Jersey Equal Pay Act strengthens the statute of limitations for claims based on pay equity to a period of six (6) years as opposed to the two (2) year statute of limitations

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It is not uncommon for employers to make an employee’s execution of an arbitration agreement a condition of their employment at the inception of the employee’s employment. But what happens when, in the midst of employment, an employer all of a sudden demands an employee’s agreement to an arbitration agreement under the threat of termination? Does an employee have to sign the arbitration agreement in order to remain employed?  What if the employee refuses to sign the arbitration agreement and, as a result, is suspended and not permitted to return to work by their employer?

A recent New Jersey Superior Court has held that an employer cannot take adverse employment action against an employee who refuses to sign an arbitration agreement that requires her to waive her statutory rights under the Law Against Discrimination.

In Cator v. Hotel ML/Coco Key West Resort et al., Plaintiff, a black female, had made complaints about race discrimination during the course of her employment. During the same time period, her employer implemented a new policy mandating, as a condition of her continued employment, that all current and prospective employees execute an arbitration agreement. Plaintiff refused to execute the arbitration agreement and waive her statutory rights to have her claims of race discrimination adjudicated in a court of law and by a jury of her peers. In response to her refusal to sign the arbitration agreement, the employer suspended her from work and advised her that she would not be permitted to return to work unless and until she signed the arbitration agreement. As a result, the employee filed a lawsuit for claims under the New Jersey Law Against Discrimination.  One of the claims was specifically whether an employer unlawful retaliates against an employee for refusing to sign an arbitration agreement that waives their statutory rights under the law.

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The New Jersey Legislature passed legislation this week that mandates equal pay to all New Jersey employees and penalizes New Jersey employers who discriminate against women and other protected classes in their paychecks. The bill has now been sent to Governor Murphy, who has made clear that he will imminently sign the bill into law.

The bill, entitled the Diane B. Allen Equal Pay Act, is named after state senator Diane B. Allen who left her broadcasting job in 1994 after filing gender and age discrimination complaints with the Equal Opportunity Employment Commission.   The New Jersey Equal Pay Act will modify the New Jersey Law Against Discrimination by strengthening the protections already provided by the current anti-discrimination law against employment discrimination by making it unlawful to discriminate against employees in their compensation.

Specifically, the New Jersey Equal Pay Act makes it an unlawful for an employer to pay a rate of compensation and benefits to employees of a protected class which is less than the rate paid to employees not in the same class for substantially the same work. Protected classes include such traits as sex, race, ethnicity, military status or national origin of the employee.  Once it is signed into law, the New Jersey Equal Pay Act will prohibit an employer from reducing the rate of compensation of any employee to comply with the new law.  This means that an employer who has been and continues to be in violation of the law cannot then decrease the compensation of any employee to the compensation of another employee who is being discriminated against in their compensation.

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A recent New Jersey Appellate Court has confirmed that an employee has good cause to leave her job and be eligible for unemployment benefits if the reason for quitting is because she was continuously sexually harassed for an extended period of time.

In the case of Gerard v. Board of Review, decided September 12, 2017, the claimant Jamielyn Gerard worked as an administrative assistant for Surface Source International, Inc. (SSI) from February 2008 until she resigned in April 2014. According to Ms. Gerard, the warehouse manager continuously called her names, swore at her and used many derogatory terms after she witnessed and confronted him making out with her supervisor in the warehouse. After she confronted her manager about what she saw, the warehouse manager started having a vendetta against her. The warehouse manager had a vendetta against her called her “[m]any verbal names; anything he could say to hurt me. He was commenting on the type of clothes I was wearing, the type of underwear I had on. He . . . stole personal property out of my desk, he vandalized my desk. He physically harassed me[.] [H]e touched me from behind, he had grabbed me. We . . . got into a physical altercation where he took me and slammed me into his desk.” Ms. Gerard further testified, “And he has done so much things to me, and I have continuously met with them and spoke with them and told them all this, and . . . they never did anything to help the situation.” SSI’s owner told her “that the devil he knows is better than the devil he doesn’t know . . . even though he was harassing me and tormenting me.”

Ms. Gerard’s testimony that she made complaints to the company was admitted by SSI. In fact, Ms. Gerard’s manager testified that Ms. Gerard complained that she had been physically and verbally harassed, but excused SSI’s failure to properly investigate stating when the company confronted the warehouse manager, he would say that he “didn’t do anything.” The manager further testified the owner personally met with the manager and the company wrote him up after he slammed his Ms. Gerard into his desk. Even this undisputed testimony was not enough for the Appeal Tribunal to find that Ms. Gerard had good cause to leave the hostile work environment directed at her.

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The United States Court of Appeals for the 3rd Circuit has affirmed a New Jersey District Court’s decision denying post-trial motion for judgment by Walmart after the jury entered a verdict against them in favor of a former employer.  The former employee, Barry Boles, claimed that he was unlawfully terminated by Walmart in retaliation for taking medical leave because of his disability.  The jury agreed, and found Walmart liable for back pay damages in the amount of $130,000, emotional distress damages in the amount of $10,000, punitive damages in the amount of $60,000 and attorney fees and costs in the amount of $200,000.  Walmart appealed the decision to the Court of Appeals.

In this case entitled, Barry Boles v. Wal-Mart Stores, Inc., the employee Mr. Boles had worked for Walmart for many years.  Mr. Boles first went out on a medical leave on May 8, 2011, after going to the emergency room for a large blister on his leg.  The large blister progressed into a five or six inch ulcer requiring Mr. Boles to take an extended medical leave of absence.  Walmart eventually placed Mr. Boles on medical leave pursuant to the Family and Medical Leave Act from June 22, 2011 through September 10, 2011.  During his FMLA leave, Mr. Boles’ treating doctor provided a certification that advised Walmart that Mr. Boles would not be able to return to work until October/November, 2011.

On October 23, 2011, Mr. Boles returned to work, but learned that he could not log onto his computer.  Mr. Boles attempted to reach out to the Market Human Resource Manager, Quawad McDonald, to find out his status, but his attempts were ignored by Mr. McDonald.  Finally, on or about October 29, 2011, Mr. Boles received a letter from Mr. McDonald advising him that he had been terminated as of October 25, 2011 for “failure to return” to work.

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The New Jersey Supreme Court has ruled that an employee can show they suffered from a disability (as defined by the law) through the testimony of their treating physician.  This is a significant win for victims of disability discrimination, who often do not have the finances to pay for expensive medical expert testimony necessary for their case.

In the matter of Delvecchio v. Township of Bridgewater, the employee claimed she was unlawfully terminated on the basis of disability in violation of the New Jersey Law Against Discrimination.  The employee was employed as a dispatcher for the Township of Bridgewater and developed inflammatory bowel syndrome (IBS), panic attacks and anxiety during her employment, which she claimed required certain accommodations from her employer.   On September 16, 2009, the town terminated the employee’s employment, claiming neglect of duty and chronic/excessive absences, after the employer denied her requests for accommodations.  At trial, the court prohibited the employee from having her treating physician testify to her diagnosis and treatment.  As a result of the court’s adverse evidentiary ruling, the employee was unable to offer evidence showing she was disabled, which resulted in her losing her entire case.

The case was based upon disability discrimination which his prohibited under the New Jersey Law Against Discrimination.  The New Jersey Law Against Discrimination prohibits unlawful discrimination based on a disability unless the nature and extent of the disability reasonably precludes the performance of the job position.  An employee suing under the LAD must prove, inter alia, that he or she was disabled as defined in the act.  When the disability is not readily apparent, an employee must present expert medical evidence to assist the jury in understanding whether the condition alleged is a disability under the law

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The New Jersey Appellate Division recently reversed a trial court’s decision dismissing an employee’s claims for sexual orientation discrimination under the New Jersey Law Against Discrimination. In remanding the case for trial, the Appellate Division found that the school employer’s motivation for forcing the employee teacher to resign is a question of fact for the jury to decide at trial.

In the case, Savoie v. The Lawrenceville School, Michael S. Cary and Catherine Boczkowski, Mr. Savoie, a homosexual, was employed as a teacher at The Lawrenceville School in 1982 until June 2003. During his approximate twenty (20) year career, Mr. Savoie received many awards and even held the position of Department Chair at one point. In 1991, Mr. Savoie’s domestic partner, Richard Bierman, moved into his on-campus housing with him. At this point, the two of them began an openly gay lifestyle. Thereafter, Mr. Bierman began perceiving that he was being discriminated against by three male faculty members and one female administrator. For example, Mr. Bierman, testified that these individuals were “very nasty” to him and the administrator told him that “[she] did not approve of [their] lifestyle.”

In June, 2002, the school’s grounds crew entered Mr. Savoie and Mr. Bierman’s on-campus housing to repair a water main break outside the home. Because it was emergent, the grounds crew entered the house despite neither Mr. Savoie nor Mr. Bierman being home. When grounds crew entered the house, they discovered certain sexually explicit objects in the basement, such as four pieces of apparatus hanging from the ceiling on chains, videotapes, a computer of the shelf, a tripod without a camera and KY brand lotion. A year later, in June 2003, the new Buildings and Grounds Director began replacing old condensing units. Two employees of the ground crew advised that they were uncomfortable about returning to the home as a result of what they saw the previous year. Ultimately, one of the employees went in the house and reported that he saw similar sexual objects that he had seen the year prior.

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Rutgers University terminated its basketball coach in the wake of ESPN’s broadcast of a videotape showing him physically and verbally abusing players during practice. Public opinion seems nearly unanimous that Mike Rice’s conduct warranted his termination, but the question remains did he create an unlawful hostile work environment under New Jersey Law Against Discrimination?

New Jersey has some of the strictest anti-discrimination and anti-harassment laws in the United States. Most notably, New Jersey’s Law Against Discrimination outlaws unlawful employment discrimination against any person on the basis of protected characteristics, which includes sex, sexual orientation, national origin and others. In 2007, the New Jersey Supreme Court in a case called L.W. v. Toms River Regional Board of Education, 189 N.J. 381 (2007) extended the workplace protections provided under Law Against Discrimination to situations where schools fail to stop severe and pervasive bullying based upon protected characteristics such as sex, sexual orientation and national origin. This means that if a school permits severe and pervasive harassment based upon a protected characteristic, the school can be found liable. Moreover, if the school knows or should know of the existence of unlawful discrimination or harassment, the law requires that the school investigate, remediate and prevent it from happening again.

The video shown by ESPN of several Rutgers basketball practices reveals numerous incidents of Mike Rice pushing, kicking and throwing basketball balls at players. It also depicts Mike Rice yelling gay slurs at players calling them “faggots” and other inappropriate comments. ESPN has also reported that Mike Rice regularly called one of his former players who transferred to Rhode Island, Gilvydas Biruta, names relating to his national origin of Lithuania and gay slurs. Former Rutgers assistant coach, Eric Murdock, who is anticipated to file a lawsuit against Rutgers for unlawful retaliation and wrongful termination, has alleged that Mike Rice would constantly scream at Mr. Biruta by using his national origin and gay slurs. For example, Mr. Murdock says that Mike Rice called Mr. Biruta a “soft-ass Lithuanian bitch,’ ‘soft-ass Lithuanian pussy’ and ‘Lithuanian faggot.'” Mr. Biruta told ESPN that he took offense to Rice’s name calling and insults stating, “If you’re going to criticize me as a basketball player, I’m OK with that,” he said, “but he would criticize me as a person.” Mr. Biruta also told ESPN that the main reason he transferred was because of Mike Rice’s treatment of him.

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The New Jersey Appellate Division decided that a company’s mandatory program and policy implemented only against employees suffering from alcoholism is a violation of the New Jersey Law Against Discrimination. In A.D.P. v. ExxonMobil Research Company, ExxonMobil Research and Engineering Company (Exxon) forced employees identified as recovering alcoholics to sign a contract that required only those employees to submit to mandatory clinical drug testing for two (2) years and monitoring for an additional three years. Other employees were not subject to drug or alcohol testing except for cause. In reversing the lower court’s grant of summary judgment in favor of Exxon, the Appellate Division determined that the additional terms and conditions of employment imposed by Exxon based on Plaintiff’s disability of alcoholism constitutes a claim for disability discrimination.

Plaintiff began working for a predecessor company of Exxon in 1978 as a research technician. She continued with Exxon and worked for a total of twenty-nine years. Plaintiff was consistently ranked as a top performer and received eight promotions from 1983 through 2005 becoming a Senior Research Associate. After the death of Plaintiff’s husband in 2004, she suffered from depression and other medical conditions. In August of 2007, Plaintiff disclosed to a nurse at Exxon that she was an alcoholic and planned to check herself into an inpatient rehabilitation program in order to receive treatment for her alcohol dependency and depression. Plaintiff successfully completed inpatient rehabilitation at Carrier Clinic and outpatient treatment at Hunterdon Medical Center. Before Plaintiff was allowed to return to work at Exxon, she was required to sign an after-care contract pursuant to Exxon’s company-approved after-care program. The after-care contract identified Plaintiff as an employee recovering “from chemical dependency” and mandated she participate in the after care program, totally abstain from alcohol and drugs not prescribed by a physician, submit to clinical substance testing for a minimum of two years after completion of a Primary Treatment Program and be monitored for an additional three years. The mandatory testing was to be periodic and unannounced. The policy applied to Plaintiff also stated that an employee suffering from alcohol or drug dependency that refuses rehab, fails to respond to treatment, or fails to exhibit satisfactory work performance would be disciplined up to and including termination.

In fear of losing her job, Plaintiff signed the after-care contract and submitted to nine (9) random breathalyzer tests between October 29, 2007 and August 20, 2008. Exxon had no reasonable cause to believe Plaintiff had been drinking alcohol at work or was intoxicated when these breathalyzer tests were administered. The tests were administered solely because of the after-care contract Plaintiff was required to sign as a recovering alcoholic. On August 22, 2008, Plaintiff was forced to take yet another “random” breathalyzer test. This test produced blood alcohol concentration (BAC) readings of .047 and 0.43.3. These readings are well below the threshold BAC of 0.08 set by New Jersey law as driving under the influence. Plaintiff was terminated on August 26, 2008. Exxon articulated that the only reason Plaintiff was terminated was because she violated the after-care contract in having a positive test. Exxon confirmed that, “an employee’s status as an alcoholic is the lone trigger for requirements of total abstinence and random testing without cause.” The company also confirmed that Plaintiff performance had absolutely nothing to do with her termination and that even if she was in the top 1 percent of her group, she would still have been terminated for failing the test.